Vijay Mohan Singh vs State Of Karnataka

VIJAY MOHAN SINGH …APPELLANT VERSUS

STATE OF KARNATAKA …RESPONDENT

JUDGMENT

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 08.02.2013 passed by the High Court

of Karnataka, Circuit Bench at Gulbarga in Criminal Appeal No.

402 of 2008, by which the High Court has allowed the said Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.04.10 16:22:36 IST

appeal preferred by the State of Karnataka and quashed and set Reason:

1

aside the judgment and order of acquittal dated 20.12.2007

passed by the learned Presiding Officer, Fast Track Court­IV,

Bidar (hereinafter referred to as the learned ‘trial Court’), by

which the learned trial Court acquitted original accused no.1 (the

appellant herein) for the offences punishable under Sections 302

read with 34, 498A, 304­B read with 34 of the IPC, 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 IPC and sentenced him to undergo

imprisonment for life and also convicted the appellant herein

under Section 498A of the IPC 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

2 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, 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

Rs.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) asked

the deceased how and why she phoned to her parents and by

saying so he is going to murder her and then A1(the appellant

herein) poured kerosene on the deceased and lit fire and ran

away from the spot. That the deceased sustained grievous burnt

injuries and it is the neighbours who shifted her to the

Government Hospital at Bidar and thereafter to Osmania

Hospital at Hyderabad and the deceased breathed her last at

5:45 p.m. on 17.02.2005.

3 2.1 That the father of the deceased lodged the first

information report against the appellant herein –original accused

No.1 and four other persons – family members of original accused

No.1, initially for the offences under Sections 498A, 307 read

with 149 of the IPC and Section 4 of the Dowry Prohibition Act,

1961, which was registered as FIR Crime No. 31/2005. That

thereafter, the victim succumbed to the injuries and died in the

hospital, and therefore, the offences under Section 302 read with

34 of the IPC, Section 304­B read with Section 34 of the IPC and

Sections 3, 4 & 6 of the Dowry Prohibition Act, 1961 were added.

During the investigation, the investigating officer recorded the

statement of concerned witnesses, namely, parents of the victim,

neighbours in the neighbourhood of the house of the accused.

He also collected the medical evidence. The dying declaration of

the victim was recorded by the Metropolitan Magistrate (PW28).

After conclusion of the investigation and having found prima

facie case, the police filed a charge sheet against all the accused

for the offences punishable under Sections 498A, 304­B, 302

read with Section 34 of the IPC, and Sections 3, 4 & 6 of the

Dowry Prohibition Act, 1961. As the case was exclusively to be

triable by the Court of Sessions, the learned Magistrate

4 committed the case to the learned Principal Sessions Judge,

Bidar, which was registered as Sessions Case No. 83/2005. The

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 Cr.P.C. 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

5 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, 304­B read with 34 of the IPC, 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

reasons in detail, by the impugned judgment and order, the High

Court has set aside the order of acquittal passed by the learned

trial Court so far as acquitting original accused No.1 – husband

of the deceased is concerned and has held him guilty for the

offences punishable under Section 302, 498A of the IPC and

Section 4 of the Dowry Prohibition Act, 1961. While convicting

original accused No.1, the High Court has sentenced original

accused No.1 to undergo imprisonment for life with fine of

Rs.10,000/­, and in default of payment of fine, to undergo

further 5 months rigorous imprisonment for the offence

6 punishable under Section 302 of the IPC. The High Court has

also sentenced original accused No.1 to undergo two years

imprisonment and fine of Rs.5,000/­, and in default of payment

of fine, to undergo three months rigorous imprisonment for the

offence punishable under Section 498A of the IPC. The High

Court has also sentenced original accused No.1 to undergo six

months and fine of Rs.1,000/­, in default of payment of fine, to

undergo simple imprisonment for one month for the offence

under Section 4 of the Dowry Prohibition Act. The High Court

has further directed that all the sentences imposed shall run

concurrently.

4. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, the original

accused No.1 has preferred the present appeal.

5. Shri Venkateswara Rao Anumolu, learned advocate

appearing on behalf of the accused has vehemently submitted

that in the facts and circumstances of the case, the High Court

has committed a grave error in quashing and setting aside the

order of acquittal passed by the learned trial Court.

