Hallur Vs. State of Karnataka & Ors.  INSC 1629 (7 October 2009)
SUPREME COUIRT OF INDIA CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NOS.
1236-1237 OF 2002 BASAYYA PRABHAYYA HALLUR .... APPELLANT(S) VERSUS WITH CRIMINAL
APPEAL NOS. 1238-1239 OF 2002 VIRABASAYYA PRABHAYYA HALLUR & ANR.
O R D E R
heard the learned counsel for the parties at length.
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.
facts which are necessary to dispose of these appeals are recapitulated as
2 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.
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.
prosecution in support of its case examined 3 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.
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.
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 4 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.
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.
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 5 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.
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.
are left with the appeals pertaining to 6 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.
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.
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.
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.
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.
Russel writing the judgment in that case has observed as under:
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."
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
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 9 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.
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:
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.
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 10 must 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
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
appeals are disposed of accordingly.
...................J (DALVEER BHANDARI)
...................J (Dr. MUKUNDAKAM SHARMA)
OCTOBER 7, 2009.