LexSURYAKANT DADASAHEB BITALE versus DILIP BAJRANG KALE & ANR.
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A B [2014] 8 S.C.R. 98 SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG KALE & ANR. (Criminal Appeal No. 1708 of 2009) JULY 2, 2014 [SUDHANSU JYOTI MUKHOPADHAYA AND R.K. AGRAWAL, JJ.] Code of Criminal Procedure, 1973 - s.397 - Interference C with order of acquittal~ By High Court in exercise of revisional jurisdiction - Validity -Death of appellant's wife due to burn injuries - Multiple dying declarations -Appellant charged with offences u/ss. 49BA and 302 /PC - But acquitted by Sessions Court - Father of the deceased invoked revisional jurisdiction D of High Court u/s.397 CrPC to challenge legality of the order of acquittal - High Court remitted the matter back to Session Court for consideration afresh - Held: High Court not justified in interfering with the order- of acquittal in revision - The Sessions Court did not rule out any evidence which was E admissible and considered both the dying declarations - Material evidence not overlooked by the Sessions Court - Prosecution could not explain as to why the second dying declaration wa..s taken, though in the said declaration the deceased stated that she had not called for the second dying F declaration - Alf these aspects were discussed by the Sessions Judge who acquitted the appellant - View taken by the Sessions Judge neither unreasonable nor perverse but a possible reasonable view based on the evidence on record - In the circumstances, High Court not justified in setting aside G the order of acquittal - Order passed by the Sessions Court affirmed - Penal Code, 1860 - ss. 498A and 302. The appellant's wife sustained 95% burn injuries in her matrlmonial house. She was admitted in the Hospital, where the Special Executive Magistrate recorded her H . 98 SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 99 KALE dying declaration. Two days later, the Special Executive A Magistrate recorded another dying declaration. Subsequently, the appellant's wife died. The appellant was charged for offences punishable under Sections 302 and 498A IPC. The Sessions Court acquitted the appellant. Aggrieved, the complainant, father of the B deceased invoked revisional jurisdiction of the High Court under Section 397 CrPC to challenge the legality and validity of the order of acquittal. The High Court under revisional jurisdiction accepted that appreciation of evidence was not within the jurisdiction of the revisional c court, but re-appreciated the dying declaration and remitted the matter back to the Session Court for consideration afresh. •, In the instant appeal, the appellant assailed the judgment of High Court on the ground that in absence D of appeal against the acquittal under Section 378 Cr.P.C., it was not open to the High Court to re-appreciate evidence like dying declarations under Section. 397 Cr.P.C; that the Sessions Judge had extensively appreciated the dying declarations of the deceased and_ E thereafter come to the conclusion that appellant was not guilty of the offence charged against him; and that where two views were possible, the High Court should not have interfered with the order of the acquittal. Allowing the appeal, the Court F HELD:1.1. From the judgment passed by the Sessions Judge, it is found that the Sessions Judge not only dealt with dying declaration dated 14th July, 2003 and 16th July, 2003 but also noticed that the deceased G made a declaration to her father, complainant, PW-5 on 15th July, 2003 i.e. a day prior to the lodging of FIR on 16th July, 2003. The Sessions Court did not rule out any evidence which was admissible. Both the dying ·declarations were considered in proper prospect. The H 100 SUPREME COURT REPORTS [2014] 8 S.C.R. A material evidence was not overlooked by the Sessions Court, as apparent from the discussions ~ade by Sessions Judge. In these circumstances, the High Court was not justified in interfering with the order of acquittal in a revision. [Paras 16, 20] [108-D-E; 113-F] B 1.2. There were three dying declarations. One was made before the Executive Magistrate on 14th July, 2003, the second alleged to have been made by the deceased before her father, PW-5-complainant on 15th July, 2003 and the t~--dying declaration was made in a format C before the Executive Magistrate on 16th July, 2003. The prosecution could not explain as to why the second dying declaration was taken on 16th July, 2003, though in the said declaration the deceased had stated th
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