“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1055 OF 2002

Mallappa Siddappa Alakanur & Ors. …. Appellants

Versus

State of Karnataka …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Three appellants who were original accused Nos. 2, 3 and 4 have  

come up against the conviction for the offences under Section 302 read  

with  Section  149,  Indian  Penal  Code.   They  were  acquitted  by  the  

Sessions Judge.  However, the High Court allowed the appeal against their  

acquittal.  As many as six accused persons were tried before the Principal  

Sessions  Judge,  Bijapur  on  the  basis  of  the  charge-sheet  filed  by  the  

police on the allegation that on 22.06.1996 at about 5 p.m. they were the  

members  of  unlawful  assembly  in  prosecution  of  the  common  object  

thereof  and  committed  murder  of  one  Malakari  Sidda  S/o  Kariyappa  

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Alakanur.   They were  also named in the charge-sheet  for  the offences  

under Sections 148, 302, 504 read with 149, IPC.   

2. The  First  Information  Report  was  given  by  one  Ningappa  

Mudakappa  Kamari  complaining  therein  that  the  complainant’s  sister’s  

husband was involved in a murder case and was in jail.  The complainant  

had put up a hut in the land of Kariyappa Alakanur situated at Yaragatti  

and started cultivating it.  It was further alleged that Kariyappa had three  

sons and the eldest was Malakari  Sidda.   The father of  Kariyappa was  

involved in the murder of  one Maruti  Alakanur  and on this account the  

accused persons  who  were  the  relatives  of  the  said  Maruti  nurtured  a  

grudge against Kariyappa Alakanur.  It  is stated that on 22.06.1996 the  

deceased  and  the  son  of  complainant  were  attending  to  the  work  of  

preparing  jaggery  from  sugarcane.  When  the  work  was  over,  his  son  

Mahadev Ningappa Kamari and deceased Malakari Sidda went to have a  

bath in the canal by the side of the land of Dattapant Kulkarni.  Since they  

did not return early the complainant went towards the said canal and saw  

all  the  accused  persons  near  the  canal  who  were  armed  with  various  

weapons.  They lifted the said Malakari Sidda and carried him for some  

distance and committed his murder. This was seen by his son Mahadev  

and he being a friend ran towards their garden hut and, thereafter,  this  

witness came on a bicycle along with Arjun Ishwar Honamore and Sanjeev  

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Mahadev Honamore.  He also mentioned that the accused persons had  

gone  away  along  with  blood  stained  sickles  in  their  hands  towards  

Yaragatti  village.   He had found that Malakari  Sidda was dead and his  

head was almost completely severed from the trunk.  The police reached  

the spot and found the body and conducted the necessary investigation.  

The dead body was sent for post-mortem where 10 serious wounds were  

found in it.  The weapons were seized from the accused they being M.Os.  

8 and 10.  On the basis of the investigation the charge-sheet followed and  

the accused persons were charged as aforesaid.

3. At the stage of evidence, the complainant turned hostile.  However,  

his  son  Mahadev  Ningappa  Kamari,  PW-7  stood  firmly  and  deposed  

against the accused, though he was about 13-14 years old.  PWs-5 and 6  

were also examined in support of the prosecution.  The Sessions Judge  

accepted  the  evidence  of  PW-5,  the  complainant,  in  part.   However,  

commented that  the evidence of  PW-7 who  was  the star  witness,  was  

unnatural.   The Trial  Court commented that his evidence did not match  

with the medical evidence regarding the time of death of the deceased as  

according to this witness the deceased had not eaten anything during the  

day.  However,  the reminiscences of food were found which suggested  

that his time of death would be about 11 O’clock or 12 O’ clock in the noon  

and not at 5 p.m. as deposed by the witness.  Again the learned Sessions  

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Judge  also  found  favour  with  the  fact  that  though  this  witness  was  

available on the night when police visited the spot, his statement was not  

recorded under Section 161 Cr. P.C.  The Sessions Judge also found that  

there were material contradictions in the evidence of this witness and his  

father PW-5.  Insofar as PW-6, Ningappa is concerned, he had seen the  

accused persons proceeding towards the garden land at about 4:30 p.m.  

and at that time the accused having blood stained sickles in their hands  

and the sickles of the accused were also blood stained.

