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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2077 OF 2011

KHUMBHA RAM      ..Appellant  

Versus

STATE OF RAJASTHAN & ORS.                           ..Respondents

J U D G M E N T

R. BANUMATHI, J.

This  appeal  by  special  leave  has  been  filed  against  the

common order dated 03.02.2010 passed by the Jodhpur Bench of  the

Rajasthan High Court  in Leave to  Appeal  Application No.294/2009

and Criminal Revision Petition No.584/2009 whereby the High Court

dismissed both leave to appeal as well as the revision petition thereby

confirmed  the  order  of  acquittal  dated  24.03.2009  passed  by  the

Additional  Sessions  Judge  (Fast  Track),  Balotara  in  Sessions  Case

No.71/2008 whereby the accused-respondents were acquitted of the

charges  punishable  under  Sections  498A,  304B  IPC  alternatively

under Section 302 IPC.  

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2. The  factual  background  which  led  to  the  filing  of  this

appeal are as under:- Marriage of second respondent-Bhanwara Ram

and the appellant’s daughter Kamla (since deceased) was solemnized

on 27.05.2007 and Kamla remained peacefully in her in-laws house

for  sometime.   It  is  alleged  that  within  short  while  thereafter,  her

in-laws started to treat her with cruelty in connection with demand of

dowry.   On 27.07.2008, appellant sent his son Jetha Ram (PW-5) to

bring back his daughter and Kamla was brought back to her parents

house.  Within two weeks thereafter i.e. on 09.08.2008, respondent

No.2 came to the house of the appellant to take back his wife (Kamla).

Deceased told second respondent that she is  preparing for Patwari

examination and as such she  was not  prepared to  return quickly.

Angered over the same, respondent No. 2 is said to have beaten Kamla

and the appellant was compelled to send his daughter Kamla with

respondent No.2 on 10.08.2008. On 11.08.2008, Kamla died in her

matrimonial house and her body was found in a tank there and the

parents of Kamla came to know about death of their daughter.  

3. On the complaint  filed by the second respondent before

Police  Station  Gida,  a  case  No.5/08  was  registered  in  Gida  Police

Station  as  death  of  Kamla  was  within  seven  years  of  marriage.

Investigation  into  the  cause  of  death  was  initiated  by  Assistant

Collector and Executive Magistrate,  Bayatu and investigation report 2

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was  submitted  stating  that  deceased-Kamla  has  not  died  due  to

drowning in the water.  On the basis of the said report, a case under

Sections 498A and 304B IPC was  registered and investigation was

taken up.  After completion of  the investigation, chargesheet under

Sections  302,  304B  and  498A  IPC  was  filed  against  the  accused

persons  viz.  Bhanwara  Ram,  Deshraj  Ram,  Dhupudevi  and  Kamla

daughter of Deshraj Ram.   

4. Before  the  trial  court  prosecution  has  examined  fifteen

witnesses.  The trial court vide its judgment dated 24.03.2009 held

that  the  prosecution  has  failed  to  prove  that  the  accused  persons

harassed the deceased in connection with demand of dowry prior to

her death and that there was no medical evidence as to how deceased

Kamla  died.  The  trial  court  thus  acquitted  all  the  accused/

respondents of all the charges under Sections 498A, 304B IPC in the

alternate  under  Section  302  IPC  giving  them  benefit  of  doubt.

Aggrieved by the  order  of  acquittal,  the State  and Khumbha Ram,

father  of  the  deceased  preferred  leave  to  appeal  and  the  criminal

revision  before  the  High  Court  which  vide  the  impugned  order

dismissed  State’s  leave  to  appeal  and  appellant’s  criminal  revision

petition.  Being aggrieved, the father of the deceased has preferred this

appeal.

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5. Ms.  Aishwarya  Bhati,  learned  counsel  for  the  appellant

submitted that the High Court erred in dismissing the appeal without

properly appreciating the evidence and the fact that the trial  court

completed the trial in a fast track within six months of the incident

without even waiting for the FSL Report from the Forensic Science

Laboratory,  Jodhpur  which  came  nearly  twenty  days  after  the

judgment.  It  was submitted that  the FSL Report  dated 04.09.2008

shows that the samples of viscera of the deceased gave positive test for

the presence of organo phosphorous insecticide and the High Court

erred in discarding the FSL Report.  It was contended that almost all

the seven witnesses from the family  of  the appellant  including the

appellant have consistently stated about the harassment meted out to

the  deceased  in  connection  with  the  demand  of  dowry  and  the

deceased  died  in  mysterious  circumstances  within  seven  years  of

marriage and the trial court and the High Court should have raised

the statutory presumption in law under Section 113B of the Evidence

Act.   In support of her contention, the learned counsel placed reliance

upon  the  judgment  of  this  Court  in  Dinesh vs.  State  of  Haryana,

(2014) 12 SCC 532;  Rajinder Singh vs.  State of Haryana,  (2013) 15

SCC 245 and Mangilal vs. State of Rajasthan & Anr. (2001) 8 SCC 519.

