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Wednesday, July 30, 2014

Sections 143, 147, 148, 323, 324, 326, 307, read with Section 114 of IPC - Powers of Appellant court - when to interfere with acquittal orders - Trial court acquitted the all accused due to delay in FIR about 2 hours , serious contradictions in the evidence of eye witnesses - non-blood stained weapons - High court set aside the acquittal order of the lower court and punish the accused under sec.324 /34 to pay fine Rs.10,000/- for each count - Apex court set the order of High court and framed principles - general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” =CRIMINAL APPEAL NO.1381 of 2014 (@ SPECIAL LEAVE PETITION (CRL.)NO.4018 OF 2012) C.K. DASEGOWDA & ORS. .....APPELLANTS VERSUS STATE OF KARNATAKA .....RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41768

Sections 143,  147,  148,  323,  324,  326,  307,  read  with Section 114 of IPC - Powers of Appellant court - when to interfere with acquittal orders - Trial court acquitted the all accused due to delay in FIR about 2 hours , serious contradictions in the evidence of eye witnesses - non-blood stained weapons - High court set aside the acquittal order of the lower court and punish the accused under sec.324 /34 to pay fine Rs.10,000/- for each count - Apex court set the order of High court and framed principles - general principles regarding powers of appellate Court while dealing with an  appeal against an order of acquittal emerge; (1)  An  appellate  Court  has  full  power  to  review,  re-appreciate  and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction  or condition on exercise of such power and an appellate Court on  the  evidence before it may reach its own conclusion, both on questions  of  fact  and  of law; (3) Various expressions, such  as,  'substantial  and  compelling  reasons', 'good and  sufficient  grounds',  'very  strong  circumstances', 'distorted conclusions',  'glaring  mistakes',  etc.  are  not  intended   to   curtail extensive powers of an appellate Court in an appeal against acquittal.  Such phraseologies are  more  in  the  nature  of  'flourishes  of  language'  to emphasize the reluctance of an appellate Court to interfere  with  acquittal than to curtail the power of the Court to review the evidence  and  to  come
to its own conclusion. (4) An appellate  Court,  however,  must  bear  in  mind  that  in  case  of
acquittal, there is double presumption in favour of the  accused.   Firstly, the  presumption  of  innocence  available  to  him  under  the  fundamental principle of criminal jurisprudence that every person shall be  presumed  to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption  of  his innocence is further reinforced, reaffirmed and strengthened  by  the  trial court. (5) If two reasonable conclusions are possible on the basis of the  evidence on record, the appellate court should not disturb the finding  of  acquittal recorded by the trial court.” =

on  11.8.1999,  at  about  7:00 a.m.,
 When the complainant  and  PW-3  were  coming
back, accused nos. 1 to 10 (A-1 to A-10) attacked them with deadly  weapons.=

It is alleged by the prosecution that 
A-1 assaulted PW-3 with iron blade  of a plough on his head. 
 A-3  assualted  PW-3  on  his  back  and  thigh.  
A-4 assualted PW-3 on both his legs with iron blade of plough. 
A-2 assaulted PW- 1 with iron rod on his left shoulder. 
A-6, A-8 and  A-10  kicked  PW-1.  
A-5 and A-7 assaulted Bhagyamma- PW-6 with iron blade of plough and  
A-9  kicked her.=

A complaint (Ex.-P1) was lodged on 11.8.1999 at 9:00  a.m.  before  the
police.  
The  Crime  Case  No.  CC  728  of  2000  was  registered  by  the
Investigating Officer. The injured were taken  to  the  hospital  at  around
2:00 p.m.
PW-3 had sustained fracture of tibia, fibula and ankle.
PW-6  had
sustained simple injuries.
PW-4 Jalaiah  and  PW-9-  Shivanna  are  the  eye witnesses to the incident.=

on their voluntary instance, M.O.  1  to
M.O. 3 (clubs), M.O. 4 & M.O. 5 (iron blade of  plough)  and  M.O.  6  (iron
rod) were recovered.
However, the said weapons had  no  incriminating  marks like blood stains on them.
The accused were  charge-sheeted  for  committing offences under Sections 143,  147,  148,  323,  324,  326,  307,  read  with Section 114 of IPC =
Trial court 

  In the evidence, 
PW-1 has stated that
 A-2 had assaulted him  with  iron rod, A-5 held him, 
A-1 assaulted PW-3 with iron rod. 
He further stated  that
A-4 assaulted PW-3 on his legs with iron blade of plough. 
A-3, A-6  and  A-7 were holding  clubs  and  assaulting  PW-3.  
A-1  instigated  other  accused persons to kill PW-1.

