REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.  634 OF 2002

Chikkarangaiah & Ors.               …. Appellants

Versus

State of Karnataka               …. Respondent

WITH

CRIMINAL  APPEAL NO.  635 OF 2002

State of Karnataka               …. Appellant

Versus

Chikkarangaiah & Ors.             …. Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. These  appeals  by  special  leave  are  filed  against  the  judgment  and  

order  passed  by  the  High  Court  of  Karnataka  at  Bangalore  in  Criminal  

Appeal No. 594 of 1996; wherein the High Court partly allowed the appeal

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filed by the State by convicting accused Chikkarangaiah (A-1), Gopala (A-

3),  Gavisiddaiah  (A-9),  Ramakrishna @Ramachandra  (A-10),  Nanjundiah  

(A-11), Javaraiah (A-12), Shivalingaiah (A-13) and Puttaswamy (A-21) for  

an offence under Section 326 of the Indian Penal Code (for short “the IPC”)  

read with Section 149 of IPC and sentencing them to undergo imprisonment  

for a period of three years and to pay a fine of Rs. 5,000/- each, in default, to  

undergo simple imprisonment for three months while maintaining the order  

of acquittal under section 302 IPC.   Earlier the trial court acquitted all the  

accused persons by judgment and order dated 22.04.1996 in S.C. No. 13 of  

1990.    Since  these  appeals  arise  out  of  the  same  facts  and  common  

judgment, we heard the appeals together and propose to dispose of the same  

by this common judgment.

2. In order to appreciate the rival contentions advanced by the parties  

and issues involved, it is necessary to set out brief facts of the case  

which gave rise to the present criminal appeals.  

The prosecution case in brief is that A-1 to A-6, A-9 to A-13 and A-

16  to  A-21  were  residents  of  Jodihosahalli,  Kunigal  Taluk  whereas  

Kodakana Boraiah (A-7) was a resident of Seeyepalya, which was hardly  

one  kilometer  from  Jodihosahalli.  Kodakana  Boralingaiah  (A-8)  was  a  

resident  of  Puranipalya,  which  was  about  1  1/2  kilometers  from

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Jodihosahalli  whereas  Veerabhadraiah  (A-14)  and  Shivanna  (A-15)  were  

residents  of  Hanumanapalya,  which  was  about  1  1/2  kilometres  from  

Jodihosahalli.

3. The deceased H. B. Boralingaiah was a resident of Jodihosahalli. He  

was a School Teacher.  H. B. Boraiah (PW-1 as well as the complainant)  

was the younger brother of the deceased and was living in Jodihosahalli with  

his wife and children. The residential houses of PW-1 and the deceased were  

situated facing each other with a street in the middle running East to West.  

H. B. Lingaiah (A-5) was living in a house situated adjacent to the house of  

PW-1 on the western side.

4. The deceased Boralingaiah and his brother (PW-1) on one side and H.  

B. Lingaiah (A-5) and some villagers including A-1, A-2 and A-11 on the  

other side were having a land dispute since 1974. Even though there was a  

decree in favour of PW-1, A-5 with the support and aid of other accused  

persons were interfering with the peaceful possession and enjoyment of the  

said land namely Sy.  No. 108 re-survey No. 152. A-21, a Zilla  Parishad  

Member obviously having political influence was bringing pressure on PW-

1 and his brother deceased to give up their rights to the said land in favour of  

A-5. A-1 also had joined hands with A-21 to coerce PW-1 and the deceased  

to give up their rights in respect of said land. It was also the case of the

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prosecution that there were many cases involving theft,  mischief,  assault,  

concerning the property pending between PW-1 and his brother on one side  

and A-5 and A-21 on the other side and a number of criminal cases were  

also pending in this connection.

5. On  15-9-1989  at  about  9.00  a.m.  deceased  Boralingaiah  was  

proceeding from his house towards the house of Bettaswamy (PW-7), when  

he was waylaid by all the accused persons by surrounding him from three  

sides armed with clubs and chopper and they brutally assaulted the deceased  

indiscriminately. The injured Boralingaiah was shifted to his residence by  

his wife Chikkamma (PW-5), Ningamma (PW-3) wife of PW-1 and other  

two witnesses Narasamma (PW-4) and Kambaiah (PW-6).

