KHUMBARAMversusSTATE OF RAJASTHAN & ORS.

                        [2015] 12 S.C.R. 888


A                          KHUMBARAM
                                 v.
                  STATE OF RAJASTHAN & ORS.
                 (Criminal Appeal No. 2077of2011)
I~

                          October 15, 2015
             [R.K. AGRAWAL AND R. BANUMATHI, JJ.]

       Code of Criminal Procedure, 1973- s. 378(1) and (3)-
c Acquittal of the accused u/ss. 498A, 3048 alternatively u/s.
  302 /PC by trial court (fast track) -Applications by the State
  and the appellant (father of deceased) for leave to appeal
  and criminal revision -Applications dismissed by High Court
  by common order- On appeal by the father of the deceased,
D held: High Court is required to record reasons while refusing
  to grant leave to appeal - In the present case, High Court
  failed to record reasons for refusing to grant leave to appeal
  - In the facts and circumstances of the case, High Court
  should have granted leave to appeal and thereafter should
E have reappreciated the evidence and recorded its finding
  independently on merit - High Court should also have
  considered the FSL Report in proper perspective because
  the trial court order was passed without consideration thereof
F - Even though the State has not come in appeal, in the
  interest ofjustice, State as well is granted leave to appeal -
  Matter remitted to High Court- Penal Code, 1860- ss. 498A
  and 3048 alternatively u/s. 302.

          Allowing the appeal, the Court
li

          HELD: 1.1 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. The High
l-1
                                 888
     KHUM BA RAM v. STATE OF RAJASTHAN & ORS.                  889


Court while refusing leave must indicate the reasons for A
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. [Para 8 and 9] [894-F-G]
                                                               13
      1.2 In the present case, 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 died within seven years of marriage in C
 unnatural circumstances. 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 1138 of the Evidence Act. In
                                                              D
 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 E
 to file 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 therefore, the impugned order is liable to be set aside
 and the matter be remitted back to the High Court. Even F
 though State has ·not preferred any appeal before this
 Court, as the impugned order is a common order and in
 the interest of justice, it is appropriate to grant leave to
 appeal to the State as well. [Para 11] [896-F-H; 897-A-C]
                                                               G.
      State of Rajasthan vs. Sohan Lal And Ors. (2004) 5 SCC
  573:2004 (1) Suppl; SCR 480; State of Orissa vs. Dhaniram
· Luhar(2004) 5 SCC 568: 2004 (2) SCR 68 - relied on.

      2. Yet another ground for remitting the matter back H
 to the High Court is that the judgment of the trial court
890         SUPREME COURT REPORTS                 [2015] 12 S.C.R.



A was delivered on 24.03.2009 and the FSL Report was
      received after the disposal of the case by the trial court,
      which shows positive test for the presence of organo
      phosphorous insecticide in the viscera. The High Court
      should have considered the FSL Report in proper
 8    perspective and as the first appellate court, it should have
      independently examined the matter and recorded its
      findings objectively. [Para 12] [897-D-E]

           Dinesh vs. State ofHaryana (2014) 12 SCC 532;
c          Rajinder Singh vs. State of Haryana (2013) 15
           SCC 245: 2013 (7) SCR 370; Mangila/ vs. State
           ofRajasthan &Anr. (2001) 8 SCC 519: 2001 (4)
           Suppl. SCR 392 - cited.
 D                    CASE LAW REFERENCE

        (2014) 12 sec 532            cited.            Para 5

        2013 (7) SCR 370             cited.            Para 5
 E
        2001 (4) Suppl. SCR 392 cited.                 Para 5

         2004 (1) Suppl. SCR 480 relied on.            Para 9

         2004 (2) SCR 68             relied on.        Para 10
 F
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 2077 of 2011.

       From the Judgment and Order dated 03.02.2010 of the
   High Court of Judicature for Rajasthan at Jodhpur in D.B.
 G
   Criminal Revision Petition No. 584 of2009.

