THE STATE OF KARNATAKA vs ABDUL SHARIEF @ AMEER JAN
- Court
- Karnataka High Court
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CRL.A No. 1310 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 29 DAY OF AUGUST, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B.PRAMOD
CRIMINAL APPEAL NO.1310 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
BY UDAYAGIRI POLICE STATION, MYSURU
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001
…APPELLANT
(BY SRI. JAGADISH B.N., SPP)
AND:
ABDUL SHARIEF @ AMEER JAN
S/O LATE MOHAMMED MASOOD SAB
AGED ABOUT 55 YEARS
K.S.R.T.C. BUS DRIVER
BADGE NO.259
KUVEMPUNAGAR DIPPO
MYSURU
R/AT NO.635, SINDUVALLI VILLAGE
JAYAPURA HOBLI, MYSURU TALUK AND
PERMANENT RESIDENT OF
MARAMMA TEMPLE STREET
VAJAMANGALA, VARUNA HOBLI
MYSURU TALUK-570 001
…RESPONDENT
(BY SRI. UMESH P.B., ADVOCATE [AUTHORISED BY HCLSC])
Digitally signed
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA
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CRL.A No. 1310 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 28.04.2018 PASSED BY THE III ADDITIONAL SESSIONS
JUDGE, MYSUREU, IN S.C.NO.258/2013 ACQUITTING THE
RESPONDENT OF THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 307, 436 OF IPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.08.2026, THIS DAY , THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE B.PRAMOD
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
This appeal is filed by the State challenging the judgment
and order of acquittal dated 28.04.2018 passed in
S.C.No.258/2013 by the III Additional Sessions Judge, Mysuru
for the offences punishable under Sections 302, 307 and 436 of
IPC and prayed this Court to convict and impose appropriate
sentence against the accused.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of case of the prosecution is that
the father of PW1- Mohammed Ameer Jan and other five
victims were succumbed to the injuries as they suffered burn
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injuries since there was a motive to commit the offence by the
accused as the father of PW1 was giving medicines as doctor
and accused picked up a quarrel with the doctor in connection
with payment of money. It is also stated in the complaint at
Ex.P15 that the accused, 3 days prior to the incident during
night time threw some powder at the house of PW1 and in this
regard, PW1 has informed to the police but police did not take
any action in this regard. Ultimately, on the intervening night of
11.04.2013 and 12.04.2013, when 8 persons were sleeping in
the house, at around 03.00 a.m., PW1 found strong smell of
petrol. The occupants of the house also got up and switched on
the light and saw the petrol seeping in under the door and at
that time PW1 who was panic, peeped through the window and
saw the accused lighting the match stick and threw it on her
house and he ran away from the spot. By that time, the house
of PW1 caught fire and occupants of the house also started
screaming. Hearing the sound of screaming, neighbours also
came to the spot and broke open the door and PW1, her
mother and PW2 were managed to come outside from the
house. But other 5 occupants including the father of PW1 have
failed to escape from burning house and have sustained burn
injuries and succumbed to the said injuries.
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4. In connection with the said incident, a complaint
was lodged in terms of Ex.P15, which was recorded in the
presence of the doctor and PW14-IO having recorded the
statement, registered the FIR as per Ex.P80 and started the
investigation and conducted the inquest and subjected the dead
bodies for post mortem and also conducted spot mahazar and
seized the material objects at MO1 to MO26. PW14
apprehended the accused on the very same day and recovered
the motorcycle at his instance in which he came to the incident
place. Accused was sent to the hospital for his medical
examination and the doctor-PW10 has examined him and
issued the wound certificate in terms of Ex.P76. PW14 also
collected the sample of burnt hair of accused, which is
produced as MO23. The IO also seized the burnt clothes which
were on the dead bodies and also the ornaments under various
mahazars and sent the seized articles to the RFSL, Mysuru and
some of the seized articles were also sent to the FSL,
Bengaluru to detect the presence of petroleum and kerosene
residue in the said properties. Thereafter, having collected MLC
extract relating to the injured and having completed the
investigation, pending receipt of FSL and RFSL report, charge
sheet was filed. The accused was in custody and charges were
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framed against him and the accused did not plead guilty and
claims the trial.
5. The prosecution in order to prove the charges
leveled against accused, examined PW1 to PW15 and marked
the documents at Ex.P1 to P83 and also marked the material
objects at MO1 to MO26. The Exhibits at ‘D’ series are also
marked during the course of cross-examination of witnesses.
After the conclusion of the prosecution evidence, the accused
was subjected to 313 statement and he has denied the
incriminating circumstances, but he has not given any
explanation and also not led any defence evidence.
6. The Trial Court having considered both oral and
documentary evidence placed on record disbelieved the
evidence of PW1, PW2 and PW8, who are the star witnesses of
the prosecution that is the eye witnesses and the Trial Court
also disbelieved the evidence of PW3 and PW4, who are the
neighbouring witnesses, so also the evidence of other witnesses
and comes to the conclusion that prosecution has failed to
prove that accused has set fire to the house of PW1 which
resulted in the death of six persons and the injuries and
acquitted the accused for the alleged offences.
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7. Being aggrieved by the judgment of acquittal by the
Trial Court, the State has filed the appeal before this Court.
8. The learned SPP Mr. Jagadish appearing for the
State would vehemently contend that Trial Court has not at all
appreciated the evidence available on record in a proper
perspective which has resulted in miscarriage of justice. The
Trial Court while acquitting the accused mainly held that
prosecution has failed to prove that it was the accused who set
fire to the house of PW1 which resulted in death of six persons
and injuries to PW1. The Trial Court also comes to the
conclusion that prosecution has failed to prove that fire is a
deliberate act of arson or an accidental fire has not proved and
recoveries, seizure and scientific evidence do not corroborate
with the prosecution case and there is a serious lacuna in the
investigation and extended the benefit of doubt in favour of the
accused.
9. The counsel would vehemently contend that the
Trial Court fails to consider the material witnesses i.e., PW1
and PW2 who are the inmates in the house and also who have
survived in the incident with the injuries and both of them have
categorically deposed that it was the accused who poured the
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petrol through the window and lit the fire by using the
matchstick. The counsel also contend that the Trial Court also
failed to consider the evidence of circumstantial witness i.e.,
PW3, PW4 and PW8. The Trial Court also failed to appreciate
the evidence of PW11, who is none other than the wife of the
accused who has clearly deposed that at the night on the date
of incident, accused was not in the house and he came back to
the home in the early morning at 05.00 a.m. and she had
witnessed that accused had sustained burn injuries over his
body. The Trial Court also fails to take note of FSL report at
Ex.P82 which clearly establishes that the residues of petrol
were found from the seized articles and Trial Court also fails to
consider the scientific evidence available on record. The counsel
would contend that the prosecution has clearly proved that
accused has involved in this act and has taken the life of 6
persons due to enmity against the father of PW1 in connection
with treatment as well as financial transactions. It is admitted
that the accused only gave the complaint against the deceased
i.e., the father of PW1 and inspite of the said material available
on record, the Trial Court committed an error in acquitting the
accused and failed to take note of heinous nature of the offence
and gravity of the offence but extended the benefit of doubt in
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an unwarranted circumstances which have been discussed in
the judgment.
10. The counsel appearing for the State-SPP in his
arguments would vehemently contend that the very incident of
setting fire on the house of PW1 and death of 6 persons is not
in dispute. The evidence of PW1 and PW2 who have sustained
the injuries and witnessed the accused was not properly
appreciated by the Trial Court and so also the evidence of PW8
who is a circumstantial witness also witnessed the accused who
ran away from the house of PW1 at the time of incident. The
Trial Court failed to appreciate the evidence of PW11, who is
none other than the wife of the accused and her evidence is
very clear that the accused was not in the house in the night on
the date of incident and he came back to house in the early
morning at 05.00 a.m. and he had sustained burn injuries. But
the Trial Court had given a flimsy reason in not accepting the
evidence of PW11. The counsel also vehemently contend that
with regard to the motive is concerned, the evidence of PW1,
PW2, PW5 is very clear in this regard. But the Trial Court failed
to discuss with regard to the petroleum residues which were
found in the seized articles at the spot. The counsel would
contend that Ex.P82-FSL report is very clear with regard to the
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presence of petroleum residues but the Trial Court not
discussed the same in the judgment and much importance was
given to the unwanted things. The counsel also vehemently
contend that the reasoning given by the Trial Court is nothing
but perverse and fails to take note of gravity of the offence
since the Trial Court not considered the nature of death of six
persons and two have sustained the injuries.