6. In  the  meanwhile  PW-1  being  scared  to  go  near  the  scene  of  

occurrence went to a nearby village Santhepete after walking the distance  

and from there he got into a lorry and traveled to Kunigal and lodged his  

complaint  at  about  12.45  p.m.  in  Crime  No.  253/89  for  offences  under  

Section 307 of IPC.

7. At about 11.00 a.m. on the same day, at the request of PW-3 and PW-

5  to  send  a  message  to  the  son  of  the  deceased,  PW-6  was  proceeding  

towards the bus-stop to go to Bangalore, at that time A-1, A-21, A-9, A-3,  

A-12, A-11, A-13 and A-10 armed with clubs chased him and assaulted him

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10, Then  the  PW-23  registered  a  case  in  crime  No.  253/1989  for  the  

offences under sections 143, 147, 148, 149, 341, 324, 326, 506 and 307 read  

with section 114 of the IPC and submitted the FIR to the court.    

11. The Investigating Officer T. C. M. Shariff (PW-29) after completing  

the investigation filed the charge sheet against  the accused A-1 to 21 on  

01.01.1990. Thereafter, he received the serologist report as per Ex. P-80 and  

Chemical  Examiner’s  report  as  per  Ex.  P-81  and  other  reports.    The  

prosecution filed the charge sheet against A-1 to A-21 for the offences under  

sections 143, 147, 148, 149, 341, 324, 326, 506, 307 and 302 read with 120  

IPC.    A-1  to  A-21  pleaded  not  guilty  and  claimed  to  be  tried  and  

accordingly the case was posted for trial.   

12. During trial, the prosecution in support of its case examined as many  

as 30 witnesses and exhibited 89 documents.  Thereafter, the accused were  

examined under Section 313 of the Code of Criminal Procedure, 1973 for  

the purposes of enabling them to explain the circumstances existing against  

them.  The defence of the accused A-1 to 21 was one of total denial.

13. On completion of the trial, the trial court passed a Judgment and order  

acquitting all the accused. Aggrieved by the aforesaid judgment and order  

passed by the trial court, the State of Karnataka filed an appeal in the High

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Court of Karnataka, which was registered as Criminal Appeal No. 594 of  

1996.  

14. After  screening  the  evidence  on  record  and  hearing  the  rival  

contentions  of  the  parties  the  High  Court  partly  allowed  the  appeal  by  

convicting A-1, A-3, A-9, A-10, A-11, A-12, A-13 and A-21 for an offence  

under Section 326 read with 149 IPC and sentenced the accused for a period  

of three years and also sentenced them to pay a fine of Rs. 5,000/- each in  

default to undergo simple imprisonment for three months.  The High Court  

further directed that on payment of fine, the trial  court shall  disburse the  

amount to PW-6 as compensation.

15. State of Karnataka and A-1, A-3, A-9, A-10, A-12, A-13 and A-21  

being aggrieved by the judgment and order of the High Court of Karnataka  

preferred two special leave petitions on which notice was issued and leave  

was granted by this Court. The Criminal Appeal No. 634 of 2002 has been  

filed by the accused challenging their  conviction under Section 326 read  

with 149 IPC; whereas Criminal Appeal 635 of 2002 has been preferred by  

the State of Karnataka challenging the order of acquittal under Section 302  

IPC. On 8th July, 2002 this Court granted bail to the accused persons to the  

satisfaction of the trial Judge. We have heard learned counsel appearing for

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the  parties  when  the  appeals  were  listed  for  final  hearing,  who  had  

painstakingly taken us through the evidence on record.   

16. The learned senior counsel appearing for the accused very forcefully  

submitted that the view taken by the trial court was just and proper  

and  the  High  Court  should  not  have  interfered  with  an  order  of  

acquittal.   Learned counsel also submitted that the trial court in its  

judgment has given plausible and cogent reasons for disbelieving the  

story  of  PW-6  and  the  prosecution  for  acquitting  the  

accused/appellants of the charge under Section 326 read with 149 IPC  

with regard to the alleged assault on PW-6.    It was contended that the  

High Court disagreed with the view of the trial court and gave its own  

reasons for convicting the accused under Section 326 IPC and that  

those reasons cannot be sustained because admittedly PW- 6 knew all  

the 8 names on the day of assault yet he failed to give all the names at  

the earliest opportunity and that since PW-6 did not give the names of  

all the assailants, the doctor quite rightly did not record details, as the  

same were not narrated to him.  He also submitted that the reasons  

given by the trial court for acquitting the appellant/accused are very  

cogent and acceptable on the facts of the case and the reasons given  

by the High Court to discard the reasoning of the trial court cannot be

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sustained.   It  was  further  submitted  that  the  High  Court  didn’t  

