1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.66 OF 2012
NAGARAJA ... APPELLANT
VERSUS
STATE OF KARNATAKA ... RESPONDENT
J U D G M E N T
K.M. JOSEPH, J.
1. By the impugned judgment, the High court has
allowed the appeal filed by the State and found the
appellant (Accused No.4) guilty of the offence under
Section 397 of the Indian Penal code (for short
“IPC”) and he was ordered to undergo R.I. for a
period of 7 years and to pay a fine of Rs.1000/- with
default clause. Though the State has challenged the
acquittal of the sixth accused, his acquittal was
confirmed by the High court.
1
2
2. A complaint was submitted by PW 1 on 16.9.1996 at
about 10.15 p.m. to PW 12, the Head constable. It
was her complaint inter alia as follows:
While she was in her house with her husband, sonin-law and other relatives, they heard the barking
of dogs and came outside. It was found 6-7
unknown persons wearing lungi and shirt armed with
the club surrounded the complainant and their
family members and insisted upon them to give
their ornaments, watch and cash threatening that
in case it is not so given they will be finished.
They were pushed inside the house and PW4, PW5 and
PW6 were assaulted with clubs. A golden chain was
snatched. So also was the mangal sutra of PW1. A
silver chain, ear rings and an amount of Rs.400/-
were also snatched and they ran away from the
place.
3. It is on this complaint that finally after
investigation was carried out charge sheet was filed.
It would appear that accused No.1 to 3 though were on
bail, they did not appear for the trial. Rest of the
2
3
accused except the appellant and accused No.6 were
absconding. The case was split up and trial
proceeded against appellant and A6 for the charge
under Section 397 IPC. During the trial, PWs 1 to PW
15 were examined. Documents were marked as Exhibits
P1 to P15 and MOs 1 to 17 were produced. The High
court found as follows:
(1) The incident took place on 16.9.1996 in the
night at about 9.00 p.m.. PW1, the wife of
PW4, PW5 and PW6 were all present besides other
members.
(2) The complaint was lodged within one hour of the
incident
(3) The names of the accused are not revealed and
it is stated to be only against the unknown
persons
(4) There is no identification parade held. The
High court found that as the incident took
place in the night, the identification parade
was essential and the evidence of the
prosecution witness could not be accepted
insofar as the identity is concerned.
3
4
4. It is thereafter that three circumstance
described by the High Court as strong circumstances
were found against the appellant.
1.The appellant was apprehended in the neighbouring
village during night and was chased by PWs 7, 8
and 11 and was produced before the Police
immediately thereafter. Appellants conduct was
noted.
2.During interrogation by the officer, the
appellant volunteered to produce some articles
which were looted from the house of PW1. PW3,
the attesting witness was led with the police
officers to the place by the side of the national
highway and from from the ditch in the ‘naala’
appellant produced the trunk MO2 which contains
the articles, clothes MOs 8 to 17. This
recovery took place immediately on the very next
day of incident, that is, on 17.9.1996. The High
Court finds that the fact that these articles
were kept in the ditch in the‘naala’ was not
known to anybody other than the appellant. The
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5
evidence of PW3, witness to the recovery, was
found acceptable. It was also found corroborated
by the evidence of PW 15 (apparently PW 14).
3.The third circumstance relied upon by the
prosecution successfully before the High Court
was as follows:
PW15 is a Police Inspector and handwriting
expert. He visited the spot and checked finger
prints upon the utensils. After the arrest of
the appellant, PW 14 had obtained the finger
prints of the appellant. The fingerprints were
compared. PW15 issued Ex.P12 certificate. The
High Court relies on the Certificate and the
evidence of PW15. Chance prints on Q-1 were
found identical with the left thumb print and
Q-2 was found identical to the finger print of
the appellant. It is noted that the vessels were
not seized by the investigating officer. It was
found to be a mistake which was not to be
considered in appreciating the evidence of PW15.
PW15 was found to have visited the farmhouse of
PW-1 on the very next day and developed five
5
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chance prints Q1 to Q5. The High Court, further,
finds that the finger prints were lifted by
means of transparent adhesive lifting tape and
pasted them on the glass pieces for which Exh.P13 certificate was issued. It was found that P13 certificate along with P-12 letter reveals
the clinching evidence with regard to
appellant’s finger prints tallying with the
chance finger prints obtained by PW15. The
deposition of PW-11 was referred to find that he
was a police constable and was on duty on
16.9.1996 at 10:30 A.M. at Challakere fair. He
was found to have gone to the house of PW-1 at
night and came to know about the accused having
run away after the dacoity. He went towards
forest and saw a person running in the jungle
and after chasing the person running ahead
assaulted him with stones and tried to escape.