7.  The evidence of 
PW-3 also discloses that 
A-4  assaulted  him  with  iron blade of plough on his legs and hands. 
A-6, A-7 and A-5 assaulted  him  with clubs on his back, thigh and shoulder.  
The  other  accused  persons  kicked him.

8.  PW-6 in her evidence, stated that  she  was  assaulted  by  the  accused
persons but she could not name the persons.  
This  witness  was  treated  as hostile.
Accordingly, the trial court ordered the  acquittal  of
accused-appellant nos. 1 to 10 under Section 235(1)  of  CrPC  for  offences
punishable under Sections 143, 147,  148,  323,  324,  326,  307  read  with
Section 114 of IPC.=

High court held 
The High Court, on the basis of facts  and  evidence  on  record,  held
that with regard to the nature of offences, the evidence and facts  narrated
in the FIR discloses
that A-3 assaulted PW-3 with iron blade of  plough.
In
the evidence,
it is further stated that A-4 also assaulted  PW-3  with  iron
blade of plough.
But in the  wound  certificate,  there  is  no  mention  of presence or participation of A-4.
It is evident that there are fractures  in
the tibia and fibula which could have occurred because of fall from  bicycle
as well.
The fracture injury is not caused  intentionally.
Therefore,  from
the nature and manner of assault, as narrated, it can only be said that  the
accused is guilty under Section 324 read with Section 34 of IPC for  causing
injuries to PW-1 and PW-3 on separate  counts.  
Therefore,  the  High  Court
convicted and sentenced the appellants to pay a fine of [pic] 10,000/-  each
on separate counts and in default, to  undergo  simple  imprisonment  for  a
period of one year.=
Apex court 
we are of the opinion that the High  Court
erred in reversing the Order of the  trial  court  in  the  absence  of  any
substantial material evidence on record which regarded the decision  of  the
trial court as perverse.

However,  it  will  not
interfere with an order of acquittal lightly or  merely  because  one  other
view is possible,  because  with  the  passing  of  an  order  of  acquittal
presumption of innocence in  favour  of  the  accused  gets  reinforced  and
strengthened. =
The High Court would not be justified to  interfere  with  the
order of acquittal merely because it feels that sitting as a trial court  it
would have proceeded to record a conviction;
a duty  is  cast  on  the  High
Court while reversing an order of  acquittal  to  examine  and  discuss  the
reasons given by the trial court to acquit the accused and  then  to  dispel
those reasons.
If the  High  Court  fails  to  make  such  an  exercise  the
judgment will suffer from serious infirmity. =

BASIC PRINCIPLES FRAMED BY APEX COURT
From the above decisions, in our considered view, 
the following  
general principles regarding powers of appellate Court while dealing with an  appeal
against an order of acquittal emerge;

(1)  An  appellate  Court  has  full  power  to  review,  re-appreciate  and
reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction  or
condition on exercise of such power and an appellate Court on  the  evidence
before it may reach its own conclusion, both on questions  of  fact  and  of
law;

(3) Various expressions, such  as,  'substantial  and  compelling  reasons',
'good and  sufficient  grounds',  'very  strong  circumstances',  'distorted
conclusions',  'glaring  mistakes',  etc.  are  not  intended   to   curtail
extensive powers of an appellate Court in an appeal against acquittal.  Such
phraseologies are  more  in  the  nature  of  'flourishes  of  language'  to
emphasize the reluctance of an appellate Court to interfere  with  acquittal
than to curtail the power of the Court to review the evidence  and  to  come
to its own conclusion.

(4) An appellate  Court,  however,  must  bear  in  mind  that  in  case  of
acquittal, there is double presumption in favour of the  accused.   Firstly,
the  presumption  of  innocence  available  to  him  under  the  fundamental
principle of criminal jurisprudence that every person shall be  presumed  to
be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption  of  his
innocence is further reinforced, reaffirmed and strengthened  by  the  trial
court.

