advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, August 26, 2013

Cryptic orders - Remand for fresh consideration = “It was necessary for the High Court to consider whether the trial court’s assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court’s concurrence with the trial court’s view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.” 12. Tested on the touchstone of the aforesaid principles we find that there is total lack of deliberation and proper ratiocination. There has been really no assessment of evidence on record. The credibility of the witnesses has not appositely been adjudged. Affirmative satisfaction recorded by the High Court is far from being satisfactory. We are pained to say so, as we find that the learned trial Judge has written an extremely confused judgment replete with repetitions and in such a situation it becomes absolutely obligatory on the part of the High Court to be more careful to come to a definite conclusion about the guilt of the accused persons, for their liberty is jeopardized. It may be stated at the cost of repetition that it is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. 13. It can be stated with certitude that appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not subserved, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt. Ergo, the emphasis is on the duty of the appellate court. 14. Consequently, the impugned judgment and order passed in Criminal Appeal No. 531 of 2004 by the High Court is set aside and the appeal preferred by the appellants is remitted for fresh disposal. The High Court is requested to dispose of the appeal as expeditiously as possible so that the Sword of Damocles is not kept hanging on the head of the appellants. As the appellants are on bail, they shall continue to remain on bail on same terms and conditions till the disposal of the appeal by the High Court.

                     published in http://judis.nic.in/supremecourt/filename=40689
   IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1517 OF 2007


Kamlesh Prabhudas Tanna & Another       ... Appellants

                                   Versus

State of Gujarat                               ...Respondent

                               J U D G M E N T


Dipak Misra, J.


      Assailing the legal acceptability of the judgment and order passed  by
the High Court of Gujarat at Ahmedabad in Criminal Appeal No.  531  of  2004
whereby the Division Bench of the High Court has given  endorsement  to  the
judgment passed by the learned Additional Sessions Judge, Fast  Track  Court
No. 1, Jamnagar in Sessions Case No. 158 of 2001 wherein the  learned  trial
Judge had found the appellants guilty of the offences under  Sections  304B,
306 and 498A read with Section 34  of  the  Indian  Penal  Code  (for  short
“IPC”) and Section 4 of the Dowry Prohibition  Act,  1961  and  imposed  the
sentence of rigorous imprisonment of seven years and a  fine  of  Rs.1,000/-
on the  first  score,  five  years  rigorous  imprisonment  and  a  fine  of
Rs.1,000/- on the second score, eighteen months rigorous imprisonment and  a
fine of Rs.500/- on the third count and  six  months  rigorous  imprisonment
and a fine of Rs.250/- on the fourth count with the default clause  for  the
fine amount in respect of each of the offences.   The  learned  trial  Judge
stipulated that all the sentences shall be concurrent.

   2. Filtering the unnecessary details, the prosecution case, in brief,  is
      that the marriage between the appellant No. 1  and  deceased  Sandhya,
      sister of the informant, PW-2, was solemnized on 24.9.1997.  After the
      marriage the deceased stayed with her husband and  the  mother-in-law,
      the appellant No.2 herein, at the matrimonial home situate at Jamnagar
      in Patel Colony Sheri No. 1.  In the wedlock, two  children,  one  son
      and a daughter were born.  On 11.9.2001, the informant, brother of the
      deceased, got a telephonic call from the accused No. 1 that his sister
      Sandhya had committed suicide.  On receipt of the  telephone  call  he
      travelled from Goa along with his friend, Sandil Kumar, PW-20, and  at
      that juncture, the husband of  Sandhya,  Kamlesh,  informed  that  the
      deceased was fed up with the constant ill-health of her  children  and
      the said frustration  had  led  her  to  commit  suicide  by  tying  a
      ‘dupatta’ around her neck.   The  brother  of  the  deceased  did  not
      believe the version of Kamlesh, and lodged an FIR  alleging  that  the
      husband and the mother-in-law of the deceased, after the marriage, had
      been constantly asking for dowry of Rs.2 lacs from the father  of  the
      deceased, but as the said demand could not be  satisfied  due  to  the
      financial condition of the father, the husband and his mother  started
      ill-treating her in the matrimonial home and being unable to  tolerate
      the physical and mental torture she was compelled to  commit  suicide.
      Be it noted, as the death was unnatural, the police had sent the  dead
      body for post mortem and the doctor conducting the autopsy opined that
      the death was due to suicide.  After  the  criminal  law  was  set  in
      motion on the base of the FIR lodged by the brother, the investigating
      officer examined number of witnesses  and  after  completing  all  the
      formalities laid the charge sheet under Sections 304B,  306  and  498A
      read with Section 34 IPC and under Section 4 of the Dowry  Prohibition
      Act, 1961 before the competent Court,  who,  in  turn,  committed  the
      matter to the Court of Session.

