NAGABHUSHAN versus THE STATE OF KARNATAKA

[2021] 2 S.C.R. 595

NAGABHUSHAN

THE STATE OF KARNATAKA

(Criminal Appeal No. 443 of 2020)

MARCH 08, 2021

[DR. DHANANJAYA Y. CHANDRACHUD AND

M. R. SHAH, JJ.]

Indian Penal Code, 1860 – s.300(fourthly); ss.498A, 302 r/w34 – Dowry death – Dying declaration – Accused persons acquittedby trial Court – Acquittal of appellant-accused reversed by HighCourt – On appeal, held: There are two dying declarations, ExhibitP5 and Exhibit D2 – As per dying declaration Exhibit P5, it hasbeen proved that the deceased was set ablaze by pouring keroseneon her – Prosecution is successful in proving that the appellantpoured kerosene on the deceased – Act of the accused falls in clausefourthly of s.300 – Merely because thereafter he might have triedto extinguish the fire, that will not bring the case out of clausefourthly of s.300 – High Court rightly convicted the accused foroffence u/s.302 – No reason to interfere with the impugned judgment– Code of Criminal Procedure, 1973 – s.378.

Dismissing the appeal, the Court

HELD: 1.1 The High Court has specifically observed andheld that the finding recorded by the trial Court discarding and/or not believing the dying declaration (Exhibit P5) is perverseand contrary to the evidence on record. The High Court has givencogent reasons while believing dying declaration (Exhibit P5) andhas also considered in detail what is stated in the later dyingdeclaration (Exhibit P5), vis-à-vis, the medical evidence and theinjuries sustained by the deceased. Therefore, as such, the HighCourt has not committed any error in reappreciating the entireevidence on record and thereafter interfering with the judgmentand order of acquittal passed by the trial Court, having found thefinding recorded by the trial Court perverse. In the present casethere are two dying declarations, (i) Exhibit P5 and (ii) ExhibitD2. When there are multiple dying declarations, each dying

Adeclaration has to be separately assessed and evaluated on itsown merits. The High Court in the impugned judgment and orderhas given cogent reasons to rely upon and believe the seconddying declaration – Exhibit P5. The High Court has also takennote of the fact that the second dying declaration is reliable andthe version in the second dying declaration is supported by theBcircumstances, namely, the injuries sustained by the deceased;no stove was found at the place of occurrence. The High Courthas also taken note of the fact that in the second dying declaration,the deceased has explained her first statement that it was caseof accident and she categorically stated in the second dyingCdeclaration that at the time when she gave first statement that itwas case of accident, she was given threats by the appellantherein – original accused no.1 that he will kill her children also.She also stated in the second dying declaration that after herparents came, she got the courage to tell the truth. Therefore, as

such, the High Court rightly believed the second dying declarationD– Exhibit P5. [Paras 6-8][609-E-H; 610-A-C]

1.2 The plea put forth by the defence that it was case ofan accident and while pouring the kerosene from kerosene canto the bottle, the same had fallen on the clothes placed on theground and when the deceased tried to remove the clothes fromEthat place, the candle fell on the ground, as result, her clothescaught fire and she sustained burn injuries is disbelieved by theHigh Court considering the circumstances noted by the HighCourt that the deceased sustained injuries on the face, chest andback and to the upper limbs. The main injuries are found on theFupper limbs of the body. Therefore, as rightly observed by theHigh Court, the aforesaid injuries can be possible when thekerosene is poured on the deceased. According to the defenceand as per the evidence of DW1-A1, while putting the keroseneinto the stove, accidentally the kerosene had fallen on the groundand also on her clothes, and thereafter when the candle fell onGthe ground, the same had come in contact with her clothes andkerosene. If that is the case, there would have been injuries toher feet also. However, no burn injuries are found on her feet.No stove was found at the place of occurrence. Therefore, the

defence came out with false case of accidental fire, which, assuch, is not supported by any other reliable evidence. On thecontrary, this evidence speaks otherwise. Therefore, when A1came with false defence and the dying declaration-Exhibit P5 iscorroborated by other surrounding circumstances and evidenceand after independent evaluation of Exhibit P5 and Exhibit D2,when the High Court has found that Exhibit P5 is reliable andinspiring confidence and thereafter when the High Court hasconvicted the accused, it cannot be said that the High Court hascommitted any error. In the present case the prosecution issuccessful in proving that the accused-appellant herein pouredkerosene on the deceased. As per dying declaration Exhibit P5,it has been proved that the deceased was set ablaze by pouringkerosene on her. The act of the accused falls in clause fourthly ofSection 300 IPC. The accused poured kerosene on the deceasedand not only poured kerosene but also set her ablaze by thematchstick. Therefore, after pouring kerosene on the deceasedand thereafter setting her ablaze, thereafter merely because theaccused might have tried to extinguish the fire will not take thecase out of the clutches of clause fourthly of Section 300 of theIPC. The act of the accused pouring kerosene on the deceasedand thereafter setting her ablaze by matchstick is imminentlydangerous which, in all probability, will cause death. Therefore,the High Court has rightly convicted the accused for the offenceunder Section 302 IPC. No reason to interfere with the impugnedjudgment and order of conviction passed by the High Court. [Paras9-11][610-F-H; 611-A-D; 611-E-F; 616-B-C]

