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NON­REPORATABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1022 OF 2011

   JAYASWAMY                                      ...APPELLANT

VERSUS

STATE OF KARNATAKA  ...RESPONDENTS

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

By the  impugned judgment dated 12.08.2010 in Criminal

Appeal No. 1498 of 2004, the High Court has reversed the

judgment of acquittal passed by the Trial Court in S.C. No.

143/1994 insofar as the appellant (accused No.1) is concerned,

and consequently convicted the appellant for the offences under

Sections 302 and 326 of IPC. The High Court further, confirmed

the judgment and order of acquittal  passed by the Trial Court

insofar as it relates to accused Nos. 2 to 5.

2. The case of the prosecution in brief is that at about 4:30 pm

on 15.01.1994, the accused Nos. 1 to 3 (including the appellant)

along with accused Nos.4 and 5, with the common intention of

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committing murder of deceased persons, namely Kumari Radhika

(aged about  11 years)  and Smt.  Manjula,  as  well  as to  cause

grievous hurt to the informant Smt. Honnamma, trespassed into

the house of Smt. Honnamma and quarrelled with her in filthy

language; the appellant assaulted the informant with a chopper

on her head and hands and caused grievous injuries to her; the

accused No.2 assaulted the deceased Smt. Manjula with a

chopper; the accused No.3 assaulted the deceased Kumari

Radhika with a chopper on her head. Due to the said assault,

Kumari Radhika sustained grievous injuries as a result of which

she died at 7:15 p.m. on 15.01.1994 at B.M. Hospital, Mysore.

Smt. Manjula also sustained grievous injuries and succumbed to

the same at 2:35 p.m. on 04.02.1994.  Based on the information

lodged by  the  injured eye­witness Smt.  Honnamma, the crime

came  to  be registered.  All the five  accused  were tried for the

offences punishable under Sections 326, 302, and 114 read with

Section 34, IPC. The Trial Court acquitted all the accused, after

evaluation of the material on record and after hearing both the

parties. As mentioned supra, the High Court confirmed the

judgment of acquittal passed by the Trial Court in respect of the

accused  Nos. 2 to 5.  However, the  High  Court set aside the

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judgment of the Trial Court acquitting the appellant and

consequently  convicted him  for the  offences  punishable  under

Sections 302 and 326, IPC.

3 Mr. Shanthkumar V. Mahale, advocate, appearing on behalf

of the appellant, having taken us through the material on record

submits that the High Court reversed the well­considered

judgment of the Sessions Court qua the appellant herein even

though there  is  no cogent evidence against the appellant.  The

first appellate court should not have interfered with the judgment

of acquittal, particularly  when the judgment of acquittal  was

based on settled principles of law as well as on due appreciation

of the evidence on record. The judgment of acquittal cannot be

said to be perverse, and the view taken by the Trial Court is one

of the possible views under the facts and circumstances of the

case, hence the High Court should not have interfered with the

judgment of the Trial Court. Per contra, Mr. Joseph Aristotle S.,

advocate for the State, argued in support of the judgment of the

High Court.

4 As mentioned supra, the informant Smt. Honnamma is an

injured eye­witness. The first information report details the

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sequence of events which took place on the date of the incident,

i.e., on 15.01.1994. Apart from narrating the incident, it narrates

about  motive for  commission of  offence  also, i.e., there was a

dispute between the accused and the informant with regard to

partition of the property. The first information discloses that at

4:00 p.m. on 15.01.1994, the appellant  and his elder brother,

Puttaswamy and Rajesh came to the house of the informant and

started quarrelling with her asking as to why she was not giving

the property to Jayamma (accused No.5), sister of the appellant.

So saying, the appellant assaulted the informant, Smt.

Honnamma (PW. 23)  with a chopper on her  head and hands.

Puttaswamy  (accused  No.2) assaulted  Smt.  Manjula (who  was

present in the house) with a chopper on her head three to four

times.  H.M.  Rajesh (accused  No.3) assaulted  Kumari  Radhika

(minor­who was also present in the house of informant) with a

chopper on her head. No overt acts are attributed to Shankar

(accused No.4) and Jayamma (accused No.5)  in the first

information. It is needless to observe that specific allegations are

found as  mentioned  supra against  Jayaswamy  (the  appellant),

Puttaswamy (accused No.2) and H.M. Rajesh (accused No.3) only.