6. Per contra, Mr. Mahabir Singh, learned Senior Counsel for

the respondents contended that the prosecution was unable to prove 4

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that  Kamla  was  subjected  to  harassment  for  any  kind  of  dowry

demand  ‘soon  before  her  death’  and  the  trial  court  has  rightly

acquitted  respondents  No.2  to  5  herein  on  the  finding  that  no

substantive evidence was adduced to prove that just prior to the date

of  death  deceased-Kamla  had  been  subjected  to  harassment  in

connection with the demand of dowry.  Drawing our attention to the

FSL  Report  dated  30.08.2008  given  by  Rajasthan  Medicare  Relief

Society,  Jodhpur which stated that “no opinion can be given”, learned

counsel  for  the  respondents  submitted  that  in  the  absence  of  any

substantive evidence to establish the charges, the High Court rightly

declined to grant leave to appeal.    

7. We have carefully considered the rival contentions of the

parties and perused the impugned order and the material on record.   

8. Section 378 of the Criminal Procedure Code deals with the

power  of  the  High  Court  to  grant  leave  in  case  of  acquittal.

Sub-sections (1) and (3) of Section 378 Cr.P.C. read as under:-

“378.   Appeal  in  case  of  acquittal.- (1)  Save  as  otherwise provided  in  sub-section  (2),  and  subject  to  the  provisions  of sub-sections (3) and  (5),-

(a)     …  (b) the  State  Government   may,  in  any  case,  direct  the  Public

Prosecutor   to  present   an  appeal  to  the  High  Court  from  an original  or appellate order of an acquittal  passed by any Court other than a High Court or an order of acquittal  passed by the Court of Session in revision.

(3) No  appeal  under  sub-section  (1)  or  sub-section  (2)  shall  be entertained except with the leave of the High Court.”

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Sub-section  (3)  of  Section  378  Cr.P.C.  puts  a  restriction  on

entertaining of appeals by imposing a condition that the leave of the

High Court should be first obtained before any appeal is entertained.

9.         The High Court while refusing leave must indicate the reasons

for refusal to grant leave.  Refusal of leave to appeal has the effect of

foreclosing the right once for all and therefore there is a need to record

reasons when the High Court refuses to grant leave to appeal. In State

of Rajasthan vs. Sohan Lal And Ors., (2004) 5 SCC 573, it was held as

under:-   

“ …The State does not in pursuing or conducting a criminal case or an appeal espouse any right of its own but really vindicates the cause of society at large, to prevent recurrence as well as punish offences and offenders  respectively,  in  order  to  preserve  orderliness  in  society  and avert anarchy, by upholding the rule of law. The provision for seeking leave to appeal is in order to ensure that no frivolous appeals are filed against  orders  of  acquittal,  as  a  matter  of  course,  but  that  does not enable  the High Court  to  mechanically  refuse to  grant leave by mere cryptic or readymade observations, as in this case (“the court does not find  any error”),  with  no further,  on the  face  of  it,  indication of  any application of mind whatsoever. All the more so, when the orders of the High Court are amenable to further challenge before this Court. Such ritualistic observations and summary disposal which has the effect of, at times, and as in this case, foreclosing statutory right of appeal, though a regulated one,  cannot  be said to  be a  proper  and judicial  manner of disposing of judiciously the claim before courts. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of  exercise  undertaken,  as  also the fact  that  the court  concerned  had  really  applied  its  mind.  All  the  more  so,  when refusal of leave to appeal has the effect of foreclosing once and for all a scope for scrutiny of the judgment of the trial court even at the instance and hands of the first appellate court. The need for recording reasons for the conclusion arrived at by the High Court, to refuse to grant leave to appeal,  in  our  view,  has nothing to  do  with  the fact  that  the appeal envisaged under Section 378 CrPC is conditioned upon the seeking for and obtaining of the leave from the court. This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well,

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to scan through and if need be reappreciate the entire evidence, though while  choosing  to  interfere  only  the  court  should  find  an  absolute assurance of the guilt on the basis of the evidence on record and not merely  because  the  High  Court  could  take  one  more  possible  or  a different view only. Except the above, where the matter of the extent and depth  of  consideration  of  the  appeal  is  concerned,  no  distinctions  or differences in approach are envisaged in dealing with an appeal as such merely  because  one  was  against  conviction  or  the  other  against  an acquittal.”

