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2002 Supreme(MP) 290
2003 (1) JLJ 27
(SUPREME COURT)
R.P. Sethi and K.G. Balakrishnan, JJ.
Shambhu v. State of M.P.
Criminal Appeal No. 117 of 2000; against the judgment of
M.P. High Court passed in Cr. Appeal No. 186 of 1988;
Decided on 6.3.2002.
Tripurari Ray with Rakesh Kumar Sharma for appellant;
Anoop G. Choudhari with Ms. Geetanjali Mohan and Satish Kumar Agnihotri for respondent.
Headnote:(1) Criminal P.C., 1973 -- Ss. 378 and 386 -- appeal against acquittal -- High Court is free to appreciate evidence for itself -- it will not do so lightly and will be slow to reverse an acquittal except for strong and compelling reasons.
On 28.6.1986, deceased Sunderbai went to the house of appellant Shambhu requesting him to repay the sum of Rs. 1,000/- entrusted by her with the appellant. The further case of the prosecution is that the appellant committed rape on Sunderbai and thereafter, the appellant‘s wife, Sadhnabai poured kerosene on the body of Sunderbai and the appellant set fire to her PW 2 Amritlal, having reached Prianko Colony on a bicycle, heard the sound of ‘bachao, bachao‘ (help, help) and went near the house of appellant Shambhu. He saw the deceased Sunderbai being set on fire by appellant Shambhu. ... PW 9 Executive Magistrate, reached the hospital and recorded the dying declaration of deceased Sunderbai. ... The learned Sessions Judge acquitted the appellant for the reasons that the first information report was recorded belatedly and there were a series of discrepancies in Ext. P-1 FI statement and that the dying declaration recorded by PW 9 was not reliable as there was no satisfactory evidence to show that Sunderbai was in a fit state to give the dying declaration. [Para 2
The High Court, in appeal, reversed the finding of the Sessions Judge and held that the prosecution had succeeded in proving that appellant Shambhu had caused the death of deceased Sunderbai. The High Court held that the dying declaration was reliable and that there was no reason to disbelieve the evidence of PW 9. [Para 3
Held: In an appeal against acquittal, while the High Court is free to appreciate the evidence for itself and to act on its own view thereof, it will not do so lightly and will be slow to reverse an acquittal; except for strong and compelling reasons, when it differs from that of the trial Court. AIR 1956 SC 425 relied on. [Para 5
The way in which the learned Sessions Judge appreciated the evidence in the instant case shows that the evidence was not viewed from the correct perspective. The High Court has rightly reversed the judgment of the Sessions Court. [Para 15
(2) Criminal P.C., 1973 -- Ss. 378 and 386 -- appeal against acquittal -- High Court should take special care in sifting the evidence -- should interfere in acquitted only when satisfied that the view of acquitting Judge is clearly unreasonable.
The Court was anxious to impress on the appellate Courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals, ... What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should ,interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. AIR 1962 SC 439 relied on. [Para 6
Of course, where two views are possible and the trial Court has taken a reasonable view and acquitted the accused, the High Court in appeal cannot interfere with such finding, but when there is perverse finding based on erroneous appreciation of evidence and a serious miscarriage was caused, the High Court has ample power to reverse that finding. [Para 7
(3) Evidence Act, 1872 -- S. 32 -- dying declaration recorded by Executive Magistrate in question-answer form --fit condition of deceased duly certified by doctor -- also corroborated in material particulars -- cannot be ignored.
