Nagabhushan vs The State Of Karnataka on 8 March, 2021


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Supreme Court of India

Nagabhushan vs The State Of Karnataka on 8 March, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                                        REPORTABLE
                                   IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION
                                   CRIMINAL APPEAL NO. 443 OF 2020


          NAGABHUSHAN                                              …APPELLANT
                                        VERSUS


          THE STATE OF KARNATAKA                                   …RESPONDENT




                                        JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order of conviction dated 11.10.2019 passed by the High Court of

Karnataka at Bengaluru in Criminal Appeal No. 525/2013, by which the

High Court has allowed the said appeal preferred by the respondent –

State of Karnataka and has reversed the judgment and order of acquittal

passed by the learned trial Court insofar as the appellant – original
Signature Not Verified

Digitally signed by
Chetan Kumar
Date: 2021.03.08
17:19:10 IST
Reason:

accused no.1 is concerned for the offences punishable under Sections

498A and 302 read with 34 of the IPC and consequently convicted the
1
appellant herein – original accused no.1 for the aforesaid offences,

original accused no.1 has preferred the present appeal. However, 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 498A and 302 read with 34 of the IPC. The

case was committed to the Court of Sessions. The accused pleaded not

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guilty and therefore all of them came to be tried by the learned Sessions

Court for the aforesaid offences.

2.1 To prove the case against the accused, the prosecution examined

in all 14 witnesses and brought on record the documentary evidences

including Exhibit P5 – dying declaration and the medical evidence. That

after closure of the evidence on the side of the prosecution, further

statements of the accused under Section 313 Cr. P.C. were recorded.

Appellant herein – original accused no.1 examined himself as DW1 and

also examined a witness as DW2. The accused relied upon the earlier

statement of the deceased (Exhibit D2). That on appreciation of the

evidence and not believing the dying declaration – Exhibit P5 and having

found contradictions in two dying declarations Exhibit P5 and Exhibit D2,

the learned trial Court acquitted all the accused for the offences for

which they were tried.

3. Feeling aggrieved and dissatisfied with the impugned judgment

and order of acquittal passed by the learned trial Court, the State of

Karnataka preferred appeal before the High Court. By the impugned

judgment and order, the High Court has reversed the order of judgment

and order of acquittal insofar as the appellant herein – original accused

no.1 is concerned and has convicted the appellant herein – original

accused no.1 for the offences punishable under Sections 498A and 302

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read with 34 of the IPC. The judgment and order of acquittal for original

accused nos. 2 & 3 has been confirmed by the High Court.

3.1 Feeling aggrieved and dissatisfied with the impugned judgment

and order of the High Court reversing the judgment and order of acquittal

and convicting the appellant herein – original accused no.1 for the

offences punishable under Sections 498A & 302 read with 34 of the IPC,

original accused no.1 has preferred the present appeal.

4. Learned counsel appearing on behalf of the appellant has

vehemently submitted that in the facts and circumstances of the case,

the High Court has committed a grave error in reversing the well-

reasoned judgment and order of acquittal passed by the learned trial

Court.

4.1 It is submitted that while reversing the order of acquittal passed by

the learned trial Court, the High Court has exceeded in its jurisdiction

vested in 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.

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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 which she sustained burn injuries. It is submitted that even in

the history which was recorded in the hospital, when the deceased

Rekha was admitted, it was stated that the deceased had suffered

accidental burn injuries.

4.5 It is submitted that the High Court has not properly appreciated the

fact that the dying declaration (Exhibit P5) was recorded later on and

that too after the parents of the deceased reached to the hospital.

5

4.6 It is submitted that possibility of tutoring the deceased Rekha so as

to make statement against the accused persons cannot be ruled out. It

is submitted that therefore at least the appellant is entitled to the benefit

of doubt.

4.6 It is submitted that the High Court has not at all appreciated and/or

considered the defence version that on the date of incident there was no

power supply in the house and therefore the deceased went to the

kitchen to prepare the food and found that the gas was empty and

thereafter she told the appellant that she would use the kerosene stove

to prepare the food, and that while she was preparing the food with the

help of candle light and when the same was almost exhausted, she tried

to lit another candle but the same had fallen on the ground where the

kerosene was already spread while pouring the kerosene to the stove

and as a result of which the fire was caught on her clothes.

4.7 It is submitted that even thereafter when the deceased screamed,

the appellant – original accused no.1 rushed to the spot and tried to

extinguish the fire and while extinguishing the fire, he also sustained

burn injuries in his right hand. It is submitted that the aforesaid

circumstances which were considered by the learned trial Court while

acquitting the accused have not been considered and/or appreciated by

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the High Court while reversing the order of acquittal passed by the

learned trial Court and convicting the accused – appellant herein.

