SANGAPPA & ORS.versusSTATE OF KARNATAKA

                     [2010] 3 S.C.R. 213


                     SANGAPPA & ORS.                                A
                               v.
                  STATE OF KARNATAKA
             (Criminal Appeal No. 448 of 2010)

                       MARCH 9, 2010
                                                                    B
   [B. SUDERSHAN REDDY AND SURINDER SINGH
                  NIJJAR, JJ.]

      Code of Criminal Procedure, 1973 - s. 378 (1) and (3) -
Prosecution ulss. 447, 504, 302 rlw s. 34 /PC - Acquittal by        C
trial court - High Court reversing acquittal order and convicting
u/s. 304 (Part-II) r/w s. 34 /PC -On appeal, held: The manner
in which High Court disposed of appeal against acquittal is
not correct - High Court altered the acquittal order without
discussing and re-appreciating the evidence and without             D
giving reasons for convicting the accused uls. 304(Part II) rlw
s. 34 - Penal Code, 1860 - ss. 447, 504, 302 rlw Section 34.
    The appellants-accused were prosecuted for the
offences punishable u/ss. 447, 504, 302 r/w Section 34              E
IPC. The trial court acquitted the accused of all the
charges. The High Court reversing the order of acquittal,
convicted the accused u/s. 304 (Part-II) r/w Section 34 IPC.
Hence, the present appeal.

    Allowing the appeal, the Court                                  F

      HELD: 1. The manner in which the High Court
disposed of the appeal u/s 378(1) and (3) Cr.P.C., is bad.
It is true that in an appeal from acquittal, the High Court
has full power to re-appreciate and re-assess the entire            G
evidence upon which the order of acquittal was founded
and then to come to its own conclusion. There is no
limitation placed on that power of the High Court. Cr.P.C.
makes no difference in the power of the appellate court,
between appeal filed by the State or by other person but            H
                              213
    214      SUPREME COURT REPORTS            [2010] 3 S.C.R.


A the appellate court would not be justified merely because
  it feels that a different view should be taken for reasons
  which are not so strong. The High Court in exercising the
  power conferred by Cr.P.C. and before reaching its
  conclusion upon facts, shall give always proper weight
B and consideration to such matters as (1) the view of the
  trial Judge as to the credibility of the witnesses; (2) the
  presumption of innocence in favour of the accused, a
  presumption certainly not weakened by the fact that they
  have been acquitted at trial; (3) the right of the accused
c to the benefit of any doubt. [Para 9] [217-F-H; 218-A-B]
       2. The High Court, in the present case, did not
  discuss and re-appreciate the evidence of PW-1 who is
  stated to .be the only eye-witness to the incident, but
  mainly observed that "the contents of IR and the
D evidence of PW-1 are very well corroborated by injuries
  found on the dead body noted in the P.M report." This is
  not re-appraisal or re-appreciation of the evidence of PW..
  1. The High Court did not even notice the nature of
  injuries on the body of the deceased. There Is no
E discussion about the medical evidence. There is no
  discussion as to how all the accused could be convicted
  with the aid of Section 34, IPC. There is nothing on record
  suggesting as to the basis on which the High Court
  arrived at conclusion that the accused would be guilty of
F offence under Section 304 (Part-II) and not for the offence
  under Section 302 read with Section 34, IPC. [Para 1O]
  [218-C-F] .

          CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
G No. 448 of 2010.

        From the Judgment & Order dated 10.6.2009 of the High
    Court of Karnataka Circuit Bench at Gulbarga in Criminal
    Appeal No. 956 of 2004.

H      BPS Patil, Ajay Kumar, M.B. Subrahmanya Prasad, R.D.
    Upadhyay for the Appellants.
   SANGAPPA & ORS. v. STATE OF KARNATAKA                     215


     Sanjay R. Hegde, A. Rohan Singh, Ramesh S. Jadhav,              A
Vikrant Yadav for the Respondent.