11. The counsel also vehemently contend that when the
accused had sustained the injuries that too a burn injuries and
there was no any explanation in this regard on the part of the
accused in 313 statement when specific question No.27 was put
to him, either he did not deny the burn injuries sustained by
him or given any explanation for the injuries sustained by him.
There was no defence that death was due to burst of cylinder
and no suggestion was made denying the very presence of the
accused at the spot and nowhere in the cross-examination of
prosecution witnesses denies his very presence. The very
presence of PW1 and PW2 at the time of incident is also not
disputed and they have also sustained injuries. The Trial Court
also failed to consider the evidence of PW3 and PW4 who are
the neighbours who came to the spot after hearing the sound of
screaming and there was no effective cross examination of PW1
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to PW4. The oral evidence of PW1 to PW6 corroborates with
each other which indicates that there was an incident and the
very incident is not disputed. The counsel contend that petrol
was used in the said incident and residues of petrol were found
at Ex.P82 and the same is not disputed. The evidence of
doctor-PW10 is very clear that he had treated the accused and
the evidence of PW14-IO is very clear that having arrested the
accused, he was sent to the medical examination and accused
has sustained injuries and wound certificate at Ex.P76 is very
clear that accused has sustained burn injuries.
12. The counsel appearing for the State-SPP in support
of his arguments, relied upon judgment of the Apex Court
reported in (2000)1 SCC 471 in the case of STATE OF
MAHARASHTRA vs SURESH and brought to notice of this
Court paragraph 27 wherein the Apex Court held that we have
pointed out earlier the injuries which the doctor had noted on
the person of the accused when he was examined. The
significant impact of the said incriminating circumstance is that
the accused could not give any explanation whatsoever for
those injuries and therefore he had chosen to say that he did
not sustain any such injury at all. We have no reason to
disbelieve the testimony of the doctor. A false answer offered
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by the accused when his attention was drawn to the aforesaid
circumstance renders that circumstance capable of inculpating
him. In a situation like this such a false answer can also be
counted as providing ‘a missing link’ for completing the chain.
13. Per contra, the counsel appearing for the
respondent in his arguments would vehemently contend that
the incident was taken place in the midnight and accused was
arrested on the same day evening but the doctor examined him
on the next day. The counsel would contend that in Ex.P15-
complaint, it is specifically stated that both front door and back
door were locked. In the cross-examination of PW1 also it is
stated that door was locked, but how she came out from the
house is not explained properly and the same is taken note of
by the Trial Court. The counsel also vehemently contend that
even the evidence of circumstantial witnesses i.e., PW3 and
PW4 also contradicts with the evidence of PW1. But their
evidence is that after the arrival of the police only, the cylinder
was burst. But the evidence of PW1 is otherwise. PW5 says that
PW1 came and informed about the incident. The evidence of
PW6 is also contrary to the evidence of PW1. Though, PW8
deposes that he is an eye witness, but his statement was not
recorded since he is only a mahazar witness but deposes as eye
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witness. These contradictions were taken note of by the Trial
Court.
14. The counsel also brought to notice of this Court that
LTM was put on Ex.P15 and in the document of Ex.P42, it was
the leg thumb impression. The counsel also vehemently
contend that though the case of the prosecution that petrol was
purchased from the petrol bunk and statement of one Raju was
recorded, he has not been cited as a witness and also he has
not been examined before the Trial Court. The counsel would
contend that even though there was CCTV in the petrol bunk,
the same was not collected to show that accused has purchased
the petrol from the said petrol bunk. The cloth of the accused
was also not seized. The FSL report at Ex.82 is marked by
consent. Thus, the case of the prosecution is doubtful. PW11 is
the second wife who is also having a grudge against the
accused and hence, she gave evidence against the accused.
Hence, the Trial Court not believed the evidence of PW11.
Thus, the Trial Court taken note of all these factors into
consideration and rightly acquitted the accused.
15. In reply to this arguments, the learned SPP would
vehemently contend that a mistake was occurred in not citing
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the said Raju as witness who made the statement that accused
came and purchased the petrol. But non-examination of this
witness and not citing him as witness is not a material fact
when the eye witnesses spoken about the very presence of the
accused i.e., PW1 and PW2 and other witness PW8. The
material on record clearly shows that there was a motive to
commit the crime and eye witnesses evidence is available to
the said incident including the other circumstantial evidence
when the accused has sustained the burn injury and there is no
explanation in this regard in his 313 statement and even the
incident is not disputed. The loss of life of 6 persons is also not
disputed and the very presence of the accused at the spot is
also not disputed throughout the cross-examination of the
prosecution witnesses. Hence, the Trial Court has committed an
error in acquitting the accused.
16. Having heard the learned SPP appearing for the
State and also the learned counsel appearing for the
respondent/accused and considering the material on record and
also the principles laid on the judgment referred supra, the
point that would arise for the consideration of this appeal is:
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1. Whether the Trial Court committed an error in
acquitting the accused extending the benefit of
doubt in his favour and whether the reasoning of
the Trial Court amounts to perversity in not
considering the evidence in a proper perspective
and whether it is a fit case to convert the
acquittal into conviction and sentence the
accused and what sentence, accused deserved?
2. What order?
Point No.1:
17. Having considered the factual aspects of the case
which has been narrated above, it is not in dispute that incident
was taken place in the early morning on 12.04.2013. Also
material discloses that based on the request made by PW12-
Balakrishna, PSI, Devaraja Police Station, PW13-Dr. Mohan, at
K.R. Hospital, Mysuru certified that PW1 is fit to give
statement. Hence, statement of PW1 was recorded as per
Ex.P15 in the hospital itself that too in the presence of the
doctor. Based on the statement of victim-PW1 as per Ex.P15,
FIR was registered in Crime No.54/2013. The FIR is marked as
Ex.P80 for the offences under Sections 302, 307 and 436 of
IPC. It is also important to note that PW1’s statement was
recorded in between 08.00 to 09.00 a.m. The incident was
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taken place in the early morning at 03.00 a.m. on 12.04.2013.
The doctor-PW9 has issued the MLC extracts as per Ex.P73 and
P74. The Tahsildar has conducted the Inquest on 12.04.2013 in
respect of all the six dead bodies in terms of Ex.P1 to P6. The
Investigation Officer also requested the Tahsildar to record the
statement of PW1 who was admitted to the hospital as she has
sustained the burn injuries and her statement was recorded as
per Ex.P42 at the hospital itself by the Tahsildar. The Court has
to take note of statement made by PW1 as per Ex.P15 and also
the statement as per Ex.P42. It is also important to note that
the Investigating Officer also has conducted the spot mahazar
as per Ex.P14 that too in the presence of PW6 and sketch of the
spot also prepared as per Ex.P13. The doctor has conducted
post mortem and gave the PM report as per Ex.P7 to P11. The
other doctor also conducted the post mortem on the body of
Afroz Begum and gave the report as per Ex.P12. It is also
important to note that the accused was arrested on the very
same day based on the statement made by PW1 and after his
arrest, immediately, PW14 has conducted the recovery
mahazar as per Ex.P64 that is motorcycle in the presence of
PW8. It is also important to note that the doctor-PW10 has
examined the accused and issued the would certificate as per
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Ex.P76 indicating that there are burn injuries on the accused
i.e., burn injury on the forehead as well as on the leg. The
prosecution also mainly relies upon the evidence of PW11-
Waheeda Banu who is none other than the wife of the accused
in support of its case.