10. Expressing the same view, in State of Orissa vs. Dhaniram

Luhar, (2004) 5 SCC 568, this Court held as under:-

“…Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief in its order, indicative of an application of its mind; all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable.”

11. On  the  anvil  of  the  above  principles,  considering  the

present  case,  in  our  view,  the  approach  of  the  High  Court  is

completely incorrect.  The High Court has not recorded any reason as

to why leave to appeal was refused.  In the instant case, there is no

dispute that deceased-Kamla died within seven years of marriage in

unnatural  circumstances.  By  perusal  of  the  judgment  of  the  trial

court, the trial court does not seem to have examined the evidence

adduced by the prosecution in the light of the statutory presumption

to  be  raised  under  Section  113B  of  the  Evidence  Act.  In  such

circumstances, the High Court ought to have granted leave to appeal

and thereafter re-appreciated the evidence and recorded its findings

independently as regards guilt or otherwise of the accused.  The High

Court  has  not  given  any  reason  for  refusing  to  grant  leave  to  file 7

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appeal against acquittal.  The impugned order is very cryptic by which

the High Court refused leave to appeal and dismissed both appeal as

well as the revision and in our view, the impugned order is liable to be

set aside and the matter be remitted back to the High Court.  Even

though State of Rajasthan has not preferred any appeal before this

Court, as the impugned order is a common order and in the interest of

justice, we deem it appropriate to grant leave to appeal to the State as

well.   

12. Yet another ground for remitting the matter back to the

High Court is relevant to be noted.  The judgment of the trial court

was delivered on 24.03.2009 and the FSL Report dated 16.04.2009

(Annexure  P-2  in  the  SLP  Paper  Book)  received  from the  Regional

State  Forensic  Science  Laboratory,  Rajasthan,  Jaipur  after  the

disposal  of  the  case  by  the  trial  court,  show  positive  test  for  the

presence  of  organo  phosphorous  insecticide  in  the  viscera.  In  our

view, the High Court should have considered the FSL Report in proper

perspective  and  as  the  first  appellate  court,  it  should  have

independently  examined  the  matter  and  recorded  its  findings

objectively.     

13. In  the  result,  without  commenting on the  merits  of  the

case, the impugned order is set aside and leave to appeal is granted.

Appeal  filed  by  the  State  as  well  as  criminal  revision  filed  by 8

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appellant-Khumbha Ram shall be taken on the file of the High Court

and after affording sufficient opportunities to both parties, the High

Court shall dispose of the same in accordance with law. The appeal

stands allowed accordingly.

…..…………………..J.                                                              (R. K. AGRAWAL)

                                                                            ..……………………..J.                                                        (R. BANUMATHI)    

New Delhi; October 15, 2015   

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ITEM NO.1A               COURT NO.4               SECTION II             

S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  2077/2011

KHUMBHA RAM                                        Appellant(s) VERSUS

STATE OF RAJASTHAN & ORS.                         Respondent(s) [HEARD BY HON'BLE R.K. AGRAWAL AND HON'BLE R. BANUMATHI, JJ.]  

Date : 15/10/2015 This appeal was called on for judgment today.

For Appellant(s) Ms. Aishwarya Bhati,Adv.                    Mr. T. Gopal, Adv.   For Respondent(s) Mr. Nikhil Jain, Adv.

For Ms. Madhusmita Bora,AOR                      Ms. Ruchi Kohli,AOR

    Hon'ble  Mrs.  Justice  R.  Banumathi  pronounced  the judgment  of  the  Bench  comprising  Hon'ble  R.K.  Agrawal  and Hon'ble R. Banumathi, JJ.

For the reasons recorded in the reportable judgment, which is placed on the file, without commenting on the merits of the case, the impugned order is set aside and leave to appeal  is  granted.   Appeal  filed  by  the  State  as  well  as criminal revision filed by appellant - Khumbha Ram shall be taken  on  the  file  of  the  High  Court  and  after  affording sufficient opportunities to both parties, the High Court shall dispose of the same in accordance with law. The appeal stands allowed accordingly.

As a sequel to the above, pending application, if any, is also disposed of.  

(Renuka Sadana) (Parveen Kr. Chawla) Court Master                        AR-cum-PS

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