VIJAY MOHAN SINGH versus STATE OF KARNATAKA
[2019] 6 S.C.R. 994, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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VIJAY MOHAN SINGH
v.
       STATE OF KARNATAKA
(Criminal Appeal No. 1656 of 2013)
    APRIL 10, 2019
[L. NAGESWARA  RAO AND M.R. SHAH, JJ.]
Penal Code, 1860 – ss.302 r/w. 34, 498-A, 304-B r/w. s.34 –
Prosecution case that appellant-accused (husband of victim-
deceased) poured kerosene on the victim and lit fire and ran away
from the spot – Consequent to which, victim sustained grievous burnt
injuries and later died in the hospital – Dying declaration of the
victim was recorded by the Metropolitan Magistrate – In dying
declaration victim categorically stated that appellant-accused burnt
her – Police filed charge sheet against the three accused persons
including appellant-accused for the offences punishable u/ss. 498-
A, 304-B, 302 r/w. s.34 of IPC and ss.3, 4 & 6 of the Dowry
Prohibition Act – Trial court acquitted all the accused – However,
the High Court set aside the order of acquittal of the appellant-
accused and held him guilty –  On appeal, held:  In   the  instant
case,  there  was  a dying declaration given by the victim which was
proved and supported by the independent witnesses i.e. the
metropolitan magistrate and the medical  officer – But the same was
discarded by the trial court on some minor contradictions/omissions
– On re-appreciation of the entire evidence, it was found that the
approach of the trial court was patently erroneous and the
conclusions arrived at by it were wholly untenable – Trial court
committed a patent error in discarding the dying declaration and
other material evidence – Therefore, the interference by the High
Court in the appeal against the acquittal of the appellant was
justified – Dowry Prohibition Act, 1961 – ss.3, 4 and 6.
Dismissing the appeal, the Court
HELD: 1.  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
recorded the dying declaration.  Despite the above overwhelming
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evidence in the form of medical evidence as well as the dying
declaration and the deposition of the metropolitan magistrate,
the trial Court discarded the same on some minor contradictions/
omissions.  It also appears from the judgment and order passed
by the trial Court that it 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 the kitchen.  However, the trial Court did
not consider her explanation given 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
was last seen in the house and immediately on the occurrence of
the incident he ran away.  Thus, this Court is of the opinion that
the approach of the trial Court was patently erroneous and the
conclusions arrived at by it were wholly untenable.
[Para 9][1007-F-H; 1008-A-B]
2. In the light of the above findings, 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 trial Court, the same is further required
to be interfered with by this Court?  [Para 10][1008-C]
3. Considering various Supreme Court 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  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 re-appreciate 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
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
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re-appreciation of the entire evidence that two views are possible.
[Para 12][1011-F-H]
4.  On re-appreciation of the entire evidence on record and
the findings recorded by the trial court while acquitting the
accused, this Court is of the opinion that the approach of the trial
court was patently erroneous and the conclusions arrived at by it
were wholly untenable.  This Court finds 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 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.  [Para 13][1012-A-C]
Atley v. State of Uttar Pradesh AIR 1955 SC 807 ;
Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC
228 : [1978] 2 SCR  471; Sambasivan v. State of Kerala
(1998) 5 SCC 412: [1998] 3 SCR  280 – relied on.
Chandu v. State of Maharashtra (2002) 9 SCC 408 ;
Surinder Singh v. State of U.P.
(2003) 10 SCC 26:
[2003] 3 Suppl.  SCR 401; Devatha Venkataswamy alias
Rangaiah v. Public Prosecutor, High Court of A.P. (2003)
10 SCC 700; Main Pal v. State of Haryana (2004) 10
SCC 692:[2004] 3 SCR 768; Chanakya Dhibar (dead)
v. State of W.B. (2004) 12 SCC 398:[2003] 6 Suppl.
SCR 1181; Kalyan Singh v. State of M.P. (2006) 13
SCC 303 : [2006] 9 Suppl.SCR 249; Bannareddy v.