4. The  Sessions  Judge  discussed  the  evidence  of  Siddappa,  PW-2  

who was a panch witness of the seizure of the blood stained clothes of the  

accused persons as also on the discovery effected by the accused No. 2 in  

pursuance  whereof  the  sickle  was  recovered  on  the  basis  of  the  

information  given  by  the  accused  No.2.   The  Sessions  Judge  also  

discussed the evidence of PWs-3 and 4, Arjuna Iswhara and Muttappa  

respectively, who had turned hostile.  After discussing the evidence of the  

investigating officers the Sessions Judge came to the conclusion that the  

prosecution had failed to prove the evidence and, therefore, awarded the  

benefit of doubt to all the accused persons.

5. In appeal against the acquittal filed by State of Karnataka against all  

six accused persons, the High Court allowed the same only in case of A-1,  

A-2,  A-3  and  A-4,  namely,  Pradhani  Siddappa  Alakanur,  Mallappa  

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Siddappa  Alakanur,  Dundappa  Yamanappa  Kabbur  and  Siddappa  

Yamanappa Kabbur, respectively.

6. Since  A-1  Pradhani  Siddappa  Alakanur  died  during  the  criminal  

proceedings before the High Court this appeal abated against him.  The  

present appeal, therefore, has been filed only by A-2, Mallappa Siddappa  

Alakanur,  A-3,  Dundappa  Yamanappa  Kabbur  and  A-4,  Siddappa  

Yamanappa Kabbur.  We are, therefore, concerned only with these three  

accused.   

7. The learned senior counsel appearing on behalf  of the appellants  

severally criticized the approach adopted by the High Court in setting aside  

the acquittal recorded by the Sessions Judge.  In that, the learned senior  

counsel claimed that the High Court had completely ignored the principles  

laid down by this Court while dealing with appeal against acquittal.  It was  

then pointed out by the learned senior counsel that though the High Court  

had power to re-appreciate the evidence in appeal against acquittal, in this  

particular case the High Court, while appreciating the evidence of the child  

witness  and  the  other  witnesses  was  not  alive  to  the  fact  that  the  

demeanour of the witnesses was seen by the Trial court which had chosen  

to disbelieve the witnesses.  It was suggested that the evidence of PW-5  

was of no use because he was declared hostile and the evidence of PW-7  

was that of a child witness who could be influenced by the prosecution.  

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Further,  it  was  suggested  that  the  High  Court  had  not  given  any  

explanation for the inherent weakness of a child’s testimony and even on  

merits the evidence of PW-7 could not be accepted.  It was pointed out  

that the fact that, though available, the statement of this witness was not  

recorded immediately, was left unconsidered by the High Court.  Further,  

the discrepancy of medical evidence with the prosecution case was also  

ignored by the High Court.  

8. Lastly,  almost  a  desperate  argument  was  made  that  even  if  the  

prosecution evidence could be believed, accused Nos. 3 and 4 deserved  

to be treated differently then accused No.2 as they could not be said to  

have any intention to commit murder of the deceased.

9. As  against  this,  the  learned  counsel  for  the  State  refuted  the  

arguments and pressed into service a few reported decisions suggesting  

that  even in an appeal  against  acquittal,  the High Court’s  power  to re-

appreciate the evidence and to come to the conclusion independently of  

the judgment of the acquittal remained undeterred.  The State counsel has  

supported the judgment and criticized the judgment of the Sessions Judge  

that  the  appreciation  of  evidence  by  the  Trial  court  was  not  only  

perfunctory  but  whole  approach  was  perverse and,  therefore,  the  High  

Court had rightly set aside the said judgment.   

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10. On these conflicting claims we have to decide as to whether  the  

High Court was right in upsetting the finding of acquittal reached by the  

Trial Court and convicting the three appellants herein.