At that time some persons came to help PW-11 and
they apprehended the person who was found to be
the appellant. The High Court relied on the
circumstances revealed from the evidence of PW6
7
11, namely, the conduct of the appellant running
in the jungle at night and this conduct
supported the version of the prosecution. It was
found that the PW-11 was not cross-examined and
his evidence can be accepted in toto. It is
stated only after PW-11 produced the appellant
before the Investigating Officer, interrogation
was done and appellant volunteered with a
statement resulting in the recovery being made.
The High Court, further proceeds to hold that
the only conclusion is that the appellant
participated in the incident (dacoity). The
Trial Court was found to have committed the
illegality in acquitting the appellant.
5. We heard learned counsel for the appellant and
also learned counsel appearing on behalf of the
respondent-State. As already noticed, the High Court
has found that the evidence of the prosecution
witnesses were not reliable for identifying the
appellant. Admittedly, the incident took place at
night and no identification parade was held. The
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appellant not being identified and the High Court
having not accepted the deposition of the prosecution
witnesses regarding the identity of the appellant,
the finding of guilt rendered by the High Court and
that too in an appeal against acquittal, is
questioned as impermissible.
6. It is contended that the High Court was not right
in relying upon the finger prints even when the
articles from which the chance finger prints Q1 to Q5
were found were not produced before the Court.
Reliance is placed in this regard of the judgment of
this Court in Mohd. Aman v. State of Rajasthan1.
7. It is further contended that no reliance could be
placed on the so-called recovery. It is complained
that the recovery was effected from a public place.
It is the case of the appellant also that no
negatives of the photograph were filed before the
Court and the person who took the photograph was also
not examined. Regarding the recovery the following
1 1997 (10) SCC 44
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9
findings of the trial Court is enlisted by the
appellant in his support.
11. PW2 is a spot panchaname PW3 is a
panch for Ex. P3. His evidence is at
the time of preparation of Ex.P3 i.e.
recovery of the articles from accused
persons, namely, as per panchaname
Ex.p3 Narayana, Mohana and Nagaraja
were present and at the instance of
Nagaraja A4 the trunk was recovered
along with the clothes. Ex.P3 is in
respect of the recovery of trunk and
clothes from accused Nagaraja is,
“…… Accused Nagaraj S/o. Bheemappa
told that clothes and trunk had come
to his share, which he had concealed
at a place, and if he was taken there
he would show the same. All the above
said articles were seized in the
presence of the Panchayatdars for
further proceedings…” (Translated from
Kannada)
Panchaname was drawn at Kengaiahna
hatti. Exp3 does not disclose that the
trunk was hidden any where and from
which place accused took out and
produced before the police and
panchas. It was mentioned that
panchaname Ex.P3 was drawn at
Kengaiahna hatti but in the evidence
PW3 Boomalingaiah states the police
seized from accused Anjaneya manihara
tali, 18 bagarada gundu and he further
states the police seized silver leg
chain Rs. 106/- and panchaname Ex.p3.
In further evidence he says “P.C. took
us the both panchas and accused person
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before the court. Harijana Kambajjara
Hola the trunk mO2 was kept in a pit
it was taken out. MO2 contains some
cloth and the same was seized under
panchaname Ex.P4.” His evidence is
that Anjaneya accused No. 6 was
present on the date of Ex. P3 and Ex.
P4 is in correct. Since PW14 has
already stated that A6 was arrested on
26.9.1996 and no property was seized
from him. In respect of the recovery
from accused No. 4 Nagaraja has not a
recovery at all at the instance of the
accused Nagaraja as per the evidence
of PW3 P.C. took them accused to
Harijana Kambajjara hola and from
there seized the articles under Ex.P4.
It is also contended that the witnesses have not
supported the recovery.
8. In regard to reliance placed on the circumstances
that the appellant ran away when PW-11 chased him,
the contention of the appellant is that the evidence
of PW-11 has been misconstrued. The evidence of PW-11
was not at all relevant in respect of the appellant
and the evidence of PW-11 actually relates to the
apprehending of another accused, namely,
Venkataramanappa. The error has led the High Court to
find the circumstance against the appellant, though
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11
none existed. Per contra, learned counsel for State
supported the impugned order.