4.8 It is submitted that as such when it was an appeal against the

judgment and order of acquittal, the High Court was not justified in

reappreciating the oral as well as documentary evidence. It is submitted

that only in a case where the findings recorded by the learned trial Court

are found to be perverse, the interference by the appellate court against

the order of acquittal is warranted. It is submitted that in the present

case, as such, the view taken by the learned 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

7
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 acquittal passed by the
trial court. The appellate court should not ordinarily set aside a judgment of
acquittal in a case where two views are possible, though the view of the
appellate court may be the more probable one. While dealing with a
judgment of acquittal, the appellate court has to consider the entire
evidence on record, so as to arrive at a finding as to whether the views of
the trial court were perverse or otherwise unsustainable. The appellate
court is entitled to consider whether in arriving at a finding of fact, the trial
court had failed to take into consideration admissible evidence and/or had
taken into consideration the evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be a subject-matter of
scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3
SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra
Pratap v. State of U.P
(2003) 1 SCC 761, Narendra Singh v. State of M.P
(2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State
of U.P. v. Ram Veer Singh
(2007) 13 SCC 102, S. Rama Krishna v. S.

Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206,
Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram
Singh v. State of H.P
(2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council
observed as under: (IA p. 404)
“… the High Court should and will always give proper weight and
consideration to such matters as (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption of innocence in favour of
the accused, a presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate court in disturbing a finding of
fact arrived at by a Judge who had the advantage of seeing the
witnesses.”

14. The aforesaid principle of law has consistently been followed by this
Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of
Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963
SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan
v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of

8
M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC

755)

15. In Chandrappa v. State of 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 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.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated
the said view, observing that the appellate court in dealing with the cases
in which the trial courts have acquitted the accused, should bear in mind
that the trial court’s acquittal bolsters the presumption that he is innocent.
The appellate court must give due weight and consideration to the
decision of the trial court as the trial court had the distinct advantage of
watching the demeanour of the witnesses, and was in a better position to
evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again
examined the earlier judgments of this Court and laid down that: (SCC p.
374, para 20)
“20. … an order of acquittal should not be lightly interfered with even if the
court believes that there is some evidence pointing out the finger towards
the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain
illustrative circumstances in which the Court would be justified in
interfering with a judgment of acquittal by the High Court. The
circumstances include: (SCC p. 286, para 28)

9
“(i) The High Court’s decision is based on totally erroneous view of law by
ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence and documents
on record;

(iii) The entire approach of the High Court in dealing with the evidence was
patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust and unreasonable
based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the
findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when
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 be said to be perverse if it is “against the weight of evidence”, or
if the finding so outrageously defies logic as to suffer from the vice of
irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635,
Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons
1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3)
SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v.

State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P
(2009) 10 SCC 636).”
(emphasis supplied)

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5.2.3 It is further observed, after following the decision of this

Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2

SCC 10, that if a decision is arrived at on the basis of no evidence or

thoroughly unreliable evidence and no reasonable person would act

upon it, the order would be perverse. But if there is some evidence on

record which is acceptable and which could be relied upon, the

conclusions would not be treated as perverse and the findings would not

be interfered with.

5.3 In the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5

SCC 436, this Court again had an occasion to consider the scope of

Section 378 Cr.P.C. and the interference by the High Court in an appeal

against acquittal. This Court considered catena of decisions of this

Court right from 1952 onwards. In paragraph 31, it is observed and held

as under:

“31. An identical question came to be considered before this Court in
Umedbhai Jadavbhai (1978) 1 SCC 228. 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: (SCC p. 233)
“10. Once the appeal was rightly entertained against the order of
acquittal, the High Court was entitled to reappreciate 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
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 Court has not strictly proceeded in the manner laid down
by this Court in Ramesh Babulal Doshi v. State of Gujarat (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.”
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309,
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

12
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 CrPC came to the
conclusion that the judgment of acquittal under appeal was perverse it
could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an
appeal against an order of acquittal to review the entire evidence and to
come to its own conclusion, of course, keeping in view the well-
established rule that the presumption of innocence of the accused is not
weakened but strengthened by the judgment of acquittal passed by the
trial court which had the advantage of observing the demeanour of
witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of
appreciation of evidence in an appeal against an order of acquittal as in
the case of an appeal against an order of conviction, subject to the riders
that the presumption of innocence with which the accused person starts in
the trial court continues even up to the appellate stage and that the
appellate court should attach due weight to the opinion of the trial court
which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in
mind, and comes to a contrary conclusion, the judgment cannot be said to
have been vitiated. (See in this connection the very cases cited at the Bar,
namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of
U.P
AIR 1953 SC 122) In our opinion, there is no substance in the
contention raised on behalf of the appellant that the High Court was not
justified in reviewing the entire evidence and coming to its own
conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, 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 ridicule.”