7 5.1 It is further submitted by the learned advocate

appearing on behalf of the accused that once the learned trial

Court gave the cogent reasons while acquitting the accused,

though it was permissible for the High Court to re­appreciate 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

8 re­appreciating 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 re­appreciating 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

re­appreciating the evidence and reversing the order of acquittal

passed by the learned trial Court, the High Court has not at all

analysed the findings of the trial Court, and has given its own

findings without even considering the grounds on which the

learned trial Court acquitted the accused. It is submitted that

therefore the High Court has exceeded in its jurisdiction while

exercising the appellate jurisdiction against the order of acquittal

passed by the learned trial Court.

5.5 In support of the above submissions, learned advocate

appearing on behalf of the accused has heavily relied upon the

following decisions of this Court, Chandu vs. State of

Maharashtra, (2002) 9 SCC 408 (para 7); Surinder Singh vs. State

9 of U.P. (2003) 10 SCC 26 (Paras 18 & 19); Devatha

Venkataswamy alias Rangaiah vs. Public Prosecutor, High Court

of A.P. (2003) 10 SCC 700 (para 5); Main Pal vs. State of Haryana

(2004) 10 SCC 692 (Para 12); Chanakya Dhibar (dead) vs. State of

W.B. (2004) 12 SCC 398 (Para 18); Kalyan Singh vs. State of M.P.

(2006) 13 SCC 303 (Para 7); Bannareddy vs. State of Karnataka

(2018) 5 SCC 790 (paras 10 & 11); Madathil Narayanan vs. State

of Kerala (2018) 14 SCC 513 (paras 8 & 9); and Mohd. Akhtar @

Kari vs. State of Bihar JT 2018 (12) SC 68 : (2019) 2 SCC 513.

5.6 It is further submitted by the learned advocate

appearing on behalf of the accused that even otherwise on merits

also, the High Court has committed a grave error in holding the

appellant – original accused No.1 guilty for the offences

punishable under Sections 302 and 498A of the IPC and Section

4 of the Dowry Prohibition Act, 1961.

5.7 It is further submitted by the learned advocate

appearing on behalf of the accused that while convicting the

appellant – original accused no.1 for the offence under Section

302 of the IPC, the High Court has materially erred in relying

upon and/or considering the alleged dying declaration. It is

10 submitted that the High Court has failed to appreciate the

relevant aspect that the alleged dying declaration was recorded

on printed papers with certain corrections and/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 re­appreciation 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

11 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 IPC.

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 re­appreciation of

evidence, the High Court has found the accused guilty, the same

is not required to be interfered with by this Court.

6.2 It is vehemently submitted by the learned counsel

appearing on behalf of the respondent – State that as such, as

held by this Court in catena of decisions, the powers of appellate

Court in an appeal against acquittal are no less than in an

appeal against conviction. It is further submitted that as held by

this Court in catena of decisions, the High Court while hearing

an appeal against the order of acquittal can re­appreciate the

entire evidence on record and having done so and having found

the dying declaration reliable, there is no infirmity with the

conviction of the appellant under Section 302 of the IPC.

12 6.3 It is vehemently submitted by the learned counsel

appearing on behalf of the respondent – State that in the present

case, the High Court has considered in detail the medical

evidence; the dying declaration and the other prosecution

witnesses who fully supported the case of the prosecution that it

was the appellant herein – original accused no.1 who committed

the crime and therefore the High Court has rightly convicted the

appellant herein – original accused no.1.

6.4 It is submitted that if the reasonings and the grounds

on which the learned trial Court acquitted the accused are seen,

they are perverse and contrary to the evidence on record. It is

submitted that while acquitting the original accused, the learned

trial Court wrongly gave more importance to some minor

contradictions. However, did not consider the overwhelming

evidence in the form of medical evidence and the dying

declaration which came to be proved. It is submitted that

therefore the High Court has rightly convicted the accused by

reversing the judgment and order of acquittal passed by the

learned trial Court.

