TaxTMI 
TaxTMI 
2021 (3) TMI 1353
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...., the High Court has confirmed the judgment and order of acquittal insofar as original accused nos. 2 and 3 are concerned. 2. As per the case of the prosecution, original accused no.1 married the deceased, the daughter of PW3 & PW4 nine years ago, prior to the date of the incident. That the deceased was subjected to the mental cruelty and there was demand of dowry from the parents of the deceased Rekha. In that regard, mediation was also held and thereafter PW3 & PW4 gave Rs. 10,000/- and Rs. 20,000/- on two occasions. On 24.06.2010 at about 9 p.m. in the matrimonial home, appellant herein - original accused no.1 took up quarrel with his wife Rekha (deceased) and at that 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 statement on 27.06.2010 (Exhibit P5). It is alleged that even earlier also on 25.06.2010, the statement of the deceased was recorded by the police (Exhibit D2). On conclusion of the investigation, the investigating officer filed the chargesheet against all the accused for the offences punishable under Sections 49....
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....it under Section 378 of the Cr. P.C. 4.2 It is submitted that as there were material contradictions in two dying declarations and Exhibit D2 was the dying declaration first in time which came to be believed by the learned trial Court, the learned trial Court committed no error in acquitting the accused. 4.3 It is submitted that the learned trial Court on appreciation of evidence, more particularly two dying declarations, disbelieved the subsequent dying declaration (Exhibit P5) and thereby acquitted the accused, the same was not required to be interfered with by the High Court in exercise of the appellate jurisdiction against the judgment and order of acquittal. 4.3 It is further submitted that while believing the dying declaration vide Exhibit P5, the High Court has not appreciated that the same was recorded by PW10 in the presence of PW13, PW8 and parents of the deceased. 4.4 It is submitted that the High Court ought to have appreciated that the earlier dying declaration vide Exhibit D2, which was recorded on 25.06.2010, was recorded immediately on the next day of the incident wherein deceased Rekha has specifically stated that it was an accidental fire due to w....
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....d trial Court was a plausible view, which was on appreciation of the evidences on record and therefore the High Court has committed a grave error in reversing the judgment and order of acquittal passed by the learned trial Court and convicting the accused -appellant herein. 5. We have heard the learned counsel appearing on behalf of the appellant at length. 5.1 Being the statutory appeal against the judgment and order of the High Court reversing the acquittal and thereby convicting the appellant herein - original accused no.1, we have reappreciated the entire evidence on record. 5.2 Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered. 5.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under: 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acqu....
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.... Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court 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 compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence ....
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....en both the Sessions Court and the High Court have recorded an order of acquittal." A 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 effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." (emphasis supplied) 5.2.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also ....
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.... absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case." 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused 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 being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered 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 para 8 as under: (SCC p. 416) "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 Cour....
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....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 eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was 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. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-10) "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 ....
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....and contrary to the evidence on record. The High Court has given cogent reasons while believing dying declaration (Exhibit P5) and has also considered in detail what is stated in the later dying declaration (Exhibit P5), vis-à-vis, the medical evidence and the injuries sustained by the deceased. Therefore, as such, the High Court has not committed any error in reappreciating the entire evidence on record and thereafter interfering with the judgment and order of acquittal passed by the learned trial Court, having found the finding recorded by the learned trial Court perverse. 7. Now so far as the merits of the appeal are concerned, it cannot be disputed that in the present case there are two dying declarations, (i) Exhibit P5 and (ii) Exhibit D2. The High Court in the impugned judgment and order has given cogent reasons to rely upon and believe the second dying declaration - Exhibit P5. The High Court has also taken note of the fact that the second dying declaration is reliable and the version in the second dying declaration is supported by the circumstances, namely, the injuries sustained by the deceased; no stove was found at the place of occurrence. The High Court has a....
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....ound on the upper limbs of the body. Therefore, as rightly observed by the High Court, the aforesaid injuries can be possible when the kerosene is poured on the deceased. According to the defence and as per the evidence of DW1-A1, while putting the kerosene into the stove, accidentally the kerosene had fallen on the ground and also on her clothes, and thereafter when the candle fell on the ground, the same had come in contact with her clothes and kerosene. If that is the case, there would have been injuries to her 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 a false case of accidental fire, which, as such, is not supported by any other reliable evidence. On the contrary, this evidence speaks otherwise. Therefore, when A1 came with a false defence and the dying declaration - Exhibit P5 is corroborated by other surrounding circumstances and evidence and after independent evaluation of Exhibit P5 and Exhibit D2, when the High Court has found that Exhibit P5 is reliable and inspiring confidence and thereafter when the High Court has convicted the accused, it cannot be said that the High C....
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....gorically stated that on the date of incident, the appellant poured kerosene over her person and set her on fire. That accused poured kerosene on the deceased and set her on fire is corroborated by the oral testimony of PW 3, Sindhu Sunil Ingole (sister-inlaw) of the deceased. PW 1 Raju Janrao Gavai, neighbour of the deceased who accompanied the deceased to the hospital to whom the deceased is said to have made a statement about the overt act of the accused, had only stated that the deceased told him that the accused beat her and also kicked her. PW 1 had not supported the statement of the deceased in the dying declaration that the accused poured kerosene on her and set her on fire. However, the prosecution has established the guilt of the accused by Ext. 1 dying declaration and the oral evidence of the mother (PW 2) and the sister-in-law (PW 3) and the same cannot be doubted. 10. The learned counsel for the appellant contended that there was no premeditation and the appellant had poured kerosene from the lamp nearby and thereafter the appellant attempted to extinguish the fire by pouring water on her and himself getting burn injuries in the process. It was submitted that ....
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....e accused is punishable for murder. 13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death. 14. Insofar as the conduct of the accused in attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , it was contended that such conduct of the accused would bring down the offence from murder to culpable homicide not amounting to murder. In Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her ornaments so that he could purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that ....
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....em on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become-this is illustrated by this case. *** 9. Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come 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 accused caused the death of deceased Saraswatibai and convicted the appellant. It is well settled that concurrent findings of fact canno....