Babu v. State of Kerala, (2010) 9 SCC 189 : [2010] 9SCR 1039; Kuldeep Singh v. Commissioner of Police(1999) 2 SCC 10; Vijay Mohan Singh v. State ofKarnataka (2019) 5 SCC 436 : [2019] 6 SCR 994;Nallam Veera Stayanandam v. Public Prosecutor (2004)10 SCC 769; Kashmira Devi v. State of Uttarakhand(2020) 11 SCC 343:[2020] 1 SCR 152; Ashabai v. Stateof Maharashtra (2013) 2 SCC 224 : [2013] 1 SCR 115;Santosh v. State of Maharashtra (2015) 7 SCC 641:[2015] 4 SCR 962 – relied on.

CCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.443 of 2020

From the Judgment and Order dated 11.10.2019 of the High Courtof Karnataka at Bengaluru in Criminal Appeal No. 525 of 2013.

Anand Sanjay M. Nuli, Suraj Kaushik, Agam Sharma, DharmDSingh M/S. Nuli & Nuli, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentEand order of conviction dated 11.10.2019 passed by the High Court ofKarnataka at Bengaluru in Criminal Appeal No. 525/2013, by which theHigh Court has allowed the said appeal preferred by the respondent –State of Karnataka and has reversed the judgment and order of acquittalpassed by the learned trial Court insofar as the appellant – original accusedFno.1 is concerned for the offences punishable under Sections 498A and302 read with 34 of the IPC and consequently convicted the appellantherein – original accused no.1 for the aforesaid offences, original accusedno.1 has preferred the present appeal. However, the High Court hasconfirmed the judgment and order of acquittal insofar as original accusednos. 2 and 3 are concerned.

2. As per the case of the prosecution, original accused no.1 marriedthe deceased, the daughter of PW3 & PW4 nine years ago, prior to thedate of the incident. That the deceased was subjected to the mentalcruelty and there was demand of dowry from the parents of the deceasedRekha. In that regard, mediation was also held and thereafter PW3 &

PW4 gave Rs. 10,000/- and Rs. 20,000/- on two occasions. On 24.06.2010at about 9 p.m. in the matrimonial home, appellant herein – originalaccused no.1 took up quarrel with his wife Rekha (deceased) and atthat time, he took kerosene and poured the same on her and lit the fire.The deceased was taken to the hospital. That based on the information,the investigating officer went to the hospital and recorded her statementon 27.06.2010 (Exhibit P5). It is alleged that even earlier also on25.06.2010, the statement of the deceased was recorded by the police(Exhibit D2). On conclusion of the investigation, the investigating officerfiled the chargesheet against all the accused for the offences punishableunder Sections 498A and 302 read with 34 of the IPC. The case wascommitted to the Court of Sessions. The accused pleaded not guilty andtherefore all of them came to be tried by the learned Sessions Court forthe aforesaid offences.

2.1 To prove the case against the accused, the prosecutionexamined in all 14 witnesses and brought on record the documentaryevidences including Exhibit P5 – dying declaration and the medicalevidence. That after closure of the evidence on the side of the prosecution,further statements of the accused under Section 313 Cr. P.C. wererecorded. Appellant herein – original accused no.1 examined himself asDW1 and also examined witness as DW2. The accused relied uponthe earlier statement of the deceased (Exhibit D2). That on appreciationof the evidence and not believing the dying declaration – Exhibit P5 andhaving found contradictions in two dying declarations Exhibit P5 andExhibit D2, the learned trial Court acquitted all the accused for theoffences for which they were tried.

3. Feeling aggrieved and dissatisfied with the impugned judgmentand order of acquittal passed by the learned trial Court, the State ofKarnataka preferred appeal before the High Court. By the impugnedjudgment and order, the High Court has reversed the order of judgmentand order of acquittal insofar as the appellant herein – original accusedno.1 is concerned and has convicted the appellant herein – originalaccused no.1 for the offences punishable under Sections 498A and 302read with 34 of the IPC. The judgment and order of acquittal for originalaccused nos. 2 & 3 has been confirmed by the High Court.

3.1 Feeling aggrieved and dissatisfied with the impugned judgmentand order of the High Court reversing the judgment and order of acquittaland convicting the appellant herein – original accused no.1 for the offences

Apunishable under Sections 498A & 302 read with 34 of the IPC, originalaccused no.1 has preferred the present appeal.

