As per the case facts, the appellants were accused of murder and acquitted by the Trial Court. The State of Karnataka appealed this acquittal to the High Court, which reversed ...
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2024 INSC 104 Crl.Appeal No. 1162/2011 Page 1 of 36
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1162 OF 2011
Mallappa & Ors. …..Appellants
Versus
State of Karnataka …..Respondent
J U D G M E N T
SATISH CHANDRA SHARMA, J.
1. The wheels of justice may grind slow, but they
grind fine. Mallappa S/o Ningappa Kanner,
Hanamanth S/o Ningappa Kanner and Dharamanna
S/o Ningappa Kanner are the appellants before us
who were put on a trial, as accused no. 3, 4 and 5,
for the commission of murder of deceased namely
Marthandappa and were acquitted by the Trial
Court/Fast Track Court -I at Gulbarga on
24.03.2005. The judgment was not meant to finally
Crl.Appeal No. 1162/2011 Page 2 of 36
seal the fate of the appellants as the State of
Karnataka preferred an appeal against the order of
the Trial Court before the High Court of Karnataka
which was registered as Criminal Appeal No.
1363/2005. On 31.05.2010, the High Court reversed
the order of acquittal and held the appellants guilty
of the commission of murder of deceased
Marthandappa. Accordingly, the appellants stood
convicted and were sentenced to undergo life
imprisonment. The appellants s tand before us
assailing the order of conviction of the High Court
and praying for a declaration of innocence.
2. Pertinently, eight accused persons were tried
and acquitted by the Trial Court. The High Court
agreed with the acquittal of all the accused persons,
except the three appellants before us.
PROSECUTION CASE
3. The case of the prosecution begins from one
Nagamma, who is the wife of Accused No. 5 and
deceased Marthandappa was allegedly having an
illicit relationship with her. On account of the alleged
illicit relationship, the relations between A1-A8 and
Marthandappa were strained. On 28.06.1997, the
Crl.Appeal No. 1162/2011 Page 3 of 36
fateful day, Marthandappa (the deceased), PW3 and
PW4 were travelling in a bullock-cart from village
Aidbhavi to the village Nagaral for cultivating their
lands. They left the house of PW-2 (father of the
deceased) at around 9 A.M. in a bullock cart to go to
village Nagaral. PW-2 had agricultural lands at
Aidbhavi as well as Nagaral. While they were
travelling to village Nagaral, they crossed village
Shantpur as they were proceeding on the bullock-
cart towards Nagaral village. At around 4 P.M., when
their bullock-cart arrived near the land of
Balwantappa Channur, A1 to A8 came out of their
hiding place and stopped the bullock-cart.
4. As per the prosecution case, A3, A4 and A6 were
armed with axes (MO
1s. 5, 6 &7), A5 was armed with
knife (MO8) and Al, A2, A7 and A10 were armed with
clubs (MOs 9, 10 and 1). The accused persons started
by threatening Marthandappa stating that on
account of his illegal acts, village women folk are not
able to lead their life peacefully and then they
proceeded towards Marthandappa, with the intention
to kill him. A3 assaulted him with an axe on his right
1
MO = Material Object
Crl.Appeal No. 1162/2011 Page 4 of 36
leg and caused injuries. A4 also assaulted him with
an axe five/six times on the right side of the stomach.
A5 assaulted with a knife on the lip and back of
Marthandappa, A6 assaulted with an axe on the right
and left temple region and chin of Marthandappa. He
also assaulted with an axe on the lap of
Marthandappa. As the offensive act continued, A7
assaulted with a bullock-cart peg on the head of
Marthandappa. A1, A2 and A8 assaulted with clubs
on the back of Marthandappa.
5. Fearing for his life, PW-4 tried to run away and
at that point of time, A3 assaulted him with an axe
on the head, back and on the scrotum. PW -4
sustained injuries, became unconscious and fell on
the ground.
6. PW-3, an eye witness of the incident, rushed to
save himself and went inside the jali-trees. He saw
the incident hiding from that particular place.
Eventually, Marthandappa fell on the ground and Al
to A8, believing that Marthandappa was no more, left
the place. Finding it safe for him, PW3 then went to
Marthandappa and found that Marthandappa was no
more. He noticed that PW -4 was also lying
Crl.Appeal No. 1162/2011 Page 5 of 36
unconscious with blood flowing out of his injuries.
Thereafter, PW-3, fearing for his life, kept on hiding
amidst the jali-trees and sometime during the night,
he left the jali-trees and left for Devpura. On the next
day, PW-3 reached the house of PW-2 at Aidbhavi and
informed him regarding the incident. PW -2 then
visited the scene of offence and saw the dead body of
Marthandappa. He also saw PW -4 lying on the
ground in an unconscious condition. Thereafter, on
29.06.1997 at around 3 P.M., he went to P.S.
