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A.F.R

Court No. - 44

Case :- CRIMINAL APPEAL No. - 2275 of 2017

Appellant :- Smt. Alka

Respondent :- State of U.P.

Counsel for Appellant :- Nirvikar Gupta,Akhilesh Srivastava,Bhanu

Pratap Pal,Noor Mohammad,Saksham Srivastava

Counsel for Respondent :- G.A.

&

Case :- GOVERNMENT APPEAL No. - 230 of 2021

Appellant :- State of U.P.

Respondent :- Sanjeev Kumar And 2 Ors.

Counsel for Appellant :- G.A.

Counsel for Respondent :- Kamlesh Kumar Dwivedi,Noor

Mohammad

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Justice Nalin Kumar Srivastava, J.)

1.Both these appeals arise out of common impugned order dated

28.3.2017 passed by the Additional Sessions Judge/Fast Track Court

No.1, Aligarh in Sessions Trial No.67 of 2011 whereby the learned

Additional Sessions Judge has convicted the accused-appellant, Alka,

for commission of offence under Section 302 of Indian Penal Code,

1860 (for short 'IPC') and sentenced her to undergo imprisonment for

life with fine of Rs.10,000/-.

2.Criminal Appeal No. 2275 of 2017 has been preferred by

accused-appellant, Alka against her conviction whereas the

Government Appeal No. 230 of 2021 has been preferred by the State

against the acquittal of respondents, Sanjiv Kumar, Rajiv Kumar &

Rajendra Prasad under Section 498A, 304B, 302/34 of IPC and

Section 3/4 of Dowry Prohibition Act, 1961 (for short 'Act, 1961').

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3.Heard Sri Noor Mohammad, learned counsel for accused-

appellant, Alka and acquitted respondents in Government Appeal.

Heard Sri Vikas Goswami, learned A.G.A. for respondent-State in

Criminal Appeal and Sri Patanjali Mishra, learned A.G.A. in

Government Appeal.

4.Brief facts of the case are that the informant Gopal Varshney,

uncle of the deceased made a complaint before the police authority

stating therein that marriage of his niece was solemnized with Sanjeev

s/o Rajendra Prasad one and half years ago and the informant had

given money and households as dowry as per his capacity. It was

further alleged that the in-laws of the deceased were persistently

demanding amount of Rs.20,000/- and one motorcycle as additional

dowry. Many time settlements were taken place but the things were

not pacified and on the fateful day of 13.4.2010 at 11.00 p.m., the in-

laws of the deceased namely Sanjeev (husband), Manoj (brother-in-

law/Jeth), Rajeev (brother-in-law/Devar), Anita (mother-in-law), Alka

(Sister-in-law/Jethani) and Rajendra (father-in-law) poured kerosene

on Julie and set her ablaze. It was further alleged by the informant that

on being informed by his nephew, he reached at Medical College,

Aligarh on 14.4.2010 where he found his niece, Julie unconscious and

she was being treated there.

5.On the basis of above, complaint, Case Crime No.221 of 2010

under Sections 498A, 307 of IPC and Section 3/4 of the Act, 1961 was

registered against the above accused.

6.On investigation being put into motion, the investigating officer

recorded the statements of all the witnesses and submitted the charge-

sheet to the learned Magistrate.

7.The learned Magistrate summoned the accused and committed

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the case to the Sessions Court as the offences alleged to have been

committed were triable by the Sessions Court as prima facie offences

were alleged to be falling under Sections 498A, 304 B of the Indian

Penal Code and Section 3/4 of Dowry Prohibition Act. Section 304B

of IPC was included as the deceased died.

8.On being summoned, the accused-persons pleaded not guilty

and wanted to be tried.

9.On 1.9.2011, the charges were framed under Sections 498A,

304B & 302 read with Section 34 of IPC.