4. Learned counsel appearing on behalf of the appellant hasvehemently submitted that in the facts and circumstances of the case,the High Court has committed grave error in reversing the well-reasonedBjudgment and order of acquittal passed by the learned trial Court.

4.1 It is submitted that while reversing the order of acquittal passedby the learned trial Court, the High Court has exceeded in its jurisdictionvested in it under Section 378 of the Cr. P.C.

4.2 It is submitted that as there were material contradictions inCtwo dying declarations and Exhibit D2 was the dying declaration first intime which came to be believed by the learned trial Court, the learnedtrial Court committed no error in acquitting the accused.

4.3 It is submitted that the learned trial Court on appreciation ofevidence, more particularly two dying declarations, disbelieved theDsubsequent dying declaration (Exhibit P5) and thereby acquitted theaccused, the same was not required to be interfered with by the HighCourt in exercise of the appellate jurisdiction against the judgment andorder of acquittal.

4.3 It is further submitted that while believing the dying declarationEvide Exhibit P5, the High Court has not appreciated that the same wasrecorded by PW10 in the presence of PW13, PW8 and parents of thedeceased.

4.4 It is submitted that the High Court ought to have appreciatedthat the earlier dying declaration vide Exhibit D2, which was recordedFon 25.06.2010, was recorded immediately on the next day of the incidentwherein deceased Rekha has specifically stated that it was an accidentalfire due to which she sustained burn injuries. It is submitted that even inthe history which was recorded in the hospital, when the deceased Rekhawas admitted, it was stated that the deceased had suffered accidentalburn injuries.G

4.5 It is submitted that the High Court has not properly appreciatedthe fact that the dying declaration (Exhibit P5) was recorded later onand that too after the parents of the deceased reached to the hospital.

4.6 It is submitted that possibility of tutoring the deceased RekhaHso as to make statement against the accused persons cannot be ruled

out. It is submitted that therefore at least the appellant is entitled to thebenefit of doubt.

4.6 It is submitted that the High Court has not at all appreciatedand/or considered the defence version that on the date of incident therewas no power supply in the house and therefore the deceased went tothe kitchen to prepare the food and found that the gas was empty andthereafter she told the appellant that she would use the kerosene stoveto prepare the food, and that while she was preparing the food with thehelp of candle light and when the same was almost exhausted, she triedto lit another candle but the same had fallen on the ground where thekerosene was already spread while pouring the kerosene to the stoveand as result of which the fire was caught on her clothes.

4.7 It is submitted that even thereafter when the deceasedscreamed, the appellant – original accused no.1 rushed to the spot andtried to extinguish the fire and while extinguishing the fire, he also sustainedburn injuries in his right hand. It is submitted that the aforesaidcircumstances which were considered by the learned trial Court whileacquitting the accused have not been considered and/or appreciated bythe High Court while reversing the order of acquittal passed by the learnedtrial Court and convicting the accused – appellant herein.4.8 It is submitted that as such when it was an appeal against thejudgment and order of acquittal, the High Court was not justified inreappreciating the oral as well as documentary evidence. It is submittedthat only in case where the findings recorded by the learned trial Courtare found to be perverse, the interference by the appellate court againstthe order of acquittal is warranted. It is submitted that in the presentcase, as such, the view taken by the learned trial Court was plausibleview, which was on appreciation of the evidences on record and thereforethe High Court has committed grave error in reversing the judgmentand order of acquittal passed by the learned trial Court and convictingthe accused -appellant herein.

5. We have heard the learned counsel appearing on behalf of theappellant at length.

5.1 Being the statutory appeal against the judgment and order ofthe High Court reversing the acquittal and thereby convicting the appellantherein – original accused no.1, we have reappreciated the entire evidenceon record.

A5.2 Before considering the appeal on merits, the law on the appealagainst acquittal and the scope and ambit of Section 378 Cr.P.C. and theinterference by the High Court in an appeal against acquittal is requiredto be considered.

5.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCCB189, this Court had reiterated the principles to be followed in an appealagainst acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it isobserved and held as under:

12. This Court time and again has laid down the guidelines for theHigh Court to interfere with the judgment and order of acquittalCpassed by the trial court. The appellate court should not ordinarilyset aside judgment of acquittal in case where two views arepossible, though the view of the appellate court may be the moreprobable one. While dealing with judgment of acquittal, theappellate court has to consider the entire evidence on record, soas to arrive at finding as to whether the views of the trial courtDwere perverse or otherwise unsustainable. The appellate court isentitled to consider whether in arriving at finding of fact, thetrial court had failed to take into consideration admissible evidenceand/or had taken into consideration the evidence brought on recordcontrary to law. Similarly, wrong placing of burden of proof mayEalso be subject-matter of scrutiny by the appellate court. (VideBalak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missirv. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. Stateof U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P(2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.FRama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulveluv. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. Stateof A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010)2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, theGPrivy Council observed as under: (IA p. 404)

“… the High Court should and will always give proper weight andconsideration to such matters as (1) the views of the trial Judgeas to the credibility of the witnesses; (2) the presumption ofinnocence in favour of the accused, presumption certainly notHweakened by the fact that he has been acquitted at his trial; (3)

the right of the accused to the benefit of any doubt; and (4) theslowness of an appellate court in disturbing finding of fact arrivedat by Judge who had the advantage of seeing the witnesses.”