(emphasis supplied)

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6. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand and the findings recorded by the High

Court, the High Court has specifically observed and held that the finding

recorded by the learned trial Court discarding and/or not believing the

dying declaration (Exhibit P5) is perverse 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 also taken note of the fact that in the

14
second dying declaration, the deceased has explained her first

statement that it was a case of accident and she categorically stated in

the second dying declaration that at the time when she gave first

statement that it was a case of accident, she was given threats by the

appellant herein – original accused no.1 that he will kill her children also.

She also stated in the second dying declaration that after her parents

came, she got the courage to tell the truth. Therefore, as such, the High

Court rightly believed the second dying declaration – Exhibit P5.

8. At this stage, the decisions of this Court in the cases of Nallam

Veera Stayanandam v. Public Prosecutor (2004) 10 SCC 769; Kashmira

Devi v. State of Uttarakhand (2020) 11 SCC 343; and Ashabai v. State of

Maharashtra (2013) 2 SCC 224 are required to be referred to. In the

aforesaid decisions, this Court had an occasion to consider the cases

where there are multiple dying declarations. In the aforesaid decisions,

it is held that each dying declaration has to be considered independently

on its own merit as to its evidentiary value and one cannot be rejected

because of the contents of the other. It is also held that the Court has to

consider each of them in its correct perspective and satisfy itself which

one of them reflects the true state of affairs. When there are multiple

dying declarations, each dying declaration has to be separately

assessed and evaluated on its own merits.

15

9. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand, and on evaluation of both dying

declarations independently, dying declaration recorded as Exhibit P5

reflects the true state of affairs and the contents are supported by the

medical evidence and the injuries sustained by the deceased. The plea

put forth by the defence that it was a case of an accident and while

pouring the kerosene from kerosene can to the bottle, the same had

fallen on the clothes placed on the ground and when the deceased tried

to remove the clothes from that place, the candle fell on the ground, as a

result, her clothes caught fire and she sustained burn injuries is

disbelieved by the High Court considering the circumstances noted by

the High Court that the deceased sustained injuries on the face, chest

and back and to the upper limbs. The main injuries are found 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.

16

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 Court has committed any error.

10. Now so far as the submission on behalf of the accused that even

thereafter he tried to extinguish the fire and he also sustained injuries

and therefore it cannot be said that the appellant has committed an

offence punishable under Section 302 IPC is concerned, at the outset, it

is required to be noted that in the present case the prosecution is

successful in proving that the accused – appellant herein poured

kerosene on the deceased. As per dying declaration Exhibit P5, it has

been proved that the deceased was set ablaze by pouring kerosene on

her. The act of the accused falls in clause fourthly of Section 300 IPC. It

emerges from the evidence on record that the accused poured kerosene

on the deceased and not only poured kerosene but also set her ablaze

by the matchstick. Merely because thereafter the A1 might have tried to

17
extinguish the fire, that will not bring the case out of clause fourthly of

Section 300 IPC.

A somewhat similar submission was made before this Court in the

case of Santosh v. State of Maharashtra (2015) 7 SCC 641. In the case

before this Court, it was contended on behalf of the accused who poured

kerosene on the deceased and set her ablaze by matchstick that

thereafter they tried to save the deceased by pouring water on her and

therefore it was contended on behalf of the accused that by that conduct

it cannot be said that the intention of the accused was to cause death of

the deceased. The aforesaid has been negated by this Court by

observing in paragraphs 9 to 18 as under:

“9. Insofar as the first contention that the appellant is not responsible for
the death of deceased Saraswatibai, the defence made an attempt to
contend that the fire was accidental and that the appellant tried to
extinguish the fire in order to save her and in that process, he also
suffered burn injuries. The prosecution has adduced cogent evidence to
prove that the appellant has caused the death of deceased Saraswatibai.
The accused suspected the deceased of infidelity and picking up a fight
over it, he kicked her and inflicted fist-blows and further set her on fire by
pouring kerosene over her person. PW 6, doctor certified that the
deceased was in a fit mental condition to make the statement and PW 7,
the Executive Magistrate recorded the dying declaration Ext. 1. In the said
dying declaration, the deceased had categorically 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-in-

law) 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

18
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 the conduct of the appellant in trying to extinguish the
fire immediately after the incident would clearly show that there was no
intention on the part of the appellant to commit the murder. In support of
his contention, he placed reliance on the judgment of this Court in Kalu
Ram v. State of Rajasthan
[(2000) 10 SCC 324 : 2000 SCC (Cri) 86] .

