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Tuesday, October 20, 2015

The High Court has not recorded any reason as to why leave to appeal was refused. In the instant case, there is no dispute that deceased- Kamla died within seven years of marriage in unnatural circumstances. By perusal of the judgment of the trial court, the trial court does not seem to have examined the evidence adduced by the prosecution in the light of the statutory presumption to be raised under Section 113B of the Evidence Act. In such circumstances, the High Court ought to have granted leave to appeal and thereafter re-appreciated the evidence and recorded its findings independently as regards guilt or otherwise of the accused. The High Court has not given any reason for refusing to grant leave to file appeal against acquittal. The impugned order is very cryptic by which the High Court refused leave to appeal and dismissed both appeal as well as the revision and in our view, the impugned order is liable to be set aside and the matter be remitted back to the High Court. Even though State of Rajasthan has not preferred any appeal before this Court, as the impugned order is a common order and in the interest of justice, we deem it appropriate to grant leave to appeal to the State as well.Yet another ground for remitting the matter back to the High Court is relevant to be noted. The judgment of the trial court was delivered on 24.03.2009 and the FSL Report dated 16.04.2009 (Annexure P-2 in the SLP Paper Book) received from the Regional State Forensic Science Laboratory, Rajasthan, Jaipur after the disposal of the case by the trial court, show positive test for the presence of organo phosphorous insecticide in the viscera. In our view, the High Court should have considered the FSL Report in proper perspective and as the first appellate court, it should have independently examined the matter and recorded its findings objectively.=In the result, without commenting on the merits of the case, the impugned order is set aside and leave to appeal is granted. Appeal filed by the State as well as criminal revision filed by appellant- Khumbha Ram shall be taken on the file of the High Court and after affording sufficient opportunities to both parties, the High Court shall dispose of the same in accordance with law. The appeal stands allowed accordingly.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2077 OF 2011



