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CASE NO.:

Appeal (crl.) 725 of 2001

PETITIONER:

HARIJANA THIRUPALA & ORS.

Vs.

RESPONDENT:

PUOBFLIAC.PP.R,OSHEYCDUETROARB,ADHIGH COURT

DATE OF JUDGMENT: 01/08/2002

BENCH:

DORAISWAMY RAJU, SHIVARAJ V. PATIL.

JUDGMENT:

Shivaraj V. Patil J.

In this appeal, the appellants are assailing the

judgment of the High Court by which the order of

acquittal passed by the trial court was set aside and

they were convicted for the offence under Section 302

read with Section 34 IPC and sentenced to undergo

imprisonment for life.

In brief, according to the prosecution, the

deceased Kuruva Naganna purchased a house site from one

Harijana Madanna and erected a kottam and was running a

hotel in it. Appellants 1 and 2 are the neighbours of

the deceased. The deceased desired to sell the said

site owing to losses sustained by him in running the

hotel. Appellants 1 and 2 insisted that he should sell

the site to them and threatened him that he should not

sell the same to others except them. Thus, there were

ill-feelings between the deceased and appellants 1 and

2. On 17.7.1991, while the deceased, PWs 1 and 2, wife

and daughter respectively, were in their kottam, the

third parties came to see the site in order to purchase

it and proposed to come the next day to settle the

bargain. Appellants 1 & 2 came there at about 6.00

p.m. and questioned the deceased as to why he proposed

to sell the said site to others ignoring them. The

deceased asserted that he had every right to sell the

site to any person of his choice, being its owner. On

this, there were exchange of words between the deceased

and the appellants 1 and 2. In the meanwhile,

appellants 1 and 2 picked up sticks and beat the

deceased on his knees. The deceased fell down after

receiving injuries. Thereafter, the appellant no. 3

came armed with crow-bar and beat the deceased three or

four times on his head. The incident was witnessed by

PWs 1 and 2. After assaulting the deceased, the

appellants left the scene of offence with their

weapons. PW-3, son of the deceased, had gone for

Hamali work. After coming to know about the incident,

PW-4, the mother of the deceased, rushed to the scene

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and PWs 1 and 2 narrated about the incident to her. At

about 9.00 p.m., PW-3 came there and found the dead

body of his father lying on the road near the house and

he was told about the incident by PWs 1 and 2.

Thereafter, PWs 1 to 3 proceeded to Kallur police

station where PW-1 orally reported about the occurrence

to PW-7, the Sub-Inspector of Police, at about 10.30

p.m. The report was reduced into writing and a case as

Crime No. 70/91 was registered under Section 302 IPC.

After the completion of investigation, a charge-sheet

was filed.

The learned Sessions Judge, on the basis of

material placed on record, framed charge against all

the appellants under Section 302 IPC and tried them for

the said offence. The trial court, after appreciating

the evidence brought before it and looking to the

infirmities appearing in the case, concluded that the

prosecution could not bring home the guilt of the

accused beyond reasonable doubt. In that view, not

finding the accused guilty under Section 302 IPC,

giving them benefit of doubt, acquitted them.

The State filed appeal before the High Court

challenging the order of acquittal made by the learned

Sessions Judge. The High Court by the impugned

judgment upset the order of acquittal made by the trial

court. The High Court disagreed with the reasons given

and findings recorded by the learned Sessions Judge and

found the appellants guilty of committing offence

punishable under Section 302 read with Section 34 IPC

and consequently sentenced them to undergo imprisonment

for life. The appellants, being aggrieved by the

impugned judgment and order, have approached this Court

in the appeal.

The learned counsel for the appellants urged that

the High Court manifestly erred in setting aside the

well-considered order of acquittal passed by the trial

court; the order of acquittal could not be disturbed

merely because the High Court could take a different

view when it was not shown that either reasons recorded

or appreciation of evidence by the trial court were

neither perverse nor untenable nor any material

evidence was ignored; the case registered by the police

was only for offence under Section 302 IPC and the

charge was framed by the trial court under Section 302

IPC only and not read with Section 34 IPC; the High

Court applied Section 34 IPC and convicted all the

appellants which is patently unsustainable; the High

Court failed to see that the prosecution failed to

establish motive; PWs 1 and 2 being related to the

deceased were interested and looking to the

contradictions and omissions in their statements

coupled with their conduct, their evidence could not be

believed; further the evidence of the Doctor, PW-6,

contradicts the evidence of PW-1 in regard to the very

overt act or assault by the appellants 1 and 2; though

several eye-witnesses were available, none of them were

examined by the prosecution which was fatal to the

prosecution case; the learned Sessions Judge having

regard to the infirmities recorded sound reasons for

not relying upon the evidence of PWs 1 and 2, the so-

called eye-witnesses; the High Court was not right and

justified in taking a contrary view lightly brushing

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aside the reasons given by the trial court; while

disturbing the order of acquittal, the High Court

failed to keep in view the well-settled principles of

justice laid down by this Court.

On the other hand, the learned counsel for the

State made submissions supporting the impugned judgment

more or less on the reasons given by the High Court in

the impugned judgment.