Shorapur and lodged a written complaint to the PW-
10 as per Ex.P1 and PW-10 registered a case as Crime
No. 78/97 and sent FIR (Ex.P13) through PW-1 to the
Judicial Magistrate First Class
2, Shorapur. The copy
of FIR was handed over to JMFC at around 4:30 P.M.
7. The facts further reveal that on 29.06.1997 at
about 12:30 P.M., PW-4 went to the Government
Hospital, Shorapur, and met the doctor (PW-8). He
showed his injuries to PW-8 and PW-8 found three
injuries (simple) on PW-4 and gave treatment to him,
and later sent him for further treatment to the
Government Hospital, Gulbarga. The doctor at
2
Hereinafter referred as “JMFC”
Crl.Appeal No. 1162/2011 Page 6 of 36
Gulbarga treated PW-4 and issued a simple injury
certificate to PW-8 (Ex.P12). After registering the
case, PW-10 went to the scene of offence at Shorapur
village along with PW-9 and saw the dead body of
Marthandappa and collected panchas (PW -7 and
Malleshi). In the presence of Panchas, he conducted
inquest mahazar on the dead body of Marthandappa,
as per Ex.P9. On 29.06.1997, between 4.30 P.M. to
6.00 P.M. and thereafter, he handed over the dead
body of Marthandappa to PW-9 with the requisition
letter (Ex.P2) directing PW-9 to take the dead body to
Government Hospital, Kakkera for getting the post-
mortem examination done. PW-9 took the dead body
of Marthandappa to the Government Hospital,
Kakkera, and handed over the dead body to PW -5
(doctor) for post-mortem examination on 30.06.1997
at about 6.30 A.M. On 29.06.1997, PW -10, in the
presence of Panchas (PW7 and Malleshi) conducted
mahazar of scene of offence as per Ex.P10. From the
scene of offence, he seized MO-1 (bullock-cart peg),
MO-12 (pair of chappal), MO-13 (towel), MO-14 (blood
stained mud), MO-15 (sample mud), MO -16(taita)
and MO-17 (waist thread) and slips were affixed
bearing signatures of the Panchas on them.
Crl.Appeal No. 1162/2011 Page 7 of 36
8. On 30.06.1997, PW-5 (doctor) conducted post-
mortem examination on the dead body of
Marthandappa from 6.30 am to 9.30 am. The doctor
found 9 ante mortem injuries on him and issued a
post-mortem report as per Ex.P3 stating the cause of
death to be haemorrhag e shock as a result of
laceration of liver tissue. Notably, the report stated
the time of death to be 36 to 48 hours prior to the
post mortem examination. The doctor further handed
over clothes and articles (MOs) found on the dead
body as well as the dead body to PC (PW9).
Thereafter, PW9 handed over the dead body to the
relatives of Marthandappa for burial. The clothes and
articles found on the dead body were brought to
Kakkera by PW9, who produced them before PW -10.
PW-10 seized them in the presence of panchas (PW7
and Malleshi) and also conducted mahazar of seizure
as per Ex.P11 (MOs 1 to 4). Thereafter, he went to
Aidbhavi village and recorded the statement of
witnesses. Thereafter, he went to Mudagal and
recorded the statement of Nagamma (wife of A5).
9. On 01.07.1997, PW-10 recorded statement of
Balvantappa. On 04.07.1997, at about 5.30 A.M. at
Tintini Bridge, PW-10 arrested A5 and interrogated
Crl.Appeal No. 1162/2011 Page 8 of 36
him. A5 gave him information that he could produce
knife from his house, thereby leading to discovery as
per Ex.P14. A5, thereafter, took PW10 and panchas
PW6 and Yamanappa) to his house situated in
Aidbhavi vilage and from his house, he produced one
knife (MO-8) and one axe (MO-5). PW-10 seized them
as per Ex.P14. PW-10, thereafter obtained judicial
custody remand of A5 from JMFC, Shorapur and
obtained permission to retain properties. On
14.07.1997 at about 4.00 A.M., PW-10 arrested A1 to
A4 from Shorapur Bus Stand and brought them to
the police station for interrogation. A1 gave
information leading to discovery as per Ex.P15. A2
gave information leading to discovery as per Ex.P16
and A3 gave information leading to discovery as per
Ex.P17. Thereafter, on 15.07.1997, A1 led police and
panchas (PW6 and Yamanappa) to his house and
from his house, he produced one stick (MO9) before
the police and panchas and PW -10 conducted
mahazar of seizure as per Ex.P5. PW-10 took the
signatures of the panchas on it. Thereafter, A2 led
police and panchas to his house and from his house,
he produced one stick (MO-10). PW-10 conducted
mahazar of seizure of these articles, as per Ex.P7. A3
Crl.Appeal No. 1162/2011 Page 9 of 36
led police and panchas to his house at Aidbhavi and
from his house, he produced one axe (MO7) and PW-
10 seized the same as per mahazar (Ex.P6) and took
signatures of the panchas on it. PW-10 thereafter
obtained judicial custody remand of A1 to A4 from
JMFC, Shorapur. On 25.07.1997, PW10 arrested A7
from his house and remanded him to judicial custody
and on 17.07.1997 at 6.30 a.m., arrested A6 from
Gurgunta bus stand and interrogated him. A6 gave
him information leading to discovery as per Ex.P18
and from his house, one knife (MO8) was recovered
and PW-10 seized it under mahazar Ex.P8.
