H. D. SUNDARA & ORS.versusSTATE OF KARNATAKA

                  [2023] 14 S.C.R. 47 : 2023 INSC 858



                            CASE DETAILS

                        H. D. SUNDARA & ORS.
                                     v.
                       STATE OF KARNATAKA
                    (Criminal Appeal No. 247 of 2011)
                         SEPTEMBER 26, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]

                             HEADNOTES

     Issue for consideration: The question which arose for consideration
was whether the High Court was justified in setting aside the order of
acquittal passed by the trial court.
     Code of Criminal Procedure, 1973 – s. 378 – Appeal against
acquittal – Matter pertaining to dispute over property between accused
and the family of complainant – Accused assaulted the complainant
and his family – Acquittal of all the accused by the trial court, however
conviction for the offences punishable u/s. 304 Part I and s. 324/149 IPC
by the High Court – Correctness:
      Held: No findings recorded by the High Court after re-appreciating
the evidence, no discussion about the testimony of eyewitnesses and no
finding to indicate that the High Court considered the question whether
the view taken by the trial court was a possible view – High Court held the
accused guilty without recording any reasons and without recording any
finding regarding the role played by the accused individually and collectively
– Nothing stated as to who were the authors of the injuries sustained by
deceased and injured witnesses – No finding as to how s.149 IPC attracted –
Thus, the High Court, as an appellate court, while hearing the appeal against
acquittal, has not done its duty – However, matter cannot be remanded back
since the offence took place about two decades back – Findings of the trial
court and evidence of eyewitnesses have been perused – Trial court was
unable to accept the testimony of the witnesses after in-depth scrutiny –
                                     47
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Conclusions recorded by the trial court were possible conclusions – Thus,
the impugned judgment set aside – Penal Code, 1860 – ss. 304 Part I and
324/149 . [Paras 11-15]
    Code of Criminal Procedure, 1973 – s. 378 – Appeal against
acquittal – Exercise of appellate jurisdiction while dealing with
an appeal against acquittal u/s. 378 – General principles – Stated.
[Paras 7 and 8]
     Appeal against acquittal – Appreciation of evidence:
      Held: In many cases, the trial judge passing the order of acquittal
has an occasion to record the oral testimony of all material witnesses
– While deciding about the reliability of the version of prosecution
witnesses, their demeanour remains in the back of the mind of the trial
judge – Demeanour of a witness frequently furnishes a clue to the weight
of his testimony – It has to be borne in mind while dealing with an appeal
against acquittal. [Para 9]
       LIST OF CITATIONS AND OTHER REFERENCES
     Law of Evidence by Sarkar – referred to.
      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.247
of 2011.
    From the Judgment and Order dated 21.09.2010 of the High Court of
Karnataka at Bangalore in CRLA No.1807 of 2004.
     Appearances:
     S. Nagamuthu, Sr. Adv., C. B. Gururaj, Shreyas Kaushal, Sudhakaran,
Prakash Ranjan Nayak, Animesh Dubey, Advs. for the Appellants.
    Nishanth Patil, AAG, V. N. Raghupathy, Mahendra Pal Gupta, Md.
Apzal Ansari, Ayush P. Shah, Vignesh Adithiya S., Shubhranshu Padhi,
Advs. for the Respondent.
     H. D. SUNDARA & ORS. v. STATE OF KARNATAKA                           49



       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     ABHAY S. OKA, J.
      1. This is an appeal preferred by the accused challenging the impugned
judgment of the High Court of Karnataka at Bangalore by which the order of
their acquittal, passed by the Sessions Court, was overturned. The appellants
were convicted for the offences punishable under Part I of Section 304 and
Section 324 read with Section 149 of the Indian Penal Code, 1860 (for short,
‘IPC’). They were sentenced to undergo rigorous imprisonment for seven
years and pay a fine of Rs. 5,000/-.
     FACTUAL ASPECTS
       2. We may refer to a few factual aspects of the case. PW-1
(Jagadeesha) is the complainant. The complainant’s family had property
in the village Hebbale. The appellant no.1 - accused no.1-Mariyappa is
PW-1’s uncle, with whom PW-1’s family was having a dispute over water.
Manjunatha and Shivarama are the brothers of PW-1, who are the victims
of the offence. On 29th August 1999, both entered the village Hebbale to
engage labourers for plucking ginger. PW-1 followed them. On the road to
the village, he found that PW-2 (Sundara) and PW-6 (Ravi) were sitting on
a culvert. When he was talking to them, they heard the hue and cry from
the village, and therefore, they rushed to the village and found that the
appellants, who are relatives of PW-1, were holding various weapons like
sticks, kathi and club and they were assaulting Manjunatha and Shivarama.
It is alleged that accused no.1-Mariyappa assaulted Shivarama by using a
club. Accused no.8-Puttappa also assaulted Manjunatha by using a club.
Accused no.7-Rajappa used a stick as a weapon of assault for assaulting
Shivarama. Accused no.5-Somashekara stabbed Shivarama by using a knife.
Accused no.6-Krishnappa assaulted Manjunatha on his head by using a
club. Further, an assault was made by accused no.3-Chandrahasa by putting
a stone on the chest of Shivarama. Even accused no.4-Rajakumara crushed
the leg of Shivarama with a stone. Though PW-1, PW-2 and PW-6 tried
to rescue the deceased, they could not save the deceased. Accused no.3-
Chandrahasa caught hold of PW-2 (Sundara) and assaulted him by using
50           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


