NAGABHUSHANversusTHE STATE OF KARNATAKA

                        [2021] 2 S.C.R. 595                            595


                        NAGABHUSHAN                                    A
                                 v.
                 THE STATE OF KARNATAKA
                 (Criminal Appeal No. 443 of 2020)
                         MARCH 08, 2021                                B
       [DR. DHANANJAYA Y. CHANDRACHUD AND
                  M. R. SHAH, JJ.]
      Indian Penal Code, 1860 – s.300(fourthly); ss.498A, 302 r/w
34 – Dowry death – Dying declaration – Accused persons acquitted
                                                                       C
by trial Court – Acquittal of appellant-accused reversed by High
Court – On appeal, held: There are two dying declarations, Exhibit
P5 and Exhibit D2 – As per dying declaration Exhibit P5, it has
been proved that the deceased was set ablaze by pouring kerosene
on her – Prosecution is successful in proving that the appellant
poured kerosene on the deceased – Act of the accused falls in clause   D
fourthly of s.300 – Merely because thereafter he might have tried
to extinguish the fire, that will not bring the case out of clause
fourthly of s.300 – High Court rightly convicted the accused for
offence u/s.302 – No reason to interfere with the impugned judgment
– Code of Criminal Procedure, 1973 – s.378.
                                                                       E
      Dismissing the appeal, the Court
      HELD: 1.1 The High Court has specifically observed and
held that the finding recorded by the trial Court discarding and/
or not believing the dying declaration (Exhibit P5) is perverse
and contrary to the evidence on record. The High Court has given       F
cogent reasons while believing dying declaration (Exhibit P5) and
has also considered in detail what is stated in the later dying
declaration (Exhibit P5), vis-à-vis, the medical evidence and the
injuries sustained by the deceased. Therefore, as such, the High
Court has not committed any error in reappreciating the entire
evidence on record and thereafter interfering with the judgment        G
and order of acquittal passed by the trial Court, having found the
finding recorded by the trial Court perverse. In the present case
there are two dying declarations, (i) Exhibit P5 and (ii) Exhibit
D2. When there are multiple dying declarations, each dying
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                                595
596            SUPREME COURT REPORTS                      [2021] 2 S.C.R.


A     declaration has to be separately assessed and evaluated on its
      own merits. The High Court in the impugned judgment and order
      has given cogent reasons to rely upon and believe the second
      dying declaration – Exhibit P5. The High Court has also taken
      note of the fact that the second dying declaration is reliable and
      the version in the second dying declaration is supported by the
B
      circumstances, namely, the injuries sustained by the deceased;
      no stove was found at the place of occurrence. The High Court
      has also taken note of the fact that in the second dying declaration,
      the deceased has explained her first statement that it was a case
      of accident and she categorically stated in the second dying
C     declaration that at the time when she gave first statement that it
      was a case of accident, she was given threats by the appellant
      herein – original accused no.1 that he will kill her children also.
      She also stated in the second dying declaration that after her
      parents came, she got the courage to tell the truth. Therefore, as
      such, the High Court rightly believed the second dying declaration
D
      – Exhibit P5. [Paras 6-8][609-E-H; 610-A-C]
            1.2 The plea put forth by the defence that it was a case of
      an accident and while pouring the kerosene from kerosene can
      to the bottle, the same had fallen on the clothes placed on the
      ground and when the deceased tried to remove the clothes from
E     that place, the candle fell on the ground, as a result, her clothes
      caught fire and she sustained burn injuries is disbelieved by the
      High Court considering the circumstances noted by the High
      Court that the deceased sustained injuries on the face, chest and
      back and to the upper limbs. The main injuries are found on the
F     upper limbs of the body. Therefore, as rightly observed by the
      High Court, the aforesaid injuries can be possible when the
      kerosene is poured on the deceased. According to the defence
      and as per the evidence of DW1-A1, while putting the kerosene
      into the stove, accidentally the kerosene had fallen on the ground
      and also on her clothes, and thereafter when the candle fell on
G     the ground, the same had come in contact with her clothes and
      kerosene. If that is the case, there would have been injuries to
      her feet also. However, no burn injuries are found on her feet.
      No stove was found at the place of occurrence. Therefore, the