appreciate that the prosecution failed to record the statement of PW-6  

when he was at Kunigal Hospital and it was a glaring omission on the  

part of prosecution and therefore assault on PW-6 cannot be relied to  

sustain the conviction of the appellants/accused.  Learned counsel for  

the  accused  further  submitted  that  if  this  Court  approves  the  view  

taken by the High Court, in that case the accused should be awarded  

sentence  to  the  period  already  undergone  by  them.  In  support  of  

aforesaid contentions, he has relied upon the decision of this Court in  

K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309;  

Hari Ram v. State of Rajasthan, (2000) 9 SCC 136; State of U.P. v.  

Nahar Singh, (1998) 3 SCC 561; and  Rajender Singh v.  State of  

Bihar, (2000) 4 SCC 298.

17. The  learned  counsel  appearing  for  the  State  on  the  other  hand  

submitted before us that the judgment of the High Court in confirming  

the order of acquittal of all the accused for the charges under Section  

302 read with 149 IPC, 120-B and 148 IPC was not proper as there  

are number of circumstances, which  prove  the  guilt  of  the  accused  

under the aforesaid provisions. It was submitted that the High Court  

found fault with PW-1 in preparing a typed FIR for the purpose of

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convicting the accused for offence under Section 302 IPC while the  

same  FIR was  held  to  be  good  for  the  purpose  of  convicting  the  

accused who assaulted PW-6 who assisted in shifting the deceased  

from the  spot  to  his  house.  It  was  further  submitted  that  the  two  

offences are so proximately connected that they have been committed  

during the course of same transaction. It was further submitted that the  

courts below failed to take into consideration the recovery evidence  

and the Serological report produced to the Court.  

18. In the backdrop of aforesaid arguments advanced by the parties, we  

will now examine the case in terms of well established legal position.  

First, we will examine the contentions advanced by the parties with  

regard  to  the  concurrent  finding of  acquittal  for  the  offence  under  

Section  302  IPC.  Then,  we  will  examine  the  order  of  conviction  

recorded by the High Court for the offences under Section 326 read  

with Section 149 IPC.

19. With regard to the concurrent finding of acquittal recorded by the trial  

Court as well as the High Court for the offence under Section 302 IPC  

is  concerned,  it  is  well  settled  that  while  hearing  an  appeal  under  

Article 136 of the Constitution, this Court will normally not enter into  

reappraisal or review of evidence unless the trial court or the High

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Court is shown to have committed an error of law or procedure and  

the conclusions arrived at are perverse. The Court may interfere where  

on proved facts wrong inference of law is shown to have been drawn.  

20. In the case of  State of U.P. v. Nahar Singh, (1998) 3 SCC 561, at  

page 568, this Court observed as follows  :  

“21.  The principle  with  regard  to  interference  in  the  appeal against acquittal under Section 378 CrPC are well  established.  While  dealing  with  the  power  of  the  High  Court to reverse an order of acquittal on a matter of fact,  Lord Russell of Killowen, speaking for the Privy Council,  in Sheo Swarup v. King Emperor3 observed thus:

“There is in their opinion no foundation for the view,  apparently supported by the judgments of some Courts in  India, that the High Court has no power or jurisdiction to  reverse an order of acquittal on a matter of fact, except in  cases in which the lower court has ‘obstinately blundered’,  or  has  ‘through  incompetence,  stupidity  or  perversity’  reached  such  ‘distorted  conclusions  as  to  produce  a  positive miscarriage of justice’, or has in some other way  so conducted itself as to produce a glaring miscarriage of  justice, or has been tricked by the defence so as to produce  a similar result.