10.The Trial started and the prosecution examined 11 witnesses

who are as follows:

1Gopal Varshney PW1

2Radha Raman PW2

3Kailash Chandra PW3

4K.K. Gupta PW4

5Ramendra Singh PW5

6K.L. Verma PW6

7Mohd. Gaffar PW7

8Atul Kumar Gautam PW8

9Sunil Kumar Singh PW9

10Dr. P. Kumar PW10

11Dr. Ahastan Ahmad PW11

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11.In support of ocular version following documents were filed

and proved:

1F.I.R. & G.D. Ex.Ka.4 & Ex. Ka.5

2Written Report Ex.Ka.1

3Dying Declaration Ex. Ka.10

4Postmortem Report Ex.Ka.3 &19

5Papers relating to Postmortem Ex.Ka.6, Ka.7, Ka.8

& Ka.9

6Panchayatnama Ex.Ka.2

7Charge-sheet Ex. Ka.18

8Site Plan Ex.Ka.11 & 12

12.At the end of the trial and after recording the statements of the

accused under section 313 of Cr.P.C., and hearing arguments on behalf

of prosecution and the defence, the learned Sessions Judge convicted

the accused-appellant, Alka and acquitted the other accused as

mentioned above.

13.It is submitted by learned counsel for the appellant that the

incident occurred at the spur of moment as is clear from the dying

declaration. The accused had not premeditated to do away with the

deceased. Learned counsel for the appellant has vehemently submitted

that dying declaration is not worth believing and it is an admitted

position of fact that deceased died due to septicemia.

14.It is further submitted that conviction under Section 302 IPC is

not made out as no overt act as per Section 300 IPC is made out. In

alternative, it is submitted that at the most, the death can be homicidal

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death not amounting to murder and punishable under Section 304 II or

Section 304 I of I.P.C. If the Court decides that the accused is guilty,

then the accused may be granted fixed term punishment of

incarceration.

15.Learned counsel for the State has submitted that though it is

septicemic death, the dying declaration and evidence of other

prosecution witnesses will not permit this Court to show any leniency

in the matter. It is further submitted by learned A.G.A. that ingredients

of Section 300 of IPC are rightly held to be made out by the learned

Sessions Judge who has applied the law to the facts in case.

16.While considering evidence of P.W.1, who is the uncle of the

deceased, we find that he has proved the complaint lodged by him

which has been exhibited and has opined that in his ocular version that

the marriage took place before 1 & 1/2 years. About Rs.2,50,000/-

was spent but her in-laws were not happy with the same. The husband

and other family members started demanding additional dowry. The

family members of the deceased tried to request the in-laws not to

demand more dowry but the in-laws were not accepting the request

and on 13.4.2010 the deceased was set ablaze. On 14.4.2010 when

they went to Medical College Hospital they found her unconscious.

The First Information Report was lodged after three days. P.W. 2 & 3

who are family members have also corroborated the evidence of

P.W.1. As far as independent witness namely P.W.4, Doctor K.K.

Gupta is concerned, he had performed postmortem of the deceased.

P.W.5 & 8 are police officials and P.W.6, 7 & 9 are government

officials who had jotted down the dying declaration. P.W.7, Mohd.

Gaffar, Retd. District Magistrate has deposed before the Trial Court

that he had recorded the dying declaration of the deceased. He has

deposed that while giving her statement she was conscious and she

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told that uncle of her husband had admitted her in the hospital and that

her husband had saved her. P.W.7 has further deposed that nothing

else was stated by her in her dying declaration.

17.The learned Sessions Judge has not accepted the statement

recorded by I.O. ten days after the recording of the dying declaration

of the deceased by the Magistrate. The learned Sessions Judge has

taken recourse of Lella Srinivasa Rao Versus State of Andhra

Pradesh, AIR 2004 SC 1720 and on the basis of this judgment, he

has opined that the statement recorded by the I.O. after recording of

the dying declaration by the Magistrate was not reliable and has found

that the dying declaration recorded by the Magistrate cannot be found

fault with.

18.In the light of the decision in Govindappa and others Versus

State of Karnataka, (2010) 6 SCC 533, there is no reason for us not

to accept the dying declaration recorded by the Magistrate and its

evidentiary value under Section 32 of Evidence Act, 1872.

19.Principle for accepting dying declaration will permit us to

concur with the finding of the learned Sessions Judge that dying

declaration could have been acted upon as there is no material

contradictions in the dying declaration. The dying declaration when

taken in its totality goes to show that her sister-in-law had poured

kerosene on the deceased and set her ablaze, her husband has saved

her and she died after several days out of septicemic death and,

therefore, we are convinced that it is homicidal death but, it would be

seen whether it is homicidal death punishable under Section 302 or

Section 304 Part I or Part II of IPC?