     The Judgment of the Court was delivered by

     B. SUDERSHAN REDDY, J. 1. Leave granted.
                                                                     8
      2. All the accused-appellants were charged and tried for
the offences punishable under Sections 447, 504, 302 read with
Section 34 of the Indian Penal Code (IPC) but were acquitted
of all the charges by the trial court. On appeal preferred by the
State of Karnataka, the High Court reversed the order of             c'
acquittal in relation to all the appellants and conviqted them
under Section 304 (Part-II) read with Section 34 of the IPC and
sentenced them to undergo rigorous imprisonment for a period
of two years and imposed a fine of Rs.30,000/- each, in default,
to suffer simple imprisonment for a period of three years.           o
Few Relevant Facts:

     3. On 9th September, 1998 at about 6.00 p.m. one
Shivalingayya lodged a first information report before the Sub-
Inspector of Yedrami Police Station inter alia alleging that his     E
son Sharanaiah was murdered by four persons namely
Sangappa(A-1 ), Sharanappa(A-2), Malappa(A-3) and
Jagadavappa (A-4). It is alleged jn the report that on the fateful
day Shivalingayya and his wife - Boramma (PW-1) joined their
son Sharanaiah (deceased) in the fields to remove the                F
unwanted weeds from their land. During that time all the
accused persons were passing by the side of the complainant's
land along with their bullocks and all of a sudden one bullock
strayed into their fields and started grazing the crops. The
deceased on finding that the bullock so entered into the fields      G
asked the appellants to ensure that no damages caused to the
crops. Enraged by the demand so made by the deceased all
the accused started abusing the deceased. The matter did not
end there. It is further alleged that Sharanappa (A-2) caught hold
of the ,deceased, floored him to the ground and gagged his
                                                                     H
                      ·.
    216     SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A   mouth and Sangappa (A-1) attacked the deceased with a knife
    and the other two accused Mallapa and Jagadevappa (A-3 &
    A-4) respectively hit the deceased on his back and legs with
    stones. Shivalingayya and his wife (PW-1) made an attempt to
    rescue their son but A-2 and A-3 forcefully pushed them aside.
s   In the report, it is alleged that all the accused trespassed into
    the fields with the common intention of committing murder of
    the deceased as the deceased interfered in a matter
    concerning some illicit relationship between the sister of the
    accused and one Siddanna.
c      4. Having received the first information report PW-11
  registered a case against all the accused on the file of Yadrami
  Police Station for the offences punishable under Sections 447,
  504, 302 read.with Section 34, IPC. The next day i.e. 10th
  September, 1998, PW-11 commenced the investigation and
D completed the formalities including recording of the statement
  of witnesses and handed over the case for further investigation
  by the Circle Inspector (PW-12) who also visited the scene of
  offence and drawn panchanama in the presence of two panch
  witnesses (Ex. P4) and seized the several incriminating articles.
E The accused were arrested on 25th September, 1998.

        5. The learned 1st Additional Sessions Judge, Gulbarga,
  on the basis of the material available on record framed charges
  against all the accused for the offences punishable under
F Sections :.W7-~md.302 read withSection 34, IPC. ttie accused
  pleaded not guilty and claimed to be tried. The se·ssions case
  was transferred to the Fast Track Court, Gulbarga for the trial.
  The Fast Track Court 'vide judgment and order dated 4th
  December, 2003 acquitted the ·accused of all the charges
G framed ·againsf them and held that the prosecution miserably
  failed to establish 'its case beyond reasonable doubt.

      6. On appeal preferred by the State of Karnataka against
  the order of acquittal the High Court by the impugned· order
  dated· 10th June, 2009 reversed the order of acquittal and
H accordingly sentenced all the accused for the offence
   SANGAPPA & ORS. v. STATE OF KARNATAKA                   217
          [B. SUDERSHAN REDDY, J.]
punishable under Section 304 (Part-II) read with Section 34,       A
IPC. Be it noted, the High Court did not record any finding
whatsoever with regard to the charge for the offence punishable
under Section 447 IPC.