The evidence of PW 9 shows that when he recorded the dying declaration, the doctor was present and he had certified that Sunderbai was in a fit state to make the statement. The dying declaration was recorded in the form of question-answers. [Para 9
It is also mentioned in the dying declaration that it was recorded in Ward No.8 of M.Y. Hospital and the attestation by the doctor that the complainant was in a fit state to make the statement was taken prior to making the statement and that no other police officer or anybody else was present at the time of making such dying declaration. [Para 10
In the instant case there has been material corroboration, in the sense that deceased Sunderbai was found with burn injuries near the house of the appellant. PW 2 saw the deceased near the house of the appellant and it was from that place that the deceased was removed to the hospital. PW1, husband of deceased Sunderbai, also deposed that on hearing about the incident, he rushed to the place of occurrence and saw the deceased with burn injuries. (1971) 2 SCC 14 distinguished. [Para 14
(4) Evidence Act, 1872 -- S. 32 -- dying declaration reliable -- conviction can be based solely thereon. (1983) 2 SCC 14 relied on. [Para 12
(5) Penal Code, 1860 -- S. 302 -- conviction for the offence -- can be based solely on dying declaration duly corroborated and found reliable. [Paras 12 & 14
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 378 rFkk 386 && nks"keqfDr ds fo:) vihy && mPp U;k;ky; Lo;a ds fy, lk{; dk ewY;kadu djus ds fy, Lora= gS && og ,slk gyds&ls ugha djsxk vkSj izcy rFkk ck/;dj dkj.kksa ds flok;] nks"keqfDr myVus esa vfuPNqd jgsxkA
28-6-1989 dks e`rd lqnj ckbZ vihykFkhZ ‘kaHkq ds ?kj Lo;a }kjk vihykFkhZ dks lkSais x, :- 1]000@& ds izfrnk; ds vuqjks/k ds fy, xbZA vfHk;kstu dk vkSj i{kdFku ;g gS fd vihykFkhZ us lqanj ckbZ ds lkFk cykRlax fd;k vkSj rRi‘pkr~] vihykFkhZ dh iRuh lk/kuk ckbZ us lqnj ckbZ ds ‘kjhj ij dsjkslhu mM+syk vkSj vihykFkhZ us mldks vkx yxk nhA v lk 2 ve`ryky us lkbfdy ls fizvadks dkyksuh igq¡pus ij ^cpkvks] cpkvks* dh vkokt lquh vkSj og vihykFkhZ ‘kaHkq ds ?kj ds ikl igq¡pkA mlus vihykFkhZ ‘kaHkq }kjk lqanj ckbZ dks vkx yxkrs gq, ns[kkA --- v lk 9 dk;Zikyd eftLVªsV vLirky igq¡pk vkSj e`rd lqanj ckbZ dk e`R;qdkfyd dFku vfHkfyf[kr fd;kA --- fo}ku ls‘ku U;k;k/kh‘kksa us vihykFkhZ dks bu dkj.kksa ls nks"keqDr dj fn;k fd izFke bfÙkyk fjiksVZ foyac ls vfHkfyf[kr dh xbZ Fkh rFkk izn‘kZ ih&1 izFke lwpuk dFku esa QdksZa dh J`a[kyk Fkh vkSj v lk 9 }kjk vfHkfyf[kr e`R;qdkfyd dFku voyacuh; ugha Fkk D;ksafd ;g nf‘kZr djus ds fy, lek/kkuizn lk{; ugha Fkk fd lqnj ckbZ e`R;qdkfyd dFku djus ds fy, mi;qDr fLFkfr esa FkhA ¿ iSjk 2
mPp U;k;ky; us vihy esa ls‘ku U;k;k/kh‘k dk fu"d"kZ myV fn;k vkSj vfHkfu/kkZfjr fd;k fd vfHk;kstu ;g lkfcr djus esa lQy jgk gS fd vihykFkhZ ‘kaHkq us e`rd lqanj ckbZ dh e`R;q dkfjr dhA mPp U;k;ky; us vfHkfu/kkZfjr fd;k fd e`R;qdkfyd dFku voyacuh; Fkk rFkk v lk 9 ds lk{; ij vfo‘okl fd, tkus dk dksbZ dkj.k ugha FkkA ¿ iSjk 3
vfHkfu/kkZfjr % nks"keqfDr ds fo:) vihy esa tc fd mPp U;k;ky; dk er ;fn fHkUu gS] og vius Lo;a ds n`f"Vdks.k ij ls dkjZokbZ djus gsrq] Lo;a ds fy, lk{; dk ewY;kadu djus ds fy, Lora= gS] og ,slk gyds&ls ugha djsxk vkSj iacy rFkk ck/;dj dkj.kksa ds flok;] nks"keqfDr myVus esa vfuPNqd jgsxkA , vkb vkj 1956 ,l lh 425 voyafcrA ¿ iSjk 5
izLrqr ekeys esa fo}ku ls‘ku U;k;k/kh‘k us ftl izdkj lk{; dk ewY;kadu fd;k gS] mlls nf‘kZr gksrk gS fd lk{; lgh ifjizs{; esa ugha ns[kk x;kA mPp U;k;ky; us ls‘ku U;k;ky; dk fu.kZ; Bhd&gh myVk gSA ¿ iSjk 15
¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 378 rFkk 386 && nks"keqfDr ds fo:) vihy && mPp U;k;ky;] lk{; dh Nkuchu djus esa fo‘ks"k lko/kkuh cjrsxk && nks"keqfDr esa dsoy rHkh gLr{ksi djsxk tc mldk lek/kku gks tk, fd nks"keqDr djus okys U;k;k/kh‘k dk n`f"Vdks.k Li"Vr% v;qfDr;qDr gSA
nks"keqfDr ds fo:) vihyksa esa lk{; dh Nkuchu fo‘ks"k lko/kkuh ls djus dk egRo vihy U;k;ky;ksa ds eu esa cSBkus ds fy, ;g U;k;ky; fpafrr FkkA --- bu leLr fu.kZ;ksa esa O;kIr tks Lo.kZ lw= dgk tk ldrk gS] og ;g gS fd nks"keqfDr ds fo:) vihysa fofuf‘pr djus esa vihy U;k;ky; lk{; dk ijh{k.k fof‘k"V lko/kkuh ls djsxk] mu dkj.kksa dk Hkh ijh{k.k djsxk ftu ij nks"keqfDr dk vkns‘k vk/kkfjr Fkk vkSj vkns‘k esa gLr{ksi dsoy rHkh djsxk tc mldk lek/kku gks tk, fd nks"keqDr djus okys U;k;k/kh‘k dk n`f"Vdks.k Li"Vr% v;qfDr;qDr gSA , vkb vkj 1962 ,l lh 439 voyafcrA ¿ iSjk 6
fuLlansg] tgk¡ nks jk; laHko gksa vkSj fopkj.k U;k;ky; us ;qfDr;qDr n`f"Vdks.k viuk;k gks] mPp U;k;ky; vihy esa gLr{ksi ugha dj ldrk] fdarq tc lk{; ds xyr ewY;kadu ds vk/kkj ij foi;ZLr fu"d"kZ fudkyk x;k gS vkSj U;k; dh xaHkhj foQyrk dkfjr gqbZ Fkh] mPp U;k;ky; dks fu"d"kZ myVus dh i;kZIr ‘kfDr gSA ¿ iSjk 7
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 32 && dk;Zikyd eftLVªsV }kjk vfHkfyf[kr e`R;qdkfyd dFku iz‘uksÙkj iz:i esa && e`rd dh mi;qDr n‘kk fpfdRld }kjk lE;d~ :i ls izekf.kr && rkfRod fof‘kf"V;ksa esa laiq"V Hkh && mis{kk ugha dh tk ldrhA
v lk 9 ds lk{; ls nf‘kZr gS fd mlus tc e`R;qdkfyd dFku vfHkfyf[kr fd;k] fpfdRld mifLFkr Fkk vkSj mlus izekf.kr fd;k Fkk fd lqanj ckbZ dFku djus ds fy, mi;qDr n‘kk esa FkhA e`R;qdkfyd dFku iz‘uksÙkj iz:i esa vfHkfyf[kr fd;k x;k FkkA ¿ iSjk 9
e`R;qdkfyd dFku esa ;g Hkh mfYyf[kr gS fd og ,e-okb- gkfLiVy ds okMZ Ø- 8 esa vfHkfyf[kr fd;k x;k Fkk rFkk fpfdRld }kjk ;g lR;kiu fd f‘kdk;rdrkZ dFku djus ds fy, mi;qDr n‘kk esa Fkk] dFku djk, tkus ls iwoZ djk fy;k x;k Fkk vkSj e`R;qdkfyd dFku djus ds le; dksbZ vU; iqfyl vf/kdkjh vFkok dksbZ Hkh O;fDr mifLFkr ugha FkkA ¿ iSjk 10
izLrqr ekeys esa bl Hkko esa rkfRod laiqf"V gqbZ gS fd e`rd lqnj ckbZ] ngj {kfr;ksa lfgr vihykFkhZ ds ?kj ds fudV ikbZ xbZ FkhA v lk 2 us e`rd dks vihykFkhZ ds ?kj ds fudV ns[kh Fkh vkSj ml LFkku ls gh e`rd vLirky ds fy, ys tkbZ xbZ FkhA v lk 1] e`rd lqnj ckbZ ds ifr us Hkh ifjlk{; fn;k Fkk fd ?kVuk ds ckjs esa lquus ij og ?kVuk LFkku dh vksj nkSM+k vkSj e`rd dks ngu {kfr;ksa lfgr ns[khA ¼1971½ 2 ,l lh lh 14 izHksfnrA ¿ iSjk 14
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 32 && e`R;qdkfyd dFku voyacuh; && nks"kflf) dsoy ml ij vk/kkfjr dh tk ldrh gSA ¼1983½ 2 ,l lh lh 14 voyafcrA ¿ iSjk 12
¼5½ naM lafgrk] 1860 && /kkjk 302 && vijk/k ds fy, nks"kflf) && lE;d~ :i ls laiq"V vkSj voyacuh; ik, tkus ij dsoy e`R;qdkfyd dFku ij vk/kkfjr dh tk ldrh gSA ¿ iSjk 12 ,oa 14
Balakrishnan, J. -- 1. Appellant Shambhu and his wife Sadhnabai were tried by the Court of Additional Sessions Judge, Indore in Madhya Pradesh, for the offence punishable under section 302 read with section 34, IPC. Against the present appellant, there was also a charge under section 376, IPC. The Sessions Judge found them 'not guilty' and acquitted them of the charges framed against them. Aggrieved by the judgment of the Sessions Court, the State of Madhya Pradesh preferred an appeal before the High Court of Madhya Pradesh and the Division Bench of the Madhya Pradesh High Court found the present appellant guilty of offence punishable under section 302, IPC, for having caused the death on one Sunderbai and he was sentenced to imprisonment for life. The finding of the High Court is challenged before us.