14. The aforesaid principle of law has consistently been followedby this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1,Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.Agarwal v. State of Maharashtra AIR 1963 SC 200, KheduMohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State ofM.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran(2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,this Court reiterated the legal position as under: (SCC p. 432, para42)

“(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittal isfounded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and an appellatecourt on the evidence before it may reach its own conclusion,both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial and compellingreasons’, ‘good and sufficient grounds’, ‘very strongcircumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc.are not intended to curtail extensive powers of an appellate courtin an appeal against acquittal. Such phraseologies are more in thenature of ‘flourishes of language’ to emphasise the reluctance ofan appellate court to interfere with acquittal than to curtail thepower of the court to review the evidence and to come to its ownconclusion.

(4) An appellate court, however, must bear in mind that in case ofacquittal, there is double presumption in favour of the accused.Firstly, the presumption of innocence is available to him underthe fundamental principle of criminal jurisprudence that everyperson shall be presumed to be innocent unless he is proved guiltyby competent court of law. Secondly, the accused having securedhis acquittal, the presumption of his innocence is further reinforced,reaffirmed and strengthened by the trial court.

A(5) If two reasonable conclusions are possible on the basis of theevidence on record, the appellate court should not disturb the findingof acquittal recorded by the trial court.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, thisCourt reiterated the said view, observing that the appellate courtBin dealing with the cases in which the trial courts have acquittedthe accused, should bear in mind that the trial court’s acquittalbolsters the presumption that he is innocent. The appellate courtmust give due weight and consideration to the decision of the trialcourt as the trial court had the distinct advantage of watching thedemeanour of the witnesses, and was in better position toCevaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, theCourt again examined the earlier judgments of this Court and laiddown that: (SCC p. 374, para 20)

“20. … an order of acquittal should not be lightly interfered withDeven if the court believes that there is some evidence pointing outthe finger towards the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Courtgave certain illustrative circumstances in which the Court wouldbe justified in interfering with judgment of acquittal by the HighECourt. The circumstances include: (SCC p. 286, para 28)

“(i) The High Court’s decision is based on totally erroneous viewof law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence anddocuments on record;F

(iii) The entire approach of the High Court in dealing with theevidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust andunreasonable based on erroneous law and facts on the record ofthe case;

(v) This Court must always give proper weight and considerationto the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with acase when both the Sessions Court and the High Court haverecorded an order of acquittal.”H

similar view has been reiterated by this Court in Dhanapal v.State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effectthat in exceptional cases where there are compellingcircumstances, and the judgment under appeal is found to beperverse, the appellate court can interfere with the order ofacquittal. The appellate court should bear in mind the presumptionof innocence of the accused and further that the trial court’sacquittal bolsters the presumption of his innocence. Interferencein routine manner where the other view is possible should beavoided, unless there are good reasons for interference.”

(emphasis supplied)

5.2.2 When the findings of fact recorded by court can be held tobe perverse has been dealt with and considered in paragraph 20 of theaforesaid decision, which reads as under:

“20. The findings of fact recorded by court can be held to beperverse if the findings have been arrived at by ignoring orexcluding relevant material or by taking into considerationirrelevant/inadmissible material. The finding may also be said tobe perverse if it is “against the weight of evidence”, or if thefinding so outrageously defies logic as to suffer from the vice ofirrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)4 SCC 635, Excise and Taxation Officer-cum-AssessingAuthority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, TriveniRubber & Plastics v. CCE 1994 Supp. (3) SCC 665, GayaDin v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State(2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. Stateof A.P (2009) 10 SCC 636).”

(emphasis supplied)

5.2.3 It is further observed, after following the decision of thisCourt in the case of Kuldeep Singh v. Commissioner of Police (1999)2 SCC 10, that if decision is arrived at on the basis of no evidence orthoroughly unreliable evidence and no reasonable person would act uponit, the order would be perverse. But if there is some evidence on recordwhich is acceptable and which could be relied upon, the conclusionswould not be treated as perverse and the findings would not be interferedwith.