         Ms. Aishwarya Bhati, T. Gopal, Adarsh Kr. Tiwari,
      Hemendra Sharma, Advs., for the Appellant.

 H        Mahabir Singh, Sr. Adv., Jayant Bhatt (NP), Ms. Ruchi
    KHUMBA RAM v. STATE OF RAJASTHAN & ORS.                    891


Kohli, Ms. Preeti Singh, Gagan Deep Sharma, Nikhil Jain, Ms.    A
Madhusmita Bora, Advs., with him for the Respondents.

    The Judgment of the Court was delivered by

    R. BANUMATHI, J. 1. This appeal by special leave has B
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 c
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 accuse<;l-
respondents were acquitted of the charges punishable under
Sections 498A, 3048 IPC alternatively under Section 302 IPC. D

     2. The factual background which led to the filing of this
 appeal are as under:- Marriage of second r~spondent­
 Bhanwara Ram and the appellant's daughter Kamla (since
deceased) was solemnized on 27.05.2007 and Kamla E
 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 . F
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 G
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 H
there and the parents of Kamla came to know about death of
892         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A     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
 B marriage. Investigation into the cause of death was initiated
    by Assistant Collector and Executive Magistrate, Bayatu and
    investigation report 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
 C 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.
 D
        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
 E 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
 F 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.
 G Being aggrieved, the father of the deceased has preferred
   this appeal.

        !5. Ms. Aishwarya Bhati, learned counsel for the appellant
   submitted that the High Court erred in dismissing the appeal
 H without properly appreciating the evidence and the fact that
   the trial court completed the trial in a fast track within six months
    KHUM BA RAM v. STATE OF RAJASTHAN & ORS.                     893
                [R. BANUMATHI, J.]

of the incident without even waiting for the FSL Report frqm A
the Forensic Science Laboratory, J9dhpurwhich 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 B
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 c
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 o
Court in Dinesh vs. State of Haryana, (2014) 12 SCC 532;
Rajinder Singh vs. State of Haryana, (2013) 15 SCC 245
and Mangila/ vs. State of Rajasthan & Anr. (2001) 8 SCC
519.
                                                                 E
      6. Per contra, Mr. Mahabir Singh, learned Senior Counsel
for the respondents contended thatthe prosecution was unable
to prove that Kam la 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 F
that no substantive evidence was adduced to prove that just
prior to the date of death deceased-Kam la 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 G
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.
                                                                 H
    7. We have carefully considered the rival contentions of
894         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A     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.
 B Sub-sections (1) and (3) of Section 378 Cr.PC. 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),-
 c
           (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
 D
           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
 E         (2) shall be entertained except with the leave of the
           High Court."

       Sub-section (3) of Section 378 Cr.P.C. puts a restriction
   on entertaining of appeals by imposing a condition that the
 F 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
 G    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:-

 H          " ... The State does not in pursuing or conducting a
KHUM BA RAM v. STATE OF RAJASTHAN & ORS.                         895
            [R. BANUMATHI, J.]

criminal case or an appeal espouse any right of its own          A
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         B
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          c
("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               D
which nas 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       E
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         F
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,         G
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       H
High Court, even while dealing with an appeal against
896        SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A          acquittal, was also entitled, and obliged as well, to scan
           through and if need be reappreciate the entire evidence,
           though while cnoosing 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
 B         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
 c
           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:-

 D         "... 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
 E
           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
 F 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
 G 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 1138 of the Evidence Act. In such circumstances, the
   High Court ought to have granted leave to appeal and thereafter
 H re-·appreciated the evidence and recorded its findings
   independently as regards guilt or otherwise of the accused.
     KHU MBA RAM v. STATE OF RAJASTHAN & ORS.                       897
                 [R. BANUMATHI, J.]

The High Court has not given any reason for refusing to grant A
leave to file 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 8
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.
                                                                    c
    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
                                                                0
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 E
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    F
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           G
accordance with law. The appeal stands allowed accordingly.

Kalpana K. Tripathy                               Appeal allowed.


                                                                    H