Thereafter, A6 was also remanded to judicial custody.
On 07.10.1997, PW-10 sent all the seized articles to
FSL, Bangalore through PW9.
10. On 07.08.1997, PW-10 recorded the statement
of PW4. On 22.08.1997, PW10 collected post-mortem
report (Ex.P3) from the doctor (PW -5). On
30.08.1997, PW9 returned from Bangalore FSL Office
and PW-9 produced all the articles in re-sealed
condition before PW10 and seized them. On the same
day, he collected injury certificate of Laxman (PW4)
as per Ex.P12. On 14.09.1997, PW-10 received FSL
report as per Ex.P19 and Ex.P20.
Crl.Appeal No. 1162/2011 Page 10 of 36
11. After completing investigation, he filed the
charge-sheet before JMFC, Shorapur on 29.09.1997.
The JMFC Court, Shorapur, passed the order of
committal on 19.01.1998 and the accused persons
appeared before the Principal Sessions Judge,
Gulbarga on 22.03.2002. The Principal Sessions
Judge framed charges against the accused persons
for the commission of offences under Sections 147,
148, 149, 302, 307 and 504 of the Indian Penal Code
and all the accused persons pleaded not guilty and
claimed trial. The prosecution examined PW1 to
PW10 as witnesses for the prosecution, got marked
Ex.P1 to Ex.P21 as well as MOs. 1 to17 as exhibits
and materials in support of the prosecution case and
closed the prosecution evidence. The defence marked
Ex.D1 in support of their case. The trial court, after
appreciating the evidence on record, acquitted all the
persons under Section 235 Cr.P.C. The order of
acquittal was assailed before the High Court and vide
order dated 31.05.2010, the High Court convicted A3
to A5 (present appellants) and upheld the acquittal
order with respect to accused Nos. 1,2, 6, 7 and 8.
12. In the course of this proceeding, we have been
informed that appellant no. 3 is no more, and the
Crl.Appeal No. 1162/2011 Page 11 of 36
present appeal is confined only to appellant Nos. 1
and 2.
13. Before we proceed to lay down the case set up
by the parties before us, we may briefly highlight the
reasons that prevailed upon the trial court while
ordering acquittal. The trial court, after appreciating
the evidence on record, acquitted the accused
persons by assigning the following reasons:
i. The evidence of eyewitness PW3 is not
worthy of credit and his conduct after the
alleged murder was artificial.
ii. PW3 witnessed the assault on the
deceased as well as on PW4, as per the
prosecution version, however, he chose to
hid behind the bushes till the sunset as
he got frightened.
iii. PW-3 admitted that there were
number of buses plying on the route
between Lingasgur to Shorapur and
Gulbarga. However, his version, that he
could catch the bus only on the next day
at 6.00 A.M., is artificial. He could have
availed the transport facility o n
28.06.1997 itself after the assailants had
left.
iv. PW-3 states that his relatives are
residing in Nagaral village, which is 4 km
from the scene, but he did not go and
inform them.
Crl.Appeal No. 1162/2011 Page 12 of 36
v. PW-3 did not inform the people at
Devpura or the passengers plying in the
bus in which he travelled to go to
Gurugunte. From there, he catched
another bus to Aidbhavi village. The
incident took place around 4 P.M. and it
took more than 18 hours for PW -3 to
inform the father of the deceased PW-2. In
the meanwhile, although he had
opportunity, he did not inform the
out-post police, which must have come in
the course of his journey from Devpura to
Aidbhavi.
vi. PW-3 admitted that he was conscious
that he should get PW-4 treated after the
incident, yet he did not make any sincere
effort to get him treated. The deceased
and PW-4 were assaulted by the accused.
There was no reason for the accused
persons to not assault PW-3. His version
that he escaped and hid behind the
bushes is artificial. Further, the evidence
of PW-4 that he was unconscious till he
was taken to hospital is artificial. There is
no evidence to show the nature of
treatment given to PW4 and to show his
physical condition at Gulbarga Hospital.
vii. The father's name of PW-4 is shown as
Siddaramegowda, whereas in the MLC
register the name of the father of PW-4 is
shown as Narasappa.
viii. In the wound certificate, it is
mentioned that PW-4 "self admitted" at
the hospital. The doctor PW-8 states that
Crl.Appeal No. 1162/2011 Page 13 of 36
PW-4 was unconscious. In the wound
certificate of PW-4, it is stated that the
assault took place in the night. Whereas,
the FIR shows that the incident took place
around 4 P.M. in the day hours. The Trial
Court finds that the evidence of PW-3 and
PW-4 is incredible and thus, acquitted the
accused.