State of Karnataka (2018) 5 SCC 790 : [2018] 4 SCR
623 ; Madathil Narayanan v. State of Kerala (2018) 14
SCC 513 ; Mohd. Akhtar @ Kari v. State of Bihar
(2019) 2 SCC 513 – inapplicable.
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Aher Raja Khima v. The State of Saurashtra [1955] 2
SCR 1285 ; K.Gopal Reddy v. State of Andhra Pradesh
(1979) 1 SCC 355 : [1979] 2 SCR 265;
K. Ramakrishnan Unnithan v. State of Kerala
(1999) 3 SCC 309 : [1999] 1 SCR 1222 – referred to.
Case Law Reference
(2002) 9 SCC 408
inapplicable
Para 5.5
[2003] 3 Suppl.  SCR 401
inapplicable
Para 5.5
(2003) 10 SCC 700
inapplicable
Para 5.5
[2004] 3 SCR 768
 inapplicable
Para 5.5
[2003] 6 Suppl. SCR 1181
inapplicable
Para 5.5
[2006] 9 Suppl. SCR 249
inapplicable
Para 5.5
[2018] 4 SCR 623
inapplicable
Para 5.5
(2018) 14 SCC 513
inapplicable
Para 5.5
[1955] 2 SCR 1285
referred to
Para 6.5
[1979] 2 SCR 265
referred to
Para 6.5
[1999] 1 SCR 1222
referred to
Para 6.5
[1978] 2 SCR  471
relied on
Para 14
(2019) 2 SCC 513
inapplicable
Para 14
AIR 1955 SC 807
relied on
Para 14
[1998] 3 SCR  280
relied on
Para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1656 of 2013
From the Judgment and Order dated 08.02.2013 of the High Court
of Karnataka Circuit Bench at Gulbarga in Criminal Appeal No. 402 of
2008.
Venkateswara Rao Anumolu, Chandra Mohan Anisetty, Shashwat
Goel,  Advs. for the Appellant.
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
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Joseph Aristotle S., Mrs. Priya Aristotle, Shiva P., Mrs. Farah
Hashmi,  Ms. Anitha Shenoy, Advs. for the Respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. 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 appeal preferred by the State of
Karnataka and quashed and set aside the judgment and order of acquittal
dated 20.12.2007 passed by the learned Presiding Officer, Fast Track
Court-IV, 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, 304-B 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 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
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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.
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 304-B 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, 304-B,
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 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
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
    [M. R. SHAH, J.]
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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 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 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
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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.
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 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
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 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
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
    [M. R. SHAH, J.]
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decisions of this Court, Chandu vs. State of Maharashtra, (2002) 9
SCC 408 (para 7); Surinder Singh vs. State 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 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 re-appreciation of the entire
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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 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 re-appreciation 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 re-
appreciate 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.
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.
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
    [M. R. SHAH, J.]
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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
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 (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 re-appreciated 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
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considered the reasonings and findings recorded by the High Court while
convicting the appellant – original accused no.1.
8. Having considered the entire evidence on record afresh and on
re-appreciation 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 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
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
    [M. R. SHAH, J.]
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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 ward; having so recorded
such statement of the victim as per Ex. P-2, he returned to his
place of work along with the document and along with covering
letter, he sent Ex. P-2 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.P-2(e) and Ex.P-2(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 statement fell during his duty days he recorded
the same.”
8.1 On Ex. P-2, 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?
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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?
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 admitted and when she gave the
history of accidental burns while cooking in kitchen.  However, the trial
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
    [M. R. SHAH, J.]
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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 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
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 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
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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,
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 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 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.”
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
    [M. R. SHAH, J.]
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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
re-appreciate the evidence and record its own conclusion.  This Court
scrutinised the evidence of the eye-witnesses and opined that reasons
adduced by the trial Court for discarding the testimony 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, Criminal P. C. came to the con-
clusion 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 evi-
dence have been recorded in its presence.
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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 ac-
quittal 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 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 prin-
ciples 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 conten-
tion 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 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 re-appreciate
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.
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
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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 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 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 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 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 re-appreciation 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
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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.
Ankit Gyan
                               Appeal dismissed.
          VIJAY MOHAN SINGH v.  STATE OF KARNATAKA
    [M. R. SHAH, J.]