H
         NAGABHUSHAN v. THE STATE OF KARNATAKA                        597


defence came out with a false case of accidental fire, which, as      A
such, is not supported by any other reliable evidence. On the
contrary, this evidence speaks otherwise. Therefore, when A1
came with a false defence and the dying declaration-Exhibit P5 is
corroborated by other surrounding circumstances and evidence
and after independent evaluation of Exhibit P5 and Exhibit D2,
                                                                      B
when the High Court has found that Exhibit P5 is reliable and
inspiring confidence and thereafter when the High Court has
convicted the accused, it cannot be said that the High Court has
committed any error. In the present case the prosecution is
successful in proving that the accused-appellant herein poured
kerosene on the deceased. As per dying declaration Exhibit P5,        C
it has been proved that the deceased was set ablaze by pouring
kerosene on her. The act of the accused falls in clause fourthly of
Section 300 IPC. The accused poured kerosene on the deceased
and not only poured kerosene but also set her ablaze by the
matchstick. Therefore, after pouring kerosene on the deceased
                                                                      D
and thereafter setting her ablaze, thereafter merely because the
accused might have tried to extinguish the fire will not take the
case out of the clutches of clause fourthly of Section 300 of the
IPC. The act of the accused pouring kerosene on the deceased
and thereafter setting her ablaze by matchstick is imminently
dangerous which, in all probability, will cause death. Therefore,     E
the High Court has rightly convicted the accused for the offence
under Section 302 IPC. No reason to interfere with the impugned
judgment and order of conviction passed by the High Court. [Paras
9-11][610-F-H; 611-A-D; 611-E-F; 616-B-C]
      Babu v. State of Kerala, (2010) 9 SCC 189 : [2010] 9            F
      SCR 1039; Kuldeep Singh v. Commissioner of Police
      (1999) 2 SCC 10; Vijay Mohan Singh v. State of
      Karnataka (2019) 5 SCC 436 : [2019] 6 SCR 994;
      Nallam Veera Stayanandam v. Public Prosecutor (2004)
      10 SCC 769; Kashmira Devi v. State of Uttarakhand
      (2020) 11 SCC 343:[2020] 1 SCR 152; Ashabai v. State            G
      of Maharashtra (2013) 2 SCC 224 : [2013] 1 SCR 115;
      Santosh v. State of Maharashtra (2015) 7 SCC 641:
      [2015] 4 SCR 962 – relied on.

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598             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A                              Case Law Reference
              [2010] 9 SCR 1039             relied on               para 5.2.1
              (1999) 2 SCC 10               relied on               para 5.2.3
              [2019] 6 SCR 994              relied on               para 5.3
B             (2004) 10 SCC 769             relied on               para 8
              [2020] 1 SCR 152              relied on               para 8
              [2013] 1 SCR 115              relied on               para 8
              [2015] 4 SCR 962              relied on               para 10
C           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      443 of 2020
            From the Judgment and Order dated 11.10.2019 of the High Court
      of Karnataka at Bengaluru in Criminal Appeal No. 525 of 2013.
            Anand Sanjay M. Nuli, Suraj Kaushik, Agam Sharma, Dharm
D
      Singh M/S. Nuli & Nuli, Advs. for the appearing parties.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
E     and order of conviction dated 11.10.2019 passed by the High Court of
      Karnataka at Bengaluru in Criminal Appeal No. 525/2013, by which the
      High Court has allowed the said appeal preferred by the respondent –
      State of Karnataka and has reversed the judgment and order of acquittal
      passed by the learned trial Court insofar as the appellant – original accused
F     no.1 is concerned for the offences punishable under Sections 498A and
      302 read with 34 of the IPC and consequently convicted the appellant
      herein – original accused no.1 for the aforesaid offences, original accused
      no.1 has preferred the present appeal. However, the High Court has
      confirmed the judgment and order of acquittal insofar as original accused
      nos. 2 and 3 are concerned.
G
             2. As per the case of the prosecution, original accused no.1 married
      the deceased, the daughter of PW3 & PW4 nine years ago, prior to the
      date of the incident. That the deceased was subjected to the mental
      cruelty and there was demand of dowry from the parents of the deceased
      Rekha. In that regard, mediation was also held and thereafter PW3 &
H
           NAGABHUSHAN v. THE STATE OF KARNATAKA                               599
                     [M. R. SHAH, J.]

PW4 gave Rs. 10,000/- and Rs. 20,000/- on two occasions. On 24.06.2010         A
at about 9 p.m. in the matrimonial home, appellant herein – original
accused no.1 took up quarrel with his wife Rekha (deceased) and at
that time, he took kerosene and poured the same on her and lit the fire.
The deceased was taken to the hospital. That based on the information,
the investigating officer went to the hospital and recorded her statement
                                                                               B
on 27.06.2010 (Exhibit P5). It is alleged that even earlier also on
25.06.2010, the statement of the deceased was recorded by the police
(Exhibit D2). On conclusion of the investigation, the investigating officer
filed the chargesheet against all the accused for the offences punishable
under Sections 498A and 302 read with 34 of the IPC. The case was
committed to the Court of Sessions. The accused pleaded not guilty and         C
therefore all of them came to be tried by the learned Sessions Court for
the aforesaid offences.
       2.1 To prove the case against the accused, the prosecution
examined in all 14 witnesses and brought on record the documentary
evidences including Exhibit P5 – dying declaration and the medical             D
evidence. That after closure of the evidence on the side of the prosecution,
further statements of the accused under Section 313 Cr. P.C. were
recorded. Appellant herein – original accused no.1 examined himself as
DW1 and also examined a witness as DW2. The accused relied upon
the earlier statement of the deceased (Exhibit D2). That on appreciation
of the evidence and not believing the dying declaration – Exhibit P5 and       E
having found contradictions in two dying declarations Exhibit P5 and
Exhibit D2, the learned trial Court acquitted all the accused for the
offences for which they were tried.
      3. Feeling aggrieved and dissatisfied with the impugned judgment
and order of acquittal passed by the learned trial Court, the State of         F
Karnataka preferred appeal before the High Court. By the impugned
judgment and order, the High Court has reversed the order of judgment
and order of acquittal insofar as the appellant herein – original accused
no.1 is concerned and has convicted the appellant herein – original
accused no.1 for the offences punishable under Sections 498A and 302           G
read with 34 of the IPC. The judgment and order of acquittal for original
accused nos. 2 & 3 has been confirmed by the High Court.
      3.1 Feeling aggrieved and dissatisfied with the impugned judgment
and order of the High Court reversing the judgment and order of acquittal
and convicting the appellant herein – original accused no.1 for the offences   H
600             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     punishable under Sections 498A & 302 read with 34 of the IPC, original
      accused no.1 has preferred the present appeal.
            4. Learned counsel appearing on behalf of the appellant has
      vehemently submitted that in the facts and circumstances of the case,
      the High Court has committed a grave error in reversing the well-reasoned
B     judgment and order of acquittal passed by the learned trial Court.
             4.1 It is submitted that while reversing the order of acquittal passed
      by the learned trial Court, the High Court has exceeded in its jurisdiction
      vested in it under Section 378 of the Cr. P.C.
             4.2 It is submitted that as there were material contradictions in
C     two dying declarations and Exhibit D2 was the dying declaration first in
      time which came to be believed by the learned trial Court, the learned
      trial Court committed no error in acquitting the accused.
            4.3 It is submitted that the learned trial Court on appreciation of
      evidence, more particularly two dying declarations, disbelieved the
D     subsequent dying declaration (Exhibit P5) and thereby acquitted the
      accused, the same was not required to be interfered with by the High
      Court in exercise of the appellate jurisdiction against the judgment and
      order of acquittal.
            4.3 It is further submitted that while believing the dying declaration
E     vide Exhibit P5, the High Court has not appreciated that the same was
      recorded by PW10 in the presence of PW13, PW8 and parents of the
      deceased.
             4.4 It is submitted that the High Court ought to have appreciated
      that the earlier dying declaration vide Exhibit D2, which was recorded
F     on 25.06.2010, was recorded immediately on the next day of the incident
      wherein deceased Rekha has specifically stated that it was an accidental
      fire due to which she sustained burn injuries. It is submitted that even in
      the history which was recorded in the hospital, when the deceased Rekha
      was admitted, it was stated that the deceased had suffered accidental
      burn injuries.
G
             4.5 It is submitted that the High Court has not properly appreciated
      the fact that the dying declaration (Exhibit P5) was recorded later on
      and that too after the parents of the deceased reached to the hospital.
             4.6 It is submitted that possibility of tutoring the deceased Rekha
H     so as to make statement against the accused persons cannot be ruled
           NAGABHUSHAN v. THE STATE OF KARNATAKA                                   601
                     [M. R. SHAH, J.]