14. The High Court, in appeal, after re-appreciating
the evidence on record, held that the post-mortem
report supported the case of the prosecution that the
death of Marthandappa was homicidal. It further held
that the prosecution has successfully proved the
motive and occurrences of incidents on the basis of
evidence of PW-3 and PW-4. The High Court further
held that Wound Certificate of PW-4 corroborated the
evidence of PW-4 regarding the injuries caused to him
in the assault.
15. On the question of credibility, the High Court
held that PW-4 is an injured witness and he has
categorically stated that A1, A2, A7 and A8 assaulted
the deceased with clubs on the head and on back,
and A3, A4 and A6 assaulted the deceased with axe.
His evidence established that A7 assaulted the
deceased with knife and he was assaulted by A3 with
Crl.Appeal No. 1162/2011 Page 14 of 36
an axe. The High Court has arrived at the conclusion
that evidence of PW-4 is quite natural and there is
nothing to disbelieve his veracity. It has also been
observed that PW-4, after the assault, was found
lying unconscious. He was admitted to the hospital
on the next date at 12.30 P.M. The contents of the
wound certificate at Ex.P8 show that PW-4 was semi-
conscious and it corroborates the version of PW-4
about his condition that he fell unconscious and was
semi-conscious at the time when he was admitted to
the hospital.
16. In those circumstances, the High Court has
arrived at a conclusion that there is no reason to
disbelieve the evidence of PW-4, and also that he was
a witness to the assault on the deceased and was also
a victim of assault.
17. The High Court also considered the evidence of
PW-3 who was the eye witness of the incident. The
High Court has observed that PW-3 certainly had
several options, like informing by-standers at the
bus-stop, going to Nagaral village or going to the
police, but he went to the village of the deceased
father at his Aidbhavi village as he was keen on
Crl.Appeal No. 1162/2011 Page 15 of 36
informing PW-2, as he was the most appropriate
person to be informed about the incident. In such
circumstances, the High Court has arrived at the
conclusion that the conduct of PW-3 in not informing
others and going to Aidbhavi village to inform PW-2,
could not be a reason to disbelieve his statement. The
High Court has arrived a conclusion that the evidence
of PW-3 and PW-4, if read together, proves the alleged
incident and the evidence of PW -3 and PW-4
establishes that Al, A2, A7 and A8 assaulted the
deceased with clubs, however, there are no injuries
reflected on the dead body of the deceased.
18. It has been further held that in respect of A3 to
A6, the evidence of PW-3 and PW-4 is consistent and
establishes their involvement in the assault and
proves their guilt. The manner of assault in the overt
acts of A3 to A6 corresponds with the injuries noted
in the wound certificate and the post-mortem report.
In those circumstances, the High Court has set aside
the acquittal of A3, A4 and A5, and convicted them
for offences punishable under Sections 302 read with
Section 34 of the Indian Penal Code and confirmed
the order of acquittal in respect of A1, A2, A7 and A8.
Crl.Appeal No. 1162/2011 Page 16 of 36
19. Assailing the order of the High Court, the
appellants submit that the High Court has erred in
re-appreciating the entire evidence without finding
any fault with the appreciation of evidence by the
Trial Court. They submit that re-appreciation of the
entire evidence at the appellate stage is not
permissible until and unless a grave error has been
identified in the view taken by the Trial Court. It is
further submitted that if appreciation of evidence
leads to two possible views, then the decision of the
Trial Court could not be reversed merely because
another view was possible.
20. Per contra, it is submitted by the respondent
State that the Trial Court did not appreciate the
evidence in a proper manner which led to the
acquittal of the accused persons. It is further
submitted that the testimonies of PW-3 and PW-4
were incorrectly rejected by the Trial Court despite
the fact that one of them was an eye witness of the
entire incident and the other one was a victim of the
assault. It is further submitted that once a grave
error is found in the decision of the Trial Court, the
High Court is fully empowered to re-appreciate the
entire evidence and reach a different conclusion.
Crl.Appeal No. 1162/2011 Page 17 of 36
21. We have heard the rival submissions of the
parties and have also carefully gone through the
record.
22. We may now proceed to answer the principal
question i.e. whether the High Court was correct in
reversing the order of acquittal of the Trial Court and
thereby convicting the accused persons under
Section 302 IPC.
23. At the outset, it is relevant to note that accused
Nos. 1 to 5 are brothers inter se and accused no. 6 to
8 are relatives of accused Nos. 1 to 5, residing at
Aidbhavi, Taluk Lingasgur. The complainant PW -2
(Narsappa) is the father of the deceased
Marthandappa and PW-4 and PW-3 are the nephews
of PW2, and they are residing at village Aidbhavi. The
accused persons are not unknown to the victims and
complainant.