18. The prosecution mainly relies upon the evidence of
PW1, PW2, PW3 to PW6, PW8 and PW11. The Investigating
Officer also recovered the clothes belongs to PW1 and her
mother as per Ex.P71 and so also the clothes belongs to all the
deceased as per Ex.P72 and sent all these articles to the FSL.
After examining the articles sent by the Investigating Officer
i.e., the clothes which were recovered by the doctor at the time
of post mortem, Forensic Science Laboratory issued a
certificate in terms of Ex.P77 and so also subsequently, FSL
report also received as per Ex.P82.
19. It is not in dispute that incident was taken place in
the early morning on 12.04.2013 and throughout in the cross-
examination of the prosecution witnesses, the same was not
disputed. It is very clear that on account of pouring of petrol
and setting of fire, total 6 persons have lost their life. The FSL
report at Ex.P82 discloses the presence of petrol residues in the
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seized articles. The prosecution relies upon the evidence of
PW1 to PW6 and PW8, who speaks about the incident and
accused also not disputes the incident. The prosecution mainly
relies upon the evidence of PW1 and PW2 who are the eye
witnesses to the incident as well as they have sustained the
injuries in the said incident. The other witness relied upon by
the prosecution is PW8 who saw the accused who ran away
from the crime scene. No doubt, the Trial Court rightly comes
to the conclusion that PW8 was cited as mahazar witness but
his statement was not recorded. But he speaks about collection
of burnt hair of the accused by drawing the mahazar in terms
of Ex.P64 and also the burnt hair is also marked as MO23. If
PW8 has not been accepted as an eye witness to the incident,
there was an improvement during the course of the trial. But
the fact that burnt hair of accused was collected by drawing the
mahazar in terms of Ex.P64 and he also speaks about the
injuries sustained by the accused and to that respect, his
evidence can be accepted but not as eyewitness.
20. Whether the evidence of PW1 and PW2 inspires the
confidence of the Court or not as they are the injured witnesses
and they also witnessed the accused at the spot to be looked
into.
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21. Before appreciating their evidence, firstly, the Court
has to take note that whether there was a motive to commit
the crime. In this regard, the evidence of PW1, PW2, PW5 and
PW6 shows about the motive. It is also not in dispute that
motive placed by the prosecution is not disputed and the very
cross examination itself discloses that this accused has given
the complaint against the deceased i.e., father of PW1 that
there was a financial transaction to the tune of Rs.3,00,000/-.
Hence, it is clear that there was a prior ill-will between the
father of PW1 and also the accused. But Trial Court taken note
of the same in a different way with regard to the motive is
concerned and comes to the conclusion that the accused
himself has lodged the complaint against the deceased but the
fact is that the father of PW1 not lodged the complaint and at
the time of lodging complaint, he was no more. That means the
same can be considered either way. Hence, it is clear that there
was a ill-will between the accused and also the father of PW1.
It is the case of PW1 that accused insisted her father to give
slow poison to his first wife and he has refused. Hence, he was
having hateredness against him. But the very admission on the
part of the defence itself that the accused has given the
complaint against the father of PW1 is not in dispute with
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regard to financial transaction. It is also the evidence of PW1
that accused used to come and quarrel with her father and
earlier also he was taking treatment from her father and he
owes money in favour of her father for treatment. When her
father demanded money for treatment, a clash was taken place
between them. Hence, it is very clear that there was a motive
for committing the crime. The learned counsel for the accused
also not disputed the same as regards to earlier ill-Will. The
first circumstances of motive is proved.
22. Now, coming to the evidence of PW1, PW2 and
PW5, it is clear that all of them have sustained injuries and
survived in the incident. The fact that presence of PW and PW2
in the house is also not disputed. PW3 and PW4 came to the
spot immediately as they heard the screaming sound and also
the evidence of PW1 is very clear that when all of them are
shouted, PW3 and PW4 came and caused damage to the door
and PW1, her mother and PW2 were able to come out from the
house, but others could not. It is further the case of the
prosecution that PW1 peeped through the window and saw the
accused setting fire to the premises. Upon being noticed, the
accused immediately fled from the spot and the same is also
witnessed by PW2. But PW2 is a minor and appears to be
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tutored to give an evidence like the evidence of PW1. But the
fact that PW2 has also sustained the injuries in the incident and
it is not in dispute that PW2 was also very much present at the
place of incident.
23. No doubt, the counsel appearing for the accused
also brought on notice of this Court that PW2 went and
informed about the incident to PW5. But the same is
subsequent to PW2 came out from the house and that cannot
be a fatal to the case of the prosecution. But the fact is that
PW1, PW2 and PW5 have sustained the injuries. It is also
important to note that in the cross examination of prosecution
witnesses, throughout it is not disputed the presence of
accused and also not disputed about sustaining the burn
injuries. It is also important to note that PW10 who had issued
the wound certificate at Ex.P76 has categorically deposed that
accused was brought to him for examination and he found the
burn injuries and injuries mentioned in Ex.P76 is very clear that
accused had sustained the burn injuries. In the cross-
examination of PW1 and PW2, the accused counsel has not
disputed the very presence of the accused and suffering burn
injuries and other circumstances proved.
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24. It is also important to note that when PW5
attempted to rescue the people in the house, during this
attempt, he had also sustained the injuries. Even sustaining the
injury by PW1, PW2 and PW5 have not been disputed. It is also
the case of PW3 that the mother of PW1 states about the
incident and has narrated the very involvement of the accused.
There is no dispute about the capacity of PW1’s mother i.e.,
Afroze Begum speaking about the same and it is not disputed
that she was not able to make statement. PW3 categorically
speaks about the very statement made by PW1’s mother who
later succumbed to the injuries. It is also important to note that
the Court has to take note of the conduct of the accused. PW8
speaks about the injuries sustained by accused and collection of
burnt hair of the accused as set out in Ex.P64 and PW8 is the
witness to that.
25. It is important to note that prosecution mainly
relies upon the evidence of PW11 who is the wife of the
accused who deposes that accused had gone out in the night on
the date of incident and he came back home only at 05.00 a.m.
in the early morning. PW11 also speaks about the injuries
sustained by the accused when he came back to the home. It is
also important to note that PW10-doctor who treated the
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accused also deposed about the injury sustained by the
accused and gave wound certificate as per Ex.P76 and burnt
hair of accused was also collected as per MO23. These are the
evidences which clearly disclose the very presence of the
accused at the time of incident and sustaining of injury in the
said incident. But accused has not given any explanation in 313
Statement when specific question was put to him particularly,
question No.27 as he has sustained injury and except his
general denial, nothing has been explained about burning of his
hair as well as sustaining of burn injuries. The counsel
appearing for the State rightly relied upon the judgment of
State of Maharashtra referred supra wherein Apex Court
discussed with regard to the injuries which the doctor had
noted on the person of the accused.
26. In the case on hand also, the doctor who examined
the accused has specifically deposed before the Court that
accused had sustained the burn injuries. When the question
No.27 was put to accused in 313 statement, either he did not
deny his injuries or has given any explanation and he has silent
about the same. It is the bounden duty of the accused to
explain the incriminating circumstances in his 313 statement or
to lead evidence under Section 315 as defence evidence to give
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explanation for the nature of injuries what he has sustained.
The very injuries what accused has sustained are burn injuries
and it shows that accused was very much present at the scene
of occurrence and the same is witnessed by PW1 and PW2.
PW1 specifically stated the very presence of accused in her oral
evidence as well as the complaint at Ex.P15 i.e., without any
delay, she specifically stated that there was no cordiality
between her father and also this accused and accused ran away
from the spot after setting fire. As a result, fire spread to the
house of PW1 as he poured the petrol. Hence, there was no any
delay and this statement was made immediately after the
incident as incident was taken place at 03.00 a.m. and
statement was recorded in between 08.00 a.m. to 09.00 a.m.
in the presence of the doctor. Based on the said statement
only, complaint was registered and law was set in motion. The
evidence of PW1 is very specific that accused only poured the
petrol and set the fire and ran away from the spot and no
explanation is given by the accused in this regard.