(5) If two reasonable conclusions are possible on the basis of the  evidence
on record, the appellate court should not disturb the finding  of  acquittal
recorded by the trial court.”=

CONCLUSION 
We therefore, set aside the order of the High Court and reinforce  the
order of acquittal by the trial court.  The appeal is allowed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41768

DIPAK MISRA, V. GOPALA GOWDA
                                                 REPORTABLE

      IN THE SUPREME COURT OF INDIA                  CRIMINAL APPELLATE
                                JURISDICTION

   CRIMINAL APPEAL NO.1381 of 2014                        (@ SPECIAL LEAVE
                       PETITION (CRL.)NO.4018 OF 2012)



            C.K. DASEGOWDA & ORS.                 .....APPELLANTS

                                   VERSUS

            STATE OF KARNATAKA                    .....RESPONDENT



                               J U D G M E N T

V. GOPALA GOWDA, J.

      This appeal is filed by the appellants questioning the correctness  of
the judgment and final order dated 11.08.2010 passed by the  High  Court  of
Karnataka at Bangalore in Criminal Appeal No. 1256 of 2005 in setting  aside
the order of acquittal of the appellants passed by the trial  court  thereby
imposing sentence of conviction  on  the  accused  for  offences  punishable
under Section 324 read with Section  34  of  IPC  for  causing  injuries  on
separate count.

2.   Necessary relevant facts are stated hereunder to  appreciate  the  case
of the appellants and also to find out whether  they  are  entitled  to  the
relief as prayed for in this appeal.

3.  It is the case of the prosecution  that  on  11.8.1999,  at  about  7:00
a.m., PW-3 Kempanna had gone to the house of the complainant  on  a  bicycle
to take milk for his children. When the complainant  and  PW-3  were  coming
back, accused nos. 1 to 10 (A-1 to A-10) attacked them with deadly  weapons.
It is alleged by the prosecution that A-1 assaulted PW-3 with iron blade  of
a plough on his head.  A-3  assualted  PW-3  on  his  back  and  thigh.  A-4
assualted PW-3 on both his legs with iron blade of plough. A-2 assaulted PW-
1 with iron rod on his left shoulder. A-6, A-8 and  A-10  kicked  PW-1.  A-5
and A-7 assaulted Bhagyamma- PW-6 with iron blade of plough and  A-9  kicked
her.

4.   A complaint (Ex.-P1) was lodged on 11.8.1999 at 9:00  a.m.  before  the
police.   The  Crime  Case  No.  CC  728  of  2000  was  registered  by  the
Investigating Officer. The injured were taken  to  the  hospital  at  around
2:00 p.m. PW-3 had sustained fracture of tibia, fibula and ankle.  PW-6  had
sustained simple injuries. PW-4 Jalaiah  and  PW-9-  Shivanna  are  the  eye
witnesses to the incident.

5.  The accused after their arrest, on their voluntary instance, M.O.  1  to
M.O. 3 (clubs), M.O. 4 & M.O. 5 (iron blade of  plough)  and  M.O.  6  (iron
rod) were recovered. However, the said weapons had  no  incriminating  marks
like blood stains on them. The accused were  charge-sheeted  for  committing
offences under Sections 143,  147,  148,  323,  324,  326,  307,  read  with
Section 114 of IPC. Thereafter, the learned Magistrate  took  cognizance  of
the alleged offences  and  registered  CC  No.  728  of  2000.  The  learned
Magistrate complying with the provisions of Section 209 of  CrPC,  committed
the case to the Sessions  Court  for  trial  since  offences  alleged  under
Section 307 are to be exclusively tried by that court. The  accused  persons
pleaded not guilty and claimed trial. The  prosecution  in  support  of  its
case, got examined PW-1 to PW-10 and marked Ex. P-1 to P-9 and MOs. 1 to  6.
The accused-appellants got marked Ex.  D-1  and  had  also  submitted  their
written reply while recording their statements under Section 313 of CrPC.

6.   In the evidence, PW-1 has stated that A-2 had assaulted him  with  iron
rod, A-5 held him, A-1 assaulted PW-3 with iron rod. He further stated  that
A-4 assaulted PW-3 on his legs with iron blade of plough. A-3, A-6  and  A-7
were holding  clubs  and  assaulting  PW-3.  A-1  instigated  other  accused
persons to kill PW-1.

7.  The evidence of PW-3 also discloses that A-4  assaulted  him  with  iron
blade of plough on his legs and hands. A-6, A-7 and A-5 assaulted  him  with
clubs on his back, thigh and shoulder.  The  other  accused  persons  kicked
him.

8.  PW-6 in her evidence, stated that  she  was  assaulted  by  the  accused
persons but she could not name the persons.  This  witness  was  treated  as
hostile.