11. The course to be taken by the High Court in dealing with the appeal  

against acquittal is now well established.  It is not and can never be that  

the High Court is bound by the finding of the Sessions judge and cannot  

re-appreciate the evidence.  The only requirement of law is that the High  

Court should be sufficiently mindful of the presumption of innocence of the  

accused  which  presumption  is  reiterated  by  the  finding  of  acquittal  

recorded by the Trial Court.   The High Court, therefore, must come to the  

conclusion  that  the  finding  of  acquittal  by  the  Trial  court  is  totally  

unsustainable and further that the appreciation of the evidence of the Trial  

Court tends to be perverse and as such cannot be supported.  If the High  

court comes to these conclusions, then the whole appeal is open to the  

High Court and the High Court is justified in re-appreciating the evidence  

and also to come to a different finding.   

12. The High Court, firstly, found fault with the Trial Court’s approach in  

rejecting  the  testimony  of  the  witness  on  immaterial  and  unsubstantial  

contradictions not relating to vital and relevant aspects.  The High Court  

also reiterated the law laid down by this Court in  Ramesh S/o Laxman  

Gawli Vs. State of M.P. & Ors.Etc. reported in 2000 (1) SCC 243 to the  

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effect  that  the  contradictions,  inconsistencies,  exaggerations  or  

embellishments, minor discrepancies or variance in the evidence do not  

make the prosecution doubtful.  On the other hand they lend credibility to  

the prosecution version.  Even as regards the principles of dealing with the  

judgment of acquittal, the High Court relied on the judgment reported as  

Allarakha K. Mansuri v. State of Gujarat [2002 (3) SCC 57] wherein this  

Court has reiterated the duty to avoid miscarriage of justice arising from  

acquittal of guilty.  Therefore, it cannot be said that the High Court was not  

alive to the fact that it was dealing with the judgment of acquittal.  The high  

court has correctly proceeded to consider the evidence.

13. PW-7 is a star witness in this case.  He was all  through with the  

deceased on that fateful day, since they were working together on jaggery  

plant.  He had also, as usual, gone for taking bath along with the deceased  

and when they finished bath, he suddenly found A-3 and A-4, calling the  

deceased and whisking him away to the distance of about 100 yards.  The  

third accused held the legs of the deceased, while the fourth accused held  

the hands and thus, completely overpowered him and in that state, A-1  

and A-2 assaulted at the neck of the accused.  The other accused persons  

were provoking not to leave the deceased.  All this time, the deceased was  

making hue and cry, which was most natural.  The witness being a boy of  

13 or 14 years, obviously got frightened and ran away from that spot and  

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where he met his father PW-5 and told him what  had happened.  This  

witness  has  graphically  described  the  shirt  worn  by  the  deceased,  his  

towel and identified the clothes in the Court.  He even identified the pant of  

the deceased.  The waist thread of the deceased was also identified, which  

was blood stained.  He had further identified the clothes worn by A-3, as  

also the sickles used by A-1 and A-2, who committed the murder.  The  

green shirt of A-3 (M.O. 7) and sickles used by A-1 and A-2 (M.Os. 8 and  

10 respectively) were also identified by the witness.  He was mostly cross  

examined on persons present on the spot, which was of no consequence,  

because the incident did not take place at the jaggery land.   

14. The major reason why this witness was disbelieved was because of  

the food articles found in the stomach of the deceased, which could only  

be if the deceased had eaten something 3 or 4 hours before the death.  

From this, the Trial Court jumped to the conclusion that the boy must have  

been done to death not at 4 or 5’ O clock in the evening as claimed by the  

witness, but at about 11 or 12‘ O clock in the morning, since he had eaten  

his food at 8’O clock according to PW-7.  Now, one sentence in the cross  

examination that the deceased did not take lunch in the farm land, was  

reiterated  by the Trial  Court  to  hold that  the whole  story  of  PW-7 was  

unnatural.  It was got admitted in the cross examination that he was sitting  

near the dead body of the deceased.  He also reiterated that his father  

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again came to the spot at about 9 p.m. alongwith PSI.  However, he was  

interrogated at 12 pm next day.  From this, the Sessions Judge came to  

the conclusion that the boy must have been influenced and that there was  

no explanation for  not  recording his  statement  at  night  itself.   Both the  

circumstances  about  the  food,  as  well  as,  late  recording  are  most  

insignificant circumstances and the High Court has correctly rejected the  

same.  Insofar as the medical aspect about the food is concerned, the High  

Court has considered the same while considering the medical aspect.  The  

High Court has also considered the criticism that the number of injuries on  

the  body  of  the  deceased  did  not  tally  with  the  account  given  by  this  

