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IN THE SUPREME COUIRT OF INDIA
CRIMINAL APPEALLATE JURISDICTION
CRIMINAL APPEAL NOS. 1236-1237 OF 2002
BASAYYA PRABHAYYA HALLUR .... APPELLANT(S)
VERSUS
STATE OF KARNATAKA .... RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS. 1238-1239 OF 2002
VIRABASAYYA PRABHAYYA HALLUR & ANR. APPELLANT(S)
VERSUS
STATE OF KARNATAKA .... RESPONDENT(S)
O R D E R
We have heard the learned counsel for the parties
at length.
These appeals are directed against the judgment
and order dated 16.7.2002 passed by the High Court of
Karnataka in Criminal Appeal Nos. 319/1997 and 67/1997.
Brief facts which are necessary to dispose of these
appeals are recapitulated as under:
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It is alleged that on 1.5.1991 at about 8.30
p.m., seven accused persons, namely, Virabasayya
Prabayya Hallur (A-1), Babu @ Chanamallayya (A-2),
Basayya Prabhayya Hallur (A-3), Basavaraj Hanamappa
Talwar (A-4), Laxman Hanamappa Talwar(A-5), Prakash
Hanamappa Talwar (A-6) and Suresh Hanamappa Talwar (A-
7) formed an unlawful assembly with a common object of
committing murder of the deceased Shivappa, assaulted
him and also caused injuries to PWs 1 to 4, 7 and 17
and thereby committed offences punishable under
Sections 147, 148, 302, 324 and 504 read with Section
149 of the I.P.C. On 2.5.1991 at 4.30 a.m., PW-1
Mahadevappa lodged a complaint as per Ext.P-1 on the
basis of which the entire investigation in Crime
No.60/91 started.
The Additional Sessions Judge, Bijapur framed
charges against all the accused for the offences
punishable under Sections 147, 148, 302, 324 and 504
read with Section 149 of the I.P.C.
The prosecution in support of its case examined
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23 witnesses and got marked 26 Exhibits and 14 material
objects. The learned Sessions Judge accepted the case
of the prosecution in part and convicted accused Nos.1
& 4 for offences punishable under Section 304 Part-I
I.P.C. and sentenced them to suffer rigorous
imprisonment for seven years and to pay a fine of Rs.
500 each with default clause. Accused Nos.2, 3, 6 & 7
were acquitted of all the charges. Accused No.5 died
during the pendency of the trial.
Accused Nos.1 and 4 aggrieved by the said
judgment of the learned Sessions Judge preferred
Criminal Appeal No.67/1997 before the High Court of
Karnataka. The State of Karnataka also preferred
appeal, being Criminal Appeal No.319/1997, against the
judgment of the learned Sessions Judge. Both the
appeals were disposed of by a common judgment dated
16.7.2002 delivered by the High Court.
The High Court convicted accused No.1 under
Section 304 Part-II I.P.C. and sentenced him to undergo
rigorous imprisonment for five years and to pay a fine
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of Rs. 500 with default clause.
So far as accused No.4 is concerned, the High
Court acquitted him under Section 304 Part-I I.P.C. but
convicted him under Section 324 of the I.P.C. and was
sentenced to undergo rigorous imprisonment for six
months and to pay a fine of Rs.1,000/- with default
clause.
As regards accused Nos.2, 3, 6 and 7, the High
Court by the impugned judgment, reversed the Trial
Court’s judgment of acquittal and convicted them under
Section 324 read with Section 149 of the I.P.C. and
sentenced them to undergo rigorous imprisonment for six
months and to pay a fine of Rs.1,000/- each with
default clause. However, the High Court acquitted all
the accused persons under Sections 302/149 and 504/149
of the I.P.C.
Our attention has been drawn to a chart which
indicates that the appellants have already undergone
actual sentence of imprisonment for more than two
months. While admitting the appeal, this Court released
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the appellants on bail on 17th June, 2003. Now the
crucial question which arises for consideration of this
Court is whether the appellants should be sent back to
jail to serve out the remaining sentence after a lapse
of several years.
We have heard the learned counsel for the
parties. On consideration of the totality of the facts
and circumstances of the case, in our considered view,
ends of justice would be met if, while maintaining the
conviction of accused Nos.2, 4, 6 & 7, their sentence
is reduced to the period already undergone by them,
provided they pay a fine of Rs.25,000/- each within a
period of one month from the date of communication of
this order, which shall be deposited in the Trial
Court. In case the fine is not paid or deposited they
would undergo the remaining period of sentence. The
concerned trial Court is directed to ensure that the
amount of fine so deposited by the appellants is paid
to the wife of the deceased Shivappa within eight
weeks.