11. The question falling for consideration is whether the act of the accused
pouring water would mitigate the offence of murder. Where the intention to
kill is present, the act amounts to murder, where such an intention is
absent, the act amounts to culpable homicide not amounting to murder. To
determine whether the offender had the intention or not, each case must
be decided on its facts and circumstances. From the facts and
circumstances of the instant case, it is evident that : (i) there was a
homicide, namely, the death of Saraswatibai; (ii) the deceased was set
ablaze by the appellant and this act was not accidental or unintentional;
and (iii) the post-mortem certificate revealed that the deceased died due to
shock and septicaemia caused by 60% burn injuries. When the accused
poured kerosene on the deceased from the kerosene lamp and also threw
the lighted matchstick on the deceased to set her on fire, he must have
intended to cause the death of the deceased. As seen from the evidence
of PW 5, panch witness, in the house of the appellant, kerosene lamp was
prepared in an empty liquor bottle. Whether the kerosene was poured from
the kerosene lamp or from the can is of no consequence. When there is
clear evidence as to the act of the accused to set the deceased on fire,
absence of premeditation will not reduce the offence of murder to culpable
homicide not amounting to murder. Likewise, pouring of water will not
mitigate the gravity of the offence.

12. After attending to nature’s call, the deceased returned to the house a
little late. The accused questioned her as to why she was coming late and
he also suspected her fidelity. There was no provocation for the accused
to pour kerosene and set her on fire. The act of pouring kerosene, though
on the spur of the moment, the same was followed by lighting a matchstick
and throwing it on the deceased and thereby setting her ablaze. Both the
acts are intimately connected with each other and resulted in causing the
death of the deceased and the act of the accused is punishable for
murder.

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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 his wife had failed to concede to his demands, the accused
poured kerosene on her and gave her a matchbox to set herself on fire.
On her failure to light the matchstick, the accused set her ablaze. But
when he realised that the fire was flaring up, he threw water on her person
in a desperate bid to save her. In such facts and circumstances, this Court
held that the accused would not have intended to inflict the injuries which
she sustained on account of the act of the accused and the conviction was
altered from Section 302 IPC to Section 304 Part II IPC.

15. The decision in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri)
86] cannot be applied in the instant case. The element of inebriation ought
to be taken into consideration as it considerably alters the power of
thinking. In the instant case, the accused was in his complete senses,
knowing fully well the consequences of his act. The subsequent act of
pouring water by the accused on the deceased also appears to be an
attempt to cloak his guilt since he did it only when the deceased screamed
for help. Therefore, it cannot be considered as a mitigating factor. An act
undertaken by a person in full awareness, knowing its consequences
cannot be treated on a par with an act committed by a person in a highly
inebriated condition where his faculty of reason becomes blurred.

16. Within three months of her marriage, the deceased died of burn
injuries. In bride burning cases, whenever the guilt of the accused is

20
brought home beyond reasonable doubt, it is the duty of the court to deal
with it sternly and award the maximum penalty prescribed by the law in
order that it may operate as a deterrence to other persons from committing
such offence.

17. This Court on various occasions has stressed the need for vigilance in
cases where a woman dies of burn injuries within a short span of her
marriage and that stern view needs to be adopted in all such cases.
In Satya Narayan Tiwari v. State of U.P. [(2010) 13 SCC 689 : (2011) 2
SCC (Cri) 393] , this Court in paras 3 and 9 has held as under : (SCC pp.
692 & 693)

“3. Indian society has become a sick society. This is evident from the
large number of cases coming up in this Court (and also in almost all
courts in the country) in which young women are being killed by their
husbands or by their in-laws by pouring kerosene on them and
setting them 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 cannot be interfered with unless the findings are
perverse and unsupportable from the evidence on record. This view has

21
been reiterated in Dhananjay Shanker Shetty v. State of
Maharashtra
[(2002) 6 SCC 596 : 2002 SCC (Cri) 1444] . In the totality of
the facts and circumstances, in our view, the concurrent findings of facts
recorded by the courts below are based on evidence and we see no
infirmity in the impugned judgment warranting interference”.

Therefore, after pouring kerosene on the deceased and thereafter

setting her ablaze, thereafter merely because the accused might have

tried to extinguish the fire will not take the case out of the clutches of

clause fourthly of Section 300 of the IPC. The act of the accused

pouring kerosene on the deceased and thereafter setting her ablaze by

matchstick is imminently dangerous which, in all probability, will cause

death. Therefore, the High Court has rightly convicted the accused for

the offence under Section 302 IPC.

11. In view of the above and for the reasons stated above, the present

appeal fails. We see no reason to interfere with the impugned judgment

and order of conviction passed by the High Court. The appeal deserves

to be dismissed and is accordingly dismissed.

……………………………………..J.

                                         [Dr. Dhananjaya Y. Chandrachud]




New Delhi;                               …………………………………….J.
March 8, 2021.                           [M.R. Shah]


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