Full Judgment Text
2023INSC858
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 247 OF 2011
H. D. SUNDARA & ORS. …APPELLANT(S)
VERSUS
STATE OF KARNATAKA …RESPONDENT(S)
J U D G M E N T
ABHAY S. OKA, J.
1. This is an appeal preferred by the accused challenging
the impugned judgment of the High Court of Karnataka at
Bangalore by which the order of their acquittal, passed by the
Sessions Court, was overturned. The appellants were convicted
for the offences punishable under Part I of Section 304 and
Section 324 read with Section 149 of the Indian Penal Code,
1860 (for short, ‘IPC’). They were sentenced to undergo rigorous
imprisonment for seven years and pay a fine of Rs. 5,000/-.
FACTUAL ASPECTS
2. We may refer to a few factual aspects of the case. PW-1
(Jagadeesha) is the complainant. The complainant’s family had
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.09.26
17:06:36 IST
Reason:
property in the village Hebbale. The appellant no.1 - accused
no.1-Mariyappa is PW-1’s uncle, with whom PW-1’s family was
Criminal Appeal No. 247 of 2011 Page 1 of 9
having a dispute over water. Manjunatha and Shivarama are
the brothers of PW-1, who are the victims of the offence. On
th
29 August 1999, both entered the village Hebbale to engage
labourers for plucking ginger. PW-1 followed them. On the road
to the village, he found that PW-2 (Sundara) and PW-6 (Ravi)
were sitting on a culvert. When he was talking to them, they
heard the hue and cry from the village, and therefore, they
rushed to the village and found that the appellants, who are
relatives of PW-1, were holding various weapons like sticks,
kathi and club and they were assaulting Manjunatha and
Shivarama. It is alleged that accused no.1-Mariyappa
assaulted Shivarama by using a club. Accused no.8-Puttappa
also assaulted Manjunatha by using a club. Accused no.7-
Rajappa used a stick as a weapon of assault for assaulting
Shivarama. Accused no.5-Somashekara stabbed Shivarama by
using a knife. Accused no.6-Krishnappa assaulted Manjunatha
on his head by using a club. Further, an assault was made by
accused no.3-Chandrahasa by putting a stone on the chest of
Shivarama. Even accused no.4-Rajakumara crushed the leg of
Shivarama with a stone. Though PW-1, PW-2 and PW-6 tried
to rescue the deceased, they could not save the deceased.
Accused no.3-Chandrahasa caught hold of PW-2 (Sundara)
and assaulted him by using a sickle (kathi). Accused no. 1
assaulted PW-1 with a club. Accused no.1 also assaulted PW-
1’s mother on the right hand.
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3. The Trial Court acquitted all the accused. However, by
the impugned judgment, the High Court has interfered and
convicted the appellants as narrated above.
4. Accused no.6 died during the pendency of the trial. The
accused no.1 - appellant no.1 and accused no.7 – appellant
no.7 died during the pendency of this appeal. Counsel for the
appellants has filed I.A. No. 71417 of 2023 – application for
permission to file additional documents. Annexure A-1 and A-
2 are copies of the Death Certificates of appellant no.1 and
appellant no.7 respectively. The said application is allowed and
the Cause Title stands modified accordingly. Formal
amendment to the Cause Title be carried out accordingly. The
appeal stands abated as regards these two appellants. Accused
no.2 - appellant no.2, accused no.3 - appellant no.3, accused
no.4 - appellant no.4 and accused no.6 - appellant no.6 have
so far undergone incarceration for a period of about one year
and two months. Accused no.5 – appellant no.5-Somashekar
has been incarcerated for five years and three months.
SUBMISSIONS
5. Mr. S. Nagamuthu, the learned senior counsel appearing
for the appellants submitted that the High Court did not apply
its mind to the evidence on record. Moreover, the High Court
has not recorded any finding that the only conclusion possible
was that the guilt of the accused has been established beyond
a reasonable doubt. Without recording any such finding, the
High Court has overturned the order of acquittal. Moreover, no
specific finding is recorded by the High Court that every
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accused or any particular accused caused the death of the two
deceased persons. He pointed out that there is no finding
about the applicability of Section 149 of IPC. He would,
therefore, submit that the impugned judgment cannot be
sustained. Moreover, there is a delay in recording FIR. The
learned senior counsel also pointed out that though a grievous
injury was suffered by accused no.1 - appellant no.1, the
prosecution offered no explanation about the said injury. He
submitted that in view of the said injury, in fact, a First
Information Report (for short, ‘FIR’) ought to have been
registered, and an investigation ought to have been carried out.
6. Mr. Nishanth Patil, the Additional Advocate General for
the State of Karnataka, submitted that the delay in registering
the FIR may be of a very few hours, which has been explained.
Moreover, the evidence of eyewitnesses PW-1, PW-2, PW-3, PW-
6 and PW-7 proves the appellants' guilt beyond a reasonable
doubt. In fact, that would have been the only conclusion which
could be drawn on the basis of evidence on record. He
submitted that if the impugned judgment is not satisfactory,
this Court, after re-appreciating the evidence of the prosecution
witnesses and other material on record, can satisfy its
conscience about the correctness of the ultimate conclusion of
the High Court.
