JAYASWAMY vs STATE OF KARNATAKA

MOHAN M. SHANTANAGOUDAR, J.

1.By the impugned judgment dated 12.08.2010 in Criminal Appeal No. 1498 of 2004, the High Court has reversed the judgment of acquittal passed by

the Trial Court in S.C. No. 143/1994 insofar as the appellant (accused No.1) is concerned, and consequently convicted the appellant for the offences

under Sections 302 and 326 of IPC. The High Court further, confirmed the judgment and order of acquittal passed by the Trial Court insofar as it

relates to accused Nos. 2 to 5.

The case of the prosecution in brief is that at about 4:30 pm on 15.01.1994, the accused Nos. 1 to 3 (including the appellant) along with accused

Nos.4 and 5, with the common intention of committing murder of deceased persons, namely Kumari Radhika (aged about 11 years) and Smt. Manjula,

as well as to cause grievous hurt to the informant Smt. Honnamma, trespassed into the house of Smt. Honnamma and quarrelled with her in filthy

language; the appellant assaulted the informant with a chopper on her head and hands and caused grievous injuries to her; the accused No.2 assaulted

the deceased Smt. Manjula with a chopper; the accused No.3 assaulted the deceased Kumari Radhika with a chopper on her head. Due to the said

assault, Kumari Radhika sustained grievous injuries as a result of which she died at 7:15 p.m. on 15.01.1994 at B.M. Hospital, Mysore. Smt. Manjula

also sustained grievous injuries and succumbed to the same at 2:35 p.m. on 04.02.1994. Based on the information lodged by the injured eyeÂ​witness

Smt. Honnamma, the crime came to be registered. All the five accused were tried for the offences punishable under Sections 326, 302, and 114 read

with Section 34, IPC. The Trial Court acquitted all the accused, after evaluation of the material on record and after hearing both the parties. As

mentioned supra, the High Court confirmed the judgment of acquittal passed by the Trial Court in respect of the accused Nos. 2 to 5. However, the

High Court set aside the judgment of the Trial Court acquitting the appellant and consequently convicted him for the offences punishable under

Sections 302 and 326, IPC.

3.Mr. Shanthkumar V. Mahale, advocate, appearing on behalf of the appellant, having taken us through the material on record submits that the High

Court reversed the wellÂconsidered judgment of the Sessions Court qua the appellant herein even though there is no cogent evidence against the

appellant. The first appellate court should not have interfered with the judgment of acquittal, particularly when the judgment of acquittal was based on

settled principles of law as well as on due appreciation of the evidence on record. The judgment of acquittal cannot be said to be perverse, and the

view taken by the Trial Court is one of the possible views under the facts and circumstances of the case, hence the High Court should not have

interfered with the judgment of the Trial Court. Per contra, Mr. Joseph Aristotle S., advocate for the State, argued in support of the judgment of the

High Court.

4.As mentioned supra, the informant Smt. Honnamma is an injured eyeÂwitness. The first information report details the sequence of events which

took place on the date of the incident, i.e., on 15.01.1994. Apart from narrating the incident, it narrates about motive for commission of offence also,

i.e., there was a dispute between the accused and the informant with regard to partition of the property. The first information discloses that at 4:00

p.m. on 15.01.1994, the appellant and his elder brother, Puttaswamy and Rajesh came to the house of the informant and started quarrelling with her

asking as to why she was not giving the property to Jayamma (accused No.5), sister of the appellant.

So saying, the appellant assaulted the informant, Smt. Honnamma (PW. 23) with a chopper on her head and hands. Puttaswamy (accused No.2)

assaulted Smt. Manjula (who was present in the house) with a chopper on her head three to four times. H.M. Rajesh (accused No.3) assaulted

Kumari Radhika (minorÂwho was also present in the house of informant) with a chopper on her head. No overt acts are attributed to Shankar

(accused No.4) and Jayamma (accused No.5) in the first information. It is needless to observe that specific allegations are found as mentioned supra

against Jayaswamy (the appellant), Puttaswamy (accused No.2) and H.M. Rajesh (accused No.3) only.

5.In order to prove its allegations, the prosecution examined 31 witnesses. However, the important witness in the matter is PW.23 i.e., the injured

eyeÂwitness/informant Smt. Honnamma. The case of the prosecution, thus, fully and mainly centres around the evidence of Smt. Honnamma

(PW.23), who survived after the assault by the appellant. The doctor (PW.7) examined Smt. Honnamma, Kumari Radhika and Smt. Manjula initially

and issued wound certificates (Ex. PÂ7, Ex. PÂ6 and Ex. PÂ8 respectively). PW.14 (doctor) conducted the postÂmortem examination of the dead

body of Manjula. The doctor (PW.30) conducted the postÂmortem examination of the dead body of Radhika. None of the witnesses (except PW.23)

are eyeÂ​witnesses; the other witnesses examined are either panch witnesses or police officials.

6.It is not in dispute that the incident had taken place inside the house of Smt. Honnamma (PW.23), therefore, it is but natural that there was no other

eyeÂwitness except PW.23. Three persons sustained injuries and out of them two persons, namely Kumari Radhika and Smt. Manjula, succumbed to

the injuries. The incident has taken place in broad daylight at about 4:30 p.m. It is not the story of the prosecution that the accused persons closed the

door after trespassing into the house and committed the offences secretly; on the other hand, according to the prosecution, the accused have

committed the offence openly. None of the neighbouring witnesses had come for the help of the deceased and injured. Although the prosecution

examined two neighbouring witnesses, they are not the eyeÂ​witnesses.

