Telangana High Court

The State Of A.P., Rep. By The P.P., ... vs Sathala Arun, Adilabad District, ... on 24 August, 2022

Bench: K.Surender

                                                   Crl.Appeal No.1579 of 2009
                                  1




       THE HONOURABLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No. 1579 OF 2009

J U D G M E N T:

Aggrieved by the acquittal of the Respondents/Accused Nos.1

to 5 for the offence under Section 304-B of Indian Penal Code, the

present appeal is filed by the State under Section 378(1) and (3) of

Code of Criminal Procedure (for short "Cr.P.C").

2. Heard learned Assistant Public Prosecutor for the

Appellant/State and learned counsel for the respondents/Accused

Nos.1 to 5. Perused the Record.

3. Learned counsel for the Respondents/Accused Nos.1 to 5

informed the Court that the Respondents/Accused Nos.2 and 3 died.

4. The facts of the case are that in the month of May, 2004 PWs 1

and 2 who are the parents of the deceased married off their daughter

namely Sunitha with Accused No.1 as per their caste customs by

giving dowry of Rs.8,000/- besides other household articles to the

Respondents/Accused. They lived happily for a period of two or three

months and thereafter the husband and others started harassing the

deceased physically and mentally for additional dowry. When such Crl.Appeal No.1579 of 2009

demands were not fulfilled it is the case that all the respondents 1 to

5 poured kerosene on her on 16.05.2005 and set her on fire.

Immediately, the deceased was taken to the hospital, she died on the

next day i.e. on 17.05.2005. Aggrieved by the said harassment and

death of his daughter, PW1 who is the father filed complaint on

16.05.2005 which was registered under Section 307 of Indian Penal

Code. However, after the death of the deceased the police having

found that it is a case of dowry death the section of law was altered

from Section 307 of IPC to 304-B of IPC.

5. The case of the prosecution is that the deceased was harassed

for additional dowry for the reason of not fulfilling the demand for

additional dowry and she was set on fire by Accused Nos.1 to 5 who

are Respondents 1 to 5.

6. Learned Assistant Public Prosecutor submits that PW13 who is

the Special Judicial First Class Magistrate, Adilabad had recorded the

dying declaration of the deceased in which she stated that the

husband, in-laws and others were harassing her and all of them

poured kerosene on her and set her on fire. However, the said

version made in the dying declaration was found not to be true

during the course of investigation also and for which reason the Crl.Appeal No.1579 of 2009

charge sheet was filed under Section 304-B of IPC. He further

submits that the death occurred within a period of seven years of

marriage and there is a presumption which is attracted under Section

113-B of Indian Evidence Act. Since the respondents failed to

discharge their burden and there is clear evidence regarding

harassment in the dying declaration, for which reason the acquittal

recorded by the learned Sessions Judge has to be reversed and the

respondents have to be sentenced accordingly.

7. Learned counsel appearing for the respondents would submit

that the judgment is based on cogent reasons and cannot be

interfered with. In fact the statement of the victim recorded by

PW13 is a result of tutoring which is apparent from the circumstances

of the said case. When the deceased was taken to the hospital, she

was unconscious and no declaration was recorded. However, the

declaration was recorded at 6'O clock.

8. The learned Sessions Judge found that the doctor had

endorsed that the deceased was in fit state of mind, for which reason

PW13 recorded the dying declaration, for the said reason, the

statement made by the deceased cannot be disbelieved. However, it

has to be seen whether the statement made by the deceased Crl.Appeal No.1579 of 2009

corroborates with the other circumstances and evidence produced by

the prosecution.

9. It is the case of the prosecution that PWs 5 to 8 are the

persons who extinguished the fire when the deceased was burning.

It is further their case that they are the neighbours and when they

have heard cries, they reached the house and found the Respondent

No.3 who is blind person was sitting on the warandah and the

deceased was shouting for help having receiving the burn injuries.

Learned Sessions Judge found that the evidence of PWs 5 to 8 clearly

exonerate the Accused Nos.1, 2, 4 and 5 as they were not present at

the scene and it was only Accused No.3 who is the blind person

sitting in the warandah.

10. Learned counsel for the Respondents relied upon the judgment

of the Hon'ble Supreme Court in case of Ghurey Lal vs. State of Uttar

Pradesh1 wherein at Para Nos.69 and 70 held as follows:

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of

(2008) 10 Supreme Court Cases 450 Crl.Appeal No.1579 of 2009

reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

70. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

Crl.Appeal No.1579 of 2009

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused"

11. The finding of the learned Sessions Judge regarding the

absence of Accused Nos.1, 2, 4 and 5 when the incident has taken

place was not disputed during their evidence before the Court. The

findings of the learned Judge further regarding the tutoring of the

victim cannot be said to be unreasonable, though no corroboration is

required for the statement made before the Magistrate which cannot

be treated as a dying declaration. However, the facts and

circumstances as projected by the prosecution would go to show that

the respondents/Accused Nos.1, 2, 4 and 5 were not present in the

scene.

12. In the light of the above discussion, there are no compelling

reasons to interfere with the findings of the learned II Additional Crl.Appeal No.1579 of 2009