24. We may firstly discuss the position of law
regarding the scope of intervention in a criminal
appeal. For, that is the foundation of this challenge.
It is the cardinal principle of criminal jurisprudence
that there is a presumption of innocence in favour of
the accused, unless proven guilty. The presumption
Crl.Appeal No. 1162/2011 Page 18 of 36
continues at all stages of the trial and finally
culminates into a fact when the case ends in
acquittal. The presumption of innocence gets
concretized when the case ends in acquittal. It is so
because once the Trial Court, on appreciation of the
evidence on record, finds that the accused was not
guilty, the presumption gets strengthened and a
higher threshold is expected to rebut the same in
appeal.
25. No doubt, an order of acquittal is open to appeal
and there is no quarrel about that. It is also beyond
doubt that in the exercise of appellate powers, there
is no inhibition on the High Court to re-appreciate or
re-visit the evidence on record. However, the power of
the High Court to re-appreciate the evidence is a
qualified power, especially when the order under
challenge is of acquittal. The first and foremost
question to be asked is whether the Trial Court
thoroughly appreciated the evidence on record and
gave due consideration to all material pieces of
evidence. The second point for consideration is
whether the finding of the Trial Court is illegal or
affected by an error of law or fact. If not, the third
consideration is whether the view taken by the Trial
Crl.Appeal No. 1162/2011 Page 19 of 36
Court is a fairly possible view. A decision of acquittal
is not meant to be reversed on a mere difference of
opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views
in a criminal case is not an extraordinary
phenomenon. The ‘ two-views theory’ has been
judicially recognized by the Courts and it comes into
play when the appreciation of evidence results into
two equally plausible views. However, the controversy
is to be resolved in favour of the accused. For, the
very existence of an equally plausible view in favour
of innocence of the accused is in itself a reasonable
doubt in the case of the prosecution. Moreover, it
reinforces the presumption of innocence. And
therefore, when two views are possible, following the
one in favour of innocence of the accused is the safest
course of action. Furthermore, it is also settled that
if the view of the Trial Court, in a case of acquittal, is
a plausible view, it is not open for the High Court to
convict the accused by reappreciating the evidence. If
such a course is permissible, it would make it
practically impossible to settle the rights and
Crl.Appeal No. 1162/2011 Page 20 of 36
liabilities in the eyes of law. In Selvaraj v. State of
Karnataka
3,
“13. Considering the reasons given by the trial
court and on appraisal of the evidence, in our
considered view, the view taken by the trial
court was a possible one. Thus, the High Court
should not have interfered with the judgment
of acquittal. This Court in Jagan M. Seshadri
v. State of T.N. [(2002) 9 SCC 639] has laid
down that as the appreciation of evidence
made by the trial court while recording the
acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of
the High Court while reversing the acquittal
has been dealt with by this Court, thus:
“9. …We are constrained to observe that the
High Court was dealing with an appeal against
acquittal. It was required to deal with various
grounds on which acquittal had been based
and to dispel those grounds. It has not done
so. Salutary principles while dealing with
appeal against acquittal have been overlooked
by the High Court. If the appreciation of
evidence by the trial court did not suffer from
any flaw, as indeed none has been pointed out
in the impugned judgment, the order of
acquittal could not have been set aside. The
view taken by the learned trial court was a
reasonable view and even if by any stretch of
imagination, it could be said that another view
was possible, that was not a ground sound
enough to set aside an order of acquittal.””
(emphasis supplied)
3
(2015) 10 SCC 230
Crl.Appeal No. 1162/2011 Page 21 of 36
In Sanjeev v. State of H.P.
4, the Hon’ble Supreme
Court analyzed the relevant decisions and
summarized the approach of the appellate Court
while deciding an appeal from the order of acquittal.
It observed thus:
“7. It is well settled that:
7.1. While dealing with an appeal against
acquittal, the reasons which had weighed with
the trial court in acquitting the accused must be
dealt with, in case the appellate court is of the
view that the acquittal rendered by the trial court
deserves to be upturned (see Vijay Mohan Singh
v. State of Karnataka
5
, Anwar Ali v. State of
H.P.
6
)
7.2. With an order of acquittal by the trial court,
the normal presumption of innocence in a
criminal matter gets reinforced (see Atley v.
State of U.P.
7
)
7.3. If two views are possible from the evidence
on record, the appellate court must be extremely
slow in interfering with the appeal against
acquittal (see Sambasivan v. State of Kerala
8
)”
27. In this case, the case of the prosecution
substantially rests on the testimonies of PW-3 and
PW-4 read with various documents, especially the
reports of medical examination and post mortem.
4
(2022) 6 SCC 294
5
(2019) 5 SCC 436
6
(2020) 10 SCC 166)
7
AIR 1955 SC 807
8
(1998) 5 SCC 412
Crl.Appeal No. 1162/2011 Page 22 of 36
PW3 is the eye witness of the incident. His testimony
has been rejected by the Trial Court by terming it as
artificial. PW-3 deposed that he was present at the
place of incident when the accused persons started
assaulting the deceased and PW-4 on 28.06.1997 at
around 4 P.M. PW-3 deposed that A3 had assaulted
PW-4 as he was running for his life along with PW-3.
