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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.66 OF 2012

NAGARAJA   ...  APPELLANT

VERSUS

STATE OF KARNATAKA       ... RESPONDENT

J U D G M E N T

K.M. JOSEPH, J.

1. By  the  impugned  judgment,  the  High  court  has

allowed the appeal filed by the State and found the

appellant (Accused No.4) guilty of the offence under

Section  397  of  the  Indian  Penal  code  (for  short

“IPC”)  and  he  was  ordered  to  undergo  R.I.  for  a

period of 7 years and to pay a fine of Rs.1000/- with

default clause.  Though the State has challenged the

acquittal  of  the  sixth  accused,  his  acquittal  was

confirmed by the High court.   

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2. A complaint was submitted by PW 1 on 16.9.1996 at

about 10.15 p.m. to PW 12, the Head constable.  It

was her complaint inter alia as follows:   

While she was in her house with her husband, son-

in-law and other relatives, they heard the barking

of  dogs  and  came  outside.   It  was  found  6-7

unknown persons wearing lungi and shirt armed with

the  club  surrounded  the  complainant  and  their

family  members  and  insisted  upon  them  to  give

their ornaments, watch and cash threatening that

in case it is not so given they will be finished.

They were pushed inside the house and PW4, PW5 and

PW6 were assaulted with clubs.  A golden chain was

snatched.  So also was the mangal sutra of PW1.  A

silver chain, ear rings and an amount of Rs.400/-

were  also  snatched  and  they  ran  away  from  the

place.

3. It  is  on  this  complaint  that  finally  after

investigation was carried out charge sheet was filed.

It would appear that accused No.1 to 3 though were on

bail, they did not appear for the trial.  Rest of the

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accused except the appellant and accused No.6 were

absconding.   The  case  was  split  up  and  trial

proceeded  against  appellant  and  A6  for  the  charge

under Section 397 IPC. During the trial, PWs 1 to PW

15 were examined. Documents were marked as Exhibits

P1 to P15 and MOs 1 to 17 were produced.  The High

court found as follows:

(1) The  incident took  place on  16.9.1996 in  the

night at about 9.00 p.m..  PW1, the wife of

PW4, PW5 and PW6 were all present besides other

members.

(2) The complaint was lodged within one hour of the

incident

(3) The names of the accused are not revealed and

it is stated to be only against the unknown

persons

(4) There is no identification parade held.  The

High  court  found  that  as  the  incident  took

place in the night, the identification parade

was  essential  and  the  evidence  of  the

prosecution  witness  could  not  be  accepted

insofar as the identity is concerned.

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4. It  is  thereafter  that  three  circumstance

described by the High Court as strong circumstances

were found against the appellant.  

1.The appellant was apprehended in the neighbouring

village during night and was chased by PWs 7, 8

and  11  and  was  produced  before  the  Police

immediately thereafter.  Appellants conduct was

noted.

2.During  interrogation  by  the  officer,  the

appellant  volunteered  to  produce  some  articles

which were looted from the house of PW1.  PW3,

the  attesting  witness  was  led  with  the  police

officers to the place by the side of the national

highway and from  from the ditch in the ‘naala’

appellant produced the trunk MO2 which contains

the  articles,  clothes  MOs  8  to   17.   This

recovery took place immediately on the very next

day of incident, that is, on 17.9.1996.  The High

Court  finds  that  the  fact  that  these  articles

were  kept  in  the  ditch  in  the‘naala’  was  not

known to anybody other than the appellant.  The

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evidence  of  PW3,  witness  to  the  recovery,  was

found acceptable.  It was also found corroborated

by the evidence of PW 15 (apparently PW 14).