27. The evidence of PW2 is also very clear that he also
found the accused at the spot. No doubt, the answer elicited
from the mouth of PW2 that he had gone to the office of aunty
whom shown to him i.e., Public Prosecutor and instructed to
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give evidence. That answer will not take away the case of
prosecution since the evidence of PW2 is very clear that his
grandmother's saree had become wet with petrol and that
saree was slightly burnt and he categorically says that there
was light to see accused. But he did not try to switch on light or
did see anybody to do so as he was minor. But his evidence is
very clear that on that day night, he first saw the accused
through the window next to the main door. At that time, his
aunt-Reshma Anjum's hand was not burnt and the house was
not on fire when witnessed the accused. But accused was
running towards the direction of the bedroom. Thus, the
evidence of PW1 and PW2 is very clear with regard to the
presence of accused at the spot at the time of incident. Apart
from that the very nature of injuries sustained by the accused
is not explained. But the Trial Court committed an error in
disbelieving the evidence of PW1 and PW2. The only reason
given by the Trial Court to disbelieve the evidence of PW1 and
PW2 that although PW1 has stated many other things, but crux
of the evidence of PW1 is accused poured the petrol and set fire
and he ran away from the spot. The same cannot be accepted.
But the fact remains is very clear that PW1 shouted at spot and
PW2 was also present inside the house. But only an observation
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is made by the Trial Court with regard to PW2 is concerned
holding that PW2 could have seen the accused from behind and
hence, it is difficult to accept his evidence that he was the
accused whom PW2 saw on that day but the fact that PW2
witnessed is not disbelieved. These are the reasons given by
the Trial Court in not accepting the evidence of PW1 and PW2.
28. It is also important to note that though PW3 and
PW4 are not the eye witnesses to the said incident, an attempt
is made by the prosecution to prove the incident by examining
PW8 as eyewitness and mahazar witness. But this Court also
will not accept the evidence of PW8 as eye witness because he
was cited as mahazar witness. But the fact is that when
accused was arrested, mahazar was drawn in the presence of
PW8 as per Ex.P64. It is very clear that hair sample of accused
was seized since his hair was also burnt and same was spoken
by PW8. When the mahazar was drawn with regard to the
seizure is concerned and petrol residues were found, the same
is evident from document at Ex.P82, the same has not been
discussed by the Trial Court in a proper perspective. In The
description of Articles 1 to 3, 6 to 9, 18, 25, 26, 30, Article 2,
3, 18, 20, 21, 25, 26 and 30 have responded positive for the
presence of petroleum residues. Hence, it is very clear that the
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IO has recorded the statement of one Raju who sold the petrol
to the accused. But this witness was not cited. If even not
cited, the learned Public Prosecutor who conducted the case
would have examined him, but not done the same. But the
fault on the part of the Public Prosecutor cannot take away the
case of the prosecution and the same not go to the very root of
the case. Trial Court also would have noticed the same and
directed to examine that Raju whose statement was recorded
by the IO and the Trial Court cannot remain as a mute
spectator when six persons have lost their lives in the present
incident. The same will not take away the case of the
prosecution. The FSL report is very clear that petroleum
residues responded positive in Article 2, 3, 18, 20, 21, 25, 26
and 30. The IO has categorically stated that he has seized the
articles and sent the same to the FSL by drawing the mahazar
in terms of Ex.P71 and P72. As per Ex.P82–Forensic Science
Laboratory examined the various articles seized at the scene of
crime by the investigation and report is also positive. The same
has not been discussed by the Trial Court and ignored the same
and the same amounts to perversity and leads to miscarriage of
justice .
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29. The finding of the Trial Court is perverse for the
reason that nothing is discussed with regard to 313 statement
of the accused is concerned as he has denied the same and not
given any explaination. Even Trial Court fails to touch upon the
313 statement of the accused when the accused was very much
present at the spot and he had also sustained the injuries as
per Ex.P76 wound certificate as well as Ex.P74 and P75 and
accused ought to have explained the same before the Court
and the Trial Court is very silent about the same in not
discussing the same. It is also important to note that accused
not disputed that vehicle was seized at his instance by drawing
the mahazar as per Ex.P64 and the same is accepted by the
Trial Court that his bike which was used to come to the spot
was seized. The Trial Court also fails to take note of the fact
that throughout in the cross-examination of prosecution
witnesses, they are not disputed the very presence of the
accused at the spot at the time of the incident and even not
made any suggestion in this regard.
30. This Court would like to refer to the judgment of the
Apex Court in the case of MUNNA KUMAR UPADHYAY ALIAS
MUNNA UPADHYAYA v. STATE OF ANDHRA PRADESH
THROUGH PUBLIC PROSECUTOR reported in 2012 (6) SCC
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174, wherein it is held that in order to prove his innocence, the
accused ought to have given satisfactory explanation in his
examination under Section 313 of Cr.P.C. The very purpose of
examination of the accused under Section 313 of Cr.P.C. is to
explain with regard to the incriminating circumstances
appearing against him. Twin purpose of accused’s examination
is to give an opportunity to him to furnish explanation, and to
draw adverse inference where accused denies established facts.
Accused's silence or false explanation – such conduct, held,
entitles Court to tilt in favour of prosecution case invoking
Section 106 and Section 114(iii)(g) of the Evidence Act, 1872.
The scope of Section 313 of Cr.P.C. is in detail discussed by the
Apex Court in paragraph Nos.72, 73 and 74, referring the
judgments of the Apex Court in the case of ASRAF ALI v.
STATE OF ASSAM reported in (2008) 16 SCC 328 and in the
case of MANU SAO v. STATE OF BIHAR reported in (2010)
12 SCC 310 . The Court has been empowered to examine the
accused but only after the prosecution evidence has been
concluded. It is a mandatory obligation upon the Court and
besides ensuring the compliance therewith the Court has to
keep in mind that the accused gets a fair chance to explain his
conduct. The option lies with the accused to maintain silence
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coupled with simpliciter denial or in the alternative to explain
his version and reasons for his alleged involvement in the
commission of crime when there is incriminating evidence
available against him.
31. This Court would also like to rely upon the
judgment of the Apex Court in the case of MUNISH MUBAR v.
STATE OF HARYANA reported in (2012) 10 SCC 464,
wherein it is held that when the case depends upon the
circumstantial evidence and also the material available on
record showing incriminating circumstances against the
accused, the accused must explain under Section 313 of Cr.P.C.
It is obligatory on part of accused while being examined under
Section 313 of Cr.P.C. to furnish some explanation with respect
to incriminating circumstances associated with him. The Court
must take note of such explanation, even in a case of
circumstantial evidence, so as to decide whether or not, the
chain of circumstances is complete when there is incriminating
evidence available against him.
32. This Court also would like to rely upon the
judgment of the Apex Court in the case of SANJEEV v. STATE
OF KERALA, passed in Criminal Appeal No. 1134/2011
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dated 09.11.2023. Paragraph No.41 of the said judgment reads
as under:
“41. Notably, no less than 627 questions/
circumstances were put to A10 and A11 each under
Section 313 of the Code of Criminal Procedure,
1973. This Court has clarified on numerous
occasions that in law, the accused has a duty to
furnish some explanation of an incriminating
circumstance, with the prosecution crossing the
threshold of proving its case beyond reasonable
doubt. However, no explanation, much less, a
plausible one, is put forth. In the event of
complete denial or silence, the Court is entitled to
draw an adverse inference against the accused.
Applying this to the case at hand, in the statements
under Section 313, the accused persons failed to
justify the incriminating circumstances appearing
against them.”
