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IN THE SUPREME COUIRT OF INDIA  

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NOS. 1236-1237  OF 2002

BASAYYA PRABHAYYA HALLUR .... APPELLANT(S)

VERSUS

STATE OF KARNATAKA .... RESPONDENT(S)

WITH

CRIMINAL APPEAL NOS. 1238-1239  OF 2002

VIRABASAYYA PRABHAYYA HALLUR & ANR. APPELLANT(S)

VERSUS

STATE OF KARNATAKA .... RESPONDENT(S)

O R D E R

We have heard the learned counsel for the parties  

at length.

These appeals are directed against the judgment  

and order dated 16.7.2002 passed by the High Court of  

Karnataka in Criminal Appeal Nos. 319/1997 and 67/1997.  

Brief facts which are necessary to dispose of these  

appeals are recapitulated as under:

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It  is  alleged  that  on  1.5.1991  at  about  8.30  

p.m.,  seven  accused  persons,  namely,  Virabasayya  

Prabayya  Hallur  (A-1),  Babu  @  Chanamallayya  (A-2),  

Basayya  Prabhayya  Hallur  (A-3),  Basavaraj  Hanamappa  

Talwar  (A-4),  Laxman  Hanamappa  Talwar(A-5),  Prakash  

Hanamappa Talwar (A-6) and Suresh Hanamappa Talwar (A-

7)  formed an unlawful assembly with a common object of  

committing murder of the deceased Shivappa, assaulted  

him and also caused injuries to PWs 1 to 4, 7 and 17  

and  thereby  committed  offences  punishable  under  

Sections 147, 148, 302, 324 and 504 read with Section  

149  of  the  I.P.C.  On  2.5.1991  at  4.30  a.m.,  PW-1  

Mahadevappa lodged a complaint as per Ext.P-1 on the  

basis  of  which  the  entire  investigation  in  Crime  

No.60/91 started.  

The  Additional  Sessions  Judge,  Bijapur  framed  

charges  against  all  the  accused  for  the  offences  

punishable under Sections 147, 148, 302, 324 and 504  

read with Section 149 of the I.P.C.  

The prosecution in support of its case examined

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23 witnesses and got marked 26 Exhibits and 14 material  

objects. The learned Sessions Judge accepted the case  

of the prosecution in part and convicted accused Nos.1  

& 4 for offences punishable under Section 304 Part-I  

I.P.C.  and  sentenced  them  to  suffer  rigorous  

imprisonment for seven years and to pay a fine of Rs.  

500 each with default clause. Accused Nos.2, 3, 6 & 7  

were acquitted of all the charges. Accused No.5 died  

during the pendency of the  trial.  

Accused  Nos.1  and  4  aggrieved  by  the  said  

judgment  of  the  learned  Sessions  Judge  preferred  

Criminal  Appeal  No.67/1997  before  the  High  Court  of  

Karnataka.  The  State  of  Karnataka  also  preferred  

appeal, being Criminal Appeal No.319/1997, against the  

judgment  of  the  learned  Sessions  Judge.  Both  the  

appeals were disposed of by a common judgment dated  

16.7.2002  delivered by the High Court.   

The  High  Court  convicted  accused  No.1  under  

Section 304 Part-II I.P.C. and sentenced him to undergo  

rigorous imprisonment for five years and to pay a fine

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of Rs. 500 with default clause.

So far as accused No.4 is concerned, the High  

Court acquitted him under Section 304 Part-I I.P.C. but  

convicted him under Section 324 of the I.P.C. and was  

sentenced  to  undergo  rigorous  imprisonment  for  six  

months and to pay a fine of Rs.1,000/- with default  

clause.   

As regards accused Nos.2, 3, 6 and 7, the High  

Court  by  the  impugned  judgment,  reversed  the  Trial  

Court's judgment of acquittal and convicted them under  

Section 324 read with Section 149 of the I.P.C. and  

sentenced them to undergo rigorous imprisonment for six  

months  and  to  pay  a  fine  of  Rs.1,000/-  each  with  

default clause. However, the High Court acquitted all  

the accused persons under Sections 302/149 and 504/149  

of the I.P.C.  

Our attention has been drawn to a chart which  

indicates that the appellants have already undergone  

actual  sentence  of  imprisonment  for  more  than  two  

months. While admitting the appeal, this Court released

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the  appellants  on  bail  on  17th June,  2003.  Now  the  

crucial question which arises for consideration of this  

Court is whether the appellants should be sent back to  

jail to serve out the remaining sentence after a lapse  

of several years.

We  have  heard  the  learned  counsel  for  the  

parties. On consideration of the totality of the facts  

and circumstances of the case, in our considered view,  

ends of justice would be met if, while maintaining the  

conviction of accused Nos.2, 4, 6 & 7, their sentence  

is reduced to the period already undergone by them,  

provided they pay a fine of Rs.25,000/- each within a  

period of one month from the date of communication of  

this  order,  which  shall  be  deposited  in  the  Trial  

Court. In case the fine is not paid or deposited they  

would  undergo  the  remaining  period  of  sentence.  The  

concerned trial Court is directed to ensure that the  

amount of fine so deposited by the appellants is paid  

to  the  wife  of  the  deceased  Shivappa  within  eight  

weeks.   

