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TMI Blog2019 (4) TMI 2024X X X X Extracts X X X X X X X X Extracts X X X X ..... 304-B read with 34 of the Indian Penal Code, and Sections 3, 4 & 6 of the Dowry Prohibition Act, 1961, and consequently convicted original Accused No. 1 for the offence punishable Under Sections 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and also convicted the Appellant herein Under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, original Accused No. 1 has preferred the present appeal. 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 Rs. 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 Rs. 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, despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Accused pleaded not guilty, and therefore, all of them came to be tried for the aforesaid offences. 2.2. To prove the case against the Accused, the prosecution examined as many as 28 witnesses. Through the aforesaid witnesses, the prosecution brought on record the relevant documentary evidence including the dying declaration of the victim. Thereafter, the defence led the evidence and examined two witnesses as DW1 & DW2 including the minor son. 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court to re-appreciate the entire evidence on record, the High Court has not at all dealt with and/or considered the reasons which weighed with the learned trial Court while acquitting the Accused. 5.2. It is further submitted by the learned advocate appearing on behalf of the Accused that while reversing the judgment and order of acquittal passed by the learned trial Court, the High Court has not at all considered the scope 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /or different quality of papers with uncertain statements. It is submitted that the High Court has not properly appreciated the relevant aspect that the deceased got burn injuries to the extent of 90% inside the locked room, but the kerosene stove without any lid containing 800 ML of kerosene and the match box which was lying in the same room did not catch fire and for which there was no explanation by the prosecution. 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the High Court exceeded in exercise of its jurisdiction, while sitting as an appellate Court against the judgment and order of acquittal is concerned, learned Counsel appearing on behalf of the Respondent-State has submitted that merely on the aforesaid ground and if otherwise on re-appreciation of evidence by this Court, it is found that the learned trial Court was not justified in recording the acquittal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r; he interacted with the said doctor and satisfied himself as to the mental fitness of the victim to Abilash Kaur the statement before him and also obtained an endorsement in that regard on the relevant document Ex. P-2 which is already marked. Further he has deposed that he asked preliminary questions to the victim and thereafter having been satisfied as to the nature of her statement being voluntary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Kamaljeet Kaur. She too was burnt by my husband and she died. My husband managed the case and came out. (Patient is in pain). He would ask me to get money from my parents. Q. No. 11 How you come out of the room and where was your daughter? I opened the door and came out and my daughter was in other room and then I fell lot of pain and burning. Q. No. 12 What more do you want to say? In Bidar to the 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record 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. Confirming the order passed by the High Court convicting the Accused on reversal of the acquittal passed by the learned trial Court, after satisfy 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, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stimony of the eye-witnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court as manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 11.3. In the case of Atley (supra), in paragraph 5, this Court observed and held as under: 5. It has been argued by the learned Counsel 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate the entire evidence independently and come to its own conclusion, however, the High Court would not be justified in interfering with the order of acquittal solely on the ground on re-appreciation of the entire evidence that two views are possible. 13. On re-appreciation of the entire evidence on record and the findings recorded by the learned trial court while acquitting the Accused, we are of the opinion that the approach of the 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, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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