20.It would be relevant to refer to Section 299 of the Indian Penal

Code, which read as under:

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“299. Culpable homicide: Whoever causes death by doing

an act with the intention of causing death, or with the

intention of causing such bodily injury as is likely to cause

death, or with the knowledge that he is likely by such act to

cause death, commits the offence of culpable homicide."

21.The academic distinction between ‘murder’ and ‘culpable

homicide not amounting to murder’ has always vexed the Courts. The

confusion is caused, if Courts loose sight of the true scope and

meaning of the terms used by the legislature in these sections, and

allow themselves to be drawn into minute abstractions. The safest way

of approach to the interpretation and application of these provisions

seems to be is to keep in focus the keywords used in the various

clauses of Section 299 and 300 of I.P.Code. The following

comparative table will be helpful in appreciating the points of

distinction between the two offences.

Section 299 Section 300

A person commits culpable

homicide if the act by which the

death is caused is done-

Subject to certain exceptions

culpable homicide is murder if

the act by which the death is

caused is done.

INTENTION

(a) with the intention of causing

death; or

(1) with the intention of causing

death; or

(b) with the intention of causing

such bodily injury as is likely to

cause death; or

(2) with the intention of causing

such bodily injury as the offender

knows to be likely to

cause the death of the person to

whom the harm is caused;

KNOWLEDGE KNOWLEDGE

(c) with the knowledge that the (4) with the knowledge that the

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act is likely to cause death.act is so immediately dangerous

that it must in all probability

cause death or such bodily injury

as is likely to cause death, and

without any excuse for incurring

the risk of causing death or such

injury as is mentioned above.

22.We can safely rely upon the decision of the Gujarat High court

in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana

Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as

under:

"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3

SCC 280, the Apex Court has held that it is not an absolute principle of law that

a dying declaration cannot form the sole basis of conviction of an accused.

Where the dying declaration is true and correct, the attendant circumstances

show it to be reliable and it has been recorded in accordance with law, the

deceased made the dying declaration of her own accord and upon due

certification by the doctor with regard to the state of mind and body, then it may

not be necessary for the court to look for corroboration. In such cases, the dying

declaration alone can form the basis for the conviction of the accused. But

where the dying declaration itself is attended by suspicious circumstances, has

not been recorded in accordance with law and settled procedures and practices,

then, it may be necessary for the court to look for corroboration of the same.

13. However, the complaint given by the deceased and the dying declaration

recorded by the Executive Magistrate and the history before the doctor is

consistent and seems to be trustworthy. The same is also duly corroborated with

the evidence of witnesses and the medical reports as well as panchnama and it is

clear that the deceased died a homicidal death due to the act of the appellants in

pouring kerosene and setting him ablaze. We do find that the dying declaration

is trust worthy.

14. However, we have also not lost sight of the fact that the deceased had died

after a month of treatment. From the medical reports, it is clear that the

deceased suffered from Septicemia which happened due to extensive burns.

15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a

similar case of septicemia where the deceased therein had died in the hospital

after five days of the occurrence of the incident in question, converted the

conviction under section 302 to under section 326 and modified the sentence

accordingly.

15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as

under:

“18. The deceased was admitted in the hospital with about

60% burn injuries and during the course of treatment

developed septicemia, which was the main cause of death of

the deceased. It is, therefore, established that during the

aforesaid period of 8 days the injuries aggravated and

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worsened to the extent that it led to ripening of the injuries

and the deceased died due to poisonous effect of the injuries.

19. It is established from the dying declaration of the

deceased that she was living separately from her mother-in-

law, the appellant herein, for many years and that on the day

in question she had a quarrel with the appellant at her house.

It is also clear from the evidence on record that immediately

after the quarrel she along with her daughter came to fetch

water and when she was returning, the appellant came and

threw a burning tonsil on the clothes of the deceased. Since

the deceased was wearing a terylene cloth at that relevant

point of time, it aggravated the fire which caused the burn

injuries.

20. There is also evidence on record to prove and

establish that the action of the appellant to throw the burning

tonsil was preceded by a quarrel between the deceased and

the appellant. From the aforesaid evidence on record it

cannot be said that the appellant had the intention that such

action on her part would cause the death or such bodily

injury to the deceased, which was sufficient in the ordinary

course of nature to cause the death of the deceased.