A5.3 In the case of Vijay Mohan Singh v. State of Karnataka,(2019) 5 SCC 436, this Court again had an occasion to consider thescope of Section 378 Cr.P.C. and the interference by the High Court inan appeal against acquittal. This Court considered catena of decisionsof this Court right from 1952 onwards. In paragraph 31, it is observedand held as under:B

“31. An identical question came to be considered before this Courtin Umedbhai Jadavbhai (1978) 1 SCC 228. In the case beforethis Court, the High Court interfered with the order of acquittalpassed by the learned trial court on re-appreciation of the entireevidence on record. However, the High Court, while reversingthe acquittal, did not consider the reasons given by the learnedtrial court while acquitting the accused. Confirming the judgmentof the High Court, this Court observed and held in para 10 asunder: (SCC p. 233)

“10. Once the appeal was rightly entertained against the orderof acquittal, the High Court was entitled to reappreciate theentire evidence independently and come to its own conclusion.Ordinarily, the High Court would give due importance to theopinion of the Sessions Judge if the same were arrived at afterproper appreciation of the evidence. This rule will not beapplicable in the present case where the Sessions Judge hasmade an absolutely wrong assumption of very material andclinching aspect in the peculiar circumstances of the case.”

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, theHigh Court reversed the order of acquittal passed by the learnedtrial court and held the accused guilty on re-appreciation of theFentire evidence on record, however, the High Court did not recordits conclusion on the question whether the approach of the trialcourt in dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable. Confirmingthe order passed by the High Court convicting the accused onGreversal of the acquittal passed by the learned trial court, afterbeing satisfied that the order of acquittal passed by the learnedtrial court was perverse and suffered from infirmities, this Courtdeclined to interfere with the order of conviction passed by theHigh Court. While confirming the order of conviction passed bythe High Court, this Court observed in para 8 as under: (SCC p.H416)

“8. We have perused the judgment under appeal to ascertainwhether the High Court has conformed to the aforementionedprinciples. We find that the High Court has not strictly proceededin the manner laid down by this Court in Ramesh Babulal Doshiv. State of Gujarat (1996) 9 SCC 225 viz. first recording itsconclusion on the question whether the approach of the trialcourt in dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable, which alonewill justify interference in an order of acquittal though the HighCourt has rendered well-considered judgment duly meetingall the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment underappeal? We think, not. In our view, in such case, the approachof the court which is considering the validity of the judgmentof an appellate court which has reversed the order of acquittalpassed by the trial court, should be to satisfy itself if theapproach of the trial court in dealing with the evidence waspatently illegal or conclusions arrived at by it are demonstrablyunsustainable and whether the judgment of the appellate courtis free from those infirmities; if so to hold that the trial courtjudgment warranted interference. In such case, there isobviously no reason why the appellate court’s judgment shouldbe disturbed. But if on the other hand the court comes to theconclusion that the judgment of the trial court does not sufferfrom any infirmity, it cannot but be held that the interferenceby the appellate court in the order of acquittal was not justified;then in such case the judgment of the appellate court has tobe set aside as of the two reasonable views, the one in supportof the acquittal alone has to stand. Having regard to the abovediscussion, we shall proceed to examine the judgment of thetrial court in this case.”

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999)3 SCC 309, after observing that though there is some substancein the grievance of the learned counsel appearing on behalf of theaccused that the High Court has not adverted to all the reasonsgiven by the trial Judge for according an order of acquittal, thisCourt refused to set aside the order of conviction passed by theHigh Court after having found that the approach of the SessionsJudge in recording the order of acquittal was not proper and the

conclusion arrived at by the learned Sessions Judge on severalaspects was unsustainable. This Court further observed that asthe Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court,therefore, was fully entitled to reappreciate the evidence andrecord its own conclusion. This Court scrutinised the evidence ofthe eyewitnesses and opined that reasons adduced by the trialcourt for discarding the testimony of the eyewitnesses were notat all sound. This Court also observed that as the evaluation of theevidence made by the trial court was manifestly erroneous andtherefore it was the duty of the High Court to interfere with anorder of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, thisCourt observed and held as under: (AIR pp. 809-10)

“5. It has been argued by the learned counsel for the appellantthat the judgment of the trial court being one of acquittal, the HighCourt should not have set it aside on mere appreciation of theevidence led on behalf of the prosecution unless it came to theconclusion that the judgment of the trial Judge was perverse. Inour opinion, it is not correct to say that unless the appellate courtin an appeal under Section 417 CrPC came to the conclusion thatthe judgment of acquittal under appeal was perverse it could notset aside that order.

It has been laid down by this Court that it is open to the HighCourt on an appeal against an order of acquittal to review theentire evidence and to come to its own conclusion, of course,Fkeeping in view the well-established rule that the presumption ofinnocence of the accused is not weakened but strengthened bythe judgment of acquittal passed by the trial court which had theadvantage of observing the demeanour of witnesses whoseevidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powersof appreciation of evidence in an appeal against an order ofacquittal as in the case of an appeal against an order of conviction,subject to the riders that the presumption of innocence with whichthe accused person starts in the trial court continues even up tothe appellate stage and that the appellate court should attach due

weight to the opinion of the trial court which recorded the orderof acquittal.