2. The prosecution case is that on 28.6.1986, deceased Sunderbai went to the house of appellant Shambhu requesting him to repay the sum of Rs. 1,000/- entrusted by her with the appellant. The further case of the prosecution is that the appellant committed rape on Sunderbai and thereafter, the appellant's wife, Sadhnabai poured kerosene on the body of Sunderbai and, the appellant set fire to her. PW 2 Amritlal, having reached Prianko Colony on a bicycle, heard the sound of 'bachao, bachao' (help, help) and went near the house of appellant Shambhu. He saw the deceased Sunderbai being set on fire by appellant Shambhu. Hearing the sounds, many other people collected there and some of them took Sunderbai to the hospital. In the meantime, the husband of deceased Sunderbai also reached the place of incident. PW 2 Amritlal, went to the police station and gave Ext. P-1 report. PW 10 Mohan Singh, SHO Police Station, Annapurna, visited the place of incident in the night of 28th June itself. He also visited M.Y. Hospital where the deceased was admitted with bum injuries. PW 10 sent a requisition to the Executive Magistrate, PW 9, for recording dying declaration of the deceased. PW 9 Executive Magistrate, reached the hospital and recorded the dying declaration of deceased Sunderbai. Subsequently, Sunderbai died while undergoing treatment in the hospital and her body was subjected to post-mortem examination. Ten witnesses were examined on the side of the prosecution and the main items of evidence relied on by the prosecution were the evidence of PW 2 and the dying declaration allegedly made by deceased Sunderbai, which was recorded by PW 9, the Executive Magistrate. The learned Sessions Judge acquitted the appellant for the reasons that the first information report was recorded belatedly and there were a series of discrepancies in Ext. P-1 FI statement and that the dying declaration recorded by PW 9 was not reliable as there was no satisfactory evidence to show that Sunderbai was in a fit state to give the dying declaration. Learned Sessions Judge also disbelieved PW 9 on the ground that he was not in a position to state the percentage of the burn injuries on the body of deceased Sunderbai he had not brought the memorandum received from the police station and that he did not verify whether the doctor had given sedatives to the deceased. PW 9 was also disbelieved on the ground that he deposed that he reached the hospital on a scooter whereas the Police Inspector had deposed otherwise.
3. The High Court, in appeal, reversed the finding of the Sessions Judge and held that the prosecution had succeeded in proving that appellant Shambhu had caused the death of deceased Sunderbai. The High Court held that the dying declaration was reliable and that there was no reason to disbelieve the evidence of PW 9.
4. The counsel for the appellant contended that the High Court seriously erred in reversing the acquittal of the appellant, and as the trial Court had taken a reasonable view of the evidence, the High Court should not have reversed the findings of the Sessions Judge.
5. This Court, in Surjan v. State of Rajasthan AIR 1956 SC 425 observed th