33. This Court also would like to rely upon the
judgment of the Apex Court in the case of CHETAN v. STATE
OF KARNATAKA reported in (2025) 9 SCC 31. Paragraph
Nos.143, 144, 145, 146 reads as under:
“143. In this regard, we may also refer to the
decision in this Court rendered in Triumukh Maroti
Kirkan v. State of Maharashtra (2006) 10 SCC 681
where it was held that where the circumstantial
evidence is the basis for any case, where no
eyewitness account is available, and when the
incriminating circumstances are put to the accused,
if the accused does offer any explanation or offers
the explanation that is found to be false, it provides
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an additional link to the chain of circumstances as
observed in para 21 of the aforesaid decision which
is reproduced herein below: (SCC p. 694)
“21. In a case based on circumstantial
evidence where no eyewitness account is
available, there is another principle of law
which must be kept in mind. The principle is
that when an incriminating circumstance is
put to the accused and the said accused
either offers no explanation or offers an
explanation which is found to be untrue,
then the same becomes an additional link in
the chain of circumstances to make it
complete. This view has been taken in a
catena of decisions of this Court. [See State
of T.N. v. Rajendran [(1999) 8 SCC 679 :
2000 SCC (Cri) 40] (SCC para 6); State of
U.P. v. Ravindra Prakash Mittal [(1992) 3
SCC 300 : 1992 SCC (Cri) 642 : AIR 1992
SC 2045] (SCC para 39); State of
Maharashtra v. Suresh [(2000) 1 SCC 471 :
2000 SCC (Cri) 263] (SCC para 27); Ganesh
Lal v. State of Rajasthan [(2002) 1 SCC 731
: 2002 SCC (Cri) 247] (SCC para 15) and
Gulab Chand v. State of M.P. [(1995) 3 SCC
574 : 1995 SCC (Cri) 552] (SCC para 4).]
144. We may not also lose sight of the
significance of the provision of Section 313 Cr.P.C.
in the case. As a trial comes to a conclusive phase
and all the evidence are adduced by the
prosecution, the veracity and credibility of which
are tested with the tool of cross-examination and
when a certain clear picture emerges based on the
incriminating materials on evidence, as a
procedural safeguard, the court draws the attention
of the accused to these incriminating evidence to
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enable the accused to explain these facts and
circumstances which point to his guilt. While the
accused is not obligated to answer the questions
put to him and still can maintain his silence or deny
the evidence, yet silence or evasive or wrong
answers to the questions put by the court provides
a perspective to the court in properly evaluating the
incriminating materials which have been brought
forth by the prosecution by drawing necessary
inference including an adverse one. [See, Manu Sao
v. State of Bihar, (2010) 12 SCC 310].
145. Examination of an accused under Section
313 Cr.P.C. is an important component of the
process of judicial scrutiny of the evidence sought
to be relied upon by the prosecution against an
accused. At the time of indictment and framing of
charges against an accused, the untested evidence
marshalled by the investigating authority in the
course of the investigation is laid bare before the
accused, who would have an idea as to the nature
of evidence and case being built up against him by
the prosecution. This is to enable the accused to
prepare and strategize his defence. He will have all
the opportunities to discredit any prosecution
witness or question any evidence through the tool
of cross-examination. He will thereafter have the
opportunity to lead his defence evidence if any. It is
in this context that the answers given by an
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accused assume great significance in assessing the
evidence by the court.
146. In the present case, despite the
incriminating evidence which has come up against
him has been pointed out to him by the Court, he
has not explained any of these but merely denied
or feigned ignorance to which necessary inference
can be drawn against him.
34. It is also important to note that when wife of
accused was examined as PW11, her evidence is also very clear
that the accused was not in the house whole night and he came
in the early morning at 05.00 a.m. on 12.04.2013. When he
removed his skull cap, there was injury on his forehead. She
asked him about the said injury and he told her that when he
asked the person who had to give him money, that person hit
him and there was quarrel between them. But in the cross-
examination, nowhere defence is elicited to disprove the
evidence of PW11 for any animosity to depose against him. It is
also the fact that both PW11 and the accused were staying
together on the date of incident. Except the suggestion made to
this witness in the cross-examination by the accused counsel
that the police did not enquire her and not record her
statement and police did not take any document from her to
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prove that she was residing with accused at the time of the
incident and she was living along with the accused, prior to
date of incident. Apart from the fact that accused was working
as driver and she says that she does not know anything about
his affairs and the same will not take away the case of the
prosecution since the very evidence given by PW11 is not
disputed and material also discloses that her statement was
recorded within 2 days of this incident. Though she says that
police did not enquire her but her statement was recorded and
the same is available on record. No dispute with regard to the
fact that accused returned to the house at early morning at
05.00 a.m. and he had suffered the injuries. The same is not
disputed in the cross examination. The medical evidence
available before the Court is also very clear that on his arrest,
he was taken to the hospital and doctor-PW10 treated him with
requisition of police as per Ex.P75 and given the wound
certificate stating that accused has sustained 3 injuries and out
of that, 2 injuries are burn injuries over the forehead and root
of nose with the largest one measuring 2x0.5 cm and
superficial burn injuries of 3x2 cm over middle third of right leg
as per Ex.P76. Hence, the evidence of the doctor-PW10 and
also the wound certificate at Ex.P76 is very clear that accused
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has sustained the injuries. It is important to note that in the
cross examination of PW10, defence itself has suggested that
the injuries what she saw on Abdul Sharief is simple in nature
and injuries as per Ex.P76 can be caused by the flame of a
matchstick and the learned Public Prosecutor also got elicited
by re-examining the witness that even the second injury of
Ex.P76 could be caused by the flame of a matchstick. Thus, the
burn injuries which were found on the accused has not been
explained by the accused. The reply given to his wife when she
asked him about injury that he went to a person who owes
money to him assaulted and the very defence suggestion is
clear that accused gave complaint against father of PW1.
35. This Court would like to rely upon the judgment of
the Apex Court reported in (2022) 3 SCC 471 in the case of
RAJESH PRASAD vs STATE OF BIHAR AND ANOTHER
wherein the Apex Court discussed with regard to the power of
Appellate Court in dealing with and principles are summarized
in paragraph 26 referring the judgment of Ajit Savant
Majagvai vs. State of Karnataka (1997) 7 SCC 110 and the
Apex Court set out the principles regulate and govern the
hearings of appeal by the High Court against an order of
acquittal and extracted paragraph 16 of Ajit Savant
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Majagvai ’s case. So also, in paragraph 28, referring the
judgment in the case of Chandrappa vs State of Karnataka
(2007) 4 SCC 415 highlighted that there is one significant
difference in exercising power while hearing an appeal against
acquittal by the appellate court. The appellate court would not
interfere where the judgment impugned is based on evidence
and the view taken was reasonable and plausible. In paragraph
29, extracted paragraph 42 of Chandrappa’s case and held
that under what circumstances, the Court can exercise the
appellate jurisdiction.
36. This Court also would like to rely upon the
judgment of the Apex Court reported in (2024) 8 SCC 149 in
the case of BABU SAHEBAGOUDA RUDRAGOUDAR AND
OTHERS vs STATE OF KARNATAKA wherein the Apex Court
discussed with regard to the scope of interference by an
appellate court for reversing the judgment of acquittal recorded
by the Trial Court in favour of the accused has to be exercised
within the four corners of the principles i.e., (i) that the
judgment of acquittal suffers from patent perversity; (ii) that
the same is based on a misreading/omission to consider
material evidence on record and (iii) that no two reasonable
views are possible and only the view consistent with the guilt of
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the accused is possible from the evidence available on record
and the same is discussed in paragraph 41 of the judgment.
The appellate court, in order to interfere with the judgment of
acquittal would have to record pertinent findings on the above
factors if it is inclined to reverse the judgment of acquittal
rendered by the trial court and the same is discussed in
paragraph 42 of the judgment. In paragraph 39, the Apex
Court also discussed the judgment of Chandrappa’s case as
well as Rajesh Prasad ’s case referred supra and in paragraph
40, discussed the judgment of H D Sundara vs State of
Karnataka (2023)9 SCC 581 wherein discussed with regard
to at what circumstances, the benefit goes in favour of accused,
so also the principles.
