TMI Blog2019 (4) TMI 2024X X X X Extracts X X X X X X X X Extracts X X X X ..... ming evidence in the form of medical evidence as well as the dying declaration and the deposition of the metropolitan magistrate, the learned trial Court discarded the same on some minor contradictions/omissions - The Appellant - original Accused No. 1 was last seen in the house and immediately on the occurrence of the incident he ran away. Thus, it is opined that the approach of the trial Court was patently erroneous and the conclusions arrived at by it were wholly untenable. Whether solely on the ground that the High Court has not examined the reasons on which the order of acquittal was passed and convicted the Accused by interfering with the order of acquittal passed by the learned trial Court, the same is further required to be interfered with by this Court? - HELD THAT:- An identical question came to be considered before this Court in the case of UMEDBHAI JADAVBHAI VERSUS THE STATE OF GUJARAT [ 1977 (12) TMI 149 - SUPREME COURT] . In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial Court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The prosecution case in nutshell is as under: That the marriage of the Appellant with deceased Abhilasha was celebrated on 11.12.2002 at Gurudwara Temple at Bidar. It is alleged that before the marriage, the Accused A1 to A3 demanded ₹ 50,000/- and five tolas of gold as dowry from the parents of the deceased, but it was agreed to give 6 tolas of gold and domestic articles/utensils and accordingly marriage was performed. It is also alleged that after six months of the marriage, all the Accused started demanding additional dowry of ₹ 50,000/- for investing it as capital for the electric shop run by original Accused No. 1 and by demanding so, A1 to A3 gave both mental and physical cruelty to the deceased, despite the advice of PWs 1, 2, 6 and 14 not to do so, but even then they continued it and on 13.2.2005 at 3:15 p.m., they picked up a quarrel on the ground that how the deceased did not bring the said cash of ₹ 50,000/-. It is further alleged that with the intervention of the neighbours the deceased and Accused were separated and then the deceased phoned to her parents at about 5:00 p.m. It is further alleged that at that time A1(the Appellant herein) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the further statement of the Accused were recorded Under Section 313 Code of Criminal Procedure by pointing the incriminating circumstances against the Accused persons. The case of the Accused was of a total denial. That on appreciation of the evidence and considering the material on record and considering the submissions made on behalf of the Accused as well as the prosecution, by judgment and order dated 20.12.2007, the learned trial Court acquitted all the Accused for the offences for which they were tried. While acquitting the Accused, the learned trial Court did not accept Exhibit P2 as a dying declaration. The learned trial Court also did not accept the demand of dowry. 3. Feeling aggrieved and dissatisfied with the order of acquittal passed by the learned trial Court acquitting the Accused for the offences punishable Under Sections 302 read with 34, 498A, 304-B read with 34 of the Indian Penal Code, and Sections 3, 4 6 of the Dowry Prohibition Act, 1961, the State of Karnataka preferred appeal before the High Court of Karnataka, Circuit Bench at Gulbarga being Criminal Appeal No. 402/2008. On re-appreciation of the entire evidence on record and by giving cogent re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cope and ambit of the appeal against acquittal. 5.3. It is further submitted by the learned advocate appearing on behalf of the Accused that, as held by this Court in catena of decisions, if two views are possible on the evidence adduced in the case, one pointing out to the guilt of the Accused and the other to his innocence, the view which is favourable to the Accused should be adopted. It is further submitted by the learned advocate appearing on behalf of the Accused that the High Court being the first appellate Court would be justified in re-appreciating the entire evidence on record to arrive at a just conclusion, however, once there was an order of acquittal passed by the learned trial Court, as while so re-appreciating the evidence, the appellate Court should first analyse the findings of the trial Court and then for valid reasons to be recorded, the appellate Court can reverse such finding of the trial Court. 5.4. It is further submitted by the learned advocate appearing on behalf of the Accused that in the present case while re-appreciating the evidence and reversing the order of acquittal passed by the learned trial Court, the High Court has not at all analysed the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 5.8. Making the above submissions and relying upon the above decisions of this Court, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order of conviction passed by the High Court. 