witness.   The  High  Court  has  relied  on  the  judgment  in  Masjit  Tato  

Rawool Vs. State of Maharashtra reported in AIR 1971 SC 2119, Shivaji   

Sahebrao Vs. State of Maharashtra reported in AIR 1973 SC 2622 and  

P. Venkaiah Vs. State of A.P.  reported in AIR 1985 SC 1715 and held  

that  too  much  reliance  could  not  be  placed  on  such  slippery  steps  

regarding the reminiscences of food articles found in the stomach of the  

deceased.  The High court has attributed that discrepancy to the fact that  

PW-7 might not have noted that the deceased had eaten something or that  

being a young children they had the habit of eating something between the  

meals  and  only  such  undigested  food  must  have  been  found  in  the  

stomach of the deceased.   

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15. Similarly, the High Court has discussed the number of injuries which  

did not tally with the eye-witness’ account, holding that it may be that the  

witness might not have seen the other injuries being inflicted and further in  

a conflict between the ocular evidence and the medical evidence, if  the  

testimony  is  acceptable,  trustworthy  and  reliable,  the  same  should  be  

preferred to the medical evidence.  We feel the approach of the High Court  

on these aspects was absolutely correct and the Trial Court was totally  

wrong  in  recording  the  finding  of  acquittal  on  such  insignificant  

circumstances.   A  doubt  by  the  criminal  Court  should  not  be  that  of  

doubting  Thomas,  it  should  be  a  real  and  tangible  doubt.   A  doubt  

regarding  the  veracity  of  the  evidence  of  the  witness  should  be  a  

reasonable doubt and the evidence cannot be simply brushed aside on  

such minor aspects,  as has been done by the Sessions Judge.  Same  

thing can be said about the other circumstance that his submission was  

not  recorded on the same day.  The Trial  Court  has led stress on this  

insignificant  aspect.   True  it  is  that  the  statement  should  have  been  

recorded in the same night,  however,  one can imagine a situation of  a  

young boy, who had seen a ghastly murder having been committed and  

then his being subjected to an ordeal of giving the statement in the dead of  

the  night.   The  delay  in  recording  the  submission  is  undoubtedly  a  

circumstance which has to be taken into consideration, but at the same  

time, the Courts must be reasonable in this aspect also and should see as  

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to whether the late recording of the statement in the dead of the night of a  

tender aged boy of 13 was possible and feasible.  The further thing which  

has  to  be  considered  is  as  to  whether  such  delay  has  affected  his  

testimony or whether there was any real apprehension of the boy being  

influenced by any other person or the police.  In the absence of any such  

possibility,  the  evidence  of  the  boy  could  not  be  thrown  out,  more  

particularly, when the boy had faced the ordeal of the cross examination in  

a very efficient manner.  The usual police apathy to record statements in  

the late hours can also be another factor to be considered.

16. We have, ourselves, seen the cross examination and very strangely,  

the witness was asked the questions about the actual assaults in his cross  

examination,  thereby  actually  admitting  his  presence  at  the  spot.   He  

explained in his cross examination that A-3 and A-4 attacked the boy and  

threw him down on the ground and he identified the accused even at that  

time.  His not shouting can also be explained that he was feeling extremely  

apprehensive on account of such dastardly attack on the deceased, who  

was his friend.  Graphic description as to how the attack was made by A-1  

and A-2 with the help of A-3 and A-4 has come in para 7, in his cross  

examination.  The omissions brought out in para 9 are also of miniscule  

nature.   His  story  that  A-3  and  A-4  whisked  away  the  deceased  and  

thereafter,  overpowered  him and  A-1  and  A-2  committed  the  dastardly  

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attack on the helpless boy, however remained unshaken throughout the  

cross examination.  The reasons given by the Sessions Judge to reject the  

evidence appear to be non-existent.  In fact, the Trial Court started with an  

expression of doubt, holding that the evidence appears to be unnatural.  

