C.K. DASEGOWDA Vs STATE OF KARNATAKA
Bench: DIPAK MISRA,V. GOPALA GOWDA
Case number: Crl.A. No.-001381-001381 / 2014
Diary number: 13117 / 2012
Advocates: (MRS. ) VIPIN GUPTA Vs
V. N. RAGHUPATHY
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1381 of 2014
(@ SPECIAL LEAVE PETITION (CRL.)NO.4018 OF 2012)
C.K. DASEGOWDA & ORS. .....APPELLANTS VERSUS
STATE OF KARNATAKA .....RESPONDENT
J U D G M E N T V. GOPALA GOWDA, J.
This appeal is filed by the appellants
questioning the correctness of the judgment and
final order dated 11.08.2010 passed by the High
Court of Karnataka at Bangalore in Criminal Appeal
No. 1256 of 2005 in setting aside the order of
acquittal of the appellants passed by the trial
court thereby imposing sentence of conviction on the
accused for offences punishable under Section 324
read with Section 34 of IPC for causing injuries on
separate count.
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2. Necessary relevant facts are stated hereunder
to appreciate the case of the appellants and also to
find out whether they are entitled to the relief as
prayed for in this appeal.
3. It is the case of the prosecution that on
11.8.1999, at about 7:00 a.m., PW-3 Kempanna had
gone to the house of the complainant on a bicycle to
take milk for his children. When the complainant and
PW-3 were coming back, accused nos. 1 to 10 (A-1 to
A-10) attacked them with deadly weapons. It is
alleged by the prosecution that A-1 assaulted PW-3
with iron blade of a plough on his head. A-3
assualted PW-3 on his back and thigh. A-4 assualted
PW-3 on both his legs with iron blade of plough. A-2
assaulted PW-1 with iron rod on his left shoulder.
A-6, A-8 and A-10 kicked PW-1. A-5 and A-7 assaulted
Bhagyamma- PW-6 with iron blade of plough and A-9
kicked her.
4. A complaint (Ex.-P1) was lodged on 11.8.1999 at
9:00 a.m. before the police. The Crime Case No. CC
728 of 2000 was registered by the Investigating
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Officer. The injured were taken to the hospital at
around 2:00 p.m. PW-3 had sustained fracture of
tibia, fibula and ankle. PW-6 had sustained simple
injuries. PW-4 Jalaiah and PW-9- Shivanna are the
eye witnesses to the incident.
5. The accused after their arrest, on their
voluntary instance, M.O. 1 to M.O. 3 (clubs), M.O. 4
& M.O. 5 (iron blade of plough) and M.O. 6 (iron
rod) were recovered. However, the said weapons had
no incriminating marks like blood stains on them.
The accused were charge-sheeted for committing
offences under Sections 143, 147, 148, 323, 324,
326, 307, read with Section 114 of IPC. Thereafter,
the learned Magistrate took cognizance of the
alleged offences and registered CC No. 728 of 2000.
The learned Magistrate complying with the provisions
of Section 209 of CrPC, committed the case to the
Sessions Court for trial since offences alleged
under Section 307 are to be exclusively tried by
that court. The accused persons pleaded not guilty
and claimed trial. The prosecution in support of its
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case, got examined PW-1 to PW-10 and marked Ex. P-1
to P-9 and MOs. 1 to 6. The accused-appellants got
marked Ex. D-1 and had also submitted their written
reply while recording their statements under Section
313 of CrPC.
6. In the evidence, PW-1 has stated that A-2 had
assaulted him with iron rod, A-5 held him, A-1
assaulted PW-3 with iron rod. He further stated that
A-4 assaulted PW-3 on his legs with iron blade of
plough. A-3, A-6 and A-7 were holding clubs and
assaulting PW-3. A-1 instigated other accused
persons to kill PW-1.
7. The evidence of PW-3 also discloses that A-4
assaulted him with iron blade of plough on his legs
and hands. A-6, A-7 and A-5 assaulted him with clubs
on his back, thigh and shoulder. The other accused
persons kicked him.
8. PW-6 in her evidence, stated that she was
assaulted by the accused persons but she could not
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name the persons. This witness was treated as
hostile.
