KHUMBARAM v. STATE OF RAJASTHAN & Ors.

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 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 such circumstances, the High Court ought to have granted leave to appeal and thereafter re-appreciated the evidence and recorded its findings independently as regards guilt or otherwise of the accused. The High Court has not given any reason for refusing to grant leave to file 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] D E 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. G.

#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] c D E F