9. The principles are well-settled in regard to the
approach to be adopted by this Court in an appeal
against the order reversing an acquittal. The
principles are well settled in regard to the power of
High Court in the matter of reversal of acquittal.
The presumption of innocence prior to a verdict by
the criminal court become strengthened with an
acquittal rendered by the Trial Court. The High Court
would be slow to interfere with an acquittal,
particularly, if the view taken by the Trial Court is
one of the two views possible and it is not perverse.
WHETHER THE HIGH COURT WAS CORRECT IN PLACING THE
RELIANCE ON THE DEPOSITION OF PW-11 TO FIND THAT THE
APPELLANT RAN AWAY AND THIS CONDUCT STRENGTHENED THE
PROSECUTION CASE AGAINST HIM.
The deposition of PW-11 reads as follows:-
‘I was working in year 1996 at
Challakera P.S. I was deputed on
16.9.96, at Challakere Jatre Bandobast
10:30 p.m. CW 25 and 26 took me to
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12
police station my self 24, 25, and 26
went to Giriminahalli Kapile as there
was a dacoit, we went to the house of
PW1 and came to that the accused
person ran towards the forest we went
in the jungle I saw one person running
the jungle I followed that person he
through the stone on me and has
sustained injury that person escaped
my clutches meanwhile CW24, 25, 26
came there in a jeep again we followed
and apprehended that person. I can
identify the person is before the
court he is A4. He discloses as
Venkatramanappa S/o Ramachandrappa
Pillhalli A4 has disclosed as name
Venkataramanappa.’
10. Next, we may also notice that in the evidence of
PW-12 who was working as Head Constable, he says that
at 2:00 A.M., PW-11 brought one person to the police
station. He secured CW-2 and CW-3 to a police station
and he seized HMT watch MO4 in the Panchanama. In the
cross-examination, he says that he seized the watch
from a person by name Venkataramanappa. He is A1. The
evidence of PW-11 would thus show that he along with
charge witnesses 24, 25 and 26 and the accused ran
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towards the forest and the person was followed. He
sustained injuries as the stones were thrown. That
thereafter, CW-24, 25 and 26 came there in a jeep and
that person was apprehended. As the officer
identified the person before the Court and he is
appellant and his name is disclosed as
Venkataramanappa s/o Ramachandrappa Pillhalli. He
states that the appellant disclosed his name as
Venkataramanappa. PW-12 also refers to
Venkataramanappa but he says that he is A1.
11. The evidence of PW-14 may be noticed. He was CPI
Traffic R.S. On receiving information, he collected
staff and proceeded to Giriyammana hally village. The
PSI, and the staff produced before him one person by
name Venkataramana. He directed his S.I. to take the
persons to the police station for further
investigation. Then, he visited the police station at
3:30 a.m.. He received information about some persons
attacking house at Kengaiahna hatty. On getting
information of three persons being apprehended, he
proceeded. Three persons were arrested, their names
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14
were disclosed as Narayana, Mohan and Nagaraj.
Nagaraj appears to be appellant before us. If Nagaraj
is arrested by PW-14, then reliance on evidence of
PW-11 by the Court does not appear to be justified at
all.
12. Continuing with deposition of PW-14 he states he
proves the statement of the appellant marked as
Ex.P11 and he claims to have seized the trunk and
clothes as per PW4. He also says that he recorded
voluntary statement of Venkataramanappa. He claims
to have taken the finger prints of person arrested by
him and forwarded it to PW-15 for comparison. In his
cross examination he inter alia states that has not
taken permission from the Magistrate for taking the
finger prints of the accused. The upshot of the
above discussion is that the High Court may not be
justified in relying on deposition of PW11 to
conclude that appellant, according to PW11, ran away
and this conduct constituted a circumstance against
the appellant.
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15
13. The second circumstance relied upon by the High
Court to convict the appellant, is the recovery of
MO2 to MO 17 clothes. It is also not a matter which
was overlooked by the Trial Court. However, the Trial
Court after referring to the recovery concluded that
so called recovery was effected from a public place.
It is true that it is reasoned by the High Court that
the fact of the articles being kept in a ditch was
not known to anybody. Also, reference is made in
this regard and support drawn from the evidences of
PW-3 and Pw-14.