Therefore, in our considered opinion, the case cannot be said

to be covered under clause (4) of Section 300 of IPC. We are,

however, of the considered opinion that the case of the

appellant is covered under Section 304 Part II of IPC.”

16. In the present case, we have come to the irresistible conclusion that the role

of the appellants is clear from the dying declaration and other records.

However, the point which has also weighed with this court are that the

deceased had survived for around 30 days in the hospital and that his condition

worsened after around 5 days and ultimately died of septicemia. In fact he had

sustained about 35% burns. In that view of the matter, we are of the opinion that

the conviction of the appellants under section 302 of Indian Penal Code is

required to be converted to that under section 304(I) of Indian Penal Code and

in view of the same appeal is partly allowed.

17. The conviction of the appellants - original accused under Section 302 of

Indian Penal Code vide judgment and order dated 19.12.2007 arising from

Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast

Track Court No. 6, Ahmedabad is converted to conviction under Section 304

(Part I) of Indian Penal Code. However, the conviction of the appellants –

original accused under section 452 of Indian Penal Code is upheld. The

appellants – original accused are ordered to undergo rigorous imprisonment for

a period of ten years and fine of Rs. 5000/- each in default rigorous

imprisonment for six months under section 304 (Part I) of Indian Penal Code

instead of life imprisonment and sentence in default of fine as awarded by the

trial court under section 302 IPC. The sentence imposed in default of fine under

section 452 IPC is also reduced to two months. Accordingly, the appellants are

ordered to undergo rigorous imprisonment for a period of ten years and fine of

Rs. 5000/-, in default, rigorous imprisonment for six months for offence

punishable under section 304(I) of Indian Penal Code and rigorous

imprisonment for a period of five years and fine of Rs. 2,000/-, in default,

rigorous imprisonment for two months for offence punishable under section 452

of Indian Penal Code. Both sentences shall run concurrently. The judgement

and order dated 19.12.2007 is modified accordingly. The period of sentence

already undergone shall be considered for remission of sentence qua appellants

– original accused. R & P to be sent back to the trial court forthwith."

23.In latest decision in Khokan@ Khokhan (Supra) where the

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facts were similar to this case, the Apex Court has allowed the appeal

of the accused appellant and altered the sentence. The decision of the

Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3

SCC 12 which was related to kidnapping from legal guardian,

wherein it was established that the Court while respecting the

concerns of both society and victim, propounded that the twin

principle of deterrence and correction would be served by reducing

the period of incarceration already undergone by the accused. In our

case, this is not that gruesome matter where the accused cannot be

dealt with in light of all these judgments. Decisions in Pravat

Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 &

Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for

the benefit of the accused.

24.On overall scrutiny of the facts and circumstances of the present

case coupled with the opinion of the Medical Officer and considering

the principle laid down by the Apex Court in the Case of Tukaram

and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250

and in the case of B.N. Kavatakar and Another Vs. State of

Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the

considered opinion that it was a case of homicidal death not

amounting to murder.

25.From the upshot of the aforesaid discussions, it appears that the

death caused by the accused was not premeditated, accused though

had knowledge and intention that her act would cause bodily harm to

the deceased but did not want to do away with the deceased. Hence

the instant case falls under the Exceptions 1 and 4 to Section 300 of

IPC. While considering Section 299 as reproduced herein above

offence committed will fall under Section 304 Part-I as per the

observations of the Apex Court in Veeran and others Vs. State of

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M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

26.We come to the definite conclusion that the death was due to

septicemia. The precedents discussed by us would permit us to uphold

our finding which we conclusively hold that the offence is not

punishable under Section 302 of I.P.C. but is culpable homicide not

amounting to murder, punishable U/s 304 (Part I) of I.P.C.

27.Therefore, accused-appellant, Alka, is punished under Section

304 (Part I) of IPC and sentenced to the period undergone. The fine is

reduced to Rs.5,000/-. The fine if she has yet not deposited, will

deposit the same within four weeks from the date of release from jail.

The jail authority shall see that the accused-appellant is lodged in the

jail to re-incarcerate for the default period if fine is not paid after she

is released.

28.In view of the above, the criminal appeal is partly allowed.