Now, we are left with the appeals pertaining to

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accused  Nos.1  and  3.  As  far  as  accused  No.1  –  

Virabasayya Prabayya Hallur is concerned, there is a  

concurrent finding of fact by the Sessions Court which  

has been affirmed by the High Court.  He has been named  

in the complaint. All the injured eye witnesses have  

also named him in their statements. Specific role has  

been attributed to him in commission of the murder of  

deceased  Shivappa.  In  our  considered  view,  no  

interference with the impugned judgment is called for  

and  consequently,  the  appeal  filed  by  accused  No.1,  

being devoid of merit, is dismissed.  

So far as accused No.3 – Basayya Prabhayya Hallur  

is concerned, he was acquitted by the Trial Court. His  

acquittal has been set aside by the High Court. Since  

there were conflicting judgments so we have carefully  

gone  through  the  evidence  and  documents  on  record.  

Mr. Krishnamani, learned senior counsel appearing on  

behalf  of  the  appellant  (accused  No.3)  and  learned  

counsel appearing on behalf of the State of Karnataka  

have  taken  us  through  the  relevant  portions  of  the  

impugned judgment and the evidence on record.

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Mr. Krishnamani, learned senior counsel has also  

drawn our attention to the evidence of Shankarappa (PW-

3).  In his testimony, it is categorically stated that  

except A-3, all other accused were holding sticks.  The  

High Court has failed to give any cogent or convincing  

reasons to set aside the findings of the Trial Court  

qua A-3. The High Court was predominantly moved with  

the consideration that accused Nos. 2 to 6 cannot go  

scot free. But that can never be the proper reason for  

setting aside the judgment of acquittal.  

The  principles  for  setting  aside  an  order  of  

acquittal have been crystallised in a large number of  

judgments of this Court. Sheo Swarup v. Kind Emperor,  

(AIR 1934 PC 227) is one of the earliest cases where  

circumstances  which  are  relevant  in  setting  aside  a  

judgment of acquittal have been enumerated in detail.  

Mr. Krishnamani has also drawn our attention to  

the judgment of this Court in Ghurey Lal v. State of  

Uttar Pradesh, 2008 (10) SCC 450. He particularly laid  

emphasis to paragraph  43 of the said judgment where  

the case of Sheo Swarup (supra) has been dealt with.

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Lord  Russel  writing  the  judgment  in  that  case  has  

observed as under:    

“...the  High  Court  should  and  will  always  give proper weight and consideration to such  matters as (1) the views of the trial Judge  as to the credibility of the witnesses; (2)  presumption  of  innocence  in  favour  of  the  accused, a presumption certainly not weakened  by the fact that he has been acquitted at his  trial; (3) the right of the accused to the  benefit of any doubt; and (4) the slowness of  an appellate court in disturbing a finding of  fact  arrived  at  by  a  Judge  who  had  the  advantage of seeing the witness.”

Mr. Krishnamani also referred to paragraph 44 of  

the judgment in Ghurey Lal (supra) where reference has  

been  made  to  another  leading  case  of  this  Court  in  

Surajpal Singh v. State, AIR 1952 SC 52, in which it  

is  stated  that  the  presumption  of  innocence  of  the  

accused is further reinforced by his acquittal by the  

Trial Court as the Trial Court had the advantage of  

seeing  the  witnesses  and  hearing  their  evidence.  

Therefore,  unless  there  are  very  substantial  and  

compelling reasons, the Appellate Court would not be  

justified in reversing the judgment of acquittal. Mr.  

Krishnamani has also drawn our attention to paragraph  

68 of the judgment in which a leading judgment of this

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Court in Chandrappa v. State of Karnataka, (2007) 4 SCC  

415, has been dealt with. This Court reiterated therein  

fundamental principles of criminal jurisprudence that  

every person shall be presumed to be innocent unless he  

is  proved  guilty  by  a  competent  court  of  law.  The  

presumption  of  innocence  of  the  accused  is  further  

reinforced, reaffirmed and strengthened by the judgment  

of acquittal by the trial Court.  

Mr. Krishnamani also referred to paragraph 69 of  

the said judgment in which this Court has summarized  

the gists of the cases and held as under:  

“1.  The  appellate  court  may  review  the  evidence in appeals against acquittal under  Sections  378  and  386  of  the  Criminal  Procedure  Code,  1973.  Its  power  of  reviewing  evidence  is  wide  and  the  appellate court can reappreciate the entire  evidence on record. It can review the trial  court's  conclusion  with  respect  to  both  facts and law.  

2. The accused is presumed innocent until  proved guilty. The accused possessed this  presumption when he was before the trial  court. The trial court's acquittal bolsters  the presumption that he is innocent.

3. Due or proper weight and consideration

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must  be  given  to  the  trial  court's  decision. This is especially true when a  witness' credibility is at issue. It is not  enough  for  the  High  Court  to  take  a  different view of the evidence. There must  also be substantial and compelling reasons  for  holding  that  the  trial  court  was  wrong.”

We find considerable force in the submission of  

Mr. Krishnamani, learned senior counsel who appeared  

for the appellant. The High Court in our considered  

view was not justified in reversing the judgment of  

acquittal in such a  perfunctory manner. The impugned  

judgment of the High Court is clearly contrary to the  

well  settled  position  of  law.  Consequently,  the  

impugned  judgment  of  the  High  Court  qua  A-3  is  set  

aside and the appeal filed by him is allowed.  A-3 is  

acquitted of all the charges.  

The appeals are disposed of accordingly.

...................J (DALVEER BHANDARI)

...................J   (Dr. MUKUNDAKAM SHARMA)    NEW DELHI,

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   OCTOBER 7, 2009.