14. We may also refer to the other circumstance,
namely, matching the fingerprints of the appellant
with the chance fingerprints, which were found on
certain utensils. PW-14, in his deposition admitted
that he has not obtained permission from the
Magistrate for taking the fingerprints of the
accused. The Magistrate, in fact, has referred to the
judgment of this Court reported in Mohd. Aman’s case
(supra). In the said case, it was held as follows
inter alia:-
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“Even though the specimen fingerprints of Mohd. A man had to be taken on
a number of occasions at the behest of
the Bureau, they were never taken before
or under the order of a Magistrate in
accordance with Section 5 of the
Identification of Prisoners Act. It is
true that under Section 4 thereof police
is competent to take finger-prints of
the accused but to dispel any suspicion
as to its bona fides or to eliminate the
possibility of fabrication of evidence
it was eminently desirable that they
were taken before or under the order of
a Magistrate. The other related
infirmity from which the prosecution
case suffers is that the brass, jug,
production of which would have been the
best evidence in proof of the claim of
its seizure and subsequent examination
by the Bureau, was not produced and
exhibited during trial – for reasons
best known to the prosecution and
unknown to the Court. Thus the accused
could not be convicted for murder.”
15. In this case also though seized, the utensils
were not produced and exhibited. Though another view
of the evidence of PW15 and the reasoning employed by
the High Court may be possible, we cannot overlook
that the High Court was considering an appeal against
acquittal. We may remind ourselves that the High
Court itself has found prosecution witnesses have not
been able to identify the appellant. Further, out of
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the three circumstances, quite clearly, one of the
circumstances, namely, about the conduct of the
appellant allegedly allegedly based on the evidence
of PW-11 appears to have been the product of an
error. We have also noticed the inadequacies as
observed by the Trial court in regard to the fingerprints.
On 16.10.2019, we passed the following order: -
“Arguments concluded.
Judgment reserved.
We, however, note that the incident
pertains to the year 1996 and there were
8 accused. Out of the 8 accused, only 5
were apprehended. Three of them were
enlarged on bail and then absconded. It
appears that these accused have still
not been apprehended and put to trial.
We find the aforesaid completely
unacceptable that for these accused
could not be apprehended, if proper
measures were taken. It is not a case of
one or two accused disappearing from the
scene but six accused absconding.
We thus, call upon the respondentstate to file an affidavit under the
signatures of superintendent of police
of the District setting out as to what
steps have been taken to apprehend these
accused and as to what endeavours are
being made now.
The affidavit be filed within four
weeks.
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A copy of the order dasti be sent to
the learned counsel for the State.”
16. An affidavit has been filed on behalf of the
respondent-State. Therein, it is stated that there
were 8 accused who were chargesheeted in S.C. No. 60
of 99 in the Fast Track Court, Additional Sessions
Judge, Chitradurga. The appellant and the accused no.
6 faced the trial and as we have noticed that though
acquitted by the Trial court appellant stood
convicted by the High Court.
17. As far as the other accused are concerned, it is
stated as follows:
Venkatappa alias Venkataramana and accused no.
2 Narayana faced trial in S.C. No. 84 of 2002. It
resulted in their acquittal. It further states that
State had not preferred any appeal and acquittal is
confirmed. In the order dated 16.10.2003 the
chargesheet was made against the other absconding
accused i.e. accused no. 3 and accused no. 8. Accused
nos. 3 and 8 were also not found guilty and states
that they had not preferred any appeal against the
said judgment rendered in S.C. 85 of 2003. Still
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further accused nos. 5 and 7 were tried in S.C. No.
57 of 2004 and they were also not found guilty by
Sessions Judge and acquitted by the judgment dated
02.05.2005. Thus, against all the other accused,
other than the appellant who stood charged under
Section 397 have been acquitted.
18. Having regard to the circumstances, we are
inclined to take the view that the High Court has
erred in interfering with the acquittal of the
appellant bearing in mind the principles which govern
the question as to in what circumstances the
Appellate Court can reverse an acquittal. The appeal
is allowed and we set aside the judgment of the High
Court convicting the appellant. We notice that the
appellant has already been enlarged on bail by order
dated 06.01.2012. The appellant’s bail bond stand
discharged and he need not surrender.
………………………………………………J.
[SANJAY KISHAN KAUL]
………………………………………………J.