There was nothing unnatural in the evidence.  His presence at the spot  

was well explained.  The story that he went alongwith the deceased to take  

bath  after  the  work  at  the  jaggery  plant,  also  remained  unshaken  and  

ultimately  his  story  as  to  how  the  attack  occurred  has  also  remained  

unshaken in his cross examination.  Very strangely, the Sessions Judge  

calls him an interested witness.  In our opinion, his evidence could not be  

rejected on that ground.  If he was actually the cousin of the deceased, he  

could  not  change  that  situation.   There  is  neither  evidence  nor  any  

suggestion that this boy was tried to be influenced either by his father or  

the relations of the deceased.  We have already stated that the omissions  

proved at Exhibits D1(A) and D1(B) are most insignificant and, therefore,  

we are quite satisfied with the finding of the High court that the evidence of  

this witness was credible.   

17. The High Court has then discussed the evidence of PW-5, the father  

of PW-7.  We completely fail to understand as to why PW-5 was declared  

hostile.  He was perhaps declared hostile because he refused to state that  

he had seen the murder and stuck to the story that he was told by his son  

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about it.   In his evidence, he reiterated that his son, i.e., PW-7 and the  

deceased left for taking the bath after the completion of work as per their  

practice and since they did not turn up for a long time, he went and saw  

that  his  son  was  running  at  a  distance  of  150-250  ft.  from  the  said  

chamber.  He had stated that he had not seen the accused persons cutting  

the neck, however, he had actually seen all the accused persons, who ran  

away  towards  the  Yaragatti.   Great  stress  was  led  on  the  fact  that  in  

Exhibit P-8 FIR, he had stated that when he went near the land, the six  

accused persons attacked the boy and committed his murder.  During his  

evidence, however, he had stated that the accused persons had already  

assaulted and murdered the deceased before he and his son reached the  

spot.   He  had  also  very  specifically  stated  that  he  had  not  seen  the  

accused persons cutting the neck of the deceased.  In our opinion, this  

was no reason to declare him hostile.  It may be that during his narration,  

the person taking down the report may have committed this mistake.  That,  

however, will  not be fatal to his evidence.  In his cross examination, he  

reiterated that he had stated that his son had seen the whole incident.  

One very significant sentence in Exhibit P-8 is missed by the Trial Court.  

That sentence is:-

“seeing this situation, my son Mahadev apprehended and ran  towards our crushing house and immediately I made hue and  cry.”   

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Therefore, it is clear that the witness has referred and corroborated  

the testimony of PW-7 that he ran towards his father and thereafter, the  

father  and  son,  PW-5  and  PW-7  respectively,  went  towards  the  spot,  

where the deceased was lying, and at that time, the accused persons fled  

away  from the  spot.   In  our  opinion,  the  witness  was  truthful  and  his  

evidence should not have been rejected by the Trial Court for such small  

and  insignificant  thing.   After  all,  he  is  a  villager  and  there  is  every  

possibility  of  the  person  who  took  down  the  report  on  his  dictation,  

committing  the  mistake.   Otherwise,  the  evidence  of  this  witness  has  

remained  unshaken.   Much  was  said  of  the  fact  that  in  para  8  of  his  

evidence, he said that his son was near the dead body and on that day,  

the police interrogated his son Mahadev at night, whereas PW-7 had said  

that his submission was recorded on the next day at 12’ O clock.  Both the  

things can be true.  It may be that though PW-7 was interrogated at night,  

his statement came to be recorded on the next day.  We do not find any  

such  discrepancy,  so  as  to  reject  the  evidence  of  both.   The  other  

omissions  brought  in  the  cross  examination  of  this  witness  are  wholly  

insignificant.  In our opinion, the High Court has correctly appreciated the  

evidence and in recording a finding that there was no opportunity to this  

witness to concoct any false case, no error is committed.  We must note  

that  this  witness  was  not  treated  as  hostile,  on  the  other  hand only  a  

permission to cross-examine him was sought.  Even if he was declared to  

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be hostile, the law is now clear that that by itself does not wash out his  

evidence.  It is not correct to say that the high Court has not considered  

the evidence in a fair  and correct  manner.   On the other  hand,  all  the  

points argued before us seem to have been considered by the High Court  

with great care.