3.The  third  circumstance  relied  upon  by  the

prosecution  successfully  before  the  High  Court

was as follows:

PW15  is  a  Police  Inspector  and  handwriting

expert.  He visited the spot and checked finger

prints upon the utensils. After the arrest of

the  appellant,  PW  14  had  obtained  the  finger

prints of the appellant.  The fingerprints were

compared.  PW15 issued Ex.P12 certificate.  The

High  Court  relies  on  the  Certificate  and  the

evidence of PW15.  Chance prints on Q-1 were

found identical with the left thumb print and

Q-2 was found identical to the finger print of

the appellant. It is noted that the vessels were

not seized by the investigating officer.  It was

found  to  be  a  mistake  which  was  not  to  be

considered in appreciating the evidence of PW15.

PW15 was found to have visited the farmhouse of

PW-1 on the very next day and developed five

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chance prints Q1 to Q5. The High Court, further,

finds  that  the  finger  prints  were  lifted  by

means of transparent adhesive lifting tape and

pasted them on the glass pieces for which Exh.P-

13 certificate was issued. It was found that P-

13 certificate along with P-12 letter reveals

the  clinching  evidence  with  regard  to

appellant’s  finger  prints  tallying  with  the

chance  finger  prints  obtained  by  PW15.  The

deposition of PW-11 was referred to find that he

was  a  police  constable  and  was  on  duty  on

16.9.1996 at 10:30 A.M. at Challakere fair. He

was found to have gone to the house of PW-1 at

night and came to know about the accused having

run  away  after  the  dacoity.  He  went  towards

forest and saw a person running in the jungle

and  after  chasing  the  person  running  ahead

assaulted him with stones and tried to escape.

At that time some persons came to help PW-11 and

they apprehended the person who was found to be

the  appellant.  The  High  Court  relied  on  the

circumstances revealed from the evidence of PW-

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11, namely, the conduct of the appellant running

in  the  jungle  at  night  and  this  conduct

supported the version of the prosecution. It was

found that the PW-11 was not cross-examined and

his  evidence  can  be  accepted  in  toto.  It  is

stated only after PW-11 produced the appellant

before the Investigating Officer, interrogation

was  done  and  appellant  volunteered  with  a

statement resulting in the recovery being made.

The High Court, further proceeds to hold that

the  only  conclusion  is  that  the  appellant

participated  in  the  incident  (dacoity).  The

Trial  Court  was  found  to  have  committed  the

illegality in acquitting the appellant.   

5. We heard learned counsel for the appellant and

also  learned  counsel  appearing  on  behalf  of  the

respondent-State. As already noticed, the High Court

has  found  that  the  evidence  of  the  prosecution

witnesses  were  not  reliable  for  identifying  the

appellant.  Admittedly,  the  incident  took  place  at

night  and  no  identification  parade  was  held.  The

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appellant  not  being  identified  and  the  High  Court

having not accepted the deposition of the prosecution

witnesses  regarding  the  identity  of  the  appellant,

the finding of guilt rendered by the High Court and

that  too  in  an  appeal  against  acquittal,  is

questioned as impermissible.  

6. It is contended that the High Court was not right

in  relying  upon  the  finger  prints  even  when  the

articles from which the chance finger prints Q1 to Q5

were  found  were  not  produced  before  the  Court.

Reliance is placed in this regard of the judgment of

this Court in Mohd. Aman v. State of   Rajasthan  1.  

7. It is further contended that no reliance could be

placed on the so-called recovery. It is complained

that the recovery was effected from a public place.

It  is  the  case  of  the  appellant  also  that  no

negatives  of  the  photograph  were  filed  before  the

Court and the person who took the photograph was also

not examined.  Regarding the recovery the following

1 1997 (10) SCC 44

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findings  of  the  trial  Court  is  enlisted  by  the

appellant in his support.  