37. In keeping view of the principles laid down in these
two judgments, this Court would like to point out the perversity
and misreading of the evidence by the Trial Court while
considering the evidence of prosecution. The Trial Court has
misread the evidence of PW1 while analysing the same even
though it is held in paragraph 34 of the judgment that PW1 and
PW2 are the star witnesses since they have sustained the burn
injuries in the alleged incident in paragraph 34. In paragraph
35, taken note that there was a complaint with regard to the
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financial dispute between the accused and father of PW1. But
the Trial Court misread the same in a negative manner that
there was a financial dispute between them and there was a
quarrel to that effect and complaint was given by the accused
in this regard. The same could be considered with regard to the
motive is concerned for committing the murder. The motive is
irrelevant in a case of direct evidence available before the
Court. Since PW1 categorically deposes that the accused only lit
the fire after pouring the petrol and this Court already
considered the Ex.P82 which shows that there are petrol
residues in the articles which was seized at the spot. This Court
also taken note of the fact that accused also sustained the
injury in setting the fire and the same has not been explained
in 313 Statement.
38. The evidence of PW3 and PW4 is very clear that
having heard the screaming sound, they came out and found
that house of PW1 was burning. Since, the circumstantial
evidence also supports the case of the prosecution and the
same has not been considered by the Trial in a proper
perspective. In paragraph 44, the Trial Court observed that
there is no doubt that both of them have stated that on coming
out from their respective houses, they saw the house of the
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father of PW1 which was burning on fire and at that time, the
doctor's wife was brought out and i.e. mother of PW1 she said
that it was accused who set the fire to her house. Thus, it
amounts to dying declaration since she subsequently passed
away making such statement before PW3 and the evidence of
PW3 making statement to him by mother of PW1 is not
disputed during cross of PW3.
39. In paragraph 46, the Trial Court taken note that
accused has admitted in his 313 statement that said motorcycle
belongs to him. However, even if seizure of said motorbike as
projected in Ex.P63 mahazar is accepted, it is of no
significance. But the fact is that while drawing the mahazar in
terms of Ex.P64, the sample hair of the accused was taken in
front of PW8 in the police Station and PW8 was the mahazar
witness to Ex.P64 and the same is taken note of by the Trial
Court in paragraph 47 of the judgment. But comes to the
conclusion that apart from speaking about it, he has spoken
about the incident itself for the first time before the Court. But
the fact is that the accused was apprehended and his hair
sample was also seized by drawing the mahazar and the same
has not been taken note of by the Trial Court in a proper
perspective in appreciating the evidence of PW8.
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40. As per the evidence of PW1 and PW2 it is clear that
there was a blast which led to collapse of window and wall of
the bedroom and that is how PW1 and PW2 escaped from the
house. But Trial Court committed an error in taking note of the
very blast of cylinder holding that the same is immaterial and
the same is not the incriminating articles with regard to the
incident is concerned and proceeded to discuss with regard to
the unwarranted things leaving aside the incriminating
materials which were before the Court. Though Trial Court
discussed the evidence of PW9-doctor who examined PW1 and
PW5 when they sustained the injuries and gave reports at
Ex.P73 and P74 wherein also it is categorically stated in the
MLC extract that history of the incident is given as burns
caused using petrol at about 04.00 a.m. at the residence of
PW1, the same is not considered in a proper perspective. Even
though PW1 also has deposed that she saw the accused
burning the house by letting the fire using match stick and her
statement was also recorded in terms of Ex.P15 and at the
earliest point of time, she pointed out that accused only lit the
fire in her statement and doctor also endorsed in the beginning
and also in the end that PW1 was fit to make statement, the
same was not properly considered by the Trial Court.
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41. The minor discrepancies are in the evidence of
PW12 who stated that the endorsement made on Ex.P15 was
only after the statement was recorded and the Trial Court
magnified the same and the Trial Court cannot expect
mathematical niceties which appreciating evidence. Thus, it is
nothing but a perversity in searching the minor discrepancies
since the Trial Court fails to take note of the gravity of the
offence when six persons have lost their life. For the flimsy
reasons, the accused was acquitted without believing the
document of Ex.P15 and prosecution evidence of injured
witnesses. Hence, the very approach of the Trial Court is
erroneous in considering the material available on record when
the accused did not give any explanation in 313 statement and
totally denied but not denied the injuries sustained by him.
42. The Trial Court also committed an error in
considering the evidence of PW11. In paragraph 52, an
observation is made that of course if PW11’s evidence is
believed, it would show the absence of the accused in his house
at the time of the incident and PW1 also has stated that
accused has sustained the injuries and would certificate at
Ex.P76 also reflects the same. But committed an error in
coming to the conclusion that the evidence of PW11 which can
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at best constitute circumstantial evidence regarding absence of
accused from the house will not by itself prove the offence
against the accused. The very approach of the Trial Court is
erroneous and perverse when the accused did not explain
regarding injuries found on him and the same is noticed by his
wife-PW11 who deposed before the Court i.e., also one of the
circumstances. The Trial Court erroneously comes to the
conclusion that the accused was at the spot and another thing
to say that the accused was away from his house and just
because the accused was away from his house, the Court
cannot jump into the conclusion that it was he who went to the
spot and set fire to the house. When PW1 categorically deposed
that it was the accused and also deposed with regard to the
motive for committing the offence and the document of Ex.P76
is very clear that accused had sustained the injuries and there
was no explanation in 313 statement, the Trail Court ought not
to have given such finding. The same is also a link and
inference could have been drawn. The Trial Court while
considering the FSL report also committed an error holding that
the crucial part of evidence of the Investigating Officer that at
the time of apprehending accused, there were burn marks on
his face and his hair was burnt. But in his cross-examination he
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has stated that accused had not taken treatment for said burns
prior to sending him for medical examination. That evidence
will not take away the case of the prosecution. The fact is that
he has not taken any treatment after the incident. But Trial
Court committed an error holding that this evidence appears
unnatural because, if accused had really sustained burns in the
early morning of 12.04.2013 and he was apprehended at late
night at about 11.15 p.m., it is unlikely that, during the interval
accused did not take any treatment of burns. The very
approach of the Trial Court is erroneous and accused has to
explain whether he took treatment earlier to his arrest.
43. The Investigating Officer in his evidence
categorically deposes that container in which petrol was
purchased i.e., Can was found outside the house and the same
was seized and marked as MO11 i.e., burnt plastic Can. Though
it is stated that the same was not recovered from accused, but
the Can was seized outside the house and it was marked before
the Court and it is available on record. No doubt, the statement
of one Raju was recorded by the IO. But he has not been
examined. That is a mistake on the part of the learned Public
Prosecutor and ought to have examined him. Even Trial Court
should have summoned him and the Court should not in a mute
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spectator while conducting the trial that too when six persons
have lost their life. It is also the duty of the Trial Court to
consider the material available on record and involve in
conducting the trial.
44. This Court would like to rely upon the judgment of
the Apex Court in the case of STATE OF RAJASTHAN v. ANI
ALIAS HANIF AND OTHERS reported in (1997) 6 SCC 162.
Paragraph Nos.12 and 13 of the judgment reads as follows:
“12. Reticence may be good in many
circumstances, but a judge remaining mute during
trial is not an ideal situation. A taciturn Judge may
be the model caricatured in public mind. But there
is nothing wrong in his becoming active or dynamic
during trial so that criminal justice being the end
could be achieved. Criminal trial should not turn out
to be a bout or combat between two rival sides with
the judge performing the role only of a spectator or
even an umpire to pronounce finally who won the
race. A judge is expected to actively participate in
the trial, elicit necessary materials from witnesses
at the appropriate context which he feels necessary
for reaching the correct conclusion. There is nothing
which inhibits his power to put questions to the
witnesses, either during chief examination or cross-
examination or even during re-examination to elicit
truth. The corollary of it is that if a judge felt that a
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witness has committed an error or a slip it is the
duty of the judge to ascertain whether it was so,
for, to err is human and the chances of erring may
accelerate under stress of nervousness during
cross-examination. Criminal justice is not to be
founded on erroneous answers spelled out by
witnesses during evidence collecting process. It is a
useful exercise for trial judge to remain active and
alert so that errors can be minimised.
