KAMLESH PRABHUDAS TANNA & ANOTHERversusSTATE OF GUJARAT

                         [2013) 9 S.C.R. 257


          KAMLESH PRABHUDAS TANNA & ANOTHER                              A
                               v.
                     STATE OF GUJARAT
              (Criminal Appeal No. 1517 of 2007)
                          AUGUST 26, 2013
                                                                         B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

         CODE OF CRIMINAL PROCEDURE, 1973:

         Appeal - High Court affirming the conviction - Held: It is      c
    the sacrosanct duty of appellate court, while sitting in appeal
    against judgment of trial court, to be satisfied that the guilt of
    accused has been established beyond all reasonable doubt
    -- Appreciation of evidence and proper re-assessment to
    arrive: at the conclusion is imperative in a criminal appeal -       D
    In the instant case, High Court, while dealing with the statutory
    appeal 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 -- There is
                                                                         E
    total lack of deliberation and proper ratiocination - Judgment
    of High Court set aside and matter remitted to it for disposal
    of the appeal afresh.

         The marriage between appellant-accused No. 1 (A-1)
    and the sister of the informant (PW-2) was solemnized on             F
    24.9.1997. Two children, one son and a daughter were
    born to the couple. On 11.9.2001, A-1 informed PW-2
    telephonically that his sister had committed suicide. PW-
    2 lodged an FIR alleging that after the marriage of his
    sister, A-1 and his mother had been constantly asking for            G
    dowry of Rs.2 lacs, but as the said demand could not be
    satisfied they started ill-treating her in the matrimonial
    home because of which she was compelled to commit
    suicide.
                                 257                                     H


/
    258       SUPREME COURT REPORTS            [2013] 9 S.C.R.


A        The trial court convicted the accused of the charges
    and sentenced them on all counts including 8 years RI
    u/s. 304-8 IPC. The High Court affirmed the conviction
    and the sentence.

          Disposing of the appeal, the Court
B
        HELD: 1.1 It is the sacrosanct duty of the appellate
  court, while sitting in appeal against the judgment of the
  trial court, to be satisfied that the guilt of the accused has
  been established beyond all reasonable doubt after
C proper re-assessment, re-appreciation and re-scrutiny of
  the material on record. 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
D 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. [Para 12-13) [265-C-F]
E
       · 1.2 In the instant case, the High Court, while dealing
  with the statutory appeal under the Code of Criminal
   Procedure, has failed to appreciate and scrutinize the
  evidence in proper perspective, and the reasons ascribed
F by it for accepting the evidence and concurring with the
  view of the trial court is not supported by any acceptable
   reason. There is total lack of deliberation and proper
   ratiocination. There has been no assessment of evidence
   on record. The credibility of the witnesses has not
  appositely been adjudged. Affirmative satisfaction
G recorded by the High Court is far from being satisfactory.
  The 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
H about the guilt of the accused persons, for their liberty
    KAMLESH PRABHUDAS TANNA v. STATE OF                 259
                 GUJARAT
is jeopardized. Consequently, the judgment and order          A
passed by the High Court is set aside and the matter is
remitted to the High Court to dispose of the appeal afresh
as expeditiously as possible. [Para 7, 12 and 14) [263-A-
B; 265-A-C, F-G]
                                                              B
     Padam Singh v. State of U.P. 1999 (5) Suppl. SCR 59
= (2000) 1 SCC 621.; Rama and others v. State of Rajasthan
(2002) 4 SCC 571; Iqbal Abdul Samiya Malek v. State of
                         =
Gujarat 2012 SCR 1012 (2012) 11 SCC 312; Bani Singh
                                              =
v. State of U.P. 1996 (3) Suppl. SCR 247 (1996) 4 SCC
720; Majjal v. State of Haryana (2013) 6 SCC 798 - referred   C
to.
                    Case Law Reference:
    1999 (5) Suppl. SCR 59      referred to        para 8
                                                              D
    (2002) 4 sec 571            referred to        para 9
    2012 SCR 1012               referred to        para 10
    1996 (3) Suppl. SCR 247 referred to            para 10
                                                              E
    (2013) 6 sec 798            referred to        para 11

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1517 of 2007.

    From the Judgment and Order dated 06.09.2007 of the       F
High Court of Gujarat at Ahmedabad in Criminal Appeal No.
531 of 2004.

     Ranjbir Singh Yadav, P. Kakra, Anzu K. Varkey, Nidhi
(A.C.) for the Appellants.
                                                              G
     Pinky Behera, Hemantika Wahi, Subada Deshpanda for
the Respondent.

    . The Judgment of the Court was delivered by

    DIPAK MISRA, J. 1. Assailing the legal acceptability of   H
    260      SUPREME COURT REPORTS                [2013] 9 S.C.R.


A 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
s of 2001 wherein the learned trial Judge had found the
  appellants guilty of the offences under Sections 3048, 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
c 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
D 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
E 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
F of the deceased, ~ot 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
G 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
H constantly asking for dowry of Rs.2 lacs from the father of the
    KAMLESH PRABHUDAS TANNA v. STATE OF                      261
          GUJARAT [DIPAK MISRA, J.]
deceased, but as the said demand could not be satisfied due         A
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        B
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 3048, 306      c
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     D
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        E
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 3048 read with Section 34 IPC; whether
the physical and mental torture on the deceased compelled her       F
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          G
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
herein before.
                                                                    H
    262      SUPREME COURT REPORTS                [2013] 9 S.C.R.


A      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
B 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
C 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.
o       6. We have he~rd 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
E 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,
F recorded the submissions of learned counsel for the respective
  parties and thereafter, referred to the post mortem report, the
  FSL report, inque$t panchnama and other documentary
  evidence and, ultimately referring to the deposition of
  prosecution witnesses in a cryptic manner, has come to hold
G 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
H the State and how the said appeal did not merit consideration.
   KAMLESH PRABHUDAS TANNA v. STATE OF                         263
         GUJARAT [DIPAK MISRA, J.]
As we perceive, the High Court, while dealing with a statutory         A--
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.                                                 B
     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            c
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       0
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          E
     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         F
     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       G
     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]
1. c20ooi 1 sec a21.                                                   H_
    264        SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A         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
B         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,
c         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.
D         11. Recently, a three-Judge Bench in Majjal v. State of
    Haryana 5 has ru!ed 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
E         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
F         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
G         and important submissions which go to the root of the
          matter."
    2.   (2002) 4 sec 571.
    3.   (2012) 11 sec 312.
    4.   (1996) 4 sec 720.
H 5.     (2013) s sec 798.
     KAMLESH PRABHUDAS TANNA v. STATE OF                        265
           GUJARAT [DIPAK MISRA, J.]
        12. Tested on the touchstone of the aforesaid principles        A
  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 a.nd 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          c
  jeopardized. !t 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-apprec;ation
                                                                        0
  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,         E
  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               F
   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             G
   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 aooor-dingly.
   R.P.                                        Appeal disposed of.      H