out. It is submitted that therefore at least the appellant is entitled to the      A
benefit of doubt.
        4.6 It is submitted that the High Court has not at all appreciated
and/or considered the defence version that on the date of incident there
was no power supply in the house and therefore the deceased went to
the kitchen to prepare the food and found that the gas was empty and               B
thereafter she told the appellant that she would use the kerosene stove
to prepare the food, and that while she was preparing the food with the
help of candle light and when the same was almost exhausted, she tried
to lit another candle but the same had fallen on the ground where the
kerosene was already spread while pouring the kerosene to the stove
and as a result of which the fire was caught on her clothes.                       C

        4.7 It is submitted that even thereafter when the deceased
screamed, the appellant – original accused no.1 rushed to the spot and
tried to extinguish the fire and while extinguishing the fire, he also sustained
burn injuries in his right hand. It is submitted that the aforesaid
circumstances which were considered by the learned trial Court while               D
acquitting the accused have not been considered and/or appreciated by
the High Court while reversing the order of acquittal passed by the learned
trial Court and convicting the accused – appellant herein.
       4.8 It is submitted that as such when it was an appeal against the
judgment and order of acquittal, the High Court was not justified in               E
reappreciating the oral as well as documentary evidence. It is submitted
that only in a case where the findings recorded by the learned trial Court
are found to be perverse, the interference by the appellate court against
the order of acquittal is warranted. It is submitted that in the present
case, as such, the view taken by the learned trial Court was a plausible           F
view, which was on appreciation of the evidences on record and therefore
the High Court has committed a grave error in reversing the judgment
and order of acquittal passed by the learned trial Court and convicting
the accused -appellant herein.
      5. We have heard the learned counsel appearing on behalf of the              G
appellant at length.
       5.1 Being the statutory appeal against the judgment and order of
the High Court reversing the acquittal and thereby convicting the appellant
herein – original accused no.1, we have reappreciated the entire evidence
on record.
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602            SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A            5.2 Before considering the appeal on merits, the law on the appeal
      against acquittal and the scope and ambit of Section 378 Cr.P.C. and the
      interference by the High Court in an appeal against acquittal is required
      to be considered.
             5.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCC
B     189, this Court had reiterated the principles to be followed in an appeal
      against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is
      observed and held as under:
            12. This Court time and again has laid down the guidelines for the
            High Court to interfere with the judgment and order of acquittal
C           passed by the trial court. The appellate court should not ordinarily
            set aside a judgment of acquittal in a case where two views are
            possible, though the view of the appellate court may be the more
            probable one. While dealing with a judgment of acquittal, the
            appellate court has to consider the entire evidence on record, so
            as to arrive at a finding as to whether the views of the trial court
D           were perverse or otherwise unsustainable. The appellate court is
            entitled to consider whether in arriving at a finding of fact, the
            trial court had failed to take into consideration admissible evidence
            and/or had taken into consideration the evidence brought on record
            contrary to law. Similarly, wrong placing of burden of proof may
E           also be a subject-matter of scrutiny by the appellate court. (Vide
            Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir
            v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State
            of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P
            (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC
            731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.
F           Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu
            v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State
            of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010)
            2 SCC 445)
            13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the
G           Privy Council observed as under: (IA p. 404)
            “… the High Court should and will always give proper weight and
            consideration to such matters as (1) the views of the trial Judge
            as to the credibility of the witnesses; (2) the presumption of
            innocence in favour of the accused, a presumption certainly not
H           weakened by the fact that he has been acquitted at his trial; (3)
    NAGABHUSHAN v. THE STATE OF KARNATAKA                                603
              [M. R. SHAH, J.]

