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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

 

 

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