[K.M. JOSEPH]
NEW DELHI
DECEMBER 06, 2019
19
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.66 OF 2012
NAGARAJA ... APPELLANT
VERSUS
STATE OF KARNATAKA ... RESPONDENT
J U D G M E N T
K.M. JOSEPH, J.
1. By the impugned judgment, the High court has
allowed the appeal filed by the State and found the
appellant (Accused No.4) guilty of the offence under
Section 397 of the Indian Penal code (for short
“IPC”) and he was ordered to undergo R.I. for a
period of 7 years and to pay a fine of Rs.1000/- with
default clause. Though the State has challenged the
acquittal of the sixth accused, his acquittal was
confirmed by the High court.
1
2
2. A complaint was submitted by PW 1 on 16.9.1996 at
about 10.15 p.m. to PW 12, the Head constable. It
was her complaint inter alia as follows:
While she was in her house with her husband, sonin-law and other relatives, they heard the barking
of dogs and came outside. It was found 6-7
unknown persons wearing lungi and shirt armed with
the club surrounded the complainant and their
family members and insisted upon them to give
their ornaments, watch and cash threatening that
in case it is not so given they will be finished.
They were pushed inside the house and PW4, PW5 and
PW6 were assaulted with clubs. A golden chain was
snatched. So also was the mangal sutra of PW1. A
silver chain, ear rings and an amount of Rs.400/-
were also snatched and they ran away from the
place.
3. It is on this complaint that finally after
investigation was carried out charge sheet was filed.
It would appear that accused No.1 to 3 though were on
bail, they did not appear for the trial. Rest of the
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3
accused except the appellant and accused No.6 were
absconding. The case was split up and trial
proceeded against appellant and A6 for the charge
under Section 397 IPC. During the trial, PWs 1 to PW
15 were examined. Documents were marked as Exhibits
P1 to P15 and MOs 1 to 17 were produced. The High
court found as follows:
(1) The incident took place on 16.9.1996 in the
night at about 9.00 p.m.. PW1, the wife of
PW4, PW5 and PW6 were all present besides other
members.
(2) The complaint was lodged within one hour of the
incident
(3) The names of the accused are not revealed and
it is stated to be only against the unknown
persons
(4) There is no identification parade held. The
High court found that as the incident took
place in the night, the identification parade
was essential and the evidence of the
prosecution witness could not be accepted
insofar as the identity is concerned.
3
4
4. It is thereafter that three circumstance
described by the High Court as strong circumstances
were found against the appellant.
1.The appellant was apprehended in the neighbouring
village during night and was chased by PWs 7, 8
and 11 and was produced before the Police
immediately thereafter. Appellants conduct was
noted.
2.During interrogation by the officer, the
appellant volunteered to produce some articles
which were looted from the house of PW1. PW3,
the attesting witness was led with the police
officers to the place by the side of the national
highway and from from the ditch in the ‘naala’
appellant produced the trunk MO2 which contains
the articles, clothes MOs 8 to 17. This
recovery took place immediately on the very next
day of incident, that is, on 17.9.1996. The High
Court finds that the fact that these articles
were kept in the ditch in the‘naala’ was not
known to anybody other than the appellant. The
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evidence of PW3, witness to the recovery, was
found acceptable. It was also found corroborated
by the evidence of PW 15 (apparently PW 14).
3.The third circumstance relied upon by the
prosecution successfully before the High Court
was as follows:
PW15 is a Police Inspector and handwriting
expert. He visited the spot and checked finger
prints upon the utensils. After the arrest of
the appellant, PW 14 had obtained the finger
prints of the appellant. The fingerprints were
compared. PW15 issued Ex.P12 certificate. The
High Court relies on the Certificate and the
evidence of PW15. Chance prints on Q-1 were
found identical with the left thumb print and
Q-2 was found identical to the finger print of
the appellant. It is noted that the vessels were
not seized by the investigating officer. It was
found to be a mistake which was not to be
considered in appreciating the evidence of PW15.
PW15 was found to have visited the farmhouse of
PW-1 on the very next day and developed five
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6
chance prints Q1 to Q5. The High Court, further,
finds that the finger prints were lifted by
means of transparent adhesive lifting tape and
pasted them on the glass pieces for which Exh.P13 certificate was issued. It was found that P13 certificate along with P-12 letter reveals
the clinching evidence with regard to
appellant’s finger prints tallying with the
chance finger prints obtained by PW15. The
deposition of PW-11 was referred to find that he
was a police constable and was on duty on
16.9.1996 at 10:30 A.M. at Challakere fair. He
was found to have gone to the house of PW-1 at
night and came to know about the accused having
run away after the dacoity. He went towards
forest and saw a person running in the jungle
and after chasing the person running ahead
assaulted him with stones and tried to escape.