the right of the accused to the benefit of any doubt; and (4) the        A
slowness of an appellate court in disturbing a finding of fact arrived
at by a Judge who had the advantage of seeing the witnesses.”
14. The aforesaid principle of law has consistently been followed
by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1,
Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.                    B
Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu
Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.
State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of
M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran
(2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,                C
this Court reiterated the legal position as under: (SCC p. 432, para
42)
“(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal is
founded.                                                                 D
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as, ‘substantial and compelling            E
reasons’, ‘good and sufficient grounds’, ‘very strong
circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc.
are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of ‘flourishes of language’ to emphasise the reluctance of
                                                                         F
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under          G
the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved guilty
by a competent court of law. Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.                          H
604      SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     (5) If two reasonable conclusions are possible on the basis of the
      evidence on record, the appellate court should not disturb the finding
      of acquittal recorded by the trial court.”
      16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this
      Court reiterated the said view, observing that the appellate court
B     in dealing with the cases in which the trial courts have acquitted
      the accused, should bear in mind that the trial court’s acquittal
      bolsters the presumption that he is innocent. The appellate court
      must give due weight and consideration to the decision of the trial
      court as the trial court had the distinct advantage of watching the
      demeanour of the witnesses, and was in a better position to
C     evaluate the credibility of the witnesses.
      17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the
      Court again examined the earlier judgments of this Court and laid
      down that: (SCC p. 374, para 20)
      “20. … an order of acquittal should not be lightly interfered with
D
      even if the court believes that there is some evidence pointing out
      the finger towards the accused.”
      18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court
      gave certain illustrative circumstances in which the Court would
      be justified in interfering with a judgment of acquittal by the High
E     Court. The circumstances include: (SCC p. 286, para 28)
      “(i) The High Court’s decision is based on totally erroneous view
      of law by ignoring the settled legal position;
      (ii) The High Court’s conclusions are contrary to evidence and
      documents on record;
F
      (iii) The entire approach of the High Court in dealing with the
      evidence was patently illegal leading to grave miscarriage of justice;
      (iv) The High Court’s judgment is manifestly unjust and
      unreasonable based on erroneous law and facts on the record of
      the case;
G
      (v) This Court must always give proper weight and consideration
      to the findings of the High Court;
      (vi) This Court would be extremely reluctant in interfering with a
      case when both the Sessions Court and the High Court have
      recorded an order of acquittal.”
H
          NAGABHUSHAN v. THE STATE OF KARNATAKA                              605
                    [M. R. SHAH, J.]

      A similar view has been reiterated by this Court in Dhanapal v.        A
      State (2009) 10 SCC 401.
      19. Thus, the law on the issue can be summarised to the effect
      that in exceptional cases where there are compelling
      circumstances, and the judgment under appeal is found to be
      perverse, the appellate court can interfere with the order of          B
      acquittal. The appellate court should bear in mind the presumption
      of innocence of the accused and further that the trial court’s
      acquittal bolsters the presumption of his innocence. Interference
      in a routine manner where the other view is possible should be
      avoided, unless there are good reasons for interference.”
                                                                             C
                                                     (emphasis supplied)
      5.2.2 When the findings of fact recorded by a court can be held to
be perverse has been dealt with and considered in paragraph 20 of the
aforesaid decision, which reads as under:
      “20. The findings of fact recorded by a court can be held to be        D
      perverse if the findings have been arrived at by ignoring or
      excluding relevant material or by taking into consideration
      irrelevant/inadmissible material. The finding may also be said to
      be perverse if it is “against the weight of evidence”, or if the
      finding so outrageously defies logic as to suffer from the vice of     E
      irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)
      4 SCC 635, Excise and Taxation Officer-cum-Assessing
      Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni
      Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya
      Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State
      (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State               F
      of A.P (2009) 10 SCC 636).”
                                                     (emphasis supplied)
        5.2.3 It is further observed, after following the decision of this
Court in the case of Kuldeep Singh v. Commissioner of Police (1999)
                                                                             G
2 SCC 10, that if a decision is arrived at on the basis of no evidence or
thoroughly unreliable evidence and no reasonable person would act upon
it, the order would be perverse. But if there is some evidence on record
which is acceptable and which could be relied upon, the conclusions
would not be treated as perverse and the findings would not be interfered
with.                                                                        H
606            SUPREME COURT REPORTS                         [2021] 2 S.C.R.