If the appellate court reviews the evidence, keeping thoseprinciples in mind, and comes to contrary conclusion, the judgmentcannot be said to have been vitiated. (See in this connection thevery cases cited at the Bar, namely, Surajpal Singh v. State AIR1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122)In our opinion, there is no substance in the contention raised onbehalf of the appellant that the High Court was not justified inreviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355,this Court has observed that where the trial court allows itself tobe beset with fanciful doubts, rejects creditworthy evidence forslender reasons and takes view of the evidence which is butbarely possible, it is the obvious duty of the High Court to interferein the interest of justice, lest the administration of justice be broughtto ridicule.”

(emphasis supplied)

6. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand and the findings recorded bythe High Court, the High Court has specifically observed and held thatthe finding recorded by the learned trial Court discarding and/or notbelieving the dying declaration (Exhibit P5) is perverse and contrary tothe evidence on record. The High Court has given cogent reasons whilebelieving dying declaration (Exhibit P5) and has also considered in detailwhat is stated in the later dying declaration (Exhibit P5), vis-à-vis, themedical evidence and the injuries sustained by the deceased. Therefore,as such, the High Court has not committed any error in reappreciatingthe entire evidence on record and thereafter interfering with the judgmentand order of acquittal passed by the learned trial Court, having found thefinding recorded by the learned trial Court perverse.

7. Now so far as the merits of the appeal are concerned, it cannotbe disputed that in the present case there are two dying declarations, (i)Exhibit P5 and (ii) Exhibit D2. The High Court in the impugned judgmentand order has given cogent reasons to rely upon and believe the seconddying declaration – Exhibit P5. The High Court has also taken note ofthe fact that the second dying declaration is reliable and the version in

Athe second dying declaration is supported by the circumstances, namely,the injuries sustained by the deceased; no stove was found at the placeof occurrence. The High Court has also taken note of the fact that in thesecond dying declaration, the deceased has explained her first statementthat it was case of accident and she categorically stated in the seconddying declaration that at the time when she gave first statement that itBwas case of accident, she was given threats by the appellant herein –original accused no.1 that he will kill her children also. She also stated inthe second dying declaration that after her parents came, she got thecourage to tell the truth. Therefore, as such, the High Court rightlybelieved the second dying declaration – Exhibit P5.C

8. At this stage, the decisions of this Court in the cases of NallamVeera Stayanandam v. Public Prosecutor (2004) 10 SCC 769;Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343; andAshabai v. State of Maharashtra (2013) 2 SCC 224 are required tobe referred to. In the aforesaid decisions, this Court had an occasion toDconsider the cases where there are multiple dying declarations. In theaforesaid decisions, it is held that each dying declaration has to beconsidered independently on its own merit as to its evidentiary value andone cannot be rejected because of the contents of the other. It is alsoheld that the Court has to consider each of them in its correct perspectiveand satisfy itself which one of them reflects the true state of affairs.EWhen there are multiple dying declarations, each dying declaration hasto be separately assessed and evaluated on its own merits.

9. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, and on evaluation of bothdying declarations independently, dying declaration recorded as ExhibitFP5 reflects the true state of affairs and the contents are supported bythe medical evidence and the injuries sustained by the deceased. Theplea put forth by the defence that it was case of an accident and whilepouring the kerosene from kerosene can to the bottle, the same hadfallen on the clothes placed on the ground and when the deceased triedGto remove the clothes from that place, the candle fell on the ground, as aresult, her clothes caught fire and she sustained burn injuries is disbelievedby the High Court considering the circumstances noted by the HighCourt that the deceased sustained injuries on the face, chest and backand to the upper limbs. The main injuries are found on the upper limbs ofthe body. Therefore, as rightly observed by the High Court, the aforesaidHinjuries can be possible when the kerosene is poured on the deceased.According to the defence and as per the evidence of DW1-A1, whileputting the kerosene into the stove, accidentally the kerosene had fallenon the ground and also on her clothes, and thereafter when the candlefell on the ground, the same had come in contact with her clothes andkerosene. If that is the case, there would have been injuries to her feetalso. However, no burn injuries are found on her feet. No stove wasfound at the place of occurrence. Therefore, the defence came out witha false case of accidental fire, which, as such, is not supported by anyother reliable evidence. On the contrary, this evidence speaks otherwise.Therefore, when A1 came with false defence and the dying declaration– Exhibit P5 is corroborated by other surrounding circumstances andevidence and after independent evaluation of Exhibit P5 and Exhibit D2,when the High Court has found that Exhibit P5 is reliable and inspiringconfidence and thereafter when the High Court has convicted theaccused, it cannot be said that the High Court has committed any error.

