REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 826 OF 2002 MANJUNATH GANESH HEGDE & ORS. … APPELLANTS

VERSUS

STATE OF KARNATAKA …RESPONDENT

J U D G M E N T C.K. Thakker, J.

1. This appeal is filed by the appellant-

accused  against  the  order  of  conviction

recorded  by  the  High  Court  of  Karnataka  on

February 06, 2002 in Criminal Appeal No. 775 of

2001.

2. To  appreciate  the  case  of  the

appellants, few relevant facts may be noted.

3. It  was  the  case  of  the  prosecution

that on January 04, 2000, at about 3.00 p.m.,

near  Kallaimane  Cross  at  village  Tatagar,

Taluka  Yellapur,  appellant-accused  attacked

complainant Gopal Sitaram Hegde with stones and

wooden sticks.  They also attacked and caused

injuries to Nagesh Ganapati Bandekar and Smt.

Nagaveni. The accused persons also administered

threat  to  kill  Gopal  Hegde.  All  the

accused thereby committed offences punishable

under Sections 341, 324, 326, 504, 506 read

with  Section  34  of  the  Indian  Penal

Code, 1860 (IPC).

4. Usual investigation was carried out by

the  police  authorities.   Charge  was  framed

against the accused.  The accused pleaded not

guilty to the charge and claimed to be tried.

5. The prosecution in order to prove the

case  against  the  accused  examined  eight

witnesses including three injured witnesses, PW

1 Gopal Sitaram Hegde-complainant, PW 2 Nagesh

Ganapati Bandekar, coolie of PW 1 and PW 3,

Smt. Nagaveni, wife of PW 1 Gopal-complainant.

The prosecution also examined two Doctors, PW 4

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Doctor Sadanand Krishna Kamat and PW 5 Dr. N.K.

Katri.

6. The learned Judicial Magistrate, First

Class, Yellapur held that there was discrepancy

between  the  medical  evidence  and  ocular

evidence.   He  also  held  that  there  were

contradictions  in  the  depositions  of  eye-

witnesses and in the circumstances, it cannot

be  concluded  that  the  prosecution  was

successful  in  proving  the  guilt  against  the

accused beyond reasonable doubt.  Accordingly,

by the judgment and order dated March 27, 2001,

he acquitted all the accused.

7. The State of Karnataka being aggrieved

by the order of acquittal preferred an appeal

in the High Court of Karnataka under Section

378 of the Code of Criminal Procedure, 1973

(hereinafter referred to as ‘the Code’).  The

High Court heard the learned Additional Special

Public Prosecutor in favour of the appeal as

also  the  learned  counsel  representing  the

respondent-accused.   The  High Court  observed

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that  so  far  as  the  inconsistencies  in  the

ocular  evidence  of  PWs  1,  2  and  3  were

concerned,  inconsistencies  and  contradictions

were on minor matters. The incident in question

was clearly established.  The Court also held

that  injuries  sustained  by  the  prosecution

witnesses  were  established  from  medical

certificates issued by doctors as also from the

testimony of doctors.  The trial Court was,

therefore, not right in discarding the sworn

testimonies  of  the  witnesses  when  they  were

doubly  supported and  corroborated from  other

evidence on record. It was also proved that

there  was  hostility  between  the  parties  and

property disputes were going on in a Court of

law.  The relations between the parties were

very bitter and a long standing litigation was

pending in a civil Court.  The High Court, in

the circumstances, held that the trial Court

was wrong in totally acquitting the accused.   

8. The High Court, taking note of all the

factors  observed  that  it  was  a  case  of

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extenuating circumstances, but not one of grant

of benefit of doubt. Then without considering

the  evidence  at  all,  the  High  Court  partly

allowed  the  appeal.  Observing  that  the

acquittal  recorded  by  the  trial  Court  for

offences  punishable under  Sections 341,  326,

504 and 506 read with Section 34, IPC could not

be  said  to  be  ill-founded,  the  High  Court

upheld  the  acquittal.  It  stated  that  the

finding so far as the acquittal of accused for

those offences was concerned, did not require

interference.   It,  however,  held  that  the

acquittal  for  offences  punishable  under

Sections 324 and 325, IPC was not meritted and

the finding recorded by the trial Court so far

as  acquittal  under  those  two  sections  was

concerned, was liable to be set aside.  The

High Court, thus, partly allowed the appeal,

confirmed  the  acquittal  of  the  accused  for

offences  punishable under  Sections 341,  326,

504, 506 read with section 34, IPC, but set

aside the acquittal recorded by the trial court

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and  convicted  the  accused  for  offences

punishable under Sections 324 and 325, IPC read

with Section 34, IPC.   