9.  The trial court, on appreciation of the  evidence  on  record  has  held
that the prosecution has  failed  to  prove  any  of  the  offences  alleged
against the accused persons. There is an  element  of  reasonable  doubt  on
many counts, which have already been explained. The benefit of doubt  always
goes to the accused. Accordingly, the trial court ordered the  acquittal  of
accused-appellant nos. 1 to 10 under Section 235(1)  of  CrPC  for  offences
punishable under Sections 143, 147,  148,  323,  324,  326,  307  read  with
Section 114 of IPC. Aggrieved by the same, the State of  Karnataka  appealed
before the High Court  challenging  the  judgment  and  order  of  acquittal
passed by the learned trial judge.

10.  The High Court, on the basis of facts  and  evidence  on  record,  held
that with regard to the nature of offences, the evidence and facts  narrated
in the FIR discloses that A-3 assaulted PW-3 with iron blade of  plough.  In
the evidence, it is further stated that A-4 also assaulted  PW-3  with  iron
blade of plough. But in the  wound  certificate,  there  is  no  mention  of
presence or participation of A-4. It is evident that there are fractures  in
the tibia and fibula which could have occurred because of fall from  bicycle
as well. The fracture injury is not caused  intentionally.  Therefore,  from
the nature and manner of assault, as narrated, it can only be said that  the
accused is guilty under Section 324 read with Section 34 of IPC for  causing
injuries to PW-1 and PW-3 on separate  counts.  Therefore,  the  High  Court
convicted and sentenced the appellants to pay a fine of [pic] 10,000/-  each
on separate counts and in default, to  undergo  simple  imprisonment  for  a
period of one year.

11.   The accused-appellants challenged  the  decision  of  the  High  Court
raising various facts and legal contentions  and  have  prayed  for  setting
aside the impugned judgment of the High Court.

12.  The learned senior counsel on behalf of the appellants, Ms. Kiran  Suri
contended that the High Court has erred in reversing the Order of the  trial
court since the trial court had acquitted the accused-appellants only  after
proper appreciation of  the  evidence  on  record  and  inconsistencies  and
contradictions found in the evidence of prosecution witnesses  and  noticing
the previous enmity between the parties, delay in recording  the  statements
of the prosecution witnesses and also statement of eye witness, it has  held
that it creates a reasonable doubt as to the guilt of the accused.

13.   The learned  senior  counsel  on  behalf  of  the  appellants  further
contended that conviction of the accused-appellants  under  Section  324  of
IPC read with Section 34 is absolutely arbitrary, unreasonable and  contrary
to the above provisions of IPC.

14.   It was further contended by the learned senior counsel that  there  is
discrepancy regarding the names of the assailants in  the  FIR  and  in  the
wound certificate and further the motive behind the alleged assault  by  the
accused-appellants has also not been proved by the prosecution  by  adducing
evidence.

15.  On the other hand, the learned counsel  on  behalf  of  the  respondent
contended that PW-1 and PW-3 are injured eye witnesses. The  fact  that  the
accused-appellants had assaulted these persons with iron rod, gula and  club
is corroborated by the medical evidence of PW-5 and  PW-7.  It  was  further
argued by  the  learned  counsel  that  the  appellants  had  assaulted  the
complainant on account of  previous  enmity  with  them.  According  to  the
learned  counsel  for  the  respondent,  PW-2  is  an  independent  witness.
Therefore, according to the learned counsel,  the  ingredients  of  unlawful
assembly, rioting, causing grievous hurt  with  dangerous  weapons  with  an
intention to kill, have been proved.

16.   We have perused the facts and legal evidence on record. We  have  also
carefully appreciated the contentions of both the parties. On the  basis  of
the facts and evidence on record, we are of the opinion that the High  Court
erred in reversing the Order of the  trial  court  in  the  absence  of  any
substantial material evidence on record which regarded the decision  of  the
trial court as perverse.

17.  In the case of Chandrappa v. State of Karnataka[1], it  has  been  held
by this Court as under:
“39. In Harijana Thirupala v.  Public Prosecutor, High Court of  A.P.,  this
Court said:
12. Doubtless the High Court in appeal either against an order of  acquittal
or conviction as a court of first  appeal  has  full  power  to  review  the
evidence to reach its own  independent  conclusion.  However,  it  will  not
interfere with an order of acquittal lightly or  merely  because  one  other
view is possible,  because  with  the  passing  of  an  order  of  acquittal
presumption of innocence in  favour  of  the  accused  gets  reinforced  and
strengthened. The High Court would not be justified to  interfere  with  the
order of acquittal merely because it feels that sitting as a trial court  it
would have proceeded to record a conviction; a duty  is  cast  on  the  High
Court while reversing an order of  acquittal  to  examine  and  discuss  the
reasons given by the trial court to acquit the accused and  then  to  dispel
those reasons. If the  High  Court  fails  to  make  such  an  exercise  the
judgment will suffer from serious infirmity.