9. The trial court, on appreciation of the evidence
on record has held that the prosecution has failed
to prove any of the offences alleged against the
accused persons. There is an element of reasonable
doubt on many counts, which have already been
explained. The benefit of doubt always goes to the
accused. Accordingly, the trial court ordered the
acquittal of accused-appellant nos. 1 to 10 under
Section 235(1) of CrPC for offences punishable under
Sections 143, 147, 148, 323, 324, 326, 307 read with
Section 114 of IPC. Aggrieved by the same, the State
of Karnataka appealed before the High Court
challenging the judgment and order of acquittal
passed by the learned trial judge.
10. The High Court, on the basis of facts and
evidence on record, held that with regard to the
nature of offences, the evidence and facts narrated
in the FIR discloses that A-3 assaulted PW-3 with
iron blade of plough. In the evidence, it is further
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stated that A-4 also assaulted PW-3 with iron blade
of plough. But in the wound certificate, there is no
mention of presence or participation of A-4. It is
evident that there are fractures in the tibia and
fibula which could have occurred because of fall
from bicycle as well. The fracture injury is not
caused intentionally. Therefore, from the nature and
manner of assault, as narrated, it can only be said
that the accused is guilty under Section 324 read
with Section 34 of IPC for causing injuries to PW-1
and PW-3 on separate counts. Therefore, the High
Court convicted and sentenced the appellants to pay
a fine of 10,000/- each on separate counts and in
default, to undergo simple imprisonment for a period
of one year.
11. The accused-appellants challenged the decision
of the High Court raising various facts and legal
contentions and have prayed for setting aside the
impugned judgment of the High Court.
12. The learned senior counsel on behalf of the
appellants, Ms. Kiran Suri contended that the High
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Court has erred in reversing the Order of the trial
court since the trial court had acquitted the
accused-appellants only after proper appreciation of
the evidence on record and inconsistencies and
contradictions found in the evidence of prosecution
witnesses and noticing the previous enmity between
the parties, delay in recording the statements of
the prosecution witnesses and also statement of eye
witness, it has held that it creates a reasonable
doubt as to the guilt of the accused.
13. The learned senior counsel on behalf of the
appellants further contended that conviction of the
accused-appellants under Section 324 of IPC read
with Section 34 is absolutely arbitrary,
unreasonable and contrary to the above provisions of
IPC.
14. It was further contended by the learned senior
counsel that there is discrepancy regarding the
names of the assailants in the FIR and in the wound
certificate and further the motive behind the
alleged assault by the accused-appellants has also
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not been proved by the prosecution by adducing
evidence.
15. On the other hand, the learned counsel on
behalf of the respondent contended that PW-1 and PW-
3 are injured eye witnesses. The fact that the
accused-appellants had assaulted these persons with
iron rod, gula and club is corroborated by the
medical evidence of PW-5 and PW-7. It was further
argued by the learned counsel that the appellants
had assaulted the complainant on account of previous
enmity with them. According to the learned counsel
for the respondent, PW-2 is an independent witness.
Therefore, according to the learned counsel, the
ingredients of unlawful assembly, rioting, causing
grievous hurt with dangerous weapons with an
intention to kill, have been proved.
16. We have perused the facts and legal evidence
on record. We have also carefully appreciated the
contentions of both the parties. On the basis of the
facts and evidence on record, we are of the opinion
that the High Court erred in reversing the Order of
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the trial court in the absence of any substantial
material evidence on record which regarded the
decision of the trial court as perverse.
17. In the case of Chandrappa v. State of
Karnataka1, it has been held by this Court as under:
“39. In Harijana Thirupala v. Public Prosecutor, High Court of A.P., this Court said:
12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.
40. In Ramanand Yadav v. Prabhunat Jha this Court observed;
1 (2007) 4 SCC 415
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21. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re- appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not".
41. Recently, in Kallu v. State of M.P., this Court stated; 8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because
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a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied)
42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
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(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
18. Therefore, based on the legal principles laid
down by this Court in the abovementioned case and
applying the same to the facts and evidence on
record of this case, we are of the opinion that the
High Court erred in setting aside the order of the
acquittal of the appellants in the absence of any
legal and factual evidence on record to prove the
findings and reasons recorded in the judgment of
the trial court as perverse. The contentions urged
on behalf of the appellants are well founded as the
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same are in conformity with the legal principles
laid down in the aforesaid cases.
19. We therefore, set aside the order of the High
Court and reinforce the order of acquittal by the
trial court. The appeal is allowed.
……………………………………………………J. [DIPAK MISRA]
……………………………………………………J. [V. GOPALA GOWDA]
New Delhi, July 15, 2014
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