At that time some persons came to help PW-11 and
they apprehended the person who was found to be
the appellant. The High Court relied on the
circumstances revealed from the evidence of PW6
7
11, namely, the conduct of the appellant running
in the jungle at night and this conduct
supported the version of the prosecution. It was
found that the PW-11 was not cross-examined and
his evidence can be accepted in toto. It is
stated only after PW-11 produced the appellant
before the Investigating Officer, interrogation
was done and appellant volunteered with a
statement resulting in the recovery being made.
The High Court, further proceeds to hold that
the only conclusion is that the appellant
participated in the incident (dacoity). The
Trial Court was found to have committed the
illegality in acquitting the appellant.
5. We heard learned counsel for the appellant and
also learned counsel appearing on behalf of the
respondent-State. As already noticed, the High Court
has found that the evidence of the prosecution
witnesses were not reliable for identifying the
appellant. Admittedly, the incident took place at
night and no identification parade was held. The
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appellant not being identified and the High Court
having not accepted the deposition of the prosecution
witnesses regarding the identity of the appellant,
the finding of guilt rendered by the High Court and
that too in an appeal against acquittal, is
questioned as impermissible.
6. It is contended that the High Court was not right
in relying upon the finger prints even when the
articles from which the chance finger prints Q1 to Q5
were found were not produced before the Court.
Reliance is placed in this regard of the judgment of
this Court in Mohd. Aman v. State of Rajasthan1.
7. It is further contended that no reliance could be
placed on the so-called recovery. It is complained
that the recovery was effected from a public place.
It is the case of the appellant also that no
negatives of the photograph were filed before the
Court and the person who took the photograph was also
not examined. Regarding the recovery the following
1 1997 (10) SCC 44
8
9
findings of the trial Court is enlisted by the
appellant in his support.
11. PW2 is a spot panchaname PW3 is a
panch for Ex. P3. His evidence is at
the time of preparation of Ex.P3 i.e.
recovery of the articles from accused
persons, namely, as per panchaname
Ex.p3 Narayana, Mohana and Nagaraja
were present and at the instance of
Nagaraja A4 the trunk was recovered
along with the clothes. Ex.P3 is in
respect of the recovery of trunk and
clothes from accused Nagaraja is,
“…… Accused Nagaraj S/o. Bheemappa
told that clothes and trunk had come
to his share, which he had concealed
at a place, and if he was taken there
he would show the same. All the above
said articles were seized in the
presence of the Panchayatdars for
further proceedings…” (Translated from
Kannada)
Panchaname was drawn at Kengaiahna
hatti. Exp3 does not disclose that the
trunk was hidden any where and from
which place accused took out and
produced before the police and
panchas. It was mentioned that
panchaname Ex.P3 was drawn at
Kengaiahna hatti but in the evidence
PW3 Boomalingaiah states the police
seized from accused Anjaneya manihara
tali, 18 bagarada gundu and he further
states the police seized silver leg
chain Rs. 106/- and panchaname Ex.p3.
In further evidence he says “P.C. took
us the both panchas and accused person
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10
before the court. Harijana Kambajjara
Hola the trunk mO2 was kept in a pit
it was taken out. MO2 contains some
cloth and the same was seized under
panchaname Ex.P4.” His evidence is
that Anjaneya accused No. 6 was
present on the date of Ex. P3 and Ex.
P4 is in correct. Since PW14 has
already stated that A6 was arrested on
26.9.1996 and no property was seized
from him. In respect of the recovery
from accused No. 4 Nagaraja has not a
recovery at all at the instance of the
accused Nagaraja as per the evidence
of PW3 P.C. took them accused to
Harijana Kambajjara hola and from
there seized the articles under Ex.P4.
It is also contended that the witnesses have not
supported the recovery.
8. In regard to reliance placed on the circumstances
that the appellant ran away when PW-11 chased him,
the contention of the appellant is that the evidence
of PW-11 has been misconstrued. The evidence of PW-11
was not at all relevant in respect of the appellant
and the evidence of PW-11 actually relates to the
apprehending of another accused, namely,
Venkataramanappa. The error has led the High Court to
find the circumstance against the appellant, though
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none existed. Per contra, learned counsel for State
supported the impugned order.