PW-4 was attacked from the back and PW -3
successfully managed to hide behind the bushes.
Notably, PW-3 hid behind the bushes and observed
the assault till Marthandappa was dead and PW -4
was unconscious. He then came out to check them
and fearing for his life, he again rushed behind the
bushes. He admitted that he was hiding behind the
bushes till sunset. Thereafter, he came out and
started walking towards Devpura, although he
admitted that there were a number of buses plying on
the route. But PW-3 takes no bus and keeps walking
towards Devpura. On reaching there, he sat at the
bus stand and kept on sitting there. Fast forward to
the next morning, PW-3 catches the bus only at 6
A.M. on the next morning. The explanation as to how
PW-3 spent the entire intervening night of 28 -
29.06.1997 is missing from the chain of
Crl.Appeal No. 1162/2011 Page 23 of 36
circumstances. The statement that he was simply
sitting at the bus stand for the entire night, while
Marthandappa was dead and PW -4 was severely
injured and unconscious, fails to inspire confidence.
More so, when the entire reason for hiding behind the
bushes was the fear of life. Despite such fear, PW-3
did not choose to inform the police out-post, on the
way from Devpura to Aidbhavi, and rather, he kept
on sitting at the Devpura bus stop. He also admitted
that his relatives were residing around 4 km from the
place of incident at Nagaral. However, he chose not to
inform them either. He also admitted that he took no
steps to provide medical treatment to PW-4 who was
lying unconscious at the place of incident as a result
of the assault. The said fact could ha ve been
entertained if the place of incident was completely
secluded. Such is not the case, as it is admitted that
the place of incident fell on a bus route and buses
were indeed plying.
28. It was almost 18 hours after the assault that
PW-3 managed to reach Aidbhavi to inform PW -2
about the incident. The High Court found the
conduct of PW-3 to be perfectly natural, as it was
understandable that PW-3 wanted to inform PW-2
Crl.Appeal No. 1162/2011 Page 24 of 36
before anyone else. Such conduct would have been
justified if PW-2 was residing in close proximity of the
place of incident. The very fact that PW-3 did not even
contemplate about providing medical help to PW-4 or
to seek protection from the local police despite such
a drastic assault and instead, chose to wait for 18
hours, raises a reasonable doubt on the credibility of
his version. This circumstance assumes a greater
importance in light of the fact that PW4 was the
cousin brother of PW3 and not some stranger. The
conduct of PW-3 was not that of a reasonable man
placed in such circumstances and the Trial Court
was right in terming it as artificial.
29. The conduct of PW-3 renders his very presence
at the place of incident as doubtful. Despite a heavy
assault by multiple accused persons, he did not
suffer any injury at all. That too when he was indeed
chased by A3 while attacking PW-4. It is extremely
doubtful that the assailants simply chose to give up
on PW-3 and did not pursue him behind the bushes,
despite knowing that PW-3 could turn out to be an
eye witness of the incident. The story that follows the
story of hiding behind the bushes is equally doubtful
and leaves one speculating. The timelines, the route
Crl.Appeal No. 1162/2011 Page 25 of 36
taken by PW-3, complete disregard for severely
injured PW-4, failure to inform the police post despite
access to it etc. are some of the factors that raise a
reasonable doubt on the entire story. The chain of
circumstances created by the testimony of PW-3 is
not consistent with the outcome of guilt.
30. The version of PW-4 is that he was attacked
from the back by A3 and thereafter, he fell
unconscious. As per his testimony and the testimony
of PW-3, PW-4 was attacked by an axe on his head,
back and scrotum. The first point of corroboration is
to be seen from the circumstances following the
assault. The assault on PW-4 took place at around 4
P.M. and he was admittedly unconscious thereafter.
He remained as such until he was “self-admitted” in
the hospital at around 12:30 P.M. the following day.
The second point for corroboration of this version
could be taken from the wound certificate issued by
PW-8 during the treatment of PW-4 at Government
Hospital, Shorapur. The Trial Court relied upon the
wound certificate and noted a contradiction between
the condition of PW-4 at the time of admission. In the
certificate, PW-4 is stated to be “self-admitted” but at
the same time, he is stated to be unconscious. The
Crl.Appeal No. 1162/2011 Page 26 of 36
High Court rejected this contradiction as material by
observing that PW-4 was semi-conscious at the time
of admission and therefore, he could have admitted
himself in the hospital. However, the inherent
contradictions in the statement of PW-4 are not
limited to this point.