KHUMBHA RAM                           ..Appellant

                                   Versus

STATE OF RAJASTHAN & ORS.                           ..Respondents



                               J U D G M E N T

R. BANUMATHI, J.


                 This appeal by special leave has  been  filed  against  the
common order dated 03.02.2010 passed by the Jodhpur Bench of  the  Rajasthan
High Court in Leave to Appeal Application No.294/2009 and Criminal  Revision
Petition No.584/2009 whereby the High Court dismissed both leave  to  appeal
as well as the revision petition thereby confirmed the  order  of  acquittal
dated 24.03.2009 passed by  the  Additional  Sessions  Judge  (Fast  Track),
Balotara in Sessions Case No.71/2008 whereby  the  accused-respondents  were
acquitted  of  the  charges  punishable  under  Sections  498A,   304B   IPC
alternatively under Section 302 IPC.
2.               The factual background which led  to  the  filing  of  this
appeal are as under:- Marriage of second  respondent-Bhanwara  Ram  and  the
appellant’s daughter Kamla (since deceased)  was  solemnized  on  27.05.2007
and Kamla remained peacefully in her in-laws  house  for  sometime.   It  is
alleged that within short while thereafter, her  in-laws  started  to  treat
her with cruelty in  connection  with  demand  of  dowry.    On  27.07.2008,
appellant sent his son Jetha Ram (PW-5)  to  bring  back  his  daughter  and
Kamla was brought back to her parents house.  Within  two  weeks  thereafter
i.e. on 09.08.2008, respondent No.2 came to the house of  the  appellant  to
take back his wife (Kamla).  Deceased told second  respondent  that  she  is
preparing for Patwari examination and  as  such  she  was  not  prepared  to
return quickly.  Angered over the same, respondent No. 2  is  said  to  have
beaten Kamla and the appellant was compelled  to  send  his  daughter  Kamla
with respondent No.2  on  10.08.2008.  On  11.08.2008,  Kamla  died  in  her
matrimonial house and her body was found in a tank there and the parents  of
Kamla came to know about death of their daughter.
3.               On the complaint filed  by  the  second  respondent  before
Police Station Gida, a case No.5/08 was registered in  Gida  Police  Station
as death of Kamla was within seven years  of  marriage.  Investigation  into
the cause of death  was  initiated  by  Assistant  Collector  and  Executive
Magistrate, Bayatu and  investigation  report  was  submitted  stating  that
deceased-Kamla has not died due to drowning in the water.  On the  basis  of
the said report, a case under Sections 498A and 304B IPC was registered  and
investigation  was  taken  up.   After  completion  of  the   investigation,
chargesheet under Sections 302, 304B and 498A  IPC  was  filed  against  the
accused  persons  viz.  Bhanwara  Ram,  Deshraj  Ram,  Dhupudevi  and  Kamla
daughter of Deshraj Ram.
4.               Before the trial court  prosecution  has  examined  fifteen
witnesses.  The trial court vide its judgment  dated  24.03.2009  held  that
the prosecution has failed to prove that the accused  persons  harassed  the
deceased in connection with demand of dowry prior  to  her  death  and  that
there was no medical evidence as to  how  deceased  Kamla  died.  The  trial
court thus acquitted all the accused/ respondents of all the  charges  under
Sections 498A, 304B IPC in the alternate under Section 302 IPC  giving  them
benefit of doubt.  Aggrieved by  the  order  of  acquittal,  the  State  and
Khumbha Ram, father of the  deceased  preferred  leave  to  appeal  and  the
criminal revision before the  High  Court  which  vide  the  impugned  order
dismissed  State’s  leave  to  appeal  and  appellant’s  criminal   revision
petition.  Being aggrieved, the father of the deceased  has  preferred  this
appeal.
5.               Ms. Aishwarya Bhati,  learned  counsel  for  the  appellant
submitted that the  High  Court  erred  in  dismissing  the  appeal  without
properly appreciating the  evidence  and  the  fact  that  the  trial  court
completed the trial in a fast  track  within  six  months  of  the  incident
without  even  waiting  for  the  FSL  Report  from  the  Forensic   Science
Laboratory, Jodhpur which came nearly twenty days  after  the  judgment.  It
was submitted that the FSL Report dated 04.09.2008 shows  that  the  samples
of viscera of the deceased gave positive test for  the  presence  of  organo
phosphorous insecticide and the High  Court  erred  in  discarding  the  FSL
Report.  It was contended that almost  all  the  seven  witnesses  from  the
family of the appellant including the  appellant  have  consistently  stated
about the harassment meted out  to  the  deceased  in  connection  with  the
demand of dowry and the deceased died  in  mysterious  circumstances  within
seven years of marriage and the trial court and the High Court  should  have
raised the statutory presumption in law under Section 113B of  the  Evidence
Act.   In support of her contention, the  learned  counsel  placed  reliance
upon the judgment of this Court in Dinesh vs. State of Haryana,   (2014)  12
SCC 532; Rajinder Singh  vs.  State  of  Haryana,  (2013)  15  SCC  245  and
Mangilal vs. State of Rajasthan & Anr. (2001) 8 SCC 519.
6.               Per contra, Mr. Mahabir Singh, learned Senior  Counsel  for
the respondents contended that the prosecution  was  unable  to  prove  that
Kamla was subjected to harassment for any kind of dowry demand ‘soon  before
her death’ and the trial court has rightly acquitted respondents No.2  to  5
herein on the finding that no substantive  evidence  was  adduced  to  prove
that just prior to the date of death deceased-Kamla had  been  subjected  to
harassment in connection with the demand of dowry.   Drawing  our  attention
to the FSL Report  dated  30.08.2008  given  by  Rajasthan  Medicare  Relief
Society,  Jodhpur which stated that  “no  opinion  can  be  given”,  learned
counsel  for  the  respondents  submitted  that  in  the  absence   of   any
substantive evidence to  establish  the  charges,  the  High  Court  rightly
declined to grant leave to appeal.
7.               We have carefully considered the rival contentions  of  the
parties and perused the impugned order and the material on record.
8.               Section 378 of the Criminal Procedure Code deals  with  the
power of the High Court to grant leave in case  of  acquittal.  Sub-sections
(1) and (3) of Section 378 Cr.P.C. read as under:-
                 “378.  Appeal in case of acquittal.- (1) Save as  otherwise
provided in sub-section (2), and subject to the provisions  of  sub-sections
(3) and  (5),-