11. PW2 is a spot panchaname PW3 is a panch for Ex. P3. His evidence is at the time of preparation of Ex.P3 i.e. recovery of the articles from accused persons,  namely,  as  per  panchaname Ex.p3  Narayana,  Mohana  and  Nagaraja were  present  and  at  the  instance  of Nagaraja  A4  the  trunk  was  recovered along  with  the  clothes.  Ex.P3  is  in respect of the recovery of trunk and clothes from accused Nagaraja is,

“……  Accused  Nagaraj  S/o.  Bheemappa told that clothes and trunk had come to his share, which he had concealed at a place, and if he was taken there he would show the same. All the above said  articles  were  seized  in  the presence  of  the  Panchayatdars  for further proceedings…” (Translated from Kannada)

Panchaname  was  drawn  at  Kengaiahna hatti. Exp3 does not disclose that the trunk  was  hidden  any  where  and  from which  place  accused  took  out  and produced  before  the  police  and panchas.  It  was  mentioned  that panchaname  Ex.P3  was  drawn  at Kengaiahna hatti but in the evidence PW3  Boomalingaiah  states  the  police seized from accused Anjaneya manihara tali, 18 bagarada gundu and he further states  the  police  seized  silver  leg chain Rs. 106/- and panchaname Ex.p3. In further evidence he says “P.C. took us the both panchas and accused person

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before the court. Harijana Kambajjara Hola the trunk mO2 was kept in a pit it  was  taken  out.  MO2  contains  some cloth  and  the  same  was  seized  under panchaname  Ex.P4.”  His  evidence  is that  Anjaneya  accused  No.  6  was present on the date of Ex. P3 and Ex. P4  is  in  correct.  Since  PW14  has already stated that A6 was arrested on 26.9.1996 and no property was seized from him. In respect of the recovery from accused No. 4 Nagaraja has not a recovery at all at the instance of the accused Nagaraja as per the evidence of  PW3  P.C.  took  them  accused  to Harijana  Kambajjara  hola  and  from there seized the articles under Ex.P4.

It  is  also  contended  that  the  witnesses  have  not

supported the recovery.  

8. In regard to reliance placed on the circumstances

that the appellant ran away when PW-11 chased him,

the contention of the appellant is that the evidence

of PW-11 has been misconstrued. The evidence of PW-11

was not at all relevant in respect of the appellant

and the evidence of PW-11 actually relates to the

apprehending  of  another  accused,  namely,

Venkataramanappa. The error has led the High Court to

find the circumstance against the appellant, though

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none existed.  Per contra, learned counsel for State

supported the impugned order.

9.  The principles are well-settled in regard to the

approach to be adopted by this Court in an appeal

against  the  order  reversing  an  acquittal.  The

principles are well settled in regard to the power of

High Court in the matter of reversal of acquittal.

The presumption of innocence prior to a verdict by

the  criminal  court  become  strengthened  with  an

acquittal rendered by the Trial Court. The High Court

would  be  slow  to  interfere  with  an  acquittal,

particularly, if the view taken by the Trial Court is

one of the two views possible and it is not perverse.

WHETHER THE HIGH COURT WAS CORRECT IN PLACING THE RELIANCE ON THE DEPOSITION OF PW-11 TO FIND THAT THE APPELLANT RAN AWAY AND THIS CONDUCT STRENGTHENED THE PROSECUTION CASE AGAINST HIM.  

The deposition of PW-11 reads as follows:-

‘I  was  working  in  year  1996  at

Challakera  P.S.  I  was  deputed  on

16.9.96, at Challakere Jatre Bandobast

10:30 p.m. CW 25 and 26 took me to

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police station my self 24, 25, and 26

went to Giriminahalli Kapile as there

was a dacoit, we went to the house of

PW1  and  came  to  that  the  accused

person ran towards the forest we went

in the jungle I saw one person running

the jungle I followed that person he

through  the  stone  on  me  and  has

sustained  injury  that  person  escaped

my  clutches  meanwhile  CW24,  25,  26

came there in a jeep again we followed

and  apprehended  that  person.  I  can

identify  the  person  is  before  the

court  he  is  A4.  He  discloses  as

Venkatramanappa S/o  Ramachandrappa

Pillhalli  A4  has  disclosed  as  name

Venkataramanappa.’