31. The injuries found on PW-4, as per the wound
certificate, were simple in nature. PW-8 gave some
treatment to PW-4, however the nature of treatment
is not indicated. Thereafter, PW-8 forwarded him to a
hospital at Gulbarga where injury certificate Ex.P12
was prepared. Ex.P12 also recorded the nature of
injury to be simple in nature. The nature of injury is
to be corroborated with the nature of assault, as
deposed by PW-4 and PW-3. They deposed that A3
had attacked PW-4 with an axe at three sensitive
places i.e. head, back and scrotum. The attack was
so severe that PW-4 immediately fell unconscious. In
the ordinary course of natural events, an injury
inflicted by an axe, that too in a manner that the
injured immediately fell unconscious and remained
unconscious for almost 20 days, could not have been
a simple injury. More so, a simple injury of a
standard that required no admission in the hospital.
Crl.Appeal No. 1162/2011 Page 27 of 36
32. Furthermore, PW-4 travelled to the hospital at
Shorapur by a bus, but he failed to inform any
passenger about the assault. Despite such injuries,
including on the head, no one noticed his condition.
He was unconscious for over 20 days and after he
regained consciousness, his statement was recorded
by PW-10. It is difficult to comprehend as to how a
severely injured person, who could not gain
consciousness before 20 days, managed to go to the
hospital on his own by using a public bus and later,
to another hospital at a different place. It is difficult
to comprehend that PW-4 was conscious enough to
undertake two journeys to two different hospitals, by
public transport, but did not have the senses to give
a statement to the IO PW-10 before the passage of
almost 30 days. During cross examination, PW-4 had
deposed that he had sustained injuries on head and
testicles only, and there was no other injury. The said
statement was a material improvement from the
versions initially put forth by PW-3 and PW-4
whereby, PW-4 had sustained injuries on the back as
well. However, no such injury was recorded in the
wound certificate and in all likelihood, the
improvement was made for that reason. The
Crl.Appeal No. 1162/2011 Page 28 of 36
testimony of PW-4 is impeachable for another reason
– the time of the offence. As per his version, the time
of assault was around 4 P.M., whereas, as per the
wound certificate Ex.P12, the time of injury was at
night. Similar issue with respect to timing wa s
noticeable in the post mortem report as well.
33. Notably, all these aspects have been carefully
analysed and appreciated by the Trial Court, but the
High Court rejected all the doubts by observing that
PW-4 was an injured witness and there was no
reason to disbelieve his testimony. The High Court
omitted to take note of two material aspects – the fact
that the statement of PW-4 was recorded after a
period of one month from the date of incident and the
factum of family relationship between the deceased
and PW-4. The former aspect raises a grave suspicion
of credibility, whereas the latter raises the suspicion
of being an interested witness. In normal
circumstances, where a testimony is duly explained
and inspires confidence, the Court is not expected to
reject the testimony of an interested witness,
however, when the testimony is full of contradictions
and fails to match evenly with the supporting
evidence (the wound certificate, for instance), a Court
Crl.Appeal No. 1162/2011 Page 29 of 36
is bound to sift and weigh the evidence to test its true
weight and credibility.
34. Pertinently, the Trial Court had reached its
decision after a thorough appreciation of evidence
and we have no doubt in observing that the view
taken by the Trial Court was indeed a legally
permissible view. The High Court went on to reverse
the decision by taking its own view on a fresh
appreciation of evidence. Moreover, the High Court
did so without recording any illegality, error of law or
of fact in the decision of the Trial Court. In our
considered view, the same was not permissible for the
High Court, in light of the law discussed above.
Setting aside an order of acquittal, which signifies a
stronger presumption of innocence, on a mere change
of opinion is not permissible. A low standard for
turning an acquittal into conviction would be fraught
with the danger of failure of justice.
35. So far as the question of independent
appreciation of evidence by the High Court is
concerned, be it noted that the High Court was fully
empowered to do so, but in doing so, it ought to have
appreciated the evidence in a thorough manner. In
Crl.Appeal No. 1162/2011 Page 30 of 36
the present case, the High Court has not done so.
Even the aspects discussed by the Trial Court have
not been fully addressed and the High Court merely
relied on a limited set of facts to arrive at a finding.
The factors which raised reasonable doubts in the
case of the prosecution were ignored by the High
Court. For instance, the contradictions pertaining to
time, which were carefully analyzed by the Trial
Court, were not examined by the High Court at all.