9. The principles are well-settled in regard to the
approach to be adopted by this Court in an appeal
against the order reversing an acquittal. The
principles are well settled in regard to the power of
High Court in the matter of reversal of acquittal.
The presumption of innocence prior to a verdict by
the criminal court become strengthened with an
acquittal rendered by the Trial Court. The High Court
would be slow to interfere with an acquittal,
particularly, if the view taken by the Trial Court is
one of the two views possible and it is not perverse.
WHETHER THE HIGH COURT WAS CORRECT IN PLACING THE
RELIANCE ON THE DEPOSITION OF PW-11 TO FIND THAT THE
APPELLANT RAN AWAY AND THIS CONDUCT STRENGTHENED THE
PROSECUTION CASE AGAINST HIM.
The deposition of PW-11 reads as follows:-
‘I was working in year 1996 at
Challakera P.S. I was deputed on
16.9.96, at Challakere Jatre Bandobast
10:30 p.m. CW 25 and 26 took me to
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police station my self 24, 25, and 26
went to Giriminahalli Kapile as there
was a dacoit, we went to the house of
PW1 and came to that the accused
person ran towards the forest we went
in the jungle I saw one person running
the jungle I followed that person he
through the stone on me and has
sustained injury that person escaped
my clutches meanwhile CW24, 25, 26
came there in a jeep again we followed
and apprehended that person. I can
identify the person is before the
court he is A4. He discloses as
Venkatramanappa S/o Ramachandrappa
Pillhalli A4 has disclosed as name
Venkataramanappa.’
10. Next, we may also notice that in the evidence of
PW-12 who was working as Head Constable, he says that
at 2:00 A.M., PW-11 brought one person to the police
station. He secured CW-2 and CW-3 to a police station
and he seized HMT watch MO4 in the Panchanama. In the
cross-examination, he says that he seized the watch
from a person by name Venkataramanappa. He is A1. The
evidence of PW-11 would thus show that he along with
charge witnesses 24, 25 and 26 and the accused ran
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towards the forest and the person was followed. He
sustained injuries as the stones were thrown. That
thereafter, CW-24, 25 and 26 came there in a jeep and
that person was apprehended. As the officer
identified the person before the Court and he is
appellant and his name is disclosed as
Venkataramanappa s/o Ramachandrappa Pillhalli. He
states that the appellant disclosed his name as
Venkataramanappa. PW-12 also refers to
Venkataramanappa but he says that he is A1.
11. The evidence of PW-14 may be noticed. He was CPI
Traffic R.S. On receiving information, he collected
staff and proceeded to Giriyammana hally village. The
PSI, and the staff produced before him one person by
name Venkataramana. He directed his S.I. to take the
persons to the police station for further
investigation. Then, he visited the police station at
3:30 a.m.. He received information about some persons
attacking house at Kengaiahna hatty. On getting
information of three persons being apprehended, he
proceeded. Three persons were arrested, their names
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were disclosed as Narayana, Mohan and Nagaraj.
Nagaraj appears to be appellant before us. If Nagaraj
is arrested by PW-14, then reliance on evidence of
PW-11 by the Court does not appear to be justified at
all.
12. Continuing with deposition of PW-14 he states he
proves the statement of the appellant marked as
Ex.P11 and he claims to have seized the trunk and
clothes as per PW4. He also says that he recorded
voluntary statement of Venkataramanappa. He claims
to have taken the finger prints of person arrested by
him and forwarded it to PW-15 for comparison. In his
cross examination he inter alia states that has not
taken permission from the Magistrate for taking the
finger prints of the accused. The upshot of the
above discussion is that the High Court may not be
justified in relying on deposition of PW11 to
conclude that appellant, according to PW11, ran away
and this conduct constituted a circumstance against
the appellant.
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13. The second circumstance relied upon by the High
Court to convict the appellant, is the recovery of
MO2 to MO 17 clothes. It is also not a matter which
was overlooked by the Trial Court. However, the Trial
Court after referring to the recovery concluded that
so called recovery was effected from a public place.
It is true that it is reasoned by the High Court that
the fact of the articles being kept in a ditch was
not known to anybody. Also, reference is made in
this regard and support drawn from the evidences of
PW-3 and Pw-14.