10. Next, we may also notice that in the evidence of

PW-12 who was working as Head Constable, he says that

at 2:00 A.M., PW-11 brought one person to the police

station. He secured CW-2 and CW-3 to a police station

and he seized HMT watch MO4 in the Panchanama. In the

cross-examination, he says that he seized the watch

from a person by name Venkataramanappa. He is A1. The

evidence of PW-11 would thus show that he along with

charge witnesses 24, 25 and 26 and the accused ran

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towards the forest and the person was followed. He

sustained injuries as the stones were thrown.  That

thereafter, CW-24, 25 and 26 came there in a jeep and

that  person  was  apprehended.  As  the  officer

identified  the  person  before  the  Court  and  he  is

appellant  and  his  name  is  disclosed  as

Venkataramanappa  s/o  Ramachandrappa  Pillhalli.  He

states  that  the  appellant  disclosed  his  name  as

Venkataramanappa.  PW-12  also  refers  to

Venkataramanappa but he says that he is A1.   

11. The evidence of PW-14 may be noticed. He was CPI

Traffic R.S. On receiving information, he collected

staff and proceeded to Giriyammana hally village. The

PSI, and the staff produced before him one person by

name Venkataramana. He directed his S.I. to take the

persons  to  the  police  station  for  further

investigation. Then, he visited the police station at

3:30 a.m.. He received information about some persons

attacking  house  at  Kengaiahna  hatty.  On  getting

information  of  three  persons  being  apprehended,  he

proceeded. Three persons were arrested, their names

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were  disclosed  as  Narayana,  Mohan  and  Nagaraj.

Nagaraj appears to be appellant before us. If Nagaraj

is arrested by PW-14, then reliance on evidence of

PW-11 by the Court does not appear to be justified at

all.   

12. Continuing with deposition of PW-14 he states he

proves  the  statement  of  the  appellant  marked  as

Ex.P11 and he claims to have seized the trunk and

clothes as per PW4.  He also says that he recorded

voluntary statement of Venkataramanappa.  He claims

to have taken the finger prints of person arrested by

him and forwarded it to PW-15 for comparison.  In his

cross examination he  inter alia states that has not

taken permission from the Magistrate for taking the

finger  prints  of  the  accused.   The  upshot  of  the

above discussion is that the High Court may not be

justified  in  relying  on  deposition  of  PW11  to

conclude that appellant, according to PW11, ran away

and this conduct constituted a circumstance against

the appellant.

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13. The second circumstance relied upon by the High

Court to convict the appellant, is the recovery of

MO2 to MO 17 clothes. It is also not a matter which

was overlooked by the Trial Court. However, the Trial

Court after referring to the recovery concluded that

so called recovery was effected from a public place.

It is true that it is reasoned by the High Court that

the fact of the articles being kept in a ditch was

not known to anybody.  Also, reference is made in

this regard and support drawn from the evidences of

PW-3 and Pw-14.   

14. We  may  also  refer  to  the  other  circumstance,

namely,  matching  the  fingerprints  of  the  appellant

with  the  chance  fingerprints,  which  were  found  on

certain utensils. PW-14, in his deposition admitted

that  he  has  not  obtained  permission  from  the

Magistrate  for  taking  the  fingerprints  of  the

accused. The Magistrate, in fact, has referred to the

judgment of this Court reported in Mohd. Aman’s case

(supra).  In the said case, it was held as follows

inter alia:-  

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“Even  though  the  specimen  finger- prints of Mohd. A man had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance  with  Section  5  of  the Identification of Prisoners Act. It is true that under Section 4 thereof police is  competent  to  take  finger-prints  of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility  of  fabrication  of  evidence it  was  eminently  desirable  that  they were taken before or under the order of a  Magistrate.  The  other  related infirmity  from  which  the  prosecution case  suffers  is  that  the  brass,  jug, production of which would have been the best evidence in proof of the claim of its  seizure  and  subsequent  examination by  the  Bureau,  was  not  produced  and exhibited  during  trial  –  for  reasons best  known  to  the  prosecution  and unknown to the Court. Thus the accused could not be convicted for murder.”  