   3. The accused persons denied the allegations and claimed  to  be  tried.
      The prosecution, in order to establish the  charges  levelled  against
      the accused persons, examined 22 witnesses and got  marked  number  of
      documents.  The defence chose not to adduce any evidence.

   4. The learned trial Judge  principally  posed  four  questions,  namely,
     
whether the accused persons had inflicted unbearable  torture  on  the
      deceased as well as caused mental harassment to make themselves liable
      for punishment under Section 498A IPC; 
whether the material brought on
      record established the offence under Section 304B read with Section 34 IPC; 
whether the physical and mental torture on the deceased compelled
      her to commit suicide on 11.9.2001  as  a  consequence  of  which  the
      accused persons had become liable to be convicted  under  Section  306
      read with Section 34 IPC; and 
whether the accused persons had demanded
      a sum of Rs.2 lacs towards dowry from the parents of Sandhya so as  to
      be found guilty under Section 4 of the  Dowry  Prohibition  Act.   
The
      learned trial Judge answered all the questions in the affirmative  and
      opined that the prosecution had been able to prove the offences to the
      hilt and, accordingly, imposed the sentence as stated hereinbefore.

   5. Grieved by the judgment of conviction and the order  of  sentence  the
      appellants preferred Criminal Appeal No. 531 of 2004.
The High  Court
      at the stage of admission had suo motu issued notice  for  enhancement
      of sentence  which  was  eventually  converted  to  Criminal  Revision
      Application No. 444 of 2007.
The State had preferred Criminal  Appeal
      No. 1889 of 2004 for the  self-same  purpose.  
The  appeals  and  the
      revision application were disposed  of  by  a  common  judgment  dated
      6.9.2007 whereby the Division Bench of the High Court  concurred  with
      the view expressed  by  the  learned  trial  Judge  and,  accordingly,
      dismissed the appeals preferred by the accused as well as by the State
      and resultantly Criminal Revision initiated suo motu by the High Court
      also stood dismissed.
The non-success in the appeal has compelled the
      accused-appellants to prefer this appeal by special leave.

   6. We have  heard  Mr.  Ranbir  Singh  Yadav,  learned  counsel  for  the
      appellant No. 1, Ms. Nidhi, learned counsel for the appellant  No.  2,
      and Ms. Pinky Behera, learned counsel appearing  for  the  respondent-
      State.

   7. In the present appeal we are constrained to note that the  High  Court
      has really not appreciated and analysed the evidence on record and  it
      is perceptible that it has narrated the prosecution version,  referred
      to the names of witnesses examined and the documents exhibited  during
      the trial, reproduced the  findings  recorded  by  the  learned  trial
      Judge, recorded the submissions of learned counsel for the  respective
      parties and thereafter, referred to the post mortem  report,  the  FSL
      report,  inquest  panchnama  and  other  documentary   evidence   and,
      ultimately referring to the deposition of prosecution witnesses  in  a
      cryptic manner, has come to hold that there is no lacuna in  the  oral
      evidence and the same has been duly corroborated  by  the  documentary
      evidence.  The High Court has dealt with the factum of suicide at some
      length which was not disputed.  Thereafter, there has been  advertence
      to the issue of enhancement of sentence in the appeal preferred by the
      State and how the said appeal did  not  merit  consideration.   As  we
      perceive, the High Court, while dealing with a statutory appeal  under
      the  Code  of  Criminal  Procedure,  has  failed  to  appreciate   and
      scrutinize  the  evidence  in  proper  perspective,  and  the  reasons
      ascribed by it for accepting the evidence and concurring with the view
      of the trial court is not supported by any acceptable reason.

