& Ors. Vs. State of Karnataka  INSC 157 (9 March 2010)
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
SUDERSHAN REDDY, J.
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 2 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
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.
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 3 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.
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
4 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.
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.
On appeal preferred by the State of Karnataka against the order of
acquittal the High Court by the 5 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.
We have heard learned counsel for the appellants as well as the
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 6 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.
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 7 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.
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 8
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 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. ......
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
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.
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