6. Learned Counsel appearing on behalf of the Respondent - State, while opposing the present appeal, has vehemently submitted that in the facts and circumstances of the case, and on re-appreciation of the entire evidence on record, which is permissible while exercising the powers in an appeal against the order of acquittal, the High Court has not committed any error in reversing the judgment and order of acquittal passed by the learned trial Court and consequently convicting the Accused for the offence punishable Under Section 302 of the Indian Penal Code. 6.1. It is vehemently submitted by the learned Counsel appearing on behalf of the Respondent - State that having found that the findings recorded by the learned trial Court, recorded while acquitting the original Accused, are perverse and contrary to the evidence on record and thereafter on re-appreciation of evidence, the High Court has found the Accused guilty, the same is not required to be int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quittal of the Accused and that the evaluation of the evidence made by the trial Court was manifestly erroneous and even otherwise on merits the ultimate conclusion of the High Court in convicting the Accused is found to be correct, solely on the aforesaid ground that the High Court did not consider/examine the reasons on which the order of acquittal was passed, the conviction of the Accused is not required to be set aside. In support of above submissions, learned Counsel appearing on behalf of the Respondent - State has heavily relied upon the following decisions of this Court, Atley v. State of Uttar Pradesh AIR 1955 SC 807; Aher Raja Khima v. The State of Saurashtra 1955 (2) SCR 1285; Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC 228; K. Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355; Sambasivan v. State of Kerala (1998) 5 SCC 412; K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309. 6.6. Making the above submissions and relying upon the aforesaid decisions of this Court, it is prayed to dismiss the present appeal. 7. We have heard the learned Counsel for the respective parties at length. 7.1. We have considered and gone through the judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luntary and not being under coercion or any kind of duress, he recorded her statement in his own handwriting in Ex. P-2 and Ex. P-2(d) is his signature; the handwriting portion in Ex. P-2 is in his handwriting and they are true and correct; they are in question and answer form. Further, he has deposed that he read over the contents therein to the victim Abhilash Kaur in Hindi language which was known to her and to him also; having admitted to the correctness of that document, victim signed in his presence as per Ex. P-2(a); that he obtained the signature of the duty doctor as per Ex. P-2(c). Further he has deposed that as a matter of abundant caution, he obtained the R.T.I. of the victim Abhilash Kaur below Ex. P-2(a); that victim Abhilash Kaur made statement against her husband with regard to assault and also acting under the influence of his mother and sister that he demanded money; she complained against the Accused as being responsible for the death of his first wife also on account being burnt by him. He has further deposed that at the time of recording Ex. P-2, other than himself, the doctor and the victim, none else were present nearby; the victim was there in the general wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Police I did not say the above as my husband and my brother in law Madan Mohan Singh threatened me and asked me not to tell the truth and hence I gave a wrong statement. Now I am telling the truth. Sir please help me and save me. My child be taken care of. 9. Thus, the dying declaration involving the Appellant came to be established and proved by the prosecution, by examining the doctor as well as the metropolitan magistrate who record the dying declaration. Despite the above overwhelming evidence in the form of medical evidence as well as the dying declaration and the deposition of the metropolitan magistrate, the learned trial Court discarded the same on some minor contradictions/omissions. It also appears from the judgment and order passed by the learned trial Court that the learned trial Court gave undue importance to the initial statement of the victim while giving the history to the doctor when she was admitted and when she gave the history of accidental burns while cooking in kitchen. However, the trial Court did not consider her explanation on the above gave in the dying declaration. Even considering the surrounding circumstances and the medical evidence and the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that the order of acquittal passed by the learned trial Court was perverse and suffer from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in paragraph 8 as under: 8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In Our opinion, it is not correct to say that unless the appellate court in an appeal Under Section 417, Code of Criminal Procedure came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established Rule that the presumption of innocence of the Accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court was patently erroneous and the conclusions arrived at by it were wholly untenable. We find that it is not a case where two reasonable views on examination of the evidence are possible and so the one which supports the Accused should be adopted. The view taken by the trial court can hardly be said to be a view on proper consideration of evidence, much less a reasonable view. The learned trial court, as observed hereinabove, committed a patent error in discarding the dying declaration and the other material evidence, discussed hereinabove. Therefore, the interference by the High Court in the appeal against the acquittal of the Appellant and recording the finding of his conviction for the offence Under Section 302 of the Indian Penal Code, on consideration of the evidence, is justified. The judgment under appeal does not warrant any interference. 14. Now so far as the decisions relied upon by the learned Counsel appearing on behalf of the Appellant-Accused, referred to hereinabove, more particularly a recent decision of this Court in the case of Mohd. Akhtar @ Kari (supra) is concerned, first of all, there cannot be any dispute with reference to the proposition of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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