Sections 417, 418 and 423 of the Code give to the High  Court  full  power  to  review  at  large  the  evidence  upon  which the order of acquittal was founded, and to reach the  conclusion that upon that evidence the order of acquittal  should be reversed. No limitation should be placed upon  that power, unless it be found expressly stated in the Code.  But  in  exercising  the  power  conferred  by  the  Code and  before reaching its conclusions upon fact, 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)  the  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 witnesses. To

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state this however is only to say that the High Court in its  conduct  of the appeal should and will  act in accordance  with rules and principles well known and recognised in the  administration of justice.” These  principles  have  been  approved  and  followed  in  numerous decisions of the Supreme Court. To mention a  few,  see  Prandas v.  State4;  Sanwat  Singh v.  State  of  Rajasthan5.

22.  In  State  of  U.P. v.  Krishna  Gopal6 M.N.  Venkatachaliah,  J.  (as  he  then  was)  summarised  the  principle as follows: (SCC Headnote)

“The plenitude of the power of the appellate court to  review  and  reappreciate  the  evidence  cannot  be  limited  under the supposed rule that unless there are ‘substantial’  or  ‘compelling’  reasons  or  ‘very  substantial  reasons’  or  ‘strong reasons’,  the  findings in  a judgment of  acquittal  should not be interfered with. There is thus no immunity to  an erroneous order from a strict appellate scrutiny. But the  appellate court wherever it finds justification to reverse an  acquittal must record reasons why it finds the lower court  wrong.” In  Ajit  Savant  Majagvai v.  State  of  Karnataka7 the  abovenoted principles have been approved and restated.

23.  If  on  reassessment  of  the  evidence,  the  appellate  court comes to the conclusion that the guilt of the accused  is  established,  the  fact  that  the  appeal  is  against  the  acquittal  will  be  immaterial.  However,  if  two views are  possible, the court, having regard to the basic principle that  presumption of innocence of the accused gets strengthened  by the fact of his acquittal by court, should take the view  that supports the acquittal of the accused.”

21. Further, in the case of K. Ramakrishnan Unnithan v. State of  

Kerala, (1999) 3 SCC 309, at page 314, this Court observed:  

“5. The plenitude of power available to the court  hearing  an  appeal  against  acquittal  is  the  same  as  that  available to a court hearing an appeal against an order of  conviction. But however the court will not interfere solely  because  a  different  plausible  view  may  arise  on  the

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evidence. In a case of murder, if the reasons given by the  trial court for discarding the testimony of the eyewitnesses  are not sound, then there should be no hesitation on the  part  of  the  High  Court  in  interfering  with  an  order  of  acquittal. If the judgment of the trial Judge was absolutely  perverse, legally erroneous and based on wrong testimony,  it  would  be  proper  for  the  High  Court  to  interfere  and  reverse  an  order  of  acquittal.  Having  examined  the  judgment of acquittal passed by the learned Sessions Judge  and the impugned judgment of the High Court, reversing  the  said  judgment  of  acquittal  and  on  scrutinizing  the  evidence of the three eyewitnesses, though we find some  substance in the grievance of Mr Lalit, appearing for the  appellant that the High Court has not adverted to all the  reasons given by the trial Judge for recording an order of  acquittal, but it is difficult for us to come to hold that the  High Court  exceeded  its  jurisdiction  and the  parameters  fixed for interference with an order of acquittal. We find  the approach of the learned Sessions Judge in recording an  order  of  acquittal  was  not  proper  and  the  conclusion  arrived  at  by  the  Sessions  Judge  on  several  aspects  is  unsustainable.  Even  though  the  eyewitnesses  appear  to  have  exaggerated their  version and improved upon their  version in giving a role to Accused 2 for which an order of  acquittal passed by the Sessions Judge has been affirmed  by the High Court, but to bring home the charge of murder  against the appellant on the ground that he gave a stabbing  blow on the deceased on a vital part by means of a knife  while  he  came  out  of  his  house  has  been  consistently  narrated  by  the  three  eyewitnesses.  There  has  been  no  embellishment  or  exaggeration by  these  eyewitnesses  so  far as the role ascribed to the appellant from their previous  version  to  the  police  is  concerned.  Thus  the  basic  prosecution case as unfolded through the testimony of the  aforesaid  three  witnesses  is  fully  corroborated  by  the  medical  evidence  of  the  two doctors  and,  therefore,  the  learned Sessions Judge was not justified in discarding this  part of the prosecution case and in acquitting the appellant  and  the  High  Court,  therefore,  was  fully  entitled  to  reappreciate the evidence of these witnesses and record its  own conclusion on the question whether the evidence of  the eyewitnesses that the appellant gave the stabbing blow  on the deceased can at all be sustained or not. We have  ourselves  scrutinized  the  evidence  of  the  three  eyewitnesses and we are of the considered opinion that the  reasons  adduced  by  the  trial  court  for  discarding  their  testimony were not at  all  sound. On the other hand,  the  evaluation  of  the  evidence  made  by  the  trial  court  was