40. In Ramanand Yadav v.   Prabhunat Jha this Court observed;
      21. There is no embargo on the appellate Court reviewing the  evidence
upon which  an  order  of  acquittal  is  based.  Generally,  the  order  of
acquittal shall not be interfered with because the presumption of  innocence
of the accused is further  strengthened  by  acquittal.  The  golden  thread
which runs through the web of administration of justice  in  criminal  cases
is that if two views are possible on the evidence adduced in the  case,  one
pointing to the guilt of the accused and the other  to  his  innocence,  the
view which is favourable to the accused should  be  adopted.  The  paramount
consideration of the Court is to  ensure  that  miscarriage  of  justice  is
prevented. A miscarriage of justice which may arise from  acquittal  of  the
guilty is no less than from the conviction of an innocent. In a  case  where
admissible evidence is ignored, a duty is cast upon the appellate  Court  to
re-appreciate the evidence in a case where the accused has  been  acquitted,
for the purpose of ascertaining as to whether any of the  accused  committed
any offence or not".

41. Recently, in Kallu v. State of M.P., this Court stated;
   8.  While  deciding  an  appeal  against  acquittal,  the  power  of  the
Appellate Court is no less than the power exercised  while  hearing  appeals
against conviction. In both types of appeals, the  power  exists  to  review
the entire evidence. However, one significant difference is  that  an  order
of acquittal will not be interfered with, by an appellate court,  where  the
judgment of the trial court is based on  evidence  and  the  view  taken  is
reasonable and plausible. It will not reverse  the  decision  of  the  trial
court merely because a different view is possible. The appellate court  will
also bear in mind that there is a presumption of innocence in favour of  the
accused  and  the  accused  is  entitled  to  get   the   benefit   of   any
doubt. Further if it decides to interfere,  it  should  assign  reasons  for
differing with the decision of the trial court".
                   (emphasis supplied)

42. From the above decisions, in our considered view, the following  general
principles regarding powers of appellate Court while dealing with an  appeal
against an order of acquittal emerge;

(1)  An  appellate  Court  has  full  power  to  review,  re-appreciate  and
reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction  or
condition on exercise of such power and an appellate Court on  the  evidence
before it may reach its own conclusion, both on questions  of  fact  and  of
law;

(3) Various expressions, such  as,  'substantial  and  compelling  reasons',
'good and  sufficient  grounds',  'very  strong  circumstances',  'distorted
conclusions',  'glaring  mistakes',  etc.  are  not  intended   to   curtail
extensive powers of an appellate Court in an appeal against acquittal.  Such
phraseologies are  more  in  the  nature  of  'flourishes  of  language'  to
emphasize the reluctance of an appellate Court to interfere  with  acquittal
than to curtail the power of the Court to review the evidence  and  to  come
to its own conclusion.

(4) An appellate  Court,  however,  must  bear  in  mind  that  in  case  of
acquittal, there is double presumption in favour of the  accused.   Firstly,
the  presumption  of  innocence  available  to  him  under  the  fundamental
principle of criminal jurisprudence that every person shall be  presumed  to
be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption  of  his
innocence is further reinforced, reaffirmed and strengthened  by  the  trial
court.

(5) If two reasonable conclusions are possible on the basis of the  evidence
on record, the appellate court should not disturb the finding  of  acquittal
recorded by the trial court.”


18.   Therefore, based on the legal principles laid down by  this  Court  in
the abovementioned case and applying the same to the facts and  evidence  on
record of this case, we are of the opinion that  the  High  Court  erred  in
setting aside the order of the acquittal of the appellants  in  the  absence
of any legal and factual evidence  on  record  to  prove  the  findings  and
reasons recorded in the judgment  of  the  trial  court  as  perverse.   The
contentions urged on behalf of the appellants are well founded as  the  same
are in conformity with the legal  principles  laid  down  in  the  aforesaid
cases.

19.   We therefore, set aside the order of the High Court and reinforce  the
order of acquittal by the trial court.  The appeal is allowed.


……………………………………………………J.  [DIPAK MISRA]



……………………………………………………J.       [V. GOPALA GOWDA]



New Delhi,                                         July 15, 2014


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[1]    (2007) 4  SCC 415



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