15. In  this  case  also  though  seized,  the  utensils

were not produced and exhibited.  Though another view

of the evidence of PW15 and the reasoning employed by

the High Court may be possible, we cannot overlook

that the High Court was considering an appeal against

acquittal.  We may remind ourselves that the High

Court itself has found prosecution witnesses have not

been able to identify the appellant.  Further, out of

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the three circumstances, quite clearly, one of the

circumstances,  namely,  about  the  conduct  of  the

appellant allegedly allegedly based on the evidence

of  PW-11  appears  to  have  been  the  product  of  an

error.  We  have  also  noticed  the  inadequacies  as

observed by the Trial court in regard to the finger-

prints.  

On 16.10.2019, we passed the following order: -

“Arguments concluded.

Judgment reserved.

We,  however,  note  that  the  incident pertains to the year 1996 and there were 8 accused. Out of the 8 accused, only 5 were  apprehended.  Three  of  them  were enlarged on bail and then absconded. It appears  that  these  accused  have  still not been apprehended and put to trial. We  find  the  aforesaid  completely unacceptable  that  for  these  accused could  not  be  apprehended,  if  proper measures were taken. It is not a case of one or two accused disappearing from the scene but six accused absconding.

We  thus,  call  upon  the  respondent- state  to  file  an  affidavit  under  the signatures  of  superintendent  of  police of the District setting out as to what steps have been taken to apprehend these accused and as to what endeavours are being made now.

The  affidavit  be  filed  within  four weeks.

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A copy of the order dasti be sent to the learned  counsel for the State.”

16. An  affidavit  has  been  filed  on  behalf  of  the

respondent-State.  Therein,  it  is  stated  that  there

were 8 accused who were chargesheeted in S.C. No. 60

of 99 in the Fast Track Court, Additional Sessions

Judge, Chitradurga. The appellant and the accused no.

6 faced the trial and as we have noticed that though

acquitted  by  the  Trial  court  appellant  stood

convicted by the High Court.   

17. As far as the other accused are concerned, it is

stated as follows:  

Venkatappa alias Venkataramana and accused no.

2  Narayana faced trial in S.C. No. 84 of 2002. It

resulted in their acquittal. It further states that

State had not preferred any appeal and acquittal is

confirmed.  In  the  order  dated  16.10.2003  the

chargesheet  was  made  against  the  other  absconding

accused i.e. accused no. 3 and accused no. 8. Accused

nos. 3 and 8 were also not found guilty and states

that they had not preferred any appeal against the

said  judgment  rendered  in  S.C.  85  of  2003.  Still

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further accused nos. 5 and 7 were tried in S.C. No.

57 of 2004 and they were also not found guilty by

Sessions Judge and acquitted by the judgment dated

02.05.2005.  Thus,  against  all  the  other  accused,

other  than  the  appellant  who  stood  charged  under

Section 397 have been acquitted.    

18.  Having  regard  to  the  circumstances,  we  are

inclined to take the view that the High Court has

erred  in  interfering  with  the  acquittal  of  the

appellant bearing in mind the principles which govern

the  question  as  to  in  what  circumstances  the

Appellate Court can reverse an acquittal.  The appeal

is allowed and we set aside the judgment of the High

Court convicting the appellant.  We notice that the

appellant has already been enlarged on bail by order

dated  06.01.2012.  The  appellant’s  bail  bond  stand

discharged and he need not surrender.

………………………………………………J. [SANJAY KISHAN KAUL]

………………………………………………J. [K.M. JOSEPH]

NEW DELHI DECEMBER 06, 2019

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