A            5.3 In the case of Vijay Mohan Singh v. State of Karnataka,
      (2019) 5 SCC 436, this Court again had an occasion to consider the
      scope of Section 378 Cr.P.C. and the interference by the High Court in
      an appeal against acquittal. This Court considered catena of decisions
      of this Court right from 1952 onwards. In paragraph 31, it is observed
      and held as under:
B
            “31. An identical question came to be considered before this Court
            in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before
            this Court, the High Court interfered with the order of acquittal
            passed by the learned trial court on re-appreciation of the entire
            evidence on record. However, the High Court, while reversing
C           the acquittal, did not consider the reasons given by the learned
            trial court while acquitting the accused. Confirming the judgment
            of the High Court, this Court observed and held in para 10 as
            under: (SCC p. 233)
                “10. Once the appeal was rightly entertained against the order
D               of acquittal, the High Court was entitled to reappreciate the
                entire evidence independently and come to its own conclusion.
                Ordinarily, the High Court would give due importance to the
                opinion of the Sessions Judge if the same were arrived at after
                proper appreciation of the evidence. This rule will not be
                applicable in the present case where the Sessions Judge has
E
                made an absolutely wrong assumption of a very material and
                clinching aspect in the peculiar circumstances of the case.”
            31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the
            High Court reversed the order of acquittal passed by the learned
            trial court and held the accused guilty on re-appreciation of the
F           entire evidence on record, however, the High Court did not record
            its conclusion on the question whether the approach of the trial
            court in dealing with the evidence was patently illegal or the
            conclusions arrived at by it were wholly untenable. Confirming
            the order passed by the High Court convicting the accused on
G           reversal of the acquittal passed by the learned trial court, after
            being satisfied that the order of acquittal passed by the learned
            trial court was perverse and suffered from infirmities, this Court
            declined to interfere with the order of conviction passed by the
            High Court. While confirming the order of conviction passed by
            the High Court, this Court observed in para 8 as under: (SCC p.
H           416)
   NAGABHUSHAN v. THE STATE OF KARNATAKA                                 607
             [M. R. SHAH, J.]

   “8. We have perused the judgment under appeal to ascertain            A
   whether the High Court has conformed to the aforementioned
   principles. We find that the High Court has not strictly proceeded
   in the manner laid down by this Court in Ramesh Babulal Doshi
   v. State of Gujarat (1996) 9 SCC 225 viz. first recording its
   conclusion on the question whether the approach of the trial
                                                                         B
   court in dealing with the evidence was patently illegal or the
   conclusions arrived at by it were wholly untenable, which alone
   will justify interference in an order of acquittal though the High
   Court has rendered a well-considered judgment duly meeting
   all the contentions raised before it. But then will this non-
   compliance per se justify setting aside the judgment under            C
   appeal? We think, not. In our view, in such a case, the approach
   of the court which is considering the validity of the judgment
   of an appellate court which has reversed the order of acquittal
   passed by the trial court, should be to satisfy itself if the
   approach of the trial court in dealing with the evidence was
                                                                         D
   patently illegal or conclusions arrived at by it are demonstrably
   unsustainable and whether the judgment of the appellate court
   is free from those infirmities; if so to hold that the trial court
   judgment warranted interference. In such a case, there is
   obviously no reason why the appellate court’s judgment should
   be disturbed. But if on the other hand the court comes to the         E
   conclusion that the judgment of the trial court does not suffer
   from any infirmity, it cannot but be held that the interference
   by the appellate court in the order of acquittal was not justified;
   then in such a case the judgment of the appellate court has to
   be set aside as of the two reasonable views, the one in support
                                                                         F
   of the acquittal alone has to stand. Having regard to the above
   discussion, we shall proceed to examine the judgment of the
   trial court in this case.”
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999)
3 SCC 309, after observing that though there is some substance
in the grievance of the learned counsel appearing on behalf of the       G
accused that the High Court has not adverted to all the reasons
given by the trial Judge for according an order of acquittal, this
Court refused to set aside the order of conviction passed by the
High Court after having found that the approach of the Sessions
Judge in recording the order of acquittal was not proper and the         H
608      SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A     conclusion arrived at by the learned Sessions Judge on several
      aspects was unsustainable. This Court further observed that as
      the Sessions Judge was not justified in discarding the relevant/
      material evidence while acquitting the accused, the High Court,
      therefore, was fully entitled to reappreciate the evidence and
      record its own conclusion. This Court scrutinised the evidence of
B
      the eyewitnesses and opined that reasons adduced by the trial
      court for discarding the testimony of the eyewitnesses were not
      at all sound. This Court also observed that as the evaluation of the
      evidence made by the trial court was manifestly erroneous and
      therefore it was the duty of the High Court to interfere with an
C     order of acquittal passed by the learned Sessions Judge.
      31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this
      Court observed and held as under: (AIR pp. 809-10)
      “5. It has been argued by the learned counsel for the appellant
      that the judgment of the trial court being one of acquittal, the High
D
      Court should not have set it aside on mere appreciation of the
      evidence led on behalf of the prosecution unless it came to the
      conclusion that the judgment of the trial Judge was perverse. In
      our opinion, it is not correct to say that unless the appellate court
      in an appeal under Section 417 CrPC came to the conclusion that
E     the judgment of acquittal under appeal was perverse it could not
      set aside that order.
      It has been laid down by this Court that it is open to the High
      Court on an appeal against an order of acquittal to review the
      entire evidence and to come to its own conclusion, of course,
F     keeping in view the well-established rule that the presumption of
      innocence of the accused is not weakened but strengthened by
      the judgment of acquittal passed by the trial court which had the
      advantage of observing the demeanour of witnesses whose
      evidence have been recorded in its presence.
G     It is also well settled that the court of appeal has as wide powers
      of appreciation of evidence in an appeal against an order of
      acquittal as in the case of an appeal against an order of conviction,
      subject to the riders that the presumption of innocence with which
      the accused person starts in the trial court continues even up to
      the appellate stage and that the appellate court should attach due
H
          NAGABHUSHAN v. THE STATE OF KARNATAKA                                   609
                    [M. R. SHAH, J.]