13. In this context it is apposite to quote the
observations of Chinnappa Reddy, J. in Ram
Chander v. The State of Haryana (AIR 1981 SC
1036):
"The adversary system of trial being what
it is, there is an unfortunate tendency for a
judge presiding over a trial to assume the
role of a referee or an umpire and to allow
the trial to develop into a contest between
the prosecution and the defence with the
inevitable distortions flowing from combative
and competitive elements entering the trial
procedure. If a Criminal Court is to be an
effective instrument in dispensing justice, the
presiding judge must cease to be a spectator
and a mere recording machine. He must
become a participant in the trial by evincing
intelligent active interest by putting questions
to witnesses in order to ascertain the truth."
We respectfully concur with the aforesaid
observations. We find no wrong in the trial court
interjecting during cross-examination of PW-3 with
a view to ascertain the correct position.”
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45. This Court would also like to rely upon the
judgment of the Apex Court in the case of BABLU KUMAR
AND OTHERS v. STATE OF BIHAR AND ANOTHER reported
in (2015) 8 SCC 787. Paragraph No.22 of the said judgment
reads as follows:
“22. Keeping in view the concept of fair trial, the
obligation of the prosecution, the interest of the
community and the duty of the Court, it can
irrefragably be stated that the Court cannot be a
silent spectator or a mute observer when it presides
over a trial. It is the duty of the Court to see that
neither the prosecution nor the accused play
truancy with the criminal trial or corrode the
sanctity of the proceeding. They cannot expropriate
or highjack the community interest by conducting
themselves in such a manner as a consequence of
which the trial becomes a farcical one. Law does
not countenance a “mock trial”. It is a serious
concern of the society. Every member of the
collective has an inherent interest in such a trial. No
one can be allowed to create a dent in the same.
The Court is duty bound to see that neither the
prosecution nor the defence takes unnecessary
adjournments and take the trial under their control.
The Court is under the legal obligation to see that
the witnesses who have been cited by the
prosecution are produced by it or if summons are
issued, they are actually served on the witnesses. If
the Court is of the opinion that the material
witnesses have not been examined, it should not
allow the prosecution to close the evidence. There
can be no doubt that the prosecution may not
examine all the material witnesses but that does
not necessarily mean that the prosecution can
choose not to examine any witness and convey to
the Court that it does not intend to cite the
witnesses. The Public Prosecutor who conducts the
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trial, has a statutory duty to perform. He cannot
afford to take things in a light manner. The Court
also is not expected to accept the version of the
prosecution as if it is sacred. It has to apply its
mind on every occasion. Non-application of mind by
the trial court has the potentiality to lead to the
paralysis of the conception of fair trial.
46. This Court would like to rely upon the judgment of
the Apex Court in the case of DINESH KUMAR v. STATE OF
HARYANA reported in (2023) 20 SCC 49. The Apex Court in
this judgment referring Sections 165 and 45 of the Evidence
Act, 1872, held that, it is the duty of trial Judge to ask
pertinent questions. Paragraph Nos.22, 23, 24 and 25 of the
said judgment reads as follows:
“22. We are afraid that by pointing out the
weakness in the cross-examination of the defence
the Presiding Judge indirectly admits to the
weakness in the trial itself. We say this for the
reasons that under Section 165 of the Act, a trial
Judge has tremendous powers to “ask any question
he pleases, in any form, at any time, of any
witness, or of the parties about any fact relevant or
irrelevant”. It is in fact the duty of the Trial Judge
to do so if it is felt that some important and crucial
question was left from being asked from a witness.
The purpose of the trial is after all to reach to the
truth of the matter.
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23. Section 165 of the Act reads as under:
“165. Judge’s power to put questions or order
production.– The Judge may, in order to discover or
to obtain proper proof of relevant facts, ask any
question he pleases, in any form, at any time, of
any witness, or of the parties about any fact
relevant or irrelevant; and may order the
production of any document or thing; and neither
the parties nor their agents shall be entitled to
make any objection to any such question or order,
nor, without the leave of the Court, to cross-
examine any witness upon any answer given in
reply to any such question:
Provided that the judgment must be based
upon facts declared by this Act to be relevant, and
duly proved:
Provided also that this section shall not
authorize any Judge to compel any witness to
answer any question, or to produce any document
which such witness would be entitled to refuse to
answer or produce under Sections 121 to 131, both
inclusive, if the question were asked or the
document were called for by the adverse party; nor
shall the Judge ask any question which it would be
improper for any other person to ask under Section
148 or 149; nor shall he dispense with primary
evidence of any document, except in the cases
hereinbefore excepted.”
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24. The powers of a Presiding Judge in a
criminal trial and his duty to get to the truth of the
matter have been laid down in a seminal judgement
of this Court authored by O. Chinnappa Reddy, J.
which is Ram Chander v. State of Haryana. O.
Chinnappa Reddy, J. in the said judgment refers to
his earlier Judgment given by him as a Judge of the
Andhra Pradesh High Court, where it was said :
(Intha Ramana Reddy case, SCC Online AP para 2)
“2. …..Every criminal trial is a
voyage of discovery in which truth is
the quest. It is the duty of a Presiding
Judge to explore every avenue open to
him in order to discover the truth and
to advance the cause of justice. For that
purpose he is expressly invested by
Section 165 of the Evidence Act with
the right to put questions to witnesses.
Indeed the right given to a Judge is so
wide that he may, ask any question he
pleases, in any form, at any time, of
any witness, or of the parties about any
fact, relevant or irrelevant. Section
172(2) of the Code of Criminal
Procedure enables the court to send for
the police diaries in a case and use
them to aid it in the trial. The record of
the proceedings of the Committing
Magistrate may also be perused by the
Sessions Judge to further aid him in the
trial.”
25. The duty of the Presiding Judge of a
criminal trial is not to watch the proceedings as a
spectator or a recording machine but he has to
participate in the trial “by evincing intelligent active
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interest by putting questions to witnesses in order
to ascertain the truth.” While referring to a decision
of Lord Denning in Jones v. National Coal Board
(1957) 2 WLR 760 (CA) the learned Judge had said
that it is the duty of the Judge to ask questions to
the witnesses when it becomes necessary to clear
up any point that has been overlooked or left
obscure, then he goes on to say as under: (Ram
Chander v. State of Haryana (1981) 3 SCC 191)
Scc p.194, para 3)
“3. ….We may go further than Lord
Denning and say that it is the duty of a
Judge to discover the truth and for that
purpose he may "ask any question, in
any form, at any time, of any witness,
or of the parties, about any fact,
relevant or irrelevant" (Section 165,
Evidence Act). But this he must do,
without unduly trespassing upon the
functions of the Public Prosecutor and
the defence counsel, without any hint of
partisanship and without appearing to
frighten or bully witnesses. He must
take the prosecution and the defence
with him. The Court, the prosecution
and the defence must work as a team
whose goal is justice, a team whose
captain is the judge. The Judge, 'like
the conductor of a choir, must, by force
of personality, induce his team to work
in harmony; subdue the raucous,
encourage the timid, conspire with the
young, flatter and (sic the) old'.”
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47. The reasoning given by the Trial Court in paragraph
57 is also is nothing but a perverse finding in considering the
FSL report since there is a clear FSL report before the Court
that petroleum residue was found in the seized articles and
tested positive. The same ought to have been considered by
the Trial Court in a proper perspective and failed to consider
the same. In paragraph 58, Trial Court comes to the conclusion
that presence of petroleum residue on the articles i.e., burnt
door mat pieces, burnt mattress and clothes of the deceased
are concerned, no doubt it cannot be attributed to escape of
gas from the gas cylinder since PW15 in her evidence
categorically stated that LPG will not leave any residue.