CONSIDERATION OF SUBMISSIONS
7. In this appeal, we are called upon to consider the legality
and validity of the impugned judgment rendered by the High
Court while deciding an appeal against acquittal under Section
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378 of the Code of Criminal Procedure, 1973 (for short,
‘Cr.P.C.’). The principles which govern the exercise of appellate
jurisdiction while dealing with an appeal against acquittal
under Section 378 of Cr.P.C. can be summarised as follows: -
(a) The acquittal of the accused further strengthens the
presumption of innocence;
(b) The Appellate Court, while hearing an appeal against
acquittal, is entitled to re-appreciate the oral and
documentary evidence;
(c) The Appellate Court, while deciding an appeal against
acquittal, after re-appreciating the evidence, is
required to consider whether the view taken by the
Trial Court is a possible view which could have been
taken on the basis of the evidence on record;
(d) If the view taken is a possible view, the Appellate Court
cannot overturn the order of acquittal on the ground
that another view was also possible; and
(e) The Appellate Court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused
was proved beyond a reasonable doubt and no other
conclusion was possible.
8. Normally, when an Appellate Court exercises appellate
jurisdiction, the duty of the Appellate Court is to find out
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whether the verdict which is under challenge is correct or
incorrect in law and on facts. The Appellate Court normally
ascertains whether the decision under challenge is legal or
illegal. But while dealing with an appeal against acquittal, the
Appellate Court cannot examine the impugned judgment only
to find out whether the view taken was correct or incorrect.
After re-appreciating the oral and documentary evidence, the
Appellate Court must first decide whether the Trial Court's view
was a possible view. The Appellate Court cannot overturn
acquittal only on the ground that after re-appreciating
evidence, it is of the view that the guilt of the accused was
established beyond a reasonable doubt. Only by recording such
a conclusion an order of acquittal cannot be reversed unless
the Appellate Court also concludes that it was the only possible
conclusion. Thus, the Appellate Court must see whether the
view taken by the Trial Court while acquitting an accused can
be reasonably taken on the basis of the evidence on record. If
the view taken by the Trial Court is a possible view, the
Appellate Court cannot interfere with the order of acquittal on
the ground that another view could have been taken.
9. There is one more aspect of the matter. In many cases,
the learned Trial Judge who eventually passes the order of
acquittal has an occasion to record the oral testimony of all
material witnesses. Thus, in such cases, the Trial Court has
the additional advantage of closely observing the prosecution
witnesses and their demeanour. While deciding about the
reliability of the version of prosecution witnesses, their
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demeanour remains in the back of the mind of the learned Trial
Judge. As observed in the commentary by Sarkar on the Law
of Evidence, the demeanour of a witness frequently furnishes a
clue to the weight of his testimony. This aspect has to be borne
in mind while dealing with an appeal against acquittal.
10. Coming back to the facts of the case, after having
carefully perused the impugned judgment, we find that there
is no discussion about the testimony of eyewitnesses for
deciding whether their testimony could be believed. In fact,
there are no findings recorded by the High Court after re-
appreciating the evidence. There is not even a finding to
indicate that the High Court considered the question whether
the view taken by the Trial Court was a possible view. Without
recording any reasons and without recording any finding
regarding the role played by the appellants individually and
collectively, the High Court has jumped to the conclusion that
the guilt of the accused has been established. The judgment
does not throw any light on the question who were the authors
of the injuries sustained by the deceased and the injured
witnesses. There is no finding as to how Section 149 of IPC gets
attracted.
11. Thus, the only conclusion which can be drawn is that the
High Court, as an Appellate Court, while hearing the appeal
against acquittal, has not done its duty.
12. However, we cannot take recourse to the order of remand
since the subject offence has taken place about twenty-three
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and half years back. We have perused the evidence of the
eyewitnesses, namely PW-1, PW-2, PW-3, PW-6 and PW-7, and
the Trial Court findings. We find that the Trial Court has made
a very detailed analysis of the depositions of the witnesses. The
incident was of 9:00 p.m. The Trial Court noted that at 11:40
p.m. on the date of the incident, PW-1 was examined by a
doctor in a hospital. FIR was not lodged immediately thereafter.
It was registered at 1:30 a.m. on the next date. The Trial Court
noted that the appellant no.1’s thumb was disfigured. For this
grievous injury suffered by the appellant no.1 - accused no.1,
there was no explanation by the prosecution.
13. The Trial Court found that the failure to investigate the
cause of injury suffered by the accused no.1 is a serious lacuna
in a prosecution case. On facts, it is further noted by the Trial
Court that on the basis of prior complaint filed by the accused
no.1 - appellant no.1 alleging commission of assault by PW-1,
PW-2, PW-7, and PW-12, all of them got anticipatory bail from
the competent court.
14. There was a fight over property between the accused and
the family of the complainant. After in-depth scrutiny of the
testimony of the eyewitnesses, for the reasons recorded, the
Trial Court was unable to accept their testimony. After having
examined the evidence of the material prosecution witnesses
and findings of the Trial Court, we must hold that the
conclusions recorded by the Trial Court were possible
conclusions which could have been recorded on the basis of
the evidence on record.
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15. Therefore, the appeal succeeds, and we set aside the
st
impugned Judgment dated 21 September 2010. We direct
that unless the appellants are required to be detained in
custody in connection with some other case, they shall be
forthwith set at liberty.
16. The Appeal is accordingly allowed.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Sanjay Karol)
New Delhi;
September 26, 2023
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