REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. ___________ OF 2010
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 8045 OF 2009
SANGAPPA & ORS. ... APPELLANTS
VERSUS
STATE OF KARNATAKA ... RESPONDENT
JUDGMENT
B. SUDERSHAN REDDY, J.
Leave granted.
2. All the accused-appellants were charged and tried for
the offences punishable under Sections 447, 504, 302
read with Section 34 of the Indian Penal Code (IPC) but
were acquitted of all the charges by the trial court. On
appeal preferred by the State of Karnataka, the High
Court reversed the order of acquittal in relation to all the
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appellants and convicted them under Section 304 (Part-II)
read with Section 34 of the IPC and sentenced them to
undergo rigorous imprisonment for a period of two years
and imposed a fine of Rs.30,000/- each, in default, to
suffer simple imprisonment for a period of three years.
Few Relevant Facts:
3. On 9th September, 1998 at about 6.00 p.m. one
Shivalingayya lodged a first information report before the
Sub-Inspector of Yedrami Police Station inter alia alleging
that his son Sharanaiah was murdered by four persons
namely Sangappa(A-1), Sharanappa(A-2), Malappa(A-3)
and Jagadavappa (A-4). It is alleged in the report that on
the fateful day Shivalingayya and his wife – Boramma
(PW-1) joined their son Sharanaiah (deceased) in the
fields to remove the unwanted weeds from their land.
During that time all the accused persons were passing by
the side of the complainant’s land along with their bullocks
and all of a sudden one bullock strayed into their fields
and started grazing the crops. The deceased on finding
that the bullock so entered into the fields asked the
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appellants to ensure that no damages caused to the
crops. Enraged by the demand so made by the deceased
all the accused started abusing the deceased. The matter
did not end there. It is further alleged that Sharanappa
(A-2) caught hold of the deceased, floored him to the
ground and gagged his mouth and Sangappa (A-1)
attacked the deceased with a knife and the other two
accused Mallapa and Jagadevappa (A-3 & A-4)
respectively hit the deceased on his back and legs with
stones. Shivalingayya and his wife (PW-1) made an
attempt to rescue their son but A-2 and A-3 forcefully
pushed them aside. In the report, it is alleged that all the
accused trespassed into the fields with the common
intention of committing murder of the deceased as the
deceased interfered in a matter concerning some illicit
relationship between the sister of the accused and one
Siddanna.
4. Having received the first information report PW-11
registered a case against all the accused on the file of
Yadrami Police Station for the offences punishable under
Sections 447, 504, 302 read with Section 34, IPC. The
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next day i.e. 10th September, 1998, PW-11 commenced
the investigation and completed the formalities including
recording of the statement of witnesses and handed over
the case for further investigation by the Circle Inspector
(PW-12) who also visited the scene of offence and drawn
panchanama in the presence of two panch witnesses
(Ex. P4) and seized the several incriminating articles. The
accused were arrested on 25th September, 1998.
5. The learned 1st Additional Sessions Judge, Gulbarga,
on the basis of the material available on record framed
charges against all the accused for the offences
punishable under Sections 447 and 302 read with Section
34, IPC. The accused pleaded not guilty and claimed to be
tried. The Sessions case was transferred to the Fast Track
Court, Gulbarga for the trial. The Fast Track Court vide
judgment and order dated 4th December, 2003 acquitted
the accused of all the charges framed against them and
held that the prosecution miserably failed to establish its
case beyond reasonable doubt.
6. On appeal preferred by the State of Karnataka
against the order of acquittal the High Court by the
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impugned order dated 10th June, 2009 reversed the order
of acquittal and accordingly sentenced all the accused for
the offence punishable under Section 304 (Part-II) read
with Section 34, IPC. Be it noted, the High Court did not
record any finding whatsoever with regard to the charge
for the offence punishable under Section 447 IPC.
7. We have heard learned counsel for the appellants as
well as the State.