a sickle (kathi). Accused no. 1 assaulted PW-1 with a club. Accused no.1
also assaulted PW-1’s mother on the right hand.
     3. The Trial Court acquitted all the accused. However, by the impugned
judgment, the High Court has interfered and convicted the appellants as
narrated above.
      4. Accused no.6 died during the pendency of the trial. The accused
no.1 - appellant no.1 and accused no.7 – appellant no.7 died during the
pendency of this appeal. Counsel for the appellants has filed I.A. No. 71417
of 2023 – application for permission to file additional documents. Annexure
A-1 and A-2 are copies of the Death Certificates of appellant no.1 and
appellant no.7 respectively. The said application is allowed and the Cause
Title stands modified accordingly. Formal amendment to the Cause Title
be carried out accordingly. The appeal stands abated as regards these two
appellants. Accused no.2 - appellant no.2, accused no.3 - appellant no.3,
accused no.4 - appellant no.4 and accused no.6 - appellant no.6 have so far
undergone incarceration for a period of about one year and two months.
Accused no.5 – appellant no.5-Somashekar has been incarcerated for five
years and three months.
     SUBMISSIONS
      5. Mr. S. Nagamuthu, the learned senior counsel appearing for the
appellants submitted that the High Court did not apply its mind to the
evidence on record. Moreover, the High Court has not recorded any finding
that the only conclusion possible was that the guilt of the accused has
been established beyond a reasonable doubt. Without recording any such
finding, the High Court has overturned the order of acquittal. Moreover,
no specific finding is recorded by the High Court that every accused or
any particular accused caused the death of the two deceased persons.He
pointed out that there is no finding about the applicability of Section 149
of IPC. He would, therefore, submit that the impugned judgment cannot be
sustained. Moreover, there is a delay in recording FIR. The learned senior
counsel also pointed out that though a grievous injury was suffered by
accused no.1 - appellant no.1, the prosecution offered no explanation about
the said injury. He submitted that in view of the said injury, in fact, a First
Information Report (for short, ‘FIR’) ought to have been registered, and an
investigation ought to have been carried out.
     H. D. SUNDARA & ORS. v. STATE OF KARNATAKA                            51
                  [ABHAY S. OKA, J.]