14. We may also refer to the other circumstance,
namely, matching the fingerprints of the appellant
with the chance fingerprints, which were found on
certain utensils. PW-14, in his deposition admitted
that he has not obtained permission from the
Magistrate for taking the fingerprints of the
accused. The Magistrate, in fact, has referred to the
judgment of this Court reported in Mohd. Aman’s case
(supra). In the said case, it was held as follows
inter alia:-
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“Even though the specimen fingerprints of Mohd. A man had to be taken on
a number of occasions at the behest of
the Bureau, they were never taken before
or under the order of a Magistrate in
accordance with Section 5 of the
Identification of Prisoners Act. It is
true that under Section 4 thereof police
is competent to take finger-prints of
the accused but to dispel any suspicion
as to its bona fides or to eliminate the
possibility of fabrication of evidence
it was eminently desirable that they
were taken before or under the order of
a Magistrate. The other related
infirmity from which the prosecution
case suffers is that the brass, jug,
production of which would have been the
best evidence in proof of the claim of
its seizure and subsequent examination
by the Bureau, was not produced and
exhibited during trial – for reasons
best known to the prosecution and
unknown to the Court. Thus the accused
could not be convicted for murder.”
15. In this case also though seized, the utensils
were not produced and exhibited. Though another view
of the evidence of PW15 and the reasoning employed by
the High Court may be possible, we cannot overlook
that the High Court was considering an appeal against
acquittal. We may remind ourselves that the High
Court itself has found prosecution witnesses have not
been able to identify the appellant. Further, out of
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the three circumstances, quite clearly, one of the
circumstances, namely, about the conduct of the
appellant allegedly allegedly based on the evidence
of PW-11 appears to have been the product of an
error. We have also noticed the inadequacies as
observed by the Trial court in regard to the fingerprints.
On 16.10.2019, we passed the following order: -
“Arguments concluded.
Judgment reserved.
We, however, note that the incident
pertains to the year 1996 and there were
8 accused. Out of the 8 accused, only 5
were apprehended. Three of them were
enlarged on bail and then absconded. It
appears that these accused have still
not been apprehended and put to trial.
We find the aforesaid completely
unacceptable that for these accused
could not be apprehended, if proper
measures were taken. It is not a case of
one or two accused disappearing from the
scene but six accused absconding.
We thus, call upon the respondentstate to file an affidavit under the
signatures of superintendent of police
of the District setting out as to what
steps have been taken to apprehend these
accused and as to what endeavours are
being made now.
The affidavit be filed within four
weeks.
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A copy of the order dasti be sent to
the learned counsel for the State.”
16. An affidavit has been filed on behalf of the
respondent-State. Therein, it is stated that there
were 8 accused who were chargesheeted in S.C. No. 60
of 99 in the Fast Track Court, Additional Sessions
Judge, Chitradurga. The appellant and the accused no.
6 faced the trial and as we have noticed that though
acquitted by the Trial court appellant stood
convicted by the High Court.
17. As far as the other accused are concerned, it is
stated as follows:
Venkatappa alias Venkataramana and accused no.
2 Narayana faced trial in S.C. No. 84 of 2002. It
resulted in their acquittal. It further states that
State had not preferred any appeal and acquittal is
confirmed. In the order dated 16.10.2003 the
chargesheet was made against the other absconding
accused i.e. accused no. 3 and accused no. 8. Accused
nos. 3 and 8 were also not found guilty and states
that they had not preferred any appeal against the
said judgment rendered in S.C. 85 of 2003. Still
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further accused nos. 5 and 7 were tried in S.C. No.
57 of 2004 and they were also not found guilty by
Sessions Judge and acquitted by the judgment dated
02.05.2005. Thus, against all the other accused,
other than the appellant who stood charged under
Section 397 have been acquitted.
18. Having regard to the circumstances, we are
inclined to take the view that the High Court has
erred in interfering with the acquittal of the
appellant bearing in mind the principles which govern
the question as to in what circumstances the
Appellate Court can reverse an acquittal. The appeal
is allowed and we set aside the judgment of the High
Court convicting the appellant. We notice that the
appellant has already been enlarged on bail by order
dated 06.01.2012. The appellant’s bail bond stand
discharged and he need not surrender.
………………………………………………J.
[SANJAY KISHAN KAUL]
………………………………………………J.
[K.M. JOSEPH]
NEW DELHI
DECEMBER 06, 2019
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