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5. In order to prove its allegations, the prosecution examined

31 witnesses. However, the  important witness in the matter  is

PW.23 i.e., the injured eye­witness/informant Smt. Honnamma.

The case of the prosecution, thus, fully and  mainly centres

around the evidence of Smt. Honnamma (PW.23), who survived

after the assault by the appellant. The doctor (PW.7) examined

Smt.  Honnamma,  Kumari  Radhika  and  Smt.  Manjula initially

and issued  wound certificates (Ex. P­7,  Ex. P­6 and  Ex. P­8

respectively).  PW.14 (doctor) conducted the post­mortem

examination  of the  dead body of  Manjula.  The doctor (PW.30)

conducted the post­mortem examination of the dead body of

Radhika. None of the witnesses (except PW.23) are eye­witnesses;

the other witnesses examined are either panch witnesses or

police officials.

6. It is not in dispute that the incident had taken place inside

the house of Smt. Honnamma (PW.23), therefore, it is but natural

that there was no other eye­witness except PW.23. Three persons

sustained injuries and out of them two persons, namely Kumari

Radhika and Smt.  Manjula, succumbed to the injuries. The

incident has taken place in broad daylight at about 4:30 p.m. It

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is  not the story of the prosecution that the accused  persons

closed the door after trespassing into the house and committed

the offences secretly; on the other hand, according to the

prosecution, the accused have committed the offence openly.

None of the neighbouring witnesses had come for the help of the

deceased and  injured.  Although the prosecution examined two

neighbouring witnesses, they are not the eye­witnesses.

7. Looking to the evidence on record, the Trial Court as well as

the High Court were justified in concluding that the incident had

taken place for the reason of a property dispute.

8. Specific overt act had been attributed to the appellant by

the informant (PW.23) not only in her first information but also in

her deposition. She has categorically deposed that the appellant

assaulted her with chopper; neither did the appellant assault the

two  deceased, nor did  he instigate others to assault the two

deceased. PW.23 has further specifically stated in the first

information as  well  as  deposed before the  Court that  accused

No.2, Puttaswamy assaulted the deceased Smt. Manjula with a

chopper and accused  No.3 assaulted  Kumari  Radhika  with a

chopper. Kumari Radhika expired on the very day, i.e.,

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15.01.1994 at 7:15 p.m. in B.M. Hospital whereas Smt. Manjula

succumbed to her injuries at 2:35 p.m. on 04.02.1994. The overt

acts specified by PW.23 both in first information and her

evidence reveal that there is no ambiguity in the deposition of

PW.23 with regard to the overt acts of each of the accused. The

acts of each of these accused Nos. 1 to 3 are compartmentalised,

i.e., accused  No.1  assaulted the complainant  with  a chopper,

whereas accused No.2 assaulted Smt. Manjula with a chopper,

and accused No.3 assaulted Kumari Radhika with a chopper. No

allegations are found against the accused Nos.4 and 5. No overt

acts are found against the appellant in so far as assault on both

the deceased. Except specifying that the appellant assaulted the

informant (PW.23), no other allegations are found against him.

The ingredients of common intention on the part of the accused

to do away  with the life of the deceased Smt.  Manjula and

Kumari Radhika are not forthcoming from the evidence on

record. Same is also the finding by the Trial Court and the High

Court.

9. It is no doubt that the name of the appellant is found in all

the three wound certificates, i.e., Ex. P6 to P8, as the assailant.

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But, in view of the specific ocular  testimony  of PW.23 that the

appellant has assaulted PW.23 only, (mother­in­law of the

deceased Smt. Manjula and the foster mother of Kumari

Radhika), aforementioned note in the wound certificates loses its

importance. It is relevant to note that PW.23 has fully supported

the case of the  prosecution and she is the only eye­witness.