    …
(b)              the State Government  may, in any case, direct  the  Public
Prosecutor  to present  an appeal to the High Court  from  an  original   or
appellate order of an acquittal passed by any Court other than a High  Court
or an order of acquittal passed by the Court of Session in revision.
(3)              No appeal under sub-section (1) or  sub-section  (2)  shall
be entertained except with the leave of the High Court.”

Sub-section (3) of Section 378 Cr.P.C. puts a  restriction  on  entertaining
of appeals by imposing a condition that the leave of the High  Court  should
be first obtained before any appeal is entertained.
9.         The High Court while refusing leave  must  indicate  the  reasons
for refusal to grant leave.  Refusal of leave to appeal has  the  effect  of
foreclosing the right once for all and therefore there is a need  to  record
reasons when the High Court refuses to grant leave to appeal.  In  State  of
Rajasthan vs. Sohan Lal And Ors., (2004) 5 SCC 573, it was held  as  under:-

“ …The State does not in pursuing  or  conducting  a  criminal  case  or  an
appeal espouse any right of its own  but  really  vindicates  the  cause  of
society at large, to prevent recurrence  as  well  as  punish  offences  and
offenders respectively, in order to  preserve  orderliness  in  society  and
avert anarchy, by upholding the rule  of  law.  The  provision  for  seeking
leave to appeal is in order to ensure that no frivolous  appeals  are  filed
against orders of acquittal, as a  matter  of  course,  but  that  does  not
enable the High Court to mechanically refuse to grant leave by mere  cryptic
or readymade observations, as in this case (“the court  does  not  find  any
error”), with no further, on the face of it, indication of  any  application
of mind whatsoever. All the more so, when the orders of the High  Court  are
amenable  to  further  challenge  before  this   Court.   Such   ritualistic
observations and summary disposal which has the effect of, at times, and  as
in this case, foreclosing statutory right  of  appeal,  though  a  regulated
one, cannot be said to be a proper  and  judicial  manner  of  disposing  of
judiciously the claim before courts. The giving of reasons  for  a  decision
is an essential attribute of judicial and judicious  disposal  of  a  matter
before courts, and which is the only indication to  know  about  the  manner
and quality of  exercise  undertaken,  as  also  the  fact  that  the  court
concerned had really applied its mind. All the  more  so,  when  refusal  of
leave to appeal has the effect of foreclosing once and for all a  scope  for
scrutiny of the judgment of the trial court even at the instance  and  hands
of the first appellate  court.  The  need  for  recording  reasons  for  the
conclusion arrived at by the  High  Court,  to  refuse  to  grant  leave  to
appeal, in our view, has nothing  to  do  with  the  fact  that  the  appeal
envisaged under Section 378 CrPC is conditioned upon  the  seeking  for  and
obtaining of the leave from the court. This Court 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
choosing 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.”

10.              Expressing the same view, in State of Orissa  vs.  Dhaniram
Luhar, (2004) 5 SCC 568, this Court held as under:-
“…Reasons introduce clarity  in  an  order.  On  plainest  consideration  of
justice, the High Court ought to  have  set  forth  its  reasons,  howsoever
brief in its order, indicative of an application of its mind; all  the  more
when its order is amenable to further avenue of challenge.  The  absence  of
reasons has rendered the High Court order not sustainable.”