     7. We have heard learned counsel for the appellants as        8
well as the State.

     8. The trial court after an elaborate consideration of the
matter refused to place any reliance on the evidence of PW-1
(Boramma) who is none other than the mother of the deceased.
The trial court did not discard the evidence of PW-1 on the sole C
ground that she was the interested witness. The trial court
carefully scrutinised the evidence of PW-4 being an interested
witness ..We do not propose to discuss the evidence of PW-1
in detail for the simple reason that the High Court did not assign
any reason whatsoever as to why it had chosen to rely upon D
the evidence of PW-1 without even discussing and considering
the reasons assigned by the trial court in paragraphs 13 and
14 of its judgment. The High Court merely observed that the
evidence of PW-1 is very natural and credible. The High Court
in the impugned Judgment did not even notice the details of E
the injuries found on the body of the deceased. There is no
reason assigned by the High Court to set aside the finding of
the trial court that the very presence of PW-1 at the scene of
offence was highly doubtful. There is no mention about any
recoveries in the impugned judgment.                               F

    9. We must express our reservation for the manner in
which the High Court disposed of the appeal under Section
378(1) and (3) of Code of Criminal Procedure. It is true that in
an appeal from acquittal the High Court has full power to re-
appreciate and re-assess the entire evidence upon which the        G
order of acquittal was founded and then to come to its own
conclusion. There is no limitation placed on that power of the
High Court. The Code makes no difference in the power of the
appellate court, between appeal filed by the Sta~e· or by other
person but the appellate court would not be justified merely       H
    218      SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A because it, feels that a different view should be taken for
  reasons which are not so strong. This Court repeatedly held that
  the High Court in exercising the power conferred by the Code
  and before reaching its conclusion upon facts, it shall give
  always proper weight and consideration to such matters as (1)
B the view of the trial· Judge as to the credibility of the witnesses;
  (2) the presumption of innocence in favour of the accused, a
  presumption certainly not weakened by the fact that they have
  been acquitted at trial; (3) the right of the accused to the benefit
  of any doubt.
c         10. The High Court in the present case did not discuss and
    re-appreciate the evidence.of PW-1 who is stated to be the only
    eye witness to the incident but mainly observed that "the
    contents of IR and the evidence of PW-1 are very well
    corroborated by injuries found on the dead body noted in the
D   P.M report." Surely, this is not re-appraisal or re-appreciation
    of the evidence of PW-1. The High Court did not even notice
    the nature of injuries on the body of the deceased. There is no
    discussion about the medical evidence. There is no discussion
    as to how all the accused could be convicted with the aid of
E   Section 34, IPC. There is nothing on record suggesting as to
    the basis on which the High Court arrived at conclusion that the
    accused would be guilty of offence under Section 304 (Part-II)
    and not for the offence under Section 302 read with Section
    34, IPC. This Court in its judgment dated May 14, 2007
F   (Narendra Bhat & Anr. vs. State of Kamataka) while dealing
                 J

    with similar judgment of the same High Court observed: "This
    Court has in a series of judgments held that a court exercising
    appellate power must not only consider questions of law but also
    questions of fact and in doing so it must subject the evidence
G   to a critical scrutiny. The judgment of the High Court must show
    that the court really applied its mind to the facts of the case as
    particularly when the offence alleged is of a serious nature and
    may attract a heavy punishment. ........... The judgment of the
    High Court is in three short paragraphs. It leaves much to be
H   desired. No- serious attempt appears to have been made by
   SANGAPPA & ORS. v. STATE OF KARNATAKA                     219
          (8. SUDERSHAN REDDY, J.]
 the High .Court to appreciate the evidence on record." The         A
 observations so made are equally applicable to the present
.case and we wish to say no more and leave the matter at there.

     11. In such view of the matter, we set aside the impugned
judgment and order and remit the matter to the High Court for
                                                                    8
fresh consideration and disposal in accordance with lav/ It is
however, made clear that we have not expressed any opinion
whatsoever on the merits of the case since it is for the High
Court to re-appreciate the evidence and arrive at its own
conclusions.
                                                                    c
    12. The appeal is allowed. We have already released the
appellants on bail. They shall continue to be on bail. We request
the High Court to dispose of the appeal as expeditiously as
possible.
                                                                    D
K.K.T.                                         Appeal allowed.