We have carefully considered the submissions made

by the learned counsel for the parties.

The charge against the accused is that on

17.7.1991 at about 6.30 p.m. at Kothakottalu, Indira

Nagar Colony, Kallur, the accused committed murder of

the deceased near his house, the motive for the murder

being the deceased's refusal to sell the site to the

appellants 1 and 2 inspite of their insistence and

threatening not to sell the same to the third parties.

The trial court, looking to the evidence held that the

prosecution failed to prove the motive itself for the

reasons that there was no proof that the deceased had

purchased the site because no document was produced

although claimed to be available with the PW-1 nor the

vendor of the site was examined and the evidence of PWs

1-3 was contradictory as to when the site was

purchased; even there was no evidence to support that

the deceased ran hotel in the said site. PWs 1-3 could

not say the name of the vendor and other details such

as plot number, survey number etc.; though the PWs 1

and 2 stated that third parties came to see the site,

they could not tell their names and the said fact does

not find place in Exbt. P/1. This being the position,

in our view, the trial court was right in holding that

the motive part was not proved. It was a specific case

of the prosecution that appellants 1 and 2 beat with

sticks on the legs of the deceased and caused injuries.

PWs 1 and 2 deposed to that effect but as per the

evidence of doctor, PW-6, no injuries were found on the

legs of the deceased. Exbt. P/3, post-mortem

certificate, also does not disclose injuries on the

legs of the deceased. In Exbt. P/1, it is not stated

by the PWs 1 and 2 that the appellants beat the

deceased on his legs. In the light of this material as

to the overt act of the appellants 1 and 2, the trial

court doubted the very presence of PWs 1 and 2 at the

time of occurrence.

Exbt. P/1, the F.I.R., contained the name of the

appellant no. 3 besides the names of appellants 1 and

2. PW-1 deposed that appellant no. 3 is their

neighbour but she did not know his name; she merely

stated before the police that besides appellants 1 and

2, one Muslim attacked her husband. Admittedly,

identification parade was not held and PWs 1 and 2

identified appellants no. 3 in the court nearly after

four years after the occurrence as the Muslim person

who gave fatal blow to the deceased. On behalf of the

appellants, it was contended that the name of appellant

no. 3 was incorporated at the instance of some others.

The learned Sessions Judge has stated in the judgment

that no evidentiary value could be given to the

testimony of PWs 1 and 2 as to identification of

appellant no. 3, as the muslim person who gave a fatal

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blow to the deceased. It is found in the evidence of

PWs 1 and 2 that several independent persons of the

locality witnessed the occurrence but none of them were

examined in the court. In the absence of corroboration

to the interested evidence of PWs 1 and 2 by

independent witnesses, the trial court was of the

opinion that it was not safe to place reliance on the

testimony of PWs 1 and 2. The trial court yet referred

to another infirmity in the prosecution case. The

incident was claimed to have taken place at 6.00 p.m.

or 6.30 p.m. From the evidence it appears that the

distance between the place of occurrence and the police

station could be covered by 1/4th or one hour depending

upon the conveyance and including by walk but the

report was given at 10.30 p.m. Thus, there was delay

of four hours. PW-4, the mother of the deceased,

admitted that the deceased was in the habit of taking

drinks after day's work and she came to know about the

incident at 9.00 p.m. through a girl. It appears that

the incident occurred at about 9.00 p.m. The evidence

of doctor suggests that the incident would have

occurred at about 9.00 p.m. It was probable that the

deceased was attacked during night while he was in a

drunken condition according to the trial court.

Further, from the statements of PWs 1 and 2, it is

clear that they waited till 9.00 p.m. to give report;

PW-3 also spoke to the same effect. The learned

Sessions Judge expressed doubt whether PW-3 accompanied

PWs 1 and 2 to police station as spoken to by them

inasmuch as PW-7 did not examine him at the police

station. The evidence of PW-7 indicates that at the

time of inquest also, PW-3 was not present. This again

was a circumstance pointed out by the trial court to

create a doubt as to the truth of the prosecution case.

Thus, taking the overall view based on the totality of

the evidence and cumulative effect of the same, the

trial court held that the prosecution failed to prove

the accused guilty beyond all reasonable doubt and in

our view rightly so in the light of the material placed

on record and reasons given.

The principles to be kept in mind in our system of

administration of criminal justice are stated and

restated in several decisions of this Court. Yet,

sometimes high courts fail to keep them in mind before

reaching a conclusion as to the guilt or otherwise of

the accused in a given case. The case on hand is one

such case. Hence it is felt necessary to remind about

the well-settled principles again. It is desirable and

useful to remind and keep in mind these principles in

deciding a case.