Government Appeal No.2275 of 2017

29.As discussed above, this Government Appeal challenges the

acquittal of Sanjiv Kumar, Rajiv Kumar & Rajendra Prasad.

30.In order the challenge the judgment of acquittal, learned A.G.A.

for the state has submitted that the learned Sessions Judge has

mistakenly disbelieved statements of the prosecution witnesses and

without assigning any cogent reasons has disbelieved prosecution

story. It is further submitted that the evidence on record and

surrounding circumstances have not been properly appreciated by the

Trial Court as far as acquittal of accused-respondents are concerned.

31.As against this, learned counsel for the respondents have

submitted that judgment of the learned Sessions Judge is just and

proper as no infirmity can be found in the finding given by the learned

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Sessions Judge. It is further submitted that this Court should go by the

well settled principles concerning criminal appeal against acquittal

and that the finding of the learned Sessions Judge are not so perverse

as even in the dying declaration, nothing has been assigned against the

present three acquitted respondents.

32.Before we embark on testimony and the judgment of the Court

below, the contours for interfering in Criminal Appeals where accused

has been held to be non guilty would require to be discussed.

33.The principles which would govern and regulate the hearing of

an appeal by this Court, against an order of acquittal passed by the

trial Court, have been very succinctly explained by the Apex Court in

catena of decisions. In the case of “M.S. NARAYANA MENON @

MANI VS. STATE OF KERALA & ANR”, (2006) 6 S.C.C. 39, the

Apex Court has narrated the powers of the High Court in appeal

against the order of acquittal. In para 54 of the decision, the Apex

Court has observed as under:

“54. In any event the High Court entertained an appeal treating to

be an appeal against acquittal, it was in fact exercising the

revisional jurisdiction. Even while exercising an appellate power

against a judgment of acquittal, the High Court should have borne

in mind the well settled principles of law that where two view are

possible, the appellate Court should not interfere with the finding

of acquittal recorded by the Court below.”

34.Further, in the case of “CHANDRAPPA Vs. STATE OF

KARNATAKA”, reported in (2007) 4 S.C.C. 415, the Apex Court

laid down the following principles;

“42. From the above decisions, in our considered view, the

following general principles regarding powers of the appellate

Court while dealing with an appeal against an order of acquittal

emerge:

[1] An appellate Court has full power to review, re-

appreciate and reconsider the evidence upon which the

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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 curtain

extensive powers of an appellate Court in an appeal

against acquittal. Such phraseologies are more in the

nature of “flourishes of language” to emphasis 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 is available to him under the fundamental

principle of criminal jurisprudence that every person

shall be presumed to be innocent unless he is proved

guilty by a competent Court of law. Secondly, the

accused having secured his acquittal, the presumption

of his innocence is further reinforced, reaffirmed and

strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the

basis of the evidence on record, the appellate Court

should not disturb the finding of acquittal recorded by

the trial Court.”

35.Thus, it is a settled principle that while exercising appellate

powers, even if two reasonable views/conclusions are possible on the

basis of the evidence on record, the appellate Court should not disturb

the finding of acquittal recorded by the trial Court.

36.In the case titled “STATE OF GOA Vs. SANJAY THAKRAN

& ANR.”, reported in (2007) 3 S.C.C. 75, the Apex Court has

reiterated the powers of the High Court in appeals against acquital. In

para 16 of the said decision, the Court has observed as under:

“16. From the aforesaid decisions, it is apparent that while

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exercising the powers in appeal against the order of acquittal the

Court of appeal would not ordinarily interfere with the order of

acquittal unless the approach of the lower Court is vitiated by

some manifest illegality and the conclusion arrived at would not

be arrived at by any reasonable person and, therefore, the decision

is to be characterized as perverse. Merely because two views are

possible, the Court of appeal would not take the view which would

upset the judgment delivered by the Court below. However, the

appellate Court has a power to review the evidence if it is of the

view that the conclusion arrived at by the Court below is perverse

and the Court has committed a manifest error of law and ignored

the material evidence on record. A duty is cast upon the appellate

Court, in such circumstances, to re-appreciate the evidence to

arrive to a just decision on the basis of material placed on record

to find out whether any of the accused is connected with the

commission of the crime he is charged with.”