8. The trial court after an elaborate consideration of the
matter refused to place any reliance on the evidence of
PW-1 (Boramma) who is none other than the mother of
the deceased. The trial court did not discard the evidence
of PW-1 on the sole ground that she was the interested
witness. The trial court carefully scrutinised the evidence
of PW-4 being an interested witness. We do not propose
to discuss the evidence of PW-1 in detail for the simple
reason that the High Court did not assign any reason
whatsoever as to why it had chosen to rely upon the
evidence of PW-1 without even discussing and
considering the reasons assigned by the trial court in
paragraphs 13 and 14 of its judgment. The High Court
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merely observed that the evidence of PW-1 is very natural
and credible. The High Court in the impugned Judgment
did not even notice the details of the injuries found on the
body of the deceased. There is no reason assigned by the
High Court to set aside the finding of the trial court that
the very presence of PW-1 at the scene of offence was
highly doubtful. There is no mention about any recoveries
in the impugned judgment.
9. We must express our reservation for the manner in
which the High Court disposed of the appeal under Section
378(1) and (3) of Code of Criminal Procedure. It is true
that in an appeal from acquittal the High Court has full
power to re-appreciate and re-assess the entire evidence
upon which the order of acquittal was founded and then to
come to its own conclusion. There is no limitation placed
on that power of the High Court. The Code makes no
difference in the power of the appellate court, between
appeal filed by the State or by other person but the
appellate court would not be justified merely because it,
feels that a different view should be taken for reasons
which are not so strong. This Court repeatedly held that
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the High Court in exercising the power conferred by the
Code and before reaching its conclusion upon facts, it
shall give always proper weight and consideration to such
matters as (1) the view of the trial Judge as to the
credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption
certainly not weakened by the fact that they have been
acquitted at trial; (3) the right of the accused to the
benefit of any doubt.
10. The High Court in the present case did not discuss
and re-appreciate the evidence of PW-1 who is stated to
be the only eye witness to the incident but mainly
observed that “the contents of IR and the evidence of
PW-1 are very well corroborated by injuries found on the
dead body noted in the P.M report.” Surely, this is not re-
appraisal or re-appreciation of the evidence of PW-1. The
High Court did not even notice the nature of injuries on
the body of the deceased. There is no discussion about
the medical evidence. There is no discussion as to how all
the accused could be convicted with the aid of Section 34,
IPC. There is nothing on record suggesting as to the basis
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on which the High Court arrived at conclusion that the
accused would be guilty of offence under Section 304
(Part-II) and not for the offence under Section 302 read
with Section 34, IPC. This Court in its judgment dated
May 14, 2007 (Narendra Bhat & Anr. Vs. State of
Karnataka) while dealing with similar judgment of the
same High Court observed: “This Court has in a series of
judgments held that a court exercising appellate power
must not only consider questions of law but also questions
of fact and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court must
show that the court really applied its mind to the facts of
the case as particularly when the offence alleged is of a
serious nature and may attract a heavy punishment. ……
…..The judgment of the High Court is in three short
paragraphs. It leaves much to be desired. No serious
attempt appears to have been made by the High Court to
appreciate the evidence on record.” The observations so
made are equally applicable to the present case and we
wish to say no more and leave the matter at there.
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11. In such view of the matter, we set aside the
impugned judgment and order and remit the matter to the
High Court for fresh consideration and disposal in
accordance with law. It is however, made clear that we
have not expressed any opinion whatsoever on the merits
of the case since it is for the High Court to re-appreciate
the evidence and arrive at its own conclusions.
12. The appeal is allowed. We have already released the
appellants on bail. They shall continue to be on bail. We
request the High Court to dispose of the appeal as
expeditiously as possible.
………………………………………..J.
(B. SUDERSHAN REDDY)
…………………………………………J.
(SURINDER SINGH NIJJAR)
New Delhi,
March 9, 2010