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manifestly erroneous and, therefore, it was the duty of the  High Court to interfere with an order of acquittal passed by  the learned Sessions Judge. In this view of the matter, we  are unable to accept the ultimate submission of Mr Lalit  that the High Court exceeded its limit in interfering with an  order or acquittal passed by the learned Sessions Judge.”

22.One of us (Dalveer Bhandari J.) in Ghurey Lal v. State of U.P.,(2008)  

10 SCC 450, at page 476 has after an elaborate discussion of the case law  

on the subject succinctly observed as follows:  

“69.  The  following  principles  emerge  from  the  cases  above: 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 proven 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 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.

70.  In  light  of  the  above,  the  High  Court  and  other  appellate  courts  should follow the well-settled principles  crystallised  by  number  of  judgments  if  it  is  going  to  overrule or otherwise disturb the trial court’s acquittal: 1.  The  appellate  court  may  only  overrule  or  otherwise  disturb the trial court’s acquittal if it has “very substantial  and compelling reasons” for doing so. A number of instances arise in which the appellate court  would have “very substantial and compelling reasons” to  discard  the  trial  court’s  decision.  “Very  substantial  and  compelling reasons” exist when: (i) The trial court’s conclusion with regard to the facts is  palpably wrong; (ii) The trial court’s decision was based on an erroneous  view of law; (iii) The trial court’s judgment is likely to result in “grave  miscarriage of justice”;

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(PW-21) to bring the deceased. He went to the Kunigal hospital and saw the  

deceased bandaged and the deceased was advised by the doctor to be shifted  

to  Bangalore.  PW-23  did  not  record  any  statement  from  the  deceased  

although the doctor stated that the deceased was in a position to talk and was  

talking. He instead sent the deceased to Bangalore for treatment. PW-23 also  

stated that the Inspector of Police (PW-29) did not appear to have perused  

the complaint given by PW-1 nor did he take a statement from the deceased  

who was  conscious  according  to  the  doctor  (PW-14).  He didn’t  take  up  

further  investigation.  On perusal  of  PW-23's  evidence it  appears  that  the  

initial  investigation  was  done  by  the  Head  Constable  (PW-23).  PW-23  

visited the scene of occurrence, seized the incriminating articles, recorded  

the statements from the witnesses and after the initial investigation returned  

to the police station at about 9.30 or 10 p.m. Then he found that the FIR was  

not dispatched to the Magistrate.  These are all  steps taken in and also in  

furtherance of investigation.

25. PW-23 also categorically stated that the FIR was dispatched from the  

police station at about 1.45 p.m. through the Writer Nagaraj (not examined).  

After PW-23 came back, according to PW-23, he realised that Nagaraj had  

not dispatched the FIR to the Magistrate. Nagaraj searched for the FIR and it  

was still on the desk till 10.00 p.m. The reason given by PW-23 was that

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Nagaraj accompanied PW-23 for the purpose of examining witnesses and  

therefore he was not in a position to hand over the FIR to the Magistrate.

26. In his cross-examination, PW-23 stated that on his way to the village  

where the occurrence took place, he had to pass through the JMFC Court,  

Kunigal. He also stated that he was in a great hurry and therefore neither he  

nor Nagaraj handed over the FIR to the Magistrate. He also stated that he  

was  with  the  deceased  for  about  20  minutes  but  he  did  not  record  the  

statement from the deceased. He volunteered and stated that the deceased  

was not  in position to talk.  This  is  quite  contrary to the evidence of  the  

Doctor (PW-14). PW-14 clearly stated that the deceased was in a position to  

talk and was talking when he was examined.  PW-14 also stated that  the  

deceased was in a fit condition when he left the hospital to go to Bangalore.  