37.Similar principle has been laid down by the Apex Court in cases

titled “STATE OF UTTAR PRADESH VS. RAM VEER SINGH &

ORS.”, 2007 A.I.R. S.C.W. 5553 and in “GIRJA PRASAD (DEAD)

BY L.R.s VS. STATE OF MP”, 2007 A.I.R. S.C.W. 5589. Thus, the

powers, which this Court may exercise against an order of acquittal,

are well settled.

38.In the case of “LUNA RAM VS. BHUPAT SINGH AND

ORS.”, reported in (2009) SCC 749, the Apex Court in para 10 and

11 has held as under:

“10. The High Court has noted that the prosecution version was

not clearly believable. Some of the so called eye witnesses stated

that the deceased died because his ankle was twisted by an

accused. Others said that he was strangulated. It was the case of

the prosecution that the injured witnesses were thrown out of the

bus. The doctor who conducted the postmortem and examined the

witnesses had categorically stated that it was not possible that

somebody would throw a person out of the bus when it was in

running condition.

11. Considering the parameters of appeal against the judgment of

acquittal, we are not inclined to interfere in this appeal. The view

of the High Court cannot be termed to be perverse and is a

possible view on the evidence.”

39.In a recent decision of the Apex Court in the case titled

“MOOKKIAH AND ANR. VS. STATE, REP. BY THE

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INSPECTOR OF POLICE, TAMIL NADU” , reported in AIR 2013

SC 321, the Apex Court in para 4 has held as under:

“4. It is not in dispute that the trial Court, on appreciation of oral

and documentary evidence led in by the prosecution and defence,

acquitted the accused in respect of the charges leveled against

them. On appeal by the State, the High Court, by impugned order,

reversed the said decision and convicted the accused under

Section 302 read with Section 34 of IPC and awarded RI for life.

Since counsel for the appellants very much emphasized that the

High Court has exceeded its jurisdiction in upsetting the order of

acquittal into conviction, let us analyze the scope and power of the

High Court in an appeal filed against the order of acquittal. This

Court in a series of decisions has repeatedly laid down that as the

first appellate court the High Court, even while dealing with an

appeal against acquittal, was also entitled, and obliged as well, to

scan through and if need be reappreciate the entire evidence,

though while hoosing to interfere only the court should find an

absolute assurance of the guilt on the basis of the evidence on

record and not merely because the High Court could take one

more possible or a different view only. Except the above, where the

matter of the extent and depth of consideration of the appeal is

concerned, no distinctions or differences in approach are

envisaged in dealing with an appeal as such merely because one

was against conviction or the other against an acquittal. [Vide

State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]”

40.It is also a settled legal position that in acquittal appeals, the

appellate Court is not required to rewrite the judgment or to give fresh

reasonings, when the reasons assigned by the Court below are found

to be just and proper. Such principle is laid down by the Apex Court in

the case of “STATE OF KARNATAKA VS. HEMAREDDY”, AIR

1981 SC 1417, wherein it is held as under:

“...This Court has observed in Girija Nandini Devi V. Bigendra

Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it

is not the duty of the Appellate Court on the evidence to repeat the

narration of the evidence or to reiterate the reasons given by the

trial Court expression of general agreement with the reasons given

by the Court the decision of which is under appeal, will ordinarily

suffice.”

41.The Apex Court in “SHIVASHARANAPPA & ORS. VS.

STATE OF KARNATAKA”, JT 2013 (7) SC 66 has held as under:

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“That appellate Court is empowered to reappreciate the entire

evidence, though, certain other principles are also to be adhered

to and it has to be kept in mind that acquittal results into double

presumption of innocence.”

42.Further, in the case of “STATE OF PUNJAB VS. MADAN

MOHAN LAL VERMA”, (2013) 14 SCC 153 , the Apex Court has

held as under:

“The law on the issue is well settled that demand of illegal

gratification is sine qua non for constituting an offence under the

1988 Act. Mere recovery of tainted money is not sufficient to

convict the accused when substantive evidence in the case is not

reliable, unless there is evidence to prove payment of bribe or to

show that the money was taken voluntarily as a bribe. Mere receipt

of the amount by the accused is not sufficient to fasten guilt, in the

absence of any evidence with regard to demand and acceptance of

the amount as illegal gratification. Hence, the burden rests on the

accused to displace the statutory presumption raised under Section

20 of the 1988 Act, by bringing on record evidence, either direct or

circumstantial, to establish with reasonable probability, that the

money was accepted by him, other than as a motive or reward as

referred to in Section 7 of the 1988 Act. While invoking the

provisions of Section 20 of the Act, the court is required to

consider the explanation offered by the accused, if any, only on the

touchstone of preponderance of probability and not on the

touchstone of proof beyond all reasonable doubt. However, before

the accused is called upon to explain how the amount in question

was found in his possession, the foundational facts must be

established by the prosecution. The complainant is an interested

and partisan witness concerned with the success of the trap and

his evidence must be tested in the same way as that of any other

interested witness. In a proper case, the court may look for

independent corroboration before convincing the accused

person.”

43.The Apex Court recently in Jayaswamy vs. State of Karnataka,

(2018) 7 SCC 219, has laid down the powers of appellate court in re-

appreciating the evidence in a case where the State has preferred an

appeal against acquittal, which read as follows:

"10.It is by now well settled that the Appellate Court hearing the

appeal filed against the judgment and order of acquittal will not

overrule or otherwise disturb the Trial Court's acquittal if the

Appellate Court does not find substantial and compelling reasons

for doing so. If the Trial Court's conclusion with regard to the

facts is palpably wrong; if the Trial Court's decision was based on

[17]

erroneous view of law; if the Trial Court's judgment is likely to

result in grave miscarriage of justice; if the entire approach of the

Trial Court in dealing with the evidence was patently illegal; if

the Trial Court judgment was manifestly unjust and unreasonable;

and if the Trial Court has ignored the evidence or misread the

material evidence or has ignored material documents like dying

declaration/report of the ballistic expert etc. the same may be

construed as substantial and compelling reasons and the first

appellate court may interfere in the order of acquittl. However, if

the view taken by the Trial Court while acquitting the accused is

one of the possible views under the facts and circumstances of the

case, the Appellate Court generally will not interfere with the

order of acquittal particularly in the absence of the

aforementioned factors.

.........................It is relevant to note the observations of this Court

in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors.,

(2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the appellate court reviewing the

evidence upon which an order of acquittal is based. Generally, the

order of acquittal shall not be interfered with because the

presumption of innocence of the accused is further strengthened

by acquittal. The golden thread which runs through the web of

administration of justice in criminal cases is that if two views are

possible on the evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence, the view which

is favourable to the accused should be adopted. The paramount

consideration of the court is to ensure that miscarriage of justice

is prevented. A miscarriage of justice which may arise from

acquittal of the guilty is no less than from the conviction of an

innocent. In a case where admissible evidence is ignored, a duty is

cast upon the appellate court to re-appreciate the evidence in a

case where the accused has been acquitted, for the purpose of

ascertaining as to whether any of the accused committed any

offence or not."

44.The Apex Court recently in Shailendra Rajdev Pasvan v. State

of Gujarat, (2020) 14 SC 750, has held that the appellate court is

reversing the trial court’s order of acquittal, it should give proper

weight and consideration to the presumption of innocence in favour of

accused, and to the principle that such a presumption sands reinforced,

reaffirmed and strengthened by the trial court and in Samsul Haque v.

State of Assam, (2019) 18 SCC 161 held that judgment of acquittal,

where two views are possible, should not be set aside, even if view

formed by appellate court may be a more probable one, interference

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with acquittal can only be justified when it is based on a perverse

view.

45.We have perused the depositions of prosecution witnesses,

documentary evidence supporting ocular versions, arguments

advanced by learned counsel for the parties. We have also perused

the findings recorded by the learned Sessions Judge.

46.While going through the finding of facts and even dying

declaration which we have held is accepted under Section 32 of the

Indian Evidence Act, name of only Alka was given by the deceased.

There is no overt act perpetrated on any of the other accused and,

therefore, we cannot agree with the submission of learned A.G.A. for

the State that the judgment is perverse and requires to be upturned.

47.After considering the facts and circumstances of the present

case and appraisal of the evidence available on record and on the

contours of the judgment of the Apex Court, we have no other option

but to concur with the judgment of acquittal by the the learned

Sessions Judge.

48.The appeal sans merits and is dismissed. The record and

proceedings be sent back to the Court below.

Order Date :- 26.9.2022

DKS