10. Now so far as the submission on behalf of the accused thateven thereafter he tried to extinguish the fire and he also sustained injuriesand therefore it cannot be said that the appellant has committed an offencepunishable under Section 302 IPC is concerned, at the outset, it is requiredto be noted that in the present case the prosecution is successful inproving that the accused – appellant herein poured kerosene on thedeceased. As per dying declaration Exhibit P5, it has been proved thatthe deceased was set ablaze by pouring kerosene on her. The act of theaccused falls in clause fourthly of Section 300 IPC. It emerges from theevidence on record that the accused poured kerosene on the deceasedand not only poured kerosene but also set her ablaze by the matchstick.Merely because thereafter the A1 might have tried to extinguish the fire,that will not bring the case out of clause fourthly of Section 300 IPC.

somewhat similar submission was made before this Court inthe case of Santosh v. State of Maharashtra (2015) 7 SCC 641. Inthe case before this Court, it was contended on behalf of the accusedwho poured kerosene on the deceased and set her ablaze by matchstickthat thereafter they tried to save the deceased by pouring water on herand therefore it was contended on behalf of the accused that by thatconduct it cannot be said that the intention of the accused was to causedeath of the deceased. The aforesaid has been negated by this Court byobserving in paragraphs 9 to 18 as under:

A“9. Insofar as the first contention that the appellant is notresponsible for the death of deceased Saraswatibai, the defencemade an attempt to contend that the fire was accidental and thatthe appellant tried to extinguish the fire in order to save her and inthat process, he also suffered burn injuries. The prosecution hasadduced cogent evidence to prove that the appellant has causedBthe death of deceased Saraswatibai. The accused suspected thedeceased of infidelity and picking up fight over it, he kicked herand inflicted fist-blows and further set her on fire by pouringkerosene over her person. PW 6, doctor certified that the deceasedwas in fit mental condition to make the statement and PW 7, theCExecutive Magistrate recorded the dying declaration Ext. 1. Inthe said dying declaration, the deceased had categorically statedthat on the date of incident, the appellant poured kerosene overher person and set her on fire. That accused poured kerosene onthe deceased and set her on fire is corroborated by the oraltestimony of PW 3, Sindhu Sunil Ingole (sister-in-law) of theDdeceased. PW 1 Raju Janrao Gavai, neighbour of the deceasedwho accompanied the deceased to the hospital to whom thedeceased is said to have made statement about the overt act ofthe accused, had only stated that the deceased told him that theaccused beat her and also kicked her. PW 1 had not supportedEthe statement of the deceased in the dying declaration that theaccused poured kerosene on her and set her on fire. However,the prosecution has established the guilt of the accused by Ext. 1dying declaration and the oral evidence of the mother (PW 2) andthe sister-in-law (PW 3) and the same cannot be doubted.

F10. The learned counsel for the appellant contended that therewas no premeditation and the appellant had poured kerosene fromthe lamp nearby and thereafter the appellant attempted to extinguishthe fire by pouring water on her and himself getting burn injuriesin the process. It was submitted that the conduct of the appellantin trying to extinguish the fire immediately after the incident wouldGclearly show that there was no intention on the part of the appellantto commit the murder. In support of his contention, he placedreliance on the judgment of this Court in Kalu Ram v. State ofRajasthan [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] .

11. The question falling for consideration is whether the act of theaccused pouring water would mitigate the offence of murder.

Where the intention to kill is present, the act amounts to murder,where such an intention is absent, the act amounts to culpablehomicide not amounting to murder. To determine whether theoffender had the intention or not, each case must be decided onits facts and circumstances. From the facts and circumstances ofthe instant case, it is evident that : (i) there was homicide, namely,the death of Saraswatibai; (ii) the deceased was set ablaze bythe appellant and this act was not accidental or unintentional; and(iii) the post-mortem certificate revealed that the deceased dieddue to shock and septicaemia caused by 60% burn injuries. Whenthe accused poured kerosene on the deceased from the kerosenelamp and also threw the lighted matchstick on the deceased to sether on fire, he must have intended to cause the death of thedeceased. As seen from the evidence of PW 5, panch witness, inthe house of the appellant, kerosene lamp was prepared in anempty liquor bottle. Whether the kerosene was poured from thekerosene lamp or from the can is of no consequence. When thereis clear evidence as to the act of the accused to set the deceasedon fire, absence of premeditation will not reduce the offence ofmurder to culpable homicide not amounting to murder. Likewise,pouring of water will not mitigate the gravity of the offence.12. After attending to nature’s call, the deceased returned to thehouse little late. The accused questioned her as to why she wascoming late and he also suspected her fidelity. There was noprovocation for the accused to pour kerosene and set her on fire.The act of pouring kerosene, though on the spur of the moment,the same was followed by lighting matchstick and throwing it onthe deceased and thereby setting her ablaze. Both the acts areintimately connected with each other and resulted in causing thedeath of the deceased and the act of the accused is punishablefor murder.