Similarly, the contradictions qua the nature of
injuries were also not discussed. In an appeal, as
much as in a trial, appreciation of evidence
essentially requires a holistic view and not a myopic
view. Appreciation of evidence requires sifting and
weighing of material facts against each other and a
conclusion of guilt could be arrived at only when the
entire set of facts, lined together, points towards the
only conclusion of guilt. Appreciation of partial
evidence is no appreciation at all, and is bound to
lead to absurd results. A word of caution in this
regard was sounded by this Court in Sanwat Singh
Crl.Appeal No. 1162/2011 Page 31 of 36
v. State of Rajasthan
9, wherein it was observed
thus:
“9. The foregoing discussion yields the following
results : (1) an appellate court has full power to
review the evidence upon which the order of
acquittal is founded; (2) the principles laid down
in Sheo Swarup case [LR 61 IA 398] afford a
correct guide for the appellate court's approach
to a case in disposing of such an appeal; and (3)
the different phraseology used in the judgments
of this Court, such as, (i) “substantial and
compelling reasons”, (ii) “good and sufficiently
cogent reasons”, and (iii) “strong reasons”, are
not intended to curtail the undoubted power of
an appellate court in an appeal against acquittal
to review the entire evidence and to come to its
own conclusion; but in doing so it should not
only consider every matter on record having
a bearing on the questions of fact and the
reasons given by the court below in support
of its order of acquittal in its arriving at a
conclusion on those facts, but should also
express those reasons in its judgment, which
lead it to hold that the acquittal w as not
justified.”
(emphasis supplied)
36. Our criminal jurisprudence is essentially based
on the promise that no innocent shall be condemned
as guilty. All the safeguards and the jurisprudential
values of criminal law, are intended to prevent any
failure of justice. The principles which come into play
9
AIR 1961 SC 715
Crl.Appeal No. 1162/2011 Page 32 of 36
while deciding an appeal from acquittal could be
summarized as:
(i) Appreciation of evidence is the core element
of a criminal trial and such appreciation
must be comprehensive – inclusive of all
evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence
may result in a miscarriage of justice and is
in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence,
finds that two views are possible, the one in
favour of the accused shall ordinarily be
followed;
(iv) If the view of the Trial Court is a legally
plausible view, mere possibility of a contrary
view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse
the acquittal in appeal on a re-appreciation
of evidence, it must specifically address all
the reasons given by the Trial Court for
acquittal and must cover all the facts;
Crl.Appeal No. 1162/2011 Page 33 of 36
(vi) In a case of reversal from acquittal to
conviction, the appellate Court must
demonstrate an illegality, perversity or error
of law or fact in the decision of the Trial
Court.
37. In this case, the appellants, as a separate
argument, have also submitted that the case is not
based on circumstantial evidence and is based on
direct evidence of PW-3 and PW-4, and therefore, the
principles of circumstantial evidence shall not apply.
The submission is erroneous for various reasons.
First, the direct evidence of PW-3 and PW-4 is to be
tested on its own strength, especially in light of their
subsequent conduct after the incident. As per their
version, they were accessories to the fact, however,
their subsequent conduct left much to be desired and
therefore, their direct testimony was found to be
incredible, as already discussed above. Secondly, in
the absence of credible direct evidence, the case
essentially falls back on the circumstantial evidence,
and thirdly, the prosecution has failed to complete
the chain of circumstances. The contradictions
between oral testimonies and medical examination
reports, failure to seize essential materials from the
Crl.Appeal No. 1162/2011 Page 34 of 36
scene of crime, failure to explain the mode of
conveyance while going from one place to another,
failure to prove the presence of PW-3 at the place of
incident, failure to corroborate the injuries etc. are
some of the deficiencies in the chain of
circumstances. It would be apposite to refer to the
decision of this Court in Sharad Birdhichand
Sarda v. State of Maharashtra
10, wherein the
“Panchsheel” or five principles of circumstantial
evidence were laid down as follows:
“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court indicated
that the circumstances concerned “must or
should” and not “may be” established. There is
not only a grammatical but a legal distinction
between “may be proved” and “must be or should
be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973)
2 SCC 793] where the observations were made:
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is long
10
(1984) 4 SCC 116
Crl.Appeal No. 1162/2011 Page 35 of 36
and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.”
38. The circumstances in this case are far from
conclusive and a conclusion of guilt could not be
drawn from them. To sustain a conviction, the Court
must form the view that the accused “must have”
committed the offence, and not “may have”. As noted
in Sharad Birdichand Sarda
11, the distinction
between “may have” and “must have” is a legal
distinction and not merely a grammatical one.
39. In light of the foregoing discussion, we hereby
conclude that the High Court had erred in reversing
the decision of acquittal, without arriving at any
11
Supra
Crl.Appeal No. 1162/2011 Page 36 of 36
finding of illegality or perversity or error in the
reasoning of the Trial Court. Even on a fresh
appreciation of evidence, we find ourselves unable to
agree with the findings of the High Court.
Accordingly, the impugned order and judgment are
set aside. We find no infirmity in the order of the Trial
Court and the same stands restored. Consequently,
the appellants are acquitted from all the charges
levelled upon them. The appellants are directed to be
released forthwith, if lying in custody.
40. The captioned appeal stands disposed of in the
aforesaid terms. Interim applications, if any, shall
also stand disposed of.
41. Parties to bear their own costs.
…………………………J.
[ Bela M. Trivedi ]
…………………………..J.
[ Satish Chandra Sharma ]
New Delhi
February 12, 2024
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