   8. At this juncture, we are obliged  to  state  that  though  it  may  be
      difficult to state that the judgment suffers from sans reasons, yet it
      is not at all difficult to say that the reasons  ascribed  are  really
      apology for reasons.  If we allow ourselves to say so, one may ascribe
      certain reasons which seem to be reasons but the  litmus  test  is  to
      give seemly and condign reasons either  to  sustain  or  overturn  the
      judgment.   The  filament  of  reasoning  must  logically  flow   from
      requisite analysis, but, unfortunately, the said exercise has not been
      carried out.  In this  context,  we  may  refer  with  profit  to  the
      decision in Padam Singh v.  State  of  U.P.[1],  wherein  a  two-Judge
      Bench, while dealing  with  the  duty  of  the  appellate  court,  has
      expressed thus: -
      “It is the duty of an  appellate  court  to  look  into  the  evidence
      adduced in the case and arrive at  an  independent  conclusion  as  to
      whether the said evidence can be relied upon or not and even if it can
      be relied upon, then whether the prosecution can be said to have  been
      proved beyond reasonable doubt on the said evidence.  The  credibility
      of a witness has to be adjudged by  the  appellate  court  in  drawing
      inference from proved and admitted facts.  It must be remembered  that
      the appellate court,  like  the  trial  court,  has  to  be  satisfied
      affirmatively that the prosecution case is substantially true and  the
      guilt of the accused has been proved beyond all  reasonable  doubt  as
      the presumption of innocence with which the accused starts,  continues
      right through until he is held guilty by the final court of appeal and
      that presumption is neither strengthened by an acquittal nor  weakened
      by a conviction in the trial court.”
                                                         [Emphasis supplied]
   9. In Rama and others v. State of  Rajasthan[2],  the  Court  has  stated
      about the duty of the appellate court in the following terms: -
      “It is well settled that in a criminal appeal, a duty is enjoined upon
      the appellate court to reappraise the evidence itself  and  it  cannot
      proceed to dispose of the appeal upon appraisal  of  evidence  by  the
      trial court alone especially when the appeal has been already admitted
      and placed for final hearing.  Upholding such a procedure would amount
      to negation of valuable right of appeal of an accused, which cannot be
      permitted under law.”

  10. In Iqbal Abdul Samiya Malek v. State of  Gujarat[3],  relying  on  the
      pronouncements in Padam Singh (supra)  and  Bani  Singh  v.  State  of
      U.P.[4], this Court has reiterated the  principle  pertaining  to  the
      duty of the appellate court.

  11. Recently, a three-Judge Bench in Majjal v.  State  of  Haryana[5]  has
      ruled thus: -
      “It was necessary for the High Court to  consider  whether  the  trial
      court’s assessment of the evidence and its opinion that the  appellant
      must be convicted deserve to be confirmed.  
This exercise is necessary
      because the personal liberty of an accused is curtailed because of the
      conviction.  
The High Court must state its reasons why it is accepting
      the evidence on record.  
The High Court’s concurrence with  the  trial
      court’s view would be acceptable only if it is supported  by  reasons.
      In such appeals it is a court of  first  appeal.   
Reasons  cannot  be cryptic.  
By this, we do not mean that the High Court is  expected  to
      write an unduly long treatise.  
The judgment may  be  short  but  must
      reflect proper application of mind to  vital  evidence  and  important
      submissions which go to the root of the matter.”

  12. Tested on the touchstone of the  aforesaid  principles  we  find  that
      there is total lack of deliberation and proper  ratiocination.   
There
      has been really no assessment of evidence on record.  
The  credibility
      of the  witnesses  has  not  appositely  been  adjudged.   Affirmative
      satisfaction  recorded  by  the  High  Court   is   far   from   being
      satisfactory.  
We are pained to say so, as we find  that  the  learned
      trial Judge has written an extremely confused  judgment  replete  with
      repetitions and in such a situation it becomes  absolutely  obligatory
      on the part of the High Court to be more careful to come to a definite
      conclusion about the guilt of the accused persons, for  their  liberty
      is jeopardized.  
It may be stated at the cost of repetition that it is
      the sacrosanct duty of the appellate court, while  sitting  in  appeal
      against the judgment of the trial Judge,  to  be  satisfied  that  the
      guilt of the accused has been established beyond all reasonable  doubt
      after proper re-assessment, re-appreciation  and  re-scrutiny  of  the
      material on record.

  13. It can be stated with certitude  that  appreciation  of  evidence  and
      proper re-assessment to arrive at the conclusion is  imperative  in  a
      criminal appeal.  
That is the quality of exercise which is expected of
      the appellate court to be undertaken and when that is  not  done,  the
      cause of justice is not subserved,  for  neither  an  innocent  person
      should be sent to prison without his fault nor a guilty person  should
      be let off despite evidence on record to assure his guilt.  Ergo,  the
      emphasis is on the duty of the appellate court.

  14. Consequently, the impugned  judgment  and  order  passed  in  Criminal
      Appeal No. 531 of 2004 by the High Court is set aside and  the  appeal
      preferred by the appellants is remitted for fresh disposal.  
The  High
      Court is requested to  dispose  of  the  appeal  as  expeditiously  as
      possible so that 
the Sword of Damocles is not kept hanging on the head
      of the appellants.  
As the appellants are on bail, they shall continue
      to remain on bail on same terms and conditions till  the  disposal  of the appeal by the High Court.

  15. The appeal stands disposed of accordingly.


                                     ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                          [Dipak Misra]
New Delhi;
August 26, 2013.
-----------------------
[1]    (2000) 1 SCC 621
[2]    (2002) 4 SCC 571
[3]    (2012) 11 SCC 312
[4]    (1996) 4 SCC 720
[5]    (2013) 6 SCC 798

-----------------------
11


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.