Moreover, her evidence is consistent with her averments found in

the first information. We do not find any reason to discard the

evidence of PW.23, more particularly as her evidence is

unambiguous, cogent and consistent with the case of the

prosecution. By relying on the wound certificates, the High Court,

as mentioned supra, convicted the appellant while confirming the

acquittal of the other accused. Absolutely no reason, much less

valid reason, is assigned by the High Court, to reverse the

judgment of acquittal passed in favour of appellant.

10. It is by now well settled that the Appellate Court hearing the

appeal filed against the judgment and order of acquittal will not

overrule  or  otherwise  disturb  the  Trial  Court’s  acquittal if the

Appellate Court does not find substantial and compelling reasons

for doing so. If  the Trial Court’s conclusion with regard to the

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facts is palpably wrong; if the Trial Court’s decision was based on

erroneous view of law; if the Trial Court’s judgment is likely to

result in grave miscarriage of justice; if the entire approach of the

Trial Court in dealing with the evidence was patently illegal; if the

Trial Court judgment was manifestly unjust and unreasonable;

and if the Trial Court has ignored the evidence or misread the

material evidence or has ignored material documents like dying

declaration/report of  the ballistic expert etc.  the same may be

construed as substantial  and compelling reasons and the  first

appellate court may interfere in the order of acquittal. However, if

the view taken by the Trial Court while acquitting the accused is

one of the possible views under the facts and circumstances of

the case, the Appellate Court generally will not interfere with the

order of acquittal particularly in the absence of the

aforementioned factors. It is relevant to note the observations of

this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha

And Ors., (2003) 12 SCC 606, which reads thus:  

“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

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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 reappreciate 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.”

(emphasis supplied)

11. The High Court as mentioned Supra, while convicting the

appellant has confirmed the judgment of acquittal passed in

favour of the accused Nos.2 to 5. Their acquittal as confirmed by

the High Court is not questioned by the State before this Court.

Thus, the judgment of the High Court acquitting accused Nos.2

to  5  has  attained finality.  Therefore, it is clear that the  Trial

Court and the High Court have, on facts, not believed the case of

the prosecution in respect of the assault by the accused Nos. 2

and 3. As mentioned supra, the specific case of the prosecution is

that accused Nos.2 and 3 assaulted the deceased Smt. Manjula

and Radhika consequent to which they lost their lives. Absolutely

no material is found against the appellant herein to convict him

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for the offences under Section 302 IPC inasmuch as he had not

played any role in the death of the two deceased. In addition to

the same, both the Courts have, on facts concluded that there

was no common intention on the part of the accused, in

commission of crime.

12. It is not in dispute that the injured, Smt. Honnamma

(PW.23) sustained grievous injury as a result of assault by the

appellant. She was referred to a neurologist for an expert opinion

inasmuch as she had sustained an incised wound over the left

parietal area. She had also sustained a fracture at the lower end

of her right forearm. Since the evidence of PW.23 in respect of an

overt act  by the appellant in injuring Smt. Honnamma is

believable, in our considered opinion, the High Court was

justified in convicting the appellant for the offence under Section

326, IPC, but was not justified in convicting the appellant for the

offence under Section 302, IPC. Accordingly, the appeal is

allowed in part, in terms of the following order:

(a)  The appellant is  acquitted of the  offence punishable  under

Section 302, IPC. Consequently, the judgment of the High Court

convicting him for the said offence stands set aside.

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(b) The judgment passed by the High Court convicting the

appellant for the offence under Section 326 IPC and sentencing

him for imprisonment of 7 years stands confirmed and is

imposed a fine of Rs. 10,000/­. In default of deposit/payment of

fine (if not already deposited) within eight weeks from today, the

appellant shall undergo imprisonment for two years additionally.

The fine, if recovered, shall be paid to PW.23 (informant­

Honnamma) as compensation.  

(c) It is  brought to  our  notice that the  appellant  has  already

undergone imprisonment for 11 years. The appellant is also

entitled to set­off the period of imprisonment already undergone

with the sentence of seven years imposed. In view of the same,

the appellant shall be released forthwith, if he is not required in

any other matter.

..................................J L. NAGESWARA RAO

.................................J MOHAN M. SHANTANAGOUDAR

New Delhi June 01, 2018