13. Even assuming that the accused had no intention to cause thedeath of the deceased, the act of the accused falls under clauseFourthly of Section 300 IPC that is the act of causing injury soimminently dangerous where it will in all probability cause death.Any person of average intelligence would have the knowledgethat pouring of kerosene and setting her on fire by throwing alighted matchstick is so imminently dangerous that in all probabilitysuch an act would cause injuries causing death.

ABC

A14. Insofar as the conduct of the accused in attempting to extinguishfire, placing reliance upon the judgment of this Court in Kalu Ramcase [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , it was contendedthat such conduct of the accused would bring down the offencefrom murder to culpable homicide not amounting to murder.In Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , theBaccused was having two wives. The accused in highly inebriatedcondition asked his wife to part with her ornaments so that hecould purchase more liquor, which led to an altercation when thewife refused to do as demanded. Infuriated by the fact that hiswife had failed to concede to his demands, the accused pouredCkerosene on her and gave her matchbox to set herself on fire.On her failure to light the matchstick, the accused set her ablaze.But when he realised that the fire was flaring up, he threw wateron her person in desperate bid to save her. In such facts andcircumstances, this Court held that the accused would not haveintended to inflict the injuries which she sustained on account ofDthe act of the accused and the conviction was altered from Section302 IPC to Section 304 Part II IPC.

15. The decision in Kalu Ram case [(2000) 10 SCC 324 : 2000SCC (Cri) 86] cannot be applied in the instant case. The elementof inebriation ought to be taken into consideration as it considerablyEalters the power of thinking. In the instant case, the accused wasin his complete senses, knowing fully well the consequences ofhis act. The subsequent act of pouring water by the accused onthe deceased also appears to be an attempt to cloak his guilt sincehe did it only when the deceased screamed for help. Therefore, itFcannot be considered as mitigating factor. An act undertaken bya person in full awareness, knowing its consequences cannot betreated on par with an act committed by person in highlyinebriated condition where his faculty of reason becomes blurred.

16. Within three months of her marriage, the deceased died ofburn injuries. In bride burning cases, whenever the guilt of theGaccused is brought home beyond reasonable doubt, it is the dutyof the court to deal with it sternly and award the maximum penaltyprescribed by the law in order that it may operate as deterrenceto other persons from committing such offence.

17. This Court on various occasions has stressed the need forHvigilance in cases where woman dies of burn injuries within

short span of her marriage and that stern view needs to be adoptedin all such cases. In Satya Narayan Tiwari v. State of U.P. [(2010)13 SCC 689 : (2011) 2 SCC (Cri) 393] , this Court in paras 3 and9 has held as under : (SCC pp. 692 & 693)

“3. Indian society has become sick society. This is evidentfrom the large number of cases coming up in this Court (andalso in almost all courts in the country) in which young womenare being killed by their husbands or by their in-laws by pouringkerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of societyin which large number of women are treated in thishorrendous and barbaric manner? What has our societybecome—this is illustrated by this case.

9. Crimes against women are not ordinary crimes committedin fit of anger or for property. They are social crimes. Theydisrupt the entire social fabric. Hence, they call for harshpunishment. Unfortunately, what is happening in our society isthat out of lust for money people are often demanding dowryand after extracting as much money as they can they kill thewife and marry again and then again they commit the murderof their wife for the same purpose. This is because of totalcommercialisation of our society, and lust for money whichinduces people to commit murder of the wife. The time hascome when we have to stamp out this evil from our society,with an iron hand.”

18. Upon analysis of the evidence adduced by the prosecution,the courts below recorded concurrent findings that the accusedcaused the death of deceased Saraswatibai and convicted theappellant. It is well settled that concurrent findings of fact cannotbe interfered with unless the findings are perverse andunsupportable from the evidence on record. This view has beenreiterated in Dhananjay Shanker Shetty v. State ofMaharashtra [(2002) 6 SCC 596 : 2002 SCC (Cri) 1444] . In thetotality of the facts and circumstances, in our view, the concurrentfindings of facts recorded by the courts below are based onevidence and we see no infirmity in the impugned judgmentwarranting interference”.

ATherefore, after pouring kerosene on the deceased and thereaftersetting her ablaze, thereafter merely because the accused might havetried to extinguish the fire will not take the case out of the clutches ofclause fourthly of Section 300 of the IPC. The act of the accused pouringkerosene on the deceased and thereafter setting her ablaze by matchstickis imminently dangerous which, in all probability, will cause death.BTherefore, the High Court has rightly convicted the accused for theoffence under Section 302 IPC.

11. In view of the above and for the reasons stated above, thepresent appeal fails. We see no reason to interfere with the impugnedjudgment and order of conviction passed by the High Court. The appealCdeserves to be dismissed and is accordingly dismissed.

Divya Pandey

Appeal dismissed.