13 6.5 Now so far as the submission on behalf the appellant

that while quashing and setting aside the order of acquittal, the

High Court failed to examine the reasons on which the order of

acquittal was passed and therefore 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 respondent­State has

submitted that merely on the aforesaid ground and if otherwise

on re­appreciation 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;

14 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 order of acquittal passed by the learned trial Court as well as

the impugned judgment and order passed by the High Court

reversing the acquittal and convicting the original accused for the

offence punishable under Section 302 of the IPC.

7.2 We have also re­appreciated the entire evidence on

record to satisfy ourselves on the guilt of the appellant – original

accused no.1. We have also considered the reasonings and the

findings recorded by the learned trial Court while acquitting the

accused. We have also considered the reasonings and findings

15 recorded by the High Court while convicting the appellant –

original accused no.1.

8. Having considered the entire evidence on record afresh

and on re­appreciation of the entire evidence on record, we are of

the firm opinion that the High Court has not committed any error

in holding the appellant – original accused no.1 guilty for the

offence punishable under Section 302 of the IPC. In the present

case, there is a dying declaration given by the deceased which

has been proved and supported by the independent witnesses,

metropolitan magistrate (PW28), it has been established and

proved by examining the medical officer and even the medical

officer certified that the patient was conscious and coherent and

fit state of mind to give the statement. The metropolitan

magistrate who recorded the dying declaration and who was

examined by the prosecution as PW28 deposed as under:

“that he was working as Prl. Jr. Civil Judge, Bhongir; during the relevant period, he was working as XI Metropolitan Magistrate, Secunderabad. He has further deposed that in pursuance of the requisition received from the I.O., P.S. Afzal Gunj, he proceeded to Osmania General Hospital on 14.2.2005 and reached the said place around 6:25 a.m.; with the assistance of the police and duty doctor, he went to Acute Burns Ward and contacted the victim by name Abhilash Kaur, wife of Vijay Mohan Singh; one Dr. Rajesh was the duty doctor; he

16 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. P­2 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. P­2 and Ex. P­2(d) is his signature; the handwriting portion in Ex. P­2 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. P­2(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. P­2(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. P­2, other than himself, the doctor and the victim, none else were present nearby; the victim was there in the general ward; having so recorded such statement of the victim as per Ex. P­2, he returned to his place of work along with the document and along with covering letter, he sent Ex. P­2 to IV Metropolitan Magistrate, Hyderabad, within whose jurisdiction that Osmania Hospital and Afzal Gunj police station are situated; and that the covering letter is marked as Ex.P­2(e) and Ex.P­2(f) is his signature. Further he has deposed that he was duty bound to record such statements in all the hospitals of Hyderabad for 15 days and for the next 15 days, some other Magistrate will be there; likewise the duty keeps changing every 15 days and since the date pertaining to the recording of this

17 statement fell during his duty days he recorded the same.”

8.1 On Ex. P­2, the medical officer had certified that at the

relevant time the patient was conscious and coherent and fit

state of mind to give the statement. In the dying declaration, the

deceased specifically stated before the Magistrate while

answering question nos. 7 & 8, as under:

“Q.No.7 What happened to you and how the same happened?

Yesterday at 5:00 p.m. in my house near the Gurudwara my husband Vijaya Mohan Singh took kerosene from the kerosene batti stove and put it on my body. I was wearing green color shirt and shalwar and he lit a match stick and put the burning match stick on my body and locked the door of the room and went away as such I was burnt on my face, hands and other parts of body. QNo.8 Is there any foul Act/Omission of anyone or do you blame anyone for this to you?

My husband did this to me. He beats me and acts under the influence of his mother and sisters. He demanded money from me and would torture to me. His first wife was also burnt by him.”

While answering question nos. 10, 11 & 12, the victim stated as

under:

Q.No.10 What was the behaviour of your husband Vijay Mohan Singh?

18 My husband would say that I am mad and frequently ask money. He had earlier wife by name 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 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

19 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 evidence, the defence

has miserably failed and proved that it was an accidental

burns/death. The appellant – original accused no.1 was last

seen in the house and immediately on the occurrence of the

incident he ran away. Thus, 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.

10. In the light of the above findings recorded by us, it is

required to be considered, 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?

