KAMLESH PRABHUDAS TANNA Vs STATE OF GUJARAT
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: Crl.A. No.-001517-001517 / 2007
Diary number: 28483 / 2007
Advocates: NIDHI Vs
HEMANTIKA WAHI
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Reportable
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
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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
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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
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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
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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
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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
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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.
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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
1 (2000) 1 SCC 621
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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 Rajasthan2, 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
Gujarat3, 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.
2 (2002) 4 SCC 571 3 (2012) 11 SCC 312 4 (1996) 4 SCC 720
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11. Recently, a three-Judge Bench in Majjal v. State of
Haryana5 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
5 (2013) 6 SCC 798
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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
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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.
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