Further, PW-14 clearly stated that he did not record any statement from the  

deceased because he was under the impression that the Police had already  

recorded the statement from the deceased. This is particularly so since the  

deceased was brought to the Hospital from his place to Kunigal Hospital by  

PW-21.

27. In his evidence PW-29 stated that he received information at 1 p.m.  

from the Police Station. He visited the Police Station and rushed to the scene  

of occurrence. By the time he went and reached the scene, the deceased and

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PW-6 were shifted in a car to the Hospital to Kunigal by PW-21. He further  

stated in his evidence that the deceased was in an unconscious state. He also  

claimed to be busy in search of the accused. On receiving the intimation of  

death  he went  to  Bangalore  and held inquest  over  the  dead body of  the  

deceased.  He  examined  PW-3  at  the  inquest.  Subsequently  at  Victoria  

Hospital at Bangalore, he recorded the statement of PW-6. As stated earlier  

PW-6 was injured in a different incident. He stated that he did not record any  

statement from PW-1 till 05-10-1989 nearly 20 days after the occurrence. He  

also stated that he did not record the statement of the deceased since he was  

in an unconscious state, contrary to the statement of the doctor (PW-14). He  

further stated that the FIR reached the jurisdiction Magistrate only at 10 am.  

The reason given by PW-29 was that the offence did not constitute a serious  

offence.  

28. On the questions whether there was delay in transmitting the FIR and  

its reaching the Magistrate belatedly we find no reason to take a different  

view than what has been concurrently taken by the trial Court as well as the  

High Court.  The explanation given by the prosecution that  the complaint  

was  left  on  the  table  by  mistake  cannot  be  accepted  in  absence  of  the  

evidence  of  Nagaraj  and Shetter.  It  is  true  that  in  all  cases  the  delay  in  

transmitting the FIR and its reaching the Magistrate late is not fatal to the

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prosecution. However, when there is some doubt with respect to the genesis  

of  the  complaint,  the  surest  safeguard  would be  for  the  complaint  to  be  

received by the Magistrate expeditiously especially in a case as grave as this.  

When there is considerable doubt on the whereabouts of PW-1 during a stay  

at Kunigal, the delay in the FIR reaching the Magistrate would have bearing  

on the veracity of the prosecution case.

29. In view of the aforesaid discussion, we find no reason to interfere with  

the concurring order of acquittal recorded by the trial Court as affirmed by  

the High Court for the offence under Section 302 IPC.

30. With regard to the conviction of accused persons under Section 326  

read with Section 149 IPC is concerned, before dwelling into the evidences,  

we would like to reiterate the well established legal position. In our criminal  

law jurisprudence which is based on the adversarial model,  an accused is  

presumed  to  be  innocent  unless  such  a  presumption  is  rebutted  by  the  

prosecution by establishing guilt of the accused beyond reasonable doubt by  

producing the evidence to show him to be guilty of the offence with which  

he is charged. Further if two views are possible on the evidence produced in  

the  case,  one  indicating  to  the  guilt  of  the  accused  and the  other  to  his  

innocence, the view favourable to the accused is to be accepted. In cases  

where  the  court  entertains  reasonable  doubt  regarding  the  guilt  of  the

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accused  the  benefit  of  such  doubt  should  go  in  favour  of  the  accused.  

However, at the same time, the court must not reject the evidence of the  

prosecution  taking  it  as  false,  untrustworthy  or  unreliable  on  fanciful  or  

purely imaginary grounds or on the basis of conjectures and surmises. The  

case  of  the prosecution must  be judged as a  whole  having regard to  the  

totality  of  the  evidence.  In  reaching  a  conclusion  about  the  guilt  of  the  

accused, the court has to appreciate, analyse and assess the evidence placed  

before it by the yardstick of probabilities, its intrinsic value and the animus  

of  witnesses.  It  must  be noted that  ultimately  and finally  the decision in  

every case depends upon the facts of each case.

31. We now proceed to deal with the factual position of the present case.  

With regard to the second incident i.e. attack on PW-6, PW-6 who is the  

injured  witness  has  clearly  stated  in  his  evidence  that  he  had  gone  to  

Jodihosahalli  on  the  night  of  13-09-1989  for  the  purpose  of  agricultural  

work.  He had gone to  his  garden and was getting his  work done by his  

servants. It was at about 9 or 9.30 a.m. that the son of the deceased came to  

him stating that  his  father  was injured and that  he wanted some money.  

