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
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
-----------------------
[1] (2007) 4 SCC 415
-----------------------
- 13 -
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.” =
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.=
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.
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 GOWDAREPORTABLE
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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