REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ___________ OF 2010 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 8045 OF 2009

SANGAPPA & ORS. … APPELLANTS

VERSUS

STATE OF KARNATAKA … RESPONDENT

JUDGMENT

B. SUDERSHAN REDDY, J.

Leave granted.

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 acquittal in relation to all the

appellants and convicted 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.

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 son Sharanaiah was murdered by four  persons  

namely  Sangappa(A-1),  Sharanappa(A-2),  Malappa(A-3)  

and Jagadavappa (A-4). It is alleged in 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  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  asked  the  

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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  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.  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.  

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  

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next day  i.e. 10th September, 1998, PW-11 commenced  

the investigation and 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. 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 Sections 447 and 302 read with Section  

34, IPC. The accused pleaded not guilty and claimed to be  

tried. The Sessions 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 framed against 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  

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impugned order dated 10th June, 2009 reversed the order  

of acquittal and accordingly sentenced all the accused for  

the offence punishable under Section 304 (Part-II) read  

with Section 34, 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  

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 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  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  

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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 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.  

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 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  State  or  by  other  person  but  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.  This Court repeatedly held that  

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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)  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.  

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 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 Section 34,  

IPC. There is nothing on record suggesting as to the basis  

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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  (Narendra  Bhat  &  Anr.  Vs.  State  of  

Karnataka) while dealing  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 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  desired.  No  serious  

attempt appears to have been made by the High Court to  

appreciate the evidence on record.” The observations so  

made are equally applicable to the present case and we  

wish to say no more and leave the matter at there.  

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11. In  such  view  of  the  matter,  we  set  aside  the  

impugned judgment and order and remit the matter to the  

High  Court  for  fresh  consideration  and  disposal  in  

accordance with law.  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.  

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.  

…..……………………………………J.      (B. SUDERSHAN REDDY)  

…………………………………………J.      (SURINDER SINGH NIJJAR)

New Delhi,  March 9, 2010

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