Since PW-6 had no money at that time he came to his house and asked his  

mother to give him some money to be given to the son of the deceased. Then  

he went to the scene of occurrence and he saw PWs. 3, 5 and 4 sitting and

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weeping in front of the padasala of the shop. The deceased was also in the  

same  padasala.  He  saw  the  deceased  with  injuries.  PW-5  (wife  of  the  

deceased) asked him to shift the deceased to his house. He along with others  

shifted the deceased to his house. He was asked to inform the children of the  

deceased about the incident at Bangalore. PW-6 left the scene of occurrence  

and went to the bus stop. Near the bus stop about 15 people were standing  

armed with clubs.  He was over taken by the accused.  The accused were  

angry that  he was going to Bangalore to inform the son of the deceased  

about the assault. At that time A-3 and A-12 assaulted him and threw stones,  

which  fell  on  his  legs.  Thereafter  clubs  were  used.  The  persons  who  

assaulted him by clubs were A-11 and his son A-12 and others are A-13, A-

10, A-1 and A-3 and he was also chased by A-9 and A-21. PW-6 fell down  

and  he  was  not  able  to  identify  the  other  accused.  PW-2  witnessed  this  

occurrence.  With  great  difficulty  PW-6  reached  his  house  with  bleeding  

injuries on his head. He suffered fracture on the right hand and there was  

also a fracture on the left leg.

32. The Police came to his house at 1 p.m. He was taken along with the  

deceased and PW-3 to the Kunigal Government Hospital. He reached the  

hospital at about 1.30 or 2 p.m. He was in Kunigal Hospital till the evening  

and after that he left to Bangalore for further treatment. He was in Bangalore

22

at about 9 p.m. He was admitted at Victoria Hospital and was in-patient for  

about 15 days.  He learnt  at  the Bangalore hospital that the deceased was  

dead. The Police on 16-9-1989 recorded his statement. He fairly admits that  

he was able to identify only 8 accused and they were A-3, A-12, A-11, A-13,  

A-10, A-1, A-9 and A-21. He clearly implicates the following accused as  

having chased and assaulted him i. e. A-1, A-3, A-9, A-11, A-12, A-13 and  

A-21.  PW-  6  was  an  Assistant  Marketing  Officer  and  was  an  educated  

person. If PW-6 wanted to implicate the accused with respect to the attack  

on  the  deceased,  he  could  have  stated  falsely  that  he  witnessed  the  

occurrence  with  respect  to  the  deceased.  Being  an  injured  person  his  

evidence would have been a great value with respect to the attack on the  

deceased to the prosecution. He truthfully says that he came to the scene  

immediately  after  the occurrence and on his way to the bus stop he was  

chased and assaulted by the aforesaid 8 accused.

33. PW-6 was examined at Kunigal Hospital for his injuries by PW-14  

(Doctor) at about 2.30 p.m.  PW-6 was discharged in the evening to enable  

him to get better treatment at Bangalore. Injury Nos. 1 and 2 according to  

the Doctor could have been caused by sticks and Injury Nos. 3 to 7 could  

have been caused by throwing stones. He was also treated at Bangalore by  

PW-13 (Doctor).  PW-13 in  his  evidence  stated  that  the  patient  gave  the

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history of assault said to have taken place on 15-9-1989 at 11.00 a.m. his  

village Hosahalli with sticks and stones by A-3, A-13 and others. PW-13 has  

also stated that injury Nos. 1 and 2 are grievous in nature and injuries Nos. 3  

to 6 are simple in nature. According to Pw-13, these injuries could have been  

caused by blunt object. PW-13 further stated that the act of throwing stones  

could have caused some injuries to PW-6.  

34. It is quite clear that when PW-6 was first seen at Kunigal Hospital at  

2.30 p.m. almost immediately after the occurrence as stated earlier, PW-14  

who examined PW-6 states that PW-6 gave him the history of assault. He  

was  again  examined  by  the  Doctor  (PW-13)  at  Victoria  Hospital  on  

15.09.1989 at 8.15 pm in which PW-6 gave the history of assault with sticks  

and also by throwing stones by A-3, A-13 and others. Therefore, even at the  

earliest point of time PW-6 did mention about the accused who assaulted  

him by the words "A-3, A-13 and others."