In our administration of criminal justice an

accused is presumed to be innocent unless such a

presumption is rebutted by the prosecution by producing

the evidence to show him to be guilty of the offence

with which he is charged. Further if two views are

possible on the evidence produced in the case, one

indicating to the guilt of the accused and the other to

his innocence, the view favourable to the accused is to

be accepted. In cases where the court entertains

reasonable doubt regarding the guilt of the accused the

benefit of such doubt should go in favour of the

accused. At the same time, the court must not reject

the evidence of the prosecution taking it as false,

untrustworthy or unreliable on fanciful grounds or on

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the basis of conjectures and surmises. The case of the

prosecution must be judged as a whole having regard to

the totality of the evidence. In appreciating the

evidence the approach of the court must be integrated

not truncated or isolated. In other words, the impact

of evidence in totality on the prosecution case or

innocence of accused has to be kept in mind in coming

the conclusion as to the guilt or otherwise of the

accused. In reaching a conclusion about the guilt of

the accused, the court has to appreciate, analyse and

assess the evidence placed before it by the yardstick

of probabilities, its intrinsic value and the animus of

witnesses. It must be added that ultimately and

finally the decision in every case depends upon the

facts of each case.

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

evidence in favour of the accused gets reinforced and

strengthened. The High Court would not be justified to

interfere with order of acquittal merely because it

feels that sitting as a trial court 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.

It is unfortunate that by the impugned order, the

High Court has upset the well-reasoned order of

acquittal passed by the trial court. It appears to us

that the High Court while doing so, did not bear in

mind the well-settled principles stated above as to

what should be the approach in reversing an order of

acquittal and under what circumstances it should be

reversed.

On the motive aspect, it is what the High Court

says:-

"It is no doubt true that motive

assumes significance in a case where

there are no direct eye-witnesses who

have witnessed the murder or the

incident. But in this case, the

evidence of PWs 1n and 2 clearly

establishes that they have witnessed the

accused 1 and 3 beating the deceased

with sticks and crow-bar."

The High Court proceeds on the ground that

evidence of PWs 1 and 2 clearly established the case of

prosecution. Hence, the motive aspect had no bearing

on the case. The High Court recorded its finding on

the aspect of motive without dispelling valid reasons

given by the trial court. The High court held that

evidence of PWs 1 and 2 was trustworthy; it is stated

that nothing has been elicited in their cross-

examination to discredit their testimony. Here again,

it is not shown as to how the reasons recorded by the

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trial court on appreciation of entire evidence were

perverse or untenable in not relying on the evidence of

PWs 1 and 2. As to the non-conducting of

identification parade and its impact on the prosecution

case, the High Court disagrees with the view taken by

the trial court observing that the appellants and PWs 1

and 2 were from the same locality and as such not

holding test identification parade was of no

consequence. As to the non-examination of independent

witnesses, though several independent persons had

witnessed the incident, the High Court accepts the

feeble explanation given by PW-7, the Investigation

Officer, that none of them came forward to give

evidence because of the fear of the accused. Nothing

has come in evidence that the appellants were notorious

criminals or they were a terror in the village. The

trial court took a right view that non-examination of

independent witnesses seriously impaired the

credibility of the prosecution case. The High Court,

in our view, was not right in this regard in accepting

the explanation given by PW-7. In relation to the

overt acts of appellants 1 and 2, the High Court was

again not correct in ignoring the discrepancy which the

trial court pointed out on the basis of conflicting

evidence of PWs 1 and 2 on the one hand and that of the

doctor on the other. According to the prosecution, the

discrepancy was not fatal. The trial court had taken

pains in scrutinizing the evidence of PWs 1, 2 and 6

and Exbt. P/1 on this aspect as already stated above.

From what is stated above, we are clearly of the

opinion that the High Court committed a serious error

in disturbing the order of acquittal recorded by the

trial court that too without dislodging the reasons

given by the trial court. Assuming one other view was

possible, that itself was no ground to interfere with

the order of acquittal unless it was shown that the

appreciation of evidence by the trial court was either

perverse or untenable and that in ordering acquittal,

the trial court either ignored material evidence or

that the view taken by it was patently untenable.

The High Court strangely convicts the appellants

by taking aid of Section 34 IPC. The case was

registered in the police station for an offence under

Section 302 IPC. The appellants were tried for the

charge under Section 302 IPC only. The evidence of PW-

6, doctor, clearly shows that no injuries were found on

the legs of the deceased attributable to appellants 1

and 2. The cause of death given by him was because of

the injuries attributed to appellant no. 3. As per the

prosecution case itself, appellants 1 and 2 had gone

first to the scene of occurrence and after the heated

exchange, they picked up the sticks from the fence on

the spot and assaulted the deceased. Appellant no. 3

came later and assaulted the deceased with a crow-bar.

There is absolutely nothing on record to show that

appellants 1 to 3 had any pre-meditation or any

intention to cause death of the deceased. It is also

not shown that how appellant no. 3 was concerned with

the appellants 1 and 2. Nobody speaks about the common

intention of the appellants to kill the deceased. With

all this, strangely, the High Court convicts the

appellants for an offence under Section 302 IPC taking

the aid of Section 34 IPC. This finding of the High

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Court is patently unsustainable.

In the light of aforementioned reasons and

discussions and to do substantial justice, the impugned

judgment and order is set aside and that of the trial

court is restored. The appellants be set at liberty

forthwith if they are not required in any other case.

The appeal is ordered accordingly.