However, it is crucial to note that where as it is prosecution
case as projected through PW1 that petrol was first put on the
door and Article-1 burnt door wood pieces has tested negative
for petroleum residue. Inspite of FSL opinion is very clear that
presence of petroleum residue in the various articles was
found, but Trial Court committed an error in coming to the
conclusion that the same was not found in the articles only
referring Article-1. Hence, the very approach and consideration
of the material available on record by the Trial Court is
erroneous. The Trial Court wrongly proceeded with regard to
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the explosion of the cylinder is concerned and it is not the case
of the prosecution that cylinder is an incriminating article. The
same was burst in the house on account of the fire and it was
already fire in the house itself. Instead of considering the
incriminating materials, the Trial Court proceeded in a wrong
direction that whether the blast was happened immediately or
later that has been magnified and there was no need to
consider the same since whether it is earlier or subsequent and
the same is not the issue in the case on hand and the same is
immaterial. Hence, the Trial Court committed an error in
considering the evidence available on record. It is nothing but
an erroneous approach of the Trial Court proceeding in a wrong
way and did not consider the material available on record in a
proper perspective and the same was resulted in miscarriage of
justice. The principles relied upon in the judgment referred
above are aptly applicable to case on hand since all of them
failed to consider the material on record. The PW1 has
sustained 34% burn injures and survived, it attracts Sections
302, 307 and so also attract Section 436 of IPC as the house of
PW1 also damaged and burnt consequent upon the act of the
accused. Hence, it is a case for reversal as per the principles
laid down in the judgments referred supra. Hence, answer the
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point as affirmative holding that Trial Court committed an error
in acquitting the accused and there is a miscarriage of justice
and perversity in the finding of the Trial Court.
48. Having considered the factual aspects of the case
that PW1, PW2 and PW5 have sustained the injuries and six
persons have lost their life in the alleged incident and accused
was aged about 50 years as on the date of incident in 2013 and
now he is aged about 63 years, the question of imposing the
sentence to be considered having considered the offences of
Sections 302, 307 and 436 of IPC and ingredient of the said
offence are established.
49. This Court would like to rely upon the judgment of
the Apex Court in the case of SURYAMOORTHI AND
ANOTHER v. GOVINDASWAMY AND OTHERS reported in
(1989) 3 SCC 24, wherein the Apex Court discussed the very
scope of Section 235(2) of Cr.P.C. The accused convicted
under Section 392 of IPC for the first time reversing the
judgment of the Trial Court and the High Court, hence accused
entitled to an opportunity of being heard on the question of
sentence in compliance with Section 235(2) of Cr.P.C. The
same is discussed in paragraph No.14.
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50. This Court also would like to rely upon the
judgment of the Apex Court in the case of ALLAUDDIN MIAN
AND OTHERS, SHARIF MIAN AND ANOTHER v. STATE OF
BIHAR reported in (1989) 3 SCC 5 . The relevant portion of
paragraph No.10 of the said judgment reads as under:
“10. Even a casual glance at the provisions of
the Penal Code will show that the punishments
have been carefully graded corresponding with the
gravity of offences; in grave wrongs the
punishments prescribed are strict whereas for
minor offences leniency is shown. Here again there
is considerable room for manoeuvre because the
choice of the punishment is left to the discretion of
the Judge with only the outer limits stated. There
are only a few cases where a minimum punishment
is prescribed. The question then is what procedure
does the Judge follow for determining the
punishment to be imposed in each case to fit the
crime? The choice has to be made after following
the procedure set out in sub-section (2) of Section
235 of the Code. That sub-section reads as under:
"If the accused is convicted, the Judge
shall, unless he proceeds in accordance
with the provisions of Section 360, hear
the accused on the question of sentence,
and then pass sentence on him according
to law."
The requirement of hearing the accused is
intended to satisfy the rule of natural justice. It is a
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fundamental requirement of fair play that the
accused who was hitherto concentrating on the
prosecution evidence on the question of guilt
should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the
question of sentence. This is all the more necessary
since the Courts are generally required to make the
choice from a wide range of discretion in the matter
of sentencing. To assist the Court in determining
the correct sentence to be imposed the legislature
introduced sub-section (2) to Section 235. The said
provision therefore satisfies a dual purpose; it
satisfies the rule of natural justice by according to
the accused an opportunity of being heard on the
question of sentence and at the same time helps
the Court to choose the sentence to be awarded.
Since the provision is intended to give the accused
an opportunity to place before the Court all the
relevant material having a bearing on the question
of sentence there can be no doubt that the
provision is salutary and must be strictly followed.
It is clearly mandatory and should not be treated as
a mere formality……………..”
51. This Court would like to rely upon the recent
judgment of the Apex Court in the case of MUKESH KUMAR
YADAV v. STATE (UT OF ANDAMAN AND NICOBAR
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ISLANDS) ETC. reported in 2026 SCC ONLINE SC 938.
Paragraph No.11, 12, 13 and 16 of the said judgment reads as
follows:
“11. One more judgment which requires
mention in this context is Dagdu v. State of
Maharashtra (1977) 3 SCC 68, wherein a question
arose as to what if the convicting court sentences
the accused without hearing him on the sentence.
This Court held that the higher court can on
confirming the conviction, remedy the breach by
giving a hearing to the accused on the question of
sentence. This Court held that the Court may, in
appropriate cases, adjourn the matter in order to
give to the accused sufficient time to produce
necessary data and to make his contentions on the
question of sentence. The Court went on to add
that this procedure must inevitably happen where
the conviction is recorded for the first time by a
higher court. Para 79 reads as follows: -
“79. But we are unable to read the
judgment in Santa Singh as laying down
that the failure on the part of the Court,
which convicts an accused, to hear him on
the question of sentence must necessarily
entail a remand to that Court in order to
afford to the accused an opportunity to be
heard on the question of sentence. The
Court, on convicting an accused, must
unquestionably hear him on the question
of sentence. But if, for any reason, it
omits to do so and the accused makes
a grievance of it in the higher court, it
would be open to that Court to remedy
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the breach by giving a hearing to the
accused on the question of sentence .
That opportunity has to be real and
effective, which means that the accused
must be permitted to adduce before the
Court all the data which he desires to
adduce on the question of sentence. The
accused may exercise that right either by
instructing his counsel to make oral
submissions to the Court or he may, on
affidavit or otherwise, place in writing
before the Court whatever he desires to
place before it on the question of
sentence. The Court may, in
appropriate cases, have to adjourn the
matter in order to give to the accused
sufficient time to produce the
necessary data and to make his
contentions on the question of
sentence. That, perhaps, must
inevitably happen where the
conviction is recorded for the first
time by a higher court.”
[Emphasis supplied]
12. Equally, situations may arise where the trial
court acquits the accused. In an acquittal, the
question of hearing on sentence will not arise. On
appeal by the State or by the victim/informant,
what should be the position if the higher court
reverses the acquittal and for the first time convicts
the accused. To appreciate this position, a
reference needs to be made to Section 386, Cr.P.C.
(equivalent to Section 427, BNSS). Section 386(a),
Cr.P.C., which is relevant for our purpose reads as
under:-
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“386. Powers of the Appellate Court.—
After perusing such record and hearing the
appellant or his pleader, if he appears, and
the Public Prosecutor if he appears, and in
case of an appeal under section 377 or
section 378, the accused, if he appears,
the Appellate Court may, if it considers
that there is no sufficient ground for
interfering, dismiss the appeal, or may—
(a) in an appeal from an order or
acquittal, reverse such order and direct
that further inquiry be made, or that the
accused be re-tried or committed for trial,
as the case may be, or find him guilty and
pass sentence on him according to law;
……”
13. It can be seen from Section 386(a), Cr.P.C.,
that where in an appeal from an order of acquittal,
the court hearing the appeal finds the accused
guilty it is required to pass a sentence on him
according to law.
16. The appellate court which will include the
High Court, in a given scenario, while recording a
conviction after reversing the acquittal, should
adjourn the matter to a suitable date, hear the
convicts, and impose an appropriate sentence
itself.”
52. In view of the discussions made above, we pass the
following:
ORDER
(i) The appeal is allowed.
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(ii) The impugned judgment and order of
acquittal dated 28.04.2018 passed in
S.C.No.258/2013 by the III Additional
Sessions Judge, Mysuru is set aside.
(iii) The accused is convicted for offences
punishable under Sections 302, 307 and
436 of IPC.
(iv) The High Court Legal Services Committee
and its counsel and also the learned SPP
are directed to intimate the Investigating
Officer to keep the accused present before
the Court on 03.09.2026 to hear regarding
sentence.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(B.PRAMOD)
JUDGE
SN