35. It is to be noted that PW-6 had no opportunity to give a complaint to  

the  Police,  since  the  earlier  complaint  by  PW-1 had covered  the  second  

incident  as  well.  PW-6 is  an  injured  witness  who had suffered  grievous  

injuries and was examined by the Police though not at the time of inquest  

but  immediately  after  the  inquest  on the  next  day of  the  occurrence.  He  

could not have been examined at the time of inquest since he was bed ridden

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at Victoria hospital. No contradictions or omissions have been elicited from  

PW-6 in his evidence by the defence with respect to the identification of the  

accused.

36. That being the position, we find no reason why an injured witness  

instead of giving the name of real assailants would unnecessarily implicate  

other people falsely who was not the real assailants. There is no reason to  

disbelieve  and  discard  the  evidence  of  PW-6  who though  did  not  speak  

about  the  main  incident  with  respect  to  the  assault  on  the  deceased  but  

clearly stated that while he was going to the bus stop he was assaulted by 8  

accused namely A-3, A-12, A-11, A-13, A-10, A-1, A-9 and A-21.

37. The  trial  Court  acquitted  these  8  accused  on  the  ground  that  the  

presence  of  PW-6  at  the  scene  of  occurrence  immediately  after  the  

occurrence  is  doubtful.  The  trial  Court  gave  the  benefit  of  doubt  to  the  

accused,  since  PW-6  did  not  give  the  names  of  each  of  the  accused  

individually before the Doctors (PW-13 and PW-14). However, it failed to  

consider the fact that it was not possible for PW-6 to give the name of the  

each of the accused individually since he had clearly mentioned A-3, A-13  

and "others". The word "others" clearly indicate that he knew their identity  

that is why when he was examined by the Police after the occurrence on the

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very next day he gave the names of all the 8 accused which was supported  

by his evidence in the Court.

38. The reasoning of the trial Court that the implication of the accused  

was an afterthought at Victoria Hospital does not stand to reason, since he  

implicated 8 accused, who assaulted him, at the earliest opportunity when he  

made a statement to the Police on the very next day and testified in Court to  

that effect. The trial Court found fault with PW-6 for not filing a separate  

complaint with reference to the occurrence. The trial Court also found fault  

with the prosecution for not recording the statement of PW-6 when he was at  

Kunigal Hospital. However, in our view that reasoning of the trial Court is  

legally untenable. The High Court was right in setting aside the judgment  

and order of the trial Court which acquitted the 8 accused who assaulted  

PW-6 since PW-6 had clearly mentioned the name of A-3, A-13 and others.  

It is neither the job nor can it be expected from a Doctor to record a detailed  

statement. The Doctor can only relate in brief what the witness said with  

respect to the alleged timings of the assault and the alleged assailants. We  

agree with the reasoning of the High Court that the trial Court proceeded on  

the erroneous assumption that all the names of the accused should have been  

mentioned before the Doctor.

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was that PW-6 was grievously injured with fractures and was bed-ridden for  

15 days at Victoria Hospital.

41. In view of the aforesaid discussion and also in view of entire facts and  

circumstances of the case, we order that -  

(i) The appeal filed by the State i.e. Criminal Appeal No. 635 of  

2002 against  the acquittal  of accused is  hereby dismissed by  

upholding the grounds given by the High Court in its judgment;

(ii) So far as appeal filed by the accused i.e. Criminal Appeal No.  

634  of  2002  is  concerned,  we  uphold  the  conviction  of  the  

accused under Section 326 read with 149 IPC, but we feel the  

ends of justice would be met by reducing the punishment of 3  

years granted by the High Court to 2 years.  We maintain the  

order of fine imposed by the High Court and that on deposit of  

payment  of  fine,  the  trial  court  shall  disburse  the  amount to  

PW-6 as compensation;

(iii) Bail bonds of the accused shall be cancelled;   

(iv) All the accused are directed to surrender before the trial Court  

to undergo the remaining period of sentence, if any. If they do  

not  surrender,  the  trial  Court  is  directed  to  take  appropriate  

action in the matter in accordance with law.

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42. The appeals are disposed of in terms of aforesaid order.  

 …................………………..J.   [Dalveer Bhandari]

 …......………………………J.        [Dr. Mukundakam Sharma]

New Delhi, September 2, 2009