11.              On the anvil  of  the  above  principles,  considering  the
present case, in our view, the approach of  the  High  Court  is  completely
incorrect.  The High Court has not recorded any reason as to  why  leave  to
appeal was refused.  In the instant case, there is no dispute that deceased-
Kamla died within seven years of marriage  in  unnatural  circumstances.  By
perusal of the judgment of the trial court, the trial court  does  not  seem
to have examined the evidence adduced by the prosecution  in  the  light  of
the statutory presumption to be raised under Section 113B  of  the  Evidence
Act. In such circumstances, the High Court ought to have  granted  leave  to
appeal and thereafter re-appreciated the evidence and recorded its  findings
independently as regards guilt or otherwise of the accused.  The High  Court
has not given any reason for refusing to grant leave to file appeal  against
acquittal.  The impugned order is very  cryptic  by  which  the  High  Court
refused leave to appeal and dismissed both appeal as well  as  the  revision
and in our view, the impugned order is  liable  to  be  set  aside  and  the
matter be remitted back to the High Court.  Even though State  of  Rajasthan
has not preferred any appeal before this Court, as the impugned order  is  a
common order and in the interest of  justice,  we  deem  it  appropriate  to
grant leave to appeal to the State as well.
12.              Yet another ground for remitting the  matter  back  to  the
High Court is relevant to be noted.  The judgment of  the  trial  court  was
delivered on 24.03.2009 and the FSL Report dated  16.04.2009  (Annexure  P-2
in the SLP Paper Book) received from the  Regional  State  Forensic  Science
Laboratory, Rajasthan, Jaipur after the disposal of the case  by  the  trial
court,  show  positive  test  for  the  presence   of   organo   phosphorous
insecticide in the  viscera.  In  our  view,  the  High  Court  should  have
considered the FSL Report in proper perspective and as the  first  appellate
court, it should have independently examined the  matter  and  recorded  its
findings objectively.
13.              In the result, without commenting  on  the  merits  of  the
case, the impugned order is set  aside  and  leave  to  appeal  is  granted.
Appeal filed by the State as well as criminal revision filed  by  appellant-
Khumbha Ram shall be  taken  on  the  file  of  the  High  Court  and  after
affording sufficient opportunities to both parties,  the  High  Court  shall
dispose of the same in  accordance  with  law.  The  appeal  stands  allowed
accordingly.



                                                              …..…………………..J.

                                                     (R. K. AGRAWAL)



                                ..……………………..J.
                                                                         (R.
                                 BANUMATHI)
New Delhi;
October 15, 2015


ITEM NO.1A               COURT NO.4               SECTION II

                  S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  2077/2011

KHUMBHA       RAM                                               Appellant(s)
                                                   VERSUS

STATE OF RAJASTHAN & ORS.                         Respondent(s)
[HEARD BY HON'BLE R.K. AGRAWAL AND HON'BLE R. BANUMATHI, JJ.]

Date : 15/10/2015 This appeal was called on for judgment today.

For Appellant(s) Ms. Aishwarya Bhati,Adv.
                                  Mr. T. Gopal, Adv.

For Respondent(s)                 Mr. Nikhil Jain, Adv.
                                  For Ms. Madhusmita Bora,AOR

                                  Ms. Ruchi Kohli,AOR

                 Hon'ble Mrs. Justice R. Banumathi pronounced  the  judgment
of the Bench comprising Hon'ble R.K. Agrawal and Hon'ble R. Banumathi, JJ.

                 For the reasons recorded in the reportable judgment,  which
is placed on the file, without commenting on the merits  of  the  case,  the
impugned order is set aside and leave to appeal is  granted.   Appeal  filed
by the State as well as criminal revision filed by appellant -  Khumbha  Ram
shall be taken on the file of the High Court and after affording  sufficient
opportunities to both parties, the High Court shall dispose of the  same  in
accordance with law. The appeal stands allowed accordingly.

                 As a sequel to the above, pending application, if  any,  is
also disposed of.


(Renuka Sadana)                   (Parveen Kr. Chawla)
Court Master                                         AR-cum-PS

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