Vs. State of Madhya
Pradesh  Insc
115 (6 March 2002)
Sethi & K.G. Balakrishnan K.G. Balakrishnan, J.
and his wife Sadhna Bai were tried by the Court of Addl. 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 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
offences punishable under Section 302 IPC, for having caused the death of one
Sunder Bai and he was sentenced to imprisonment for life. The finding of the
High Court is challenged before us.
prosecution case is that on 28th June, 1986,
deceased Sunder Bai 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 Sunder Bai and
thereafter, the appellant's wife, Sadhna Bai poured kerosene oil on the body of
Sunder Bai 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 Sunder Bai
set on fire by appellant-Shambhu. Hearing the sounds, many other people
collected there and some of them took Sunder Bai to hospital. In the meantime,
the husband of the deceased Sunder Bai also reached the place of incident.
PW-2, Amritlal, went to the Police Station and gave Ex. P-1 report.
Mohan Singh, S.H.O. Police Station Annapurna, visited the place of incident in
the night of 26th June itself. He also visited the M.Y. Hospital where
the deceased was admitted with burn injuries. PW-10 sent a requisition to the
Executive Magistrate, PW-9, for recording dying declaration of the deceased.
Executive Magistrate, reached the hospital and recorded the dying declaration
of deceased Sunder Bai. Subsequently, Sunder Bai 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 Sunder Bai, 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 Ex. P-1 F.I. Statement
and that the dying declaration recorded by PW-9 was not reliable as there was
no satisfactory evidence to show that Sunder Bai 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 the deceased Sunder Bai; 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 in a scooter whereas the Police
Inspector had deposed otherwise.
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 Sunder Bai. The High Court held that the dying declaration
was reliable and that there was no reason to disbelieve the evidence of PW-9.
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.
Court, in Surjan & Ors. vs. State of Rajasthan AIR 1956 SC 425, observed
that 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.
of the High Court, while considering the appeal against acquittal was
considered by a Division Bench of this Court in Harbans Singh & Anr. vs. State
of Punjab AIR 1962 SC 439 and it was held as under :
is clear that in emphasizing in many cases the necessity of "compelling
reasons" to justify an interference with an order of acquittal, the Court
did not in any way try to curtail the power bestowed on appellate courts under
S.423 of the Code of Criminal Procedure when hearing appeals against acquittal;
but conscious of the intense dislike in our jurisprudence of the conviction of
innocent persons and of the fact that in many systems of jurisprudence the law
does not provide at all for any appeal against an order of acquittal 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 acquittals 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.
the appellate court comes to the conclusion that the view taken by the lower
court is clearly an unreasonable one that itself is a "compelling
reason" for interference. For, it is a court's duty to convict a guilty
person when the guilt is established beyond reasonable doubt, no less than it
is its duty to acquit the accused when such guilt is not so established."
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.
counsel for the appellant further contended that the evidence adduced by the
prosecution was not sufficient to hold the appellant guilty.
have carefully considered the evidence adduced by the prosecution.
not think that the High Court has erred in finding the appellant guilty of
murder. Even if the evidence of PW-2 is eschewed, there is convincing and
satisfactory evidence to prove that the appellant was responsible for the
murder of the deceased Sunder Bai. PW-9, the Executive Magistrate, got
intimation from the Police that deceased Sunder Bai was admitted in the
hospital and that her dying declaration was to be recorded. He reached the
hospital and recorded the dying declaration of the deceased Sunder Bai. The
evidence of PW-9 shows that when he recorded the dying declaration the doctor
was present and he had certified that Sunder Bai was in a fit state to make the
statement. The dying declaration was recorded in the form of question-answers.
It was recorded at 10.45 PM on 28.6.1986. The translated version of the
relevant portion of the dying declaration of deceased Sunder Bai is as follows:
had kept my money with Shambhu. When I went today to ask for my money, which
was about Rs. One thousand, then he called me in the evening. When I again went
at about 7.00/8.00 P.M. then he asked me to sit at 'Charav' and then
immediately the wife of Shambhu had sprinkled the kerosene oil at me and Shambhu
had lit the match stick and said lighted match-stick was touched with my body. Shambhu
had raped me (IZZAT LOOTI). Then I raise the alarm and I ran, thereafter the
residents of that Mohalla had extinguished fire by tearing my clothes
etc." 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.
Sessions Judge disbelieved the dying declaration on flimsy grounds based on
irrelevant considerations. Whether the Executive Magistrate reached the
hospital in a scooter or any other conveyance or whether the Magistrate had
noted the percentage of burn injuries on the body of the deceased are
irrelevant matters which should not have weighed with the Sessions Judge in
disbelieving the dying declaration.
been held by this Court that if the dying declaration is truthful and reliable,
conviction can be based solely thereupon (1983) 2 SCC 14 [State of Assam vs. Mafizuddin
counsel for the appellant, on the other hand, contended that the dying
declaration should not have been accepted without there being further
corroboration of material particulars. He relied on the decision in (1971) 3
SCC 767 [Lallubhai Devchand Shah and Ors. vs. State of Gujarat].
instant case, there has been material corroboration, in the sense that deceased
Sunder Bai 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. PW-1, husband of the deceased
Sunder Bai, also deposed that on hearing about the incident, he rushed to the
place of occurrence and saw the deceased with burn injuries.
High Court considered all this evidence and came to the conclusion that the
appellant had committed the offence of murder.
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. There is no
merit in this appeal which is dismissed accordingly.
R.P. Sethi ] ..J [ K.G. Balakrishnan ] March 6, 2002.