11. An identical question came to be considered before

this Court in the case of Umedbhai Jadavbhai (supra). In the

case before this Court, the High Court interfered with the order

20 of acquittal passed by the learned trial Court on re­appreciation

of the entire evidence on record. However, the High Court, while

reversing the acquittal, did not consider the reasons given by the

learned trial Court while acquitting the accused. Confirming the

judgment of the High Court, this Court observed and held in

para 10 as under:

“10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re­ appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.”

11.1 In the case of Sambasivan (supra), the High Court

reversed the order of acquittal passed by the learned trial Court

and held the accused guilty on re­appreciation 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

21 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, which alone will justify interference in an order of acquittal though the High Court has rendered a well­considered judgment duly meeting all the contentions raised before it. But then will this non­compliance 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 of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court’s judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the

22 interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.”

11.2 In the case of K.Ramakrishnan Unnjithan (supra), after

observing that though there is some substance in the grievance

of the learned counsel appearing on behalf of the accused that

the High Court has not adverted to all the reasons given by the

trial Judge for according an order of acquittal, this Court refused

to set aside the order of conviction passed by the High Court

after having found that the approach of the Sessions Judge in

recording the order of acquittal was not proper and the

conclusion arrived at by the learned Sessions Judge on several

aspects was unsustainable. This Court further observed that as

the 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 and record its own conclusion. This Court scrutinised

the evidence of the eye­witnesses and opined that reasons

adduced by the trial Court for discarding the testimony of the

23 eye­witnesses 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, Criminal P. C. 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 of conviction, subject to the riders that the presumption of innocence with which the accused person

24 starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. The State 1952 CriLJ331; Wilayat Khan v. State of Uttar Pradesh, AIR 1953 SC 122. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.”

11.4 In the case of K.Gopal Reddy(supra), this Court has

observed that where the trial Court allows itself to be beset with

fanciful doubts, rejects creditworthy evidence for slender reasons

and takes a view of the evidence which is but barely possible, it

is the obvious duty of the High Court to interfere in the interest

of justice, lest the administration of justice be brought to

redicule.

12. Considering the aforesaid decisions, it emerges that

even in the case where the High Court in an appeal against the

order of acquittal interfered with the order of acquittal without

specifically considering the reasons arrived at by the learned

25 trial court and without specifically observing that the reasons

are perverse, this Court can still maintain the order of conviction

passed by the High Court, if this Court is satisfied itself that the

approach of the trial court in dealing with the evidence was

patently illegal or the conclusions arrived at by it are

demonstrably unsustainable and the judgment of the appellate

court is free from those infirmities. It also emerges that the High

Court is entitled to re­appreciate 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 re­appreciation of the entire

evidence that two views are possible.

13. On re­appreciation 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

26 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 IPC, 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 appellant­accused, 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 law laid down by this Court in the aforesaid decisions.

However, we are of the opinion that none of the aforesaid

decisions relied upon by the learned counsel appearing on behalf

of the appellant shall be applicable to the facts of the case on

hand. Even in the case of Mohd. Akhtar @ Kari (supra), on

appreciation of the evidence, this Court found that the acquittal

27 was justified on a probable view taken by the trial court. On

appreciation of evidence, this Court observed that the High

Court could not have reversed the judgment of the acquittal

merely because another view was possible. In the present case,

as observed hereinabove, and on re­appreciation of the entire

evidence on record, this is not a case where two reasonable

views are possible and so the one which supports the accused

should be adopted. As observed hereinabove, the findings

recorded by the learned trial court while acquitting the accused

are perverse and the approach of the trial court was patently

erroneous and the conclusions arrived at by it were wholly

untenable. Therefore, considering the aforesaid decisions of this

court in the cases of Sambasivan (supra); Umedbhai Jadavbhai

(supra) and Atley (supra), we are of the opinion that the

impugned judgment and order of conviction passed by the High

Court is not required to be interfered with by this Court. The

judgment and order under appeal does not warrant any

interference. Hence, we find no merit in the appeal and the

same deserves to be dismissed, and is accordingly dismissed.

…………………………………….J.

28 [L. NAGESWARA RAO]

NEW DELHI; ……………………………………J. APRIL 10, 2019. [M.R. SHAH]

29