9. It  also  observed  that  it  did  not

propose  to  award  any  substantive  sentence

directing the accused to undergo imprisonment

but they should pay fine of Rs.3,000/- each

meaning thereby that all the four accused will

pay Rs.12,000/- in aggregate. The said amount

was ordered to be deposited in the trial Court

within a period of three months from the date

of the judgment.  It also ordered that after

recovery of fine, notices would be issued to

PWs 1,2 and 3 and directed the Court to pay

over the amount of Rs. 1,000/- each to PWs 2

and 3 and a sum of Rs.10,000/- to PW 1 by way

of compensation.  The appeal was accordingly

disposed of.  The said order is challenged in

the present proceedings.

10. We have heard the learned counsel for

the parties.

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11. The  learned  counsel  for  the

appellants-accused contended that there is no

reasoning on the part of the High Court as to

why the accused were convicted.  The High Court

merely repeated the findings recorded by the

trial Court that the accused were acquitted for

all the offences.  There is no indication in

the judgment of the High Court what weighed

with  the  Court  for  confirming  acquittal  in

respect  of  certain  offences  as  also  setting

aside  an  order  of  acquittal  for  offences

punishable under Sections 324 and 325 read with

Section 34, IPC.  There is no appreciation of

evidence either of PW1 Gopal-complainant, PW 2

Nagesh  or  PW  3  Smt.  Nagaveni.   It  is,

therefore, impossible to imagine as to on what

basis the High Court convicted the appellants

for the offences under Sections 324 and 325

read with Section 34 IPC. It was, therefore,

submitted  that  the  appeal  deserves  to  be

allowed and the order passed by the High Court

requires to be set aside.

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12. The  learned  counsel  for  the

respondent-State also stated that there is no

reasoning why the accused were acquitted for

certain offences with which they were charged

without  appreciating  the  evidence  of

prosecution witnesses.

13. Having heard the learned counsel for

the  parties,  in  our  opinion,  the  contention

raised  by  the  learned  counsel  for  the

appellants is well-founded.  In a brief order,

the High Court partly allowed the appeal, but

there  is  no  reasoning  or  basis  as  to  what

weighed with the High Court in confirming the

order of acquittal recorded in favour of the

appellants-accused for certain offences and for

setting  aside  the  order  of  acquittal  and

ordering conviction of the accused for offences

punishable under Sections 324 and 325 read with

Section 34, IPC.   

14. The  High  Court  was  exercising

appellate power as the first appellate Court.

It was, therefore, expected of the High Court

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to  consider  the  evidence  of  Prosecution

Witnesses,  particularly  because  the  three

witnesses  were eye-witnesses  as also  injured

witnesses.  The  High  Court  had  failed  to

discharge  its  duty  of  exercising  appellate

power as a regular court of appeal.  The order

passed by the High Court, therefore, deserves

to be set aside by remitting the matter for

fresh disposal in accordance with law.   

15. For the foregoing reasons, the appeal

deserves  to  be  allowed  and  is  allowed

accordingly and the matter is remitted to the

High  Court  for  fresh  disposal  in  accordance

with law.

16. Before parting with the case, we may

state that we may not be understood to have

expressed any opinion one way or the other on

the merits of the matter.  As and when the High

Court  will  hear  the  matter,  the  Court  will

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decide the case without being influenced by any

observations made by us in this judgment.

17. Ordered accordingly.

…………………………………………………J. (C.K. THAKKER)

NEW DELHI, …………………………………………………J. November 05, 2008. (D.K. JAIN)

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