      weight to the opinion of the trial court which recorded the order           A
      of acquittal.
      If the appellate court reviews the evidence, keeping those
      principles in mind, and comes to a contrary conclusion, the judgment
      cannot be said to have been vitiated. (See in this connection the
      very cases cited at the Bar, namely, Surajpal Singh v. State AIR            B
      1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122)
      In our opinion, there is no substance in the contention raised on
      behalf of the appellant that the High Court was not justified in
      reviewing the entire evidence and coming to its own conclusions.
      31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355,                  C
      this Court has observed that where the trial court allows itself to
      be beset with fanciful doubts, rejects creditworthy evidence for
      slender reasons and takes a view of the evidence which is but
      barely possible, it is the obvious duty of the High Court to interfere
      in the interest of justice, lest the administration of justice be brought
      to ridicule.”                                                               D

                                                        (emphasis supplied)
       6. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and the findings recorded by
the High Court, the High Court has specifically observed and held that            E
the finding recorded by the learned trial Court discarding and/or not
believing the dying declaration (Exhibit P5) is perverse and contrary to
the evidence on record. The High Court has given cogent reasons while
believing dying declaration (Exhibit P5) and has also considered in detail
what is stated in the later dying declaration (Exhibit P5), vis-à-vis, the
medical evidence and the injuries sustained by the deceased. Therefore,           F
as such, the High Court has not committed any error in reappreciating
the entire evidence on record and thereafter interfering with the judgment
and order of acquittal passed by the learned trial Court, having found the
finding recorded by the learned trial Court perverse.
       7. Now so far as the merits of the appeal are concerned, it cannot         G
be disputed that in the present case there are two dying declarations, (i)
Exhibit P5 and (ii) Exhibit D2. The High Court in the impugned judgment
and order has given cogent reasons to rely upon and believe the second
dying declaration – Exhibit P5. The High Court has also taken note of
the fact that the second dying declaration is reliable and the version in
                                                                                  H
610             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     the second dying declaration is supported by the circumstances, namely,
      the injuries sustained by the deceased; no stove was found at the place
      of occurrence. The High Court has also taken note of the fact that in the
      second dying declaration, the deceased has explained her first statement
      that it was a case of accident and she categorically stated in the second
      dying declaration that at the time when she gave first statement that it
B
      was a case of accident, she was given threats by the appellant herein –
      original accused no.1 that he will kill her children also. She also stated in
      the second dying declaration that after her parents came, she got the
      courage to tell the truth. Therefore, as such, the High Court rightly
      believed the second dying declaration – Exhibit P5.
C            8. At this stage, the decisions of this Court in the cases of Nallam
      Veera Stayanandam v. Public Prosecutor (2004) 10 SCC 769;
      Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343; and
      Ashabai v. State of Maharashtra (2013) 2 SCC 224 are required to
      be referred to. In the aforesaid decisions, this Court had an occasion to
D     consider the cases where there are multiple dying declarations. In the
      aforesaid decisions, it is held that each dying declaration has to be
      considered independently on its own merit as to its evidentiary value and
      one cannot be rejected because of the contents of the other. It is also
      held that the Court has to consider each of them in its correct perspective
      and satisfy itself which one of them reflects the true state of affairs.
E     When there are multiple dying declarations, each dying declaration has
      to be separately assessed and evaluated on its own merits.
              9. Applying the law laid down by this Court in the aforesaid
      decisions to the facts of the case on hand, and on evaluation of both
      dying declarations independently, dying declaration recorded as Exhibit
F     P5 reflects the true state of affairs and the contents are supported by
      the medical evidence and the injuries sustained by the deceased. The
      plea put forth by the defence that it was a case of an accident and while
      pouring the kerosene from kerosene can to the bottle, the same had
      fallen on the clothes placed on the ground and when the deceased tried
G     to remove the clothes from that place, the candle fell on the ground, as a
      result, her clothes caught fire and she sustained burn injuries is disbelieved
      by the High Court considering the circumstances noted by the High
      Court that the deceased sustained injuries on the face, chest and back
      and to the upper limbs. The main injuries are found on the upper limbs of
      the body. Therefore, as rightly observed by the High Court, the aforesaid
H
           NAGABHUSHAN v. THE STATE OF KARNATAKA                                 611
                     [M. R. SHAH, J.]