18. Similar thing has happened about the evidence of PW-6.  He was  

the one, who had seen the accused persons running away with the sickles  

and the clothes of A-1 to A-4 being blood stained.  He had also identified  

the  blood stained  weapons  and the  clothes.   We do not  find  anything  

unnatural in the evidence of this witness.

19. We have seen the medical evidence of Dr. Shobha PW-15, who had  

conducted the Post mortem and had took the ten injuries suffered by the  

deceased.  Much was said that the eye-witness PW-7 had not described  

the assault, so that it could suggest causing ten injuries.  A fact cannot be  

forgotten  that  here  was  a  witness  of  the  tender  age  and  he  was  not  

expected to explain each and every injury.  He has deposed about the  

participation of A-1 and A-2 and the crucial part played by A-3 and A-4.  

The  cross  examination  of  the  Doctor  is  absolutely  perfunctory.   The  

evidence of Investigating Officer supports the evidence of PWs 1 and 2,  

who  are  the  panch  witnesses.   PW-2 has  proved the  discovery  at  the  

hands of A-1, who is dead, as also the discovery made by A-4.  In his  

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evidence, the Investigating Officer has also said about the articles being  

sent to the Chemical Examiner at Bangalore and had also referred to the  

queries  seeking  the  opinion  of  the  Doctor  as  to  whether  the  external  

injuries could be caused by the aforementioned weapons seized by him.  

Lastly, the other Investigating officer PW-18 Gurrapagouda also suggested  

that  he had arrested the A-1 and A-2,  apart  from the fact  that  he had  

referred to the various panchanamas including the seizure panchanama of  

the blood stained clothes etc.  There is nothing in the cross examination of  

this Investigating Officer either.  Therefore, we ourselves are satisfied that  

the offence was completely and totally proved as against the four accused  

persons.   We  are  fully  satisfied  that  this  was  a  case,  where  the  

appreciation of the evidence at the hand of the Trial court was erroneous  

and faulty and that by the High Court was correct.

20. We need not reiterate on the case law in Dila & Anr. Vs. State of  

U.P. reported in 2002 (7) SCC 450.  The three Judge Bench of this Court  

has held that in an appeal against the acquittal, the High Court has same  

powers which the Trial Court has in examining the evidence and if it comes  

to the conclusion that the view taken by the Trial Court was unreasonable  

or against the weight of evidence, it could reject the finding recorded by the  

Trial Court.  In this case, the High Court has not rejected the findings by  

the Sessions Court, merely because it could come to the other findings.  

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The High Court has given adequate reasons in coming to the findings that  

it did.  The two Judge Bench of this Court in Bhagwan Singh & Ors. Vs.  

State of M.P.  reported in  2002(4) SCC 85  has held that the paramount  

consideration  of  the  Court  is  to  ensure  that  miscarriage  of  justice  is  

avoided.

21. We are, therefore, convinced that the High Court has acted correctly  

in  setting  aside  the  judgment.   The  Learned  Senior  Counsel  Shri  

Rangaramanujam, appearing on behalf of the appellants, however, by way  

of his last submission reiterated that the case of A-3 and A-4 is different  

from the case of A-1 and A-2.  We do not think so.  In fact, A-3 and A-4  

have played a very major role in the whole affair.  They were the one, who  

started the assault on the poor boy, nobbed him down, carried him away  

and overpowered him.  Therefore, there may not be any dispute about the  

role played by them.  They are equally guilty as A-1 and A-2.  In short,  

there is no merit in this appeal and it is dismissed accordingly.

………………………………..J. (V.S. Sirpurkar)

………………………………..J. (R.M. Lodha)

New Delhi; July 7, 2009.

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Digital  Performa

Case  No.  : Criminal Appeal No. 1055 of 2002

Date of Decision : 07.07.2009

Cause Title :  Mallappa Siddappa Alakanur & Ors.

Versus

State of Karnataka

Coram :   Hon’ble Mr. Justice V.S. Sirpurkar     Hon’ble Mr. Justice R.M. Lodha

(Vacation Bench)      

C.A.V. On : 27.05.2009

Order delivered by :  Hon’ble Mr. Justice V.S. Sirpurkar

Nature of Order  :  Reportable

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