Now, we are left with the appeals pertaining to
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accused Nos.1 and 3. As far as accused No.1 –
Virabasayya Prabayya Hallur is concerned, there is a
concurrent finding of fact by the Sessions Court which
has been affirmed by the High Court. He has been named
in the complaint. All the injured eye witnesses have
also named him in their statements. Specific role has
been attributed to him in commission of the murder of
deceased Shivappa. In our considered view, no
interference with the impugned judgment is called for
and consequently, the appeal filed by accused No.1,
being devoid of merit, is dismissed.
So far as accused No.3 – Basayya Prabhayya Hallur
is concerned, he was acquitted by the Trial Court. His
acquittal has been set aside by the High Court. Since
there were conflicting judgments so we have carefully
gone through the evidence and documents on record.
Mr. Krishnamani, learned senior counsel appearing on
behalf of the appellant (accused No.3) and learned
counsel appearing on behalf of the State of Karnataka
have taken us through the relevant portions of the
impugned judgment and the evidence on record.
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Mr. Krishnamani, learned senior counsel has also
drawn our attention to the evidence of Shankarappa (PW-
3). In his testimony, it is categorically stated that
except A-3, all other accused were holding sticks. The
High Court has failed to give any cogent or convincing
reasons to set aside the findings of the Trial Court
qua A-3. The High Court was predominantly moved with
the consideration that accused Nos. 2 to 6 cannot go
scot free. But that can never be the proper reason for
setting aside the judgment of acquittal.
The principles for setting aside an order of
acquittal have been crystallised in a large number of
judgments of this Court. Sheo Swarup v. Kind Emperor,
(AIR 1934 PC 227) is one of the earliest cases where
circumstances which are relevant in setting aside a
judgment of acquittal have been enumerated in detail.
Mr. Krishnamani has also drawn our attention to
the judgment of this Court in Ghurey Lal v. State of
Uttar Pradesh, 2008 (10) SCC 450. He particularly laid
emphasis to paragraph 43 of the said judgment where
the case of Sheo Swarup (supra) has been dealt with.
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Lord Russel writing the judgment in that case has
observed as under:
“…the High Court should and will always
give proper weight and consideration to such
matters as (1) the views of the trial Judge
as to the credibility of the witnesses; (2)
presumption of innocence in favour of the
accused, a presumption certainly not weakened
by the fact that he has been acquitted at his
trial; (3) the right of the accused to the
benefit of any doubt; and (4) the slowness of
an appellate court in disturbing a finding of
fact arrived at by a Judge who had the
advantage of seeing the witness.”
Mr. Krishnamani also referred to paragraph 44 of
the judgment in Ghurey Lal (supra) where reference has
been made to another leading case of this Court in
Surajpal Singh v. State, AIR 1952 SC 52, in which it
is stated that the presumption of innocence of the
accused is further reinforced by his acquittal by the
Trial Court as the Trial Court had the advantage of
seeing the witnesses and hearing their evidence.
Therefore, unless there are very substantial and
compelling reasons, the Appellate Court would not be
justified in reversing the judgment of acquittal. Mr.
Krishnamani has also drawn our attention to paragraph
68 of the judgment in which a leading judgment of this
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Court in Chandrappa v. State of Karnataka, (2007) 4 SCC
415, has been dealt with. This Court reiterated therein
fundamental principles of criminal jurisprudence that
every person shall be presumed to be innocent unless he
is proved guilty by a competent court of law. The
presumption of innocence of the accused is further
reinforced, reaffirmed and strengthened by the judgment
of acquittal by the trial Court.
Mr. Krishnamani also referred to paragraph 69 of
the said judgment in which this Court has summarized
the gists of the cases and held as under:
“1. The appellate court may review the
evidence in appeals against acquittal under
Sections 378 and 386 of the Criminal
Procedure Code, 1973. Its power of
reviewing evidence is wide and the
appellate court can reappreciate the entire
evidence on record. It can review the trial
court’s conclusion with respect to both
facts and law.
2. The accused is presumed innocent until
proved guilty. The accused possessed this
presumption when he was before the trial
court. The trial court’s acquittal bolsters
the presumption that he is innocent.
3. Due or proper weight and consideration
10must be given to the trial court’s
decision. This is especially true when a
witness’ credibility is at issue. It is not
enough for the High Court to take a
different view of the evidence. There must
also be substantial and compelling reasons
for holding that the trial court was
wrong.”
We find considerable force in the submission of
Mr. Krishnamani, learned senior counsel who appeared
for the appellant. The High Court in our considered
view was not justified in reversing the judgment of
acquittal in such a perfunctory manner. The impugned
judgment of the High Court is clearly contrary to the
well settled position of law. Consequently, the
impugned judgment of the High Court qua A-3 is set
aside and the appeal filed by him is allowed. A-3 is
acquitted of all the charges.
The appeals are disposed of accordingly.
……………….J
(DALVEER BHANDARI)
……………….J
(Dr. MUKUNDAKAM SHARMA)
NEW DELHI,
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OCTOBER 7, 2009.