injuries can be possible when the kerosene is poured on the deceased.            A
According to the defence and as per the evidence of DW1-A1, while
putting the kerosene into the stove, accidentally the kerosene had fallen
on the ground and also on her clothes, and thereafter when the candle
fell on the ground, the same had come in contact with her clothes and
kerosene. If that is the case, there would have been injuries to her feet
                                                                                 B
also. However, no burn injuries are found on her feet. No stove was
found at the place of occurrence. Therefore, the defence came out with
a false case of accidental fire, which, as such, is not supported by any
other reliable evidence. On the contrary, this evidence speaks otherwise.
Therefore, when A1 came with a false defence and the dying declaration
– Exhibit P5 is corroborated by other surrounding circumstances and              C
evidence and after independent evaluation of Exhibit P5 and Exhibit D2,
when the High Court has found that Exhibit P5 is reliable and inspiring
confidence and thereafter when the High Court has convicted the
accused, it cannot be said that the High Court has committed any error.
       10. Now so far as the submission on behalf of the accused that            D
even thereafter he tried to extinguish the fire and he also sustained injuries
and therefore it cannot be said that the appellant has committed an offence
punishable under Section 302 IPC is concerned, at the outset, it is required
to be noted that in the present case the prosecution is successful in
proving that the accused – appellant herein poured kerosene on the
deceased. As per dying declaration Exhibit P5, it has been proved that           E
the deceased was set ablaze by pouring kerosene on her. The act of the
accused falls in clause fourthly of Section 300 IPC. It emerges from the
evidence on record that the accused poured kerosene on the deceased
and not only poured kerosene but also set her ablaze by the matchstick.
Merely because thereafter the A1 might have tried to extinguish the fire,        F
that will not bring the case out of clause fourthly of Section 300 IPC.
       A somewhat similar submission was made before this Court in
the case of Santosh v. State of Maharashtra (2015) 7 SCC 641. In
the case before this Court, it was contended on behalf of the accused
who poured kerosene on the deceased and set her ablaze by matchstick             G
that thereafter they tried to save the deceased by pouring water on her
and therefore it was contended on behalf of the accused that by that
conduct it cannot be said that the intention of the accused was to cause
death of the deceased. The aforesaid has been negated by this Court by
observing in paragraphs 9 to 18 as under:
                                                                                 H
612      SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     “9. Insofar as the first contention that the appellant is not
      responsible for the death of deceased Saraswatibai, the defence
      made an attempt to contend that the fire was accidental and that
      the appellant tried to extinguish the fire in order to save her and in
      that process, he also suffered burn injuries. The prosecution has
      adduced cogent evidence to prove that the appellant has caused
B
      the death of deceased Saraswatibai. The accused suspected the
      deceased of infidelity and picking up a fight over it, he kicked her
      and inflicted fist-blows and further set her on fire by pouring
      kerosene over her person. PW 6, doctor certified that the deceased
      was in a fit mental condition to make the statement and PW 7, the
C     Executive Magistrate recorded the dying declaration Ext. 1. In
      the said dying declaration, the deceased had categorically stated
      that on the date of incident, the appellant poured kerosene over
      her person and set her on fire. That accused poured kerosene on
      the deceased and set her on fire is corroborated by the oral
      testimony of PW 3, Sindhu Sunil Ingole (sister-in-law) of the
D
      deceased. PW 1 Raju Janrao Gavai, neighbour of the deceased
      who accompanied the deceased to the hospital to whom the
      deceased is said to have made a statement about the overt act of
      the accused, had only stated that the deceased told him that the
      accused beat her and also kicked her. PW 1 had not supported
E     the statement of the deceased in the dying declaration that the
      accused poured kerosene on her and set her on fire. However,
      the prosecution has established the guilt of the accused by Ext. 1
      dying declaration and the oral evidence of the mother (PW 2) and
      the sister-in-law (PW 3) and the same cannot be doubted.
F     10. The learned counsel for the appellant contended that there
      was no premeditation and the appellant had poured kerosene from
      the lamp nearby and thereafter the appellant attempted to extinguish
      the fire by pouring water on her and himself getting burn injuries
      in the process. It was submitted that the conduct of the appellant
      in trying to extinguish the fire immediately after the incident would
G     clearly show that there was no intention on the part of the appellant
      to commit the murder. In support of his contention, he placed
      reliance on the judgment of this Court in Kalu Ram v. State of
      Rajasthan [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] .
      11. The question falling for consideration is whether the act of the
H     accused pouring water would mitigate the offence of murder.
    NAGABHUSHAN v. THE STATE OF KARNATAKA                                  613
              [M. R. SHAH, J.]

