Supreme Court of India
MALLAPPA & ORS.versusSTATE OF KARNATAKA
- Citation
- 2024 INSC 104
- Decided
- 12 February 2024
- Disposal
- Disposed off
- Bench
- BELA M TRIVEDI
Holding
An appellate court cannot set aside a trial court's acquittal on a mere change of opinion; it must demonstrate illegality, perversity, or error of law or fact, which the High Court failed to do.
Summary
The trial court acquitted three accused of murder after finding the eyewitnesses' testimonies implausible and noting contradictions in medical evidence. The High Court reversed the acquittal, relying on the same eyewitness accounts and post‑mortem report to convict the accused under section 302 IPC. On appeal, the Supreme Court examined whether the High Court was justified in overturning an acquittal without identifying any illegality, error of law or fact. It reiterated that appellate courts possess a qualified power to re‑appreciate evidence but must not substitute a mere difference of opinion for a conviction, especially when the trial court's view is a legally permissible one. Finding that the High Court failed to address the trial court's reasons and did not demonstrate any perversity, the Court set aside the conviction, restored the acquittal, and ordered the release of the appellants.
Issues considered
- The correctness of the High Court's reversal of the trial court's acquittal of the accused under section 302 IPC.
- Whether the appellate court may overturn an acquittal on a fresh appreciation of evidence without finding illegality, error of law or fact.
- The applicability of the two‑views theory and the presumption of innocence in appeals against acquittal.
- The credibility of eyewitness testimonies and medical evidence in establishing guilt.
Legislation cited
- Code of Criminal Procedure, 1973s. 235
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 34, s. 504
Subjects
MurderAcquittalTestimoniesChain of circumstancesReasonable doubtAppreciation of evidenceIllegality, error of law or of factQualified Power of the High CourtCriminal JurisprudenceTwo-views theoryMaterial pieces of evidence
Judgment
[2024] 2 S.C.R. 288 : 2024 INSC 104
Mallappa & Ors.
v.
State of Karnataka
(Criminal Appeal No. 1162 of 2011)
12 February 2024
[Bela M. Trivedi and Satish Chandra Sharma,* JJ.]
Issue for Consideration
The trial Court acquitted appellants-accused nos.3, 4 and 5 for
the commission of murder of one ‘M’. However, the High Court
reversed the order of acquittal and held the appellants guilty of
the commission of murder. Whether the High Court was correct
in reversing the order of acquittal of the trial Court and thereby
convicting the accused persons u/s. 302 IPC.
Headnotes
Penal Code, 1860 – s.302 – Acquittal under – As per prosecution
eight accused persons armed with axes, knives and clubs
attacked ‘M’ and assualted him – PW-4 tried to run away,
however, was assaulted with an axe on his head, back and
on scrotum – PW-4 sustained injuries, became unconcious
and fell on the ground – PW-3 hid himself inside the jali-trees
– After assailants left, PW-3 went to M and found that he was
dead and PW-4 was unconcious with blood flowing out of his
injuries – PW-3 fearing for his life kept on hiding then left during
night – On the next day he informed PW-2 (father of deceased)
about the incident – Eight accused persons were tried and
acquitted by the trial Court – The High Court acquitted all
the accused persons except the three appellants – Propriety:
Held: In the instant case, the case of 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 – 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 A-3 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,
* Author
[2024] 2 S.C.R. 289
Mallappa & Ors. v. State of Karnataka
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 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 – 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 – 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 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 – 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 – 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 – The High Court went on to reverse the decision by
taking its own view on a fresh appreciation of evidence without
recording any illegality, error of law or of fact in the decision of
the Trial Court – Thus, the High Court had erred in reversing the
decision of acquittal, without arriving at any finding of illegality
or perversity or error in the reasoning of the Trial Court. [Paras
29, 30, 33, 34, 39]
290 [2024] 2 S.C.R.
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Criminal Jurisprudence – 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 while deciding an appeal from acquittal could be
summarized as:
Held: (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; (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. [Para 36]
Code of Criminal Procedure, 1973 – Appellate Power –
Qualified Power of the High Court:
Held: 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 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. [Para 25]
Criminal Jurisprudence – Two-views theory – Reiterated.