7.Looking to the evidence on record, the Trial Court as well as the High Court were justified in concluding that the incident had taken place for the

reason of a property dispute.

8.Specific overt act had been attributed to the appellant by the informant (PW.23) not only in her first information but also in her deposition. She has

categorically deposed that the appellant assaulted her with chopper; neither did the appellant assault the two deceased, nor did he instigate others to

assault the two deceased. PW.23 has further specifically stated in the first information as well as deposed before the Court that accused No.2,

Puttaswamy assaulted the deceased Smt. Manjula with a chopper and accused No.3 assaulted Kumari Radhika with a chopper. Kumari Radhika

expired on the very day, i.e., 15.01.1994 at 7:15 p.m. in B.M. Hospital whereas Smt. Manjula succumbed to her injuries at 2:35 p.m. on 04.02.1994.

The overt acts specified by PW.23 both in first information and her evidence reveal that there is no ambiguity in the deposition of PW.23 with regard

to the overt acts of each of the accused. The acts of each of these accused Nos. 1 to 3 are compartmentalised, i.e., accused No.1 assaulted the

complainant with a chopper, whereas accused No.2 assaulted Smt. Manjula with a chopper, and accused No.3 assaulted Kumari Radhika with a

chopper. No allegations are found against the accused Nos.4 and 5. No overt acts are found against the appellant in so far as assault on both the

deceased. Except specifying that the appellant assaulted the informant (PW.23), no other allegations are found against him. The ingredients of

common intention on the part of the accused to do away with the life of the deceased Smt. Manjula and Kumari Radhika are not forthcoming from the

evidence on record. Same is also the finding by the Trial Court and the High Court.

9.It is no doubt that the name of the appellant is found in all the three wound certificates, i.e., Ex. P6 to P8, as the assailant.

But, in view of the specific ocular testimony of PW.23 that the appellant has assaulted PW.23 only, (motherÂinÂlaw of the deceased Smt. Manjula

and the foster mother of Kumari Radhika), aforementioned note in the wound certificates loses its importance. It is relevant to note that PW.23 has

fully supported the case of the prosecution and she is the only eyeÂ​witness. Moreover, her evidence is consistent with her averments found in the first

information. We do not find any reason to discard the evidence of PW.23, more particularly as her evidence is unambiguous, cogent and consistent

with the case of the prosecution. By relying on the wound certificates, the High Court, as mentioned supra, convicted the appellant while confirming

the acquittal of the other accused. Absolutely no reason, much less valid reason, is assigned by the High Court, to reverse the judgment of acquittal

passed in favour of appellant.

10.It is by now well settled that the Appellate Court hearing theappeal filed against the judgment and order of acquittal will not overrule or otherwise

disturb the Trial Court’s acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court’s

conclusion with regard to the facts is palpably wrong; if the Trial Court’s decision was based on erroneous view of law; if the Trial Court’s

judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if

the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or

has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling

reasons and the first appellate court may interfere in the order of acquittal. However, if the view taken by the Trial Court while acquitting the accused

is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal

particularly in the absence of the aforementioned factors. It is relevant to note the observations of this Court in the case of Ramanand Yadav vs.

Prabhu Nath Jha And Ors., (2003) 12 SCC 606, which reads thus:

“21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal

shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs

through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of

the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from

the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a

case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.â€​

(emphasis supplied)

The High Court as mentioned Supra, while convicting the appellant has confirmed the judgment of acquittal passed in favour of the accused Nos.2

to 5. Their acquittal as confirmed by the High Court is not questioned by the State before this Court. Thus, the judgment of the High Court acquitting

accused Nos.2 to 5 has attained finality. Therefore, it is clear that the Trial Court and the High Court have, on facts, not believed the case of the

prosecution in respect of the assault by the accused Nos. 2 and 3. As mentioned supra, the specific case of the prosecution is that accused Nos.2 and

3 assaulted the deceased Smt. Manjula and Radhika consequent to which they lost their lives. Absolutely no material is found against the appellant

herein to convict him for the offences under Section 302 IPC inasmuch as he had not played any role in the death of the two deceased. In addition to

the same, both the Courts have, on facts concluded that there was no common intention on the part of the accused, in commission of crime.

It is not in dispute that the injured, Smt. Honnamma (PW.23) sustained grievous injury as a result of assault by the appellant. She was referred to a

neurologist for an expert opinion inasmuch as she had sustained an incised wound over the left parietal area. She had also sustained a fracture at the

lower end of her right forearm. Since the evidence of PW.23 in respect of an overt act by the appellant in injuring Smt. Honnamma is believable, in

our considered opinion, the High Court was justified in convicting the appellant for the offence under Section 326, IPC, but was not justified in

convicting the appellant for the offence under Section 302, IPC. Accordingly, the appeal is allowed in part, in terms of the following order:

(a)The appellant is acquitted of the offence punishable underSection 302, IPC. Consequently, the judgment of the High Court convicting him for the

said offence stands set aside.

(b)The judgment passed by the High Court convicting theappellant for the offence under Section 326 IPC and sentencing him for imprisonment of 7

years stands confirmed and is imposed a fine of Rs. 10,000/Â. In default of deposit/payment of fine (if not already deposited) within eight weeks from

today, the appellant shall undergo imprisonment for two years additionally. The fine, if recovered, shall be paid to PW.23 (informantHonnamma) as

compensation.

(c)It is brought to our notice that the appellant has alreadyundergone imprisonment for 11 years. The appellant is also entitled to setÂoff the period of

imprisonment already undergone with the sentence of seven years imposed. In view of the same, the appellant shall be released forthwith, if he is not

required in any other matter.