Where the intention to kill is present, the act amounts to murder,         A
where such an intention is absent, the act amounts to culpable
homicide not amounting to murder. To determine whether the
offender had the intention or not, each case must be decided on
its facts and circumstances. From the facts and circumstances of
the instant case, it is evident that : (i) there was a homicide, namely,
                                                                           B
the death of Saraswatibai; (ii) the deceased was set ablaze by
the appellant and this act was not accidental or unintentional; and
(iii) the post-mortem certificate revealed that the deceased died
due to shock and septicaemia caused by 60% burn injuries. When
the accused poured kerosene on the deceased from the kerosene
lamp and also threw the lighted matchstick on the deceased to set          C
her on fire, he must have intended to cause the death of the
deceased. As seen from the evidence of PW 5, panch witness, in
the house of the appellant, kerosene lamp was prepared in an
empty liquor bottle. Whether the kerosene was poured from the
kerosene lamp or from the can is of no consequence. When there
                                                                           D
is clear evidence as to the act of the accused to set the deceased
on fire, absence of premeditation will not reduce the offence of
murder to culpable homicide not amounting to murder. Likewise,
pouring of water will not mitigate the gravity of the offence.
12. After attending to nature’s call, the deceased returned to the
house a little late. The accused questioned her as to why she was          E
coming late and he also suspected her fidelity. There was no
provocation for the accused to pour kerosene and set her on fire.
The act of pouring kerosene, though on the spur of the moment,
the same was followed by lighting a matchstick and throwing it on
the deceased and thereby setting her ablaze. Both the acts are             F
intimately connected with each other and resulted in causing the
death of the deceased and the act of the accused is punishable
for murder.
13. Even assuming that the accused had no intention to cause the
death of the deceased, the act of the accused falls under clause           G
Fourthly of Section 300 IPC that is the act of causing injury so
imminently dangerous where it will in all probability cause death.
Any person of average intelligence would have the knowledge
that pouring of kerosene and setting her on fire by throwing a
lighted matchstick is so imminently dangerous that in all probability
such an act would cause injuries causing death.                            H
614      SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     14. Insofar as the conduct of the accused in attempting to extinguish
      fire, placing reliance upon the judgment of this Court in Kalu Ram
      case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , it was contended
      that such conduct of the accused would bring down the offence
      from murder to culpable homicide not amounting to murder.
      In Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , the
B
      accused was having two wives. The accused in a highly inebriated
      condition asked his wife to part with her ornaments so that he
      could purchase more liquor, which led to an altercation when the
      wife refused to do as demanded. Infuriated by the fact that his
      wife had failed to concede to his demands, the accused poured
C     kerosene on her and gave her a matchbox to set herself on fire.
      On her failure to light the matchstick, the accused set her ablaze.
      But when he realised that the fire was flaring up, he threw water
      on her person in a desperate bid to save her. In such facts and
      circumstances, this Court held that the accused would not have
      intended to inflict the injuries which she sustained on account of
D
      the act of the accused and the conviction was altered from Section
      302 IPC to Section 304 Part II IPC.
      15. The decision in Kalu Ram case [(2000) 10 SCC 324 : 2000
      SCC (Cri) 86] cannot be applied in the instant case. The element
      of inebriation ought to be taken into consideration as it considerably
E     alters the power of thinking. In the instant case, the accused was
      in his complete senses, knowing fully well the consequences of
      his act. The subsequent act of pouring water by the accused on
      the deceased also appears to be an attempt to cloak his guilt since
      he did it only when the deceased screamed for help. Therefore, it
F     cannot be considered as a mitigating factor. An act undertaken by
      a person in full awareness, knowing its consequences cannot be
      treated on a par with an act committed by a person in a highly
      inebriated condition where his faculty of reason becomes blurred.
      16. Within three months of her marriage, the deceased died of
      burn injuries. In bride burning cases, whenever the guilt of the
G     accused is brought home beyond reasonable doubt, it is the duty
      of the court to deal with it sternly and award the maximum penalty
      prescribed by the law in order that it may operate as a deterrence
      to other persons from committing such offence.
      17. This Court on various occasions has stressed the need for
H     vigilance in cases where a woman dies of burn injuries within a
    NAGABHUSHAN v. THE STATE OF KARNATAKA                               615
              [M. R. SHAH, J.]

short span of her marriage and that stern view needs to be adopted      A
in all such cases. In Satya Narayan Tiwari v. State of U.P. [(2010)
13 SCC 689 : (2011) 2 SCC (Cri) 393] , this Court in paras 3 and
9 has held as under : (SCC pp. 692 & 693)
   “3. Indian society has become a sick society. This is evident
   from the large number of cases coming up in this Court (and          B
   also in almost all courts in the country) in which young women
   are being killed by their husbands or by their in-laws by pouring
   kerosene on them and setting them on fire or by hanging/
   strangulating them. What is the level of civilisation of a society
   in which a large number of women are treated in this
   horrendous and barbaric manner? What has our society                 C
   become—this is illustrated by this case.
   ***
   9. Crimes against women are not ordinary crimes committed
   in a fit of anger or for property. They are social crimes. They      D
   disrupt the entire social fabric. Hence, they call for harsh
   punishment. Unfortunately, what is happening in our society is
   that out of lust for money people are often demanding dowry
   and after extracting as much money as they can they kill the
   wife and marry again and then again they commit the murder
   of their wife for the same purpose. This is because of total         E
   commercialisation of our society, and lust for money which
   induces people to commit murder of the wife. The time has
   come when we have to stamp out this evil from our society,
   with an iron hand.”
18. Upon analysis of the evidence adduced by the prosecution,           F
the courts below recorded concurrent findings that the accused
caused the death of deceased Saraswatibai and convicted the
appellant. It is well settled that concurrent findings of fact cannot
be interfered with unless the findings are perverse and
unsupportable from the evidence on record. This view has been           G
reiterated in Dhananjay Shanker Shetty v. State of
Maharashtra [(2002) 6 SCC 596 : 2002 SCC (Cri) 1444] . In the
totality of the facts and circumstances, in our view, the concurrent
findings of facts recorded by the courts below are based on
evidence and we see no infirmity in the impugned judgment
warranting interference”.                                               H
616             SUPREME COURT REPORTS                         [2021] 2 S.C.R.


A            Therefore, after pouring kerosene on the deceased and thereafter
      setting her ablaze, thereafter merely because the accused might have
      tried to extinguish the fire will not take the case out of the clutches of
      clause fourthly of Section 300 of the IPC. The act of the accused pouring
      kerosene on the deceased and thereafter setting her ablaze by matchstick
      is imminently dangerous which, in all probability, will cause death.
B
      Therefore, the High Court has rightly convicted the accused for the
      offence under Section 302 IPC.
            11. In view of the above and for the reasons stated above, the
      present appeal fails. We see no reason to interfere with the impugned
      judgment and order of conviction passed by the High Court. The appeal
C     deserves to be dismissed and is accordingly dismissed.


      Divya Pandey                                                Appeal dismissed.


D




E




F




G




H