      6. Mr. Nishanth Patil, the Additional Advocate General for the State
of Karnataka, submitted that the delay in registering the FIR may be of
a very few hours, which has been explained. Moreover, the evidence of
eyewitnesses PW-1, PW-2, PW-3, PW-6 and PW-7 proves the appellants’
guilt beyond a reasonable doubt. In fact, that would have been the only
conclusion which could be drawn on the basis of evidence on record. He
submitted that if the impugned judgment is not satisfactory, this Court, after
re-appreciating the evidence of the prosecution witnesses and other material
on record, can satisfy its conscience about the correctness of the ultimate
conclusion of the High Court.
     CONSIDERATION OF SUBMISSIONS
     7. In this appeal, we are called upon to consider the legality and
validity of the impugned judgment rendered by the High Court while
deciding an appeal against acquittal under Section 378 of the Code of
Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). The principles which govern
the exercise of appellate jurisdiction while dealing with an appeal against
acquittal under Section 378 of Cr.P.C. can be summarised as follows: -
     (a)   The acquittal of the accused further strengthens the presumption
           of innocence;
     (b) The Appellate Court, while hearing an appeal against acquittal,
         is entitled to re-appreciate the oral and documentary evidence;
     (c)   The Appellate Court, while deciding an appeal against acquittal,
           after re-appreciating the evidence, is required to consider whether
           the view taken by the Trial Court is a possible view which could
           have been taken on the basis of the evidence on record;
     (d) If the view taken is a possible view, the Appellate Court cannot
         overturn the order of acquittal on the ground that another view
         was also possible; and
     (e)   The Appellate Court can interfere with the order of acquittal
           only if it comes to a finding that the only conclusion which can
           be recorded on the basis of the evidence on record was that the
           guilt of the accused was proved beyond a reasonable doubt and
           no other conclusion was possible.
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      8. Normally, when an Appellate Court exercises appellate jurisdiction,
the duty of the Appellate Court is to find out whether the verdict which is
under challenge is correct or incorrect in law and on facts. The Appellate
Court normally ascertains whether the decision under challenge is legal or
illegal. But while dealing with an appeal against acquittal, the Appellate
Court cannot examine the impugned judgment only to find out whether
the view taken was correct or incorrect. After re-appreciating the oral and
documentary evidence, the Appellate Court must first decide whether the
Trial Court’s view was a possible view. The Appellate Court cannot overturn
acquittal only on the ground that after re-appreciating evidence, it is of
the view that the guilt of the accused was established beyond a reasonable
doubt. Only by recording such a conclusion an order of acquittal cannot
be reversed unless the Appellate Court also concludes that it was the only
possible conclusion. Thus, the Appellate Court must see whether the view
taken by the Trial Court while acquitting an accused can be reasonably taken
on the basis of the evidence on record. If the view taken by the Trial Court
is a possible view, the Appellate Court cannot interfere with the order of
acquittal on the ground that another view could have been taken.
      9. There is one more aspect of the matter. In many cases, the learned
Trial Judge who eventually passes the order of acquittal has an occasion to
record the oral testimony of all material witnesses. Thus, in such cases, the
Trial Court has the additional advantage of closely observing the prosecution
witnesses and their demeanour. While deciding about the reliability of the
version of prosecution witnesses, their demeanour remains in the back of the
mind of the learned Trial Judge. As observed in the commentary by Sarkar
on the Law of Evidence, the demeanour of a witness frequently furnishes
a clue to the weight of his testimony. This aspect has to be borne in mind
while dealing with an appeal against acquittal.
      10. Coming back to the facts of the case, after having carefully
perused the impugned judgment, we find that there is no discussion about
the testimony of eyewitnesses for deciding whether their testimony could
be believed. In fact, there are no findings recorded by the High Court after
re-appreciating the evidence. There is not even a finding to indicate that the
High Court considered the question whether the view taken by the Trial Court
      H. D. SUNDARA & ORS. v. STATE OF KARNATAKA                              53
                   [ABHAY S. OKA, J.]

was a possible view. Without recording any reasons and without recording
any finding regarding the role played by the appellants individually and
collectively, the High Court has jumped to the conclusion that the guilt of
the accused has been established. The judgment does not throw any light on
the question who were the authors of the injuries sustained by the deceased
and the injured witnesses. There is no finding as to how Section 149 of IPC
gets attracted.
     11. Thus, the only conclusion which can be drawn is that the High
Court, as an Appellate Court, while hearing the appeal against acquittal,
has not done its duty.
      12. However, we cannot take recourse to the order of remand since the
subject offence has taken place about twenty-three and half years back. We
have perused the evidence of the eyewitnesses, namely PW-1, PW-2, PW-3,
PW-6 and PW-7, and the Trial Court findings. We find that the Trial Court
has made a very detailed analysis of the depositions of the witnesses. The
incident was of 9:00 p.m. The Trial Court noted that at 11:40 p.m. on the
date of the incident, PW-1 was examined by a doctor in a hospital. FIR was
not lodged immediately thereafter. It was registered at 1:30 a.m. on the next
date. The Trial Court noted that the appellant no.1’s thumb was disfigured.
For this grievous injury suffered by the appellant no.1 - accused no.1, there
was no explanation by the prosecution.
      13. The Trial Court found that the failure to investigate the cause of
injury suffered by the accused no.1 is a serious lacuna in a prosecution
case. On facts, it is further noted by the Trial Court that on the basis of prior
complaint filed by the accused no.1 - appellant no.1 alleging commission
of assault by PW-1, PW-2, PW-7, and PW-12, all of them got anticipatory
bail from the competent court.
     14. There was a fight over property between the accused and the
family of the complainant. After in-depth scrutiny of the testimony of
the eyewitnesses, for the reasons recorded, the Trial Court was unable to
accept their testimony. After having examined the evidence of the material
prosecution witnesses and findings of the Trial Court, we must hold that the
conclusions recorded by the Trial Court were possible conclusions which
could have been recorded on the basis of the evidence on record.
54             SUPREME COURT REPORTS                    [2023] 14 S.C.R.


      15. Therefore, the appeal succeeds, and we set aside the impugned
Judgment dated 21st September 2010. We direct that unless the appellants
are required to be detained in custody in connection with some other case,
they shall be forthwith set at liberty.
      16. The Appeal is accordingly allowed.


Headnotes prepared by:                                       Appeal allowed.
Nidhi Jain