[2024] 2 S.C.R. 291
Mallappa & Ors. v. State of Karnataka
Case Law Cited
Selvaraj v. State of Karnataka, [2015] 9 SCR 381 :
(2015) 10 SCC 230; Sanjeev v. State of H.P., (2022) 6
SCC 294; Sanwat Singh v. State of Rajasthan, [1961]
3 SCR 120 : AIR 1961 SC 715; Sharad Birdhichand
Sarda v. State of Maharashtra, [1985] 1 SCR 88 : (1984)
4 SCC 116 – relied on.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.
List of Keywords
Murder; Acquittal; Testimonies; Chain of circumstances; Reasonable
doubt; Appreciation of evidence; Illegality, error of law or of fact;
Qualified Power of the High Court; Criminal Jurisprudence; Two-views
theory; Material pieces of evidence.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1162
of 2011
From the Judgment and Order dated 31.05.2010 of the High Court
of Karnataka at Bengaluru in CRLA No. 1363 of 2005
Appearances for Parties
Basavaprabhu Patil, Sr. Adv., Ms. Supreeta Sharanagouda,
Sharanagouda Patil, Advs. for the Appellants.
Nishanth Patil, A.A.G., D. L. Chidananda, Adv. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
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
292 [2024] 2 S.C.R.
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judgment was not meant to finally 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 stand 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 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
(MO1s. 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
leg and caused injuries. A4 also assaulted him with an axe five/six
1 MO = Material Object
[2024] 2 S.C.R. 293
Mallappa & Ors. v. State of Karnataka
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 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 Class2, 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 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
2 Hereinafter referred as “JMFC”
294 [2024] 2 S.C.R.
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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.
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 haemorrhage
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 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
[2024] 2 S.C.R. 295
Mallappa & Ors. v. State of Karnataka
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 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.
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
296 [2024] 2 S.C.R.
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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 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
on 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.
v. PW-3 did not inform the people at Devpura or the
passengers plying in the bus in which he travelled to
[2024] 2 S.C.R. 297
Mallappa & Ors. v. State of Karnataka
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. T h e f a t h e r ’s n a m e o f P W- 4 i s s h o w n a s
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 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.
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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 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 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
[2024] 2 S.C.R. 299
Mallappa & Ors. v. State of Karnataka
34 of the Indian Penal Code and confirmed the order of acquittal in
respect of A1, A2, A7 and A8.
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.
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
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proven guilty. The presumption 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 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 liabilities in the eyes of law. In Selvaraj v.
State of Karnataka3,
3 [2015] 9 SCR 381 : (2015) 10 SCC 230
[2024] 2 S.C.R. 301
Mallappa & Ors. v. State of Karnataka
“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)
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
4 (2022) 6 SCC 294
302 [2024] 2 S.C.R.
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upturned (see Vijay Mohan Singh v. State of Karnataka5,
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 Kerala8)”
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. 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
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
5 [2019] 6 SCR 994 : (2019) 5 SCC 436
6 (2020) 10 SCC 166)
7 AIR 1955 SC 807
8 [1998] 3 SCR 280 : (1998) 5 SCC 412
[2024] 2 S.C.R. 303
Mallappa & Ors. v. State of Karnataka
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 have 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 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 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.
304 [2024] 2 S.C.R.
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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 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.
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
[2024] 2 S.C.R. 305
Mallappa & Ors. v. State of Karnataka
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 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 was 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 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
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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 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 v. State of Rajasthan9, 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,
9 [1961] 3 SCR 120 : AIR 1961 SC 715
[2024] 2 S.C.R. 307
Mallappa & Ors. v. State of Karnataka
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
was 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 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;
308 [2024] 2 S.C.R.
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(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 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 Maharashtra10,
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
10 [1985] 1 SCR 88 : (1984) 4 SCC 116
[2024] 2 S.C.R. 309
Mallappa & Ors. v. State of Karnataka
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 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 Sarda11, 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 finding of illegality or perversity or error in the reasoning
11 [1985] 1 SCR 88 Supra
310 [2024] 2 S.C.R.
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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.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal disposed of.
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