Reversal of Acquittal: Appellate court cannot reverse the acquittal on fresh appreciation of evidence and without recording any illegality error of law or of fact in the Trial court judgment

Challenge: Trial court acquitted the appellants but Hon’ble High court reversed the acquittal and held the appellants guilty of murder hence this appeal

1) The wheels of justice may grind slow, but they grind fine. Mallappa S/o Ningappa Kanner, Hanamanth S/o Ningappa Kanner and Dharamanna S/o Ningappa Kanner are the appellants before us who were put on a trial, as accused no. 3, 4 and 5, for the commission of murder of deceased namely Marthandappa and were acquitted by the Trial Court/Fast Track Court-I at Gulbarga on 24.03.2005. The judgment was not meant to finally Crl.Appeal No. 1162/2011 Page 2 of 36 seal the fate of the appellants as the State of Karnataka preferred an appeal against the order of the Trial Court before the High Court of Karnataka which was registered as Criminal Appeal No. 1363/2005. On 31.05.2010, the High Court reversed the order of acquittal and held the appellants guilty of the commission of murder of deceased Marthandappa. Accordingly, the appellants stood convicted and were sentenced to undergo life imprisonment. The appellants stand before us assailing the order of conviction of the High Court and praying for a declaration of innocence.

Analysing the judgment of the Hon’ble High Court

21) We have heard the rival submissions of the parties and have also carefully gone through the record.

Issue: Whether the High Court was correct in reversing the order of acquittal

22) We may now proceed to answer the principal question i.e. whether the High Court was correct in reversing the order of acquittal of the Trial Court and thereby convicting the accused persons under Section 302 IPC.

The accused are not unknown to the victims

23) At the outset, it is relevant to note that accused Nos. 1 to 5 are brothers inter se and accused no. 6 to 8 are relatives of accused Nos. 1 to 5, residing at Aidbhavi, Taluk Lingasgur. The complainant PW-2 (Narsappa) is the father of the deceased Marthandappa and PW-4 and PW-3 are the nephews of PW2, and they are residing at village Aidbhavi. The accused persons are not unknown to the victims and complainant.

Presumption of innocence gets strengthened once accused acquitted

24) We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

Points for consideration while reappreciate and reverse the order of acquittal into one of conviction

25) No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

The infamous two views theory: When two views are possible, following the one in favour of innocence of the accused is the safest course of action

26) It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The ‘two-views theory’ has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka [(2015) 10 SCC 230],

“13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:

“9. …We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.””
(emphasis supplied)

In Sanjeev v. State of H.P [(2022) 6 SCC 294], the Hon’ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:

“7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [(2019) 5 SCC 436], Anwar Ali v. State of H.P [(2020) 10 SCC 166)])

7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P [AIR 1955 SC 807])

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [(1998) 5 SCC 412])”

Conduct of P.W-3 analysed

Conduct of P.W-3 kept on sitting at the bus stand the entire night and further did not inform the outpost police about the incident inspires no confidence

27) In this case, the case of the prosecution substantially rests on the testimonies of PW-3 and PW-4 read with various documents, especially the reports of medical examination and post mortem. PW3 is the eye witness of the incident. His testimony has been rejected by the Trial Court by terming it as artificial. PW-3 deposed that he was present at the place of incident when the accused persons started assaulting the deceased and PW-4 on 28.06.1997 at around 4 P.M. PW-3 deposed that A3 had assaulted PW-4 as he was running for his life along with PW-3. PW-4 was attacked from the back and PW-3 successfully managed to hide behind the bushes. Notably, PW-3 hid behind the bushes and observed the assault till Marthandappa was dead and PW-4 was unconscious. He then came out to check them and fearing for his life, he again rushed behind the bushes. He admitted that he was hiding behind the bushes till sunset. Thereafter, he came out and started walking towards Devpura, although he admitted that there were a number of buses plying on the route. But PW-3 takes no bus and keeps walking towards Devpura. On reaching there, he sat at the bus stand and kept on sitting there. Fast forward to the next morning, PW-3 catches the bus only at 6 A.M. on the next morning. The explanation as to how PW-3 spent the entire intervening night of 28- 29.06.1997 is missing from the chain of circumstances. The statement that he was simply sitting at the bus stand for the entire night, while Marthandappa was dead and PW-4 was severely injured and unconscious, fails to inspire confidence. More so, when the entire reason for hiding behind the bushes was the fear of life. Despite such fear, PW-3 did not choose to inform the police out-post, on the way from Devpura to Aidbhavi, and rather, he kept on sitting at the Devpura bus stop. He also admitted that his relatives were residing around 4 km from the place of incident at Nagaral. However, he chose not to inform them either. He also admitted that he took no steps to provide medical treatment to PW-4 who was lying unconscious at the place of incident as a result of the assault. The said fact could have been entertained if the place of incident was completely secluded. Such is not the case, as it is admitted that the place of incident fell on a bus route and buses were indeed plying.

Conduct of P.W-3 informing P.W-2 (after 18 hours) about the incident would inspire confidence if P.W-2 was residing close proximity

28) It was almost 18 hours after the assault that PW-3 managed to reach Aidbhavi to inform PW-2 about the incident. The High Court found the conduct of PW-3 to be perfectly natural, as it was understandable that PW-3 wanted to inform PW-2 before anyone else. Such conduct would have been justified if PW-2 was residing in close proximity of the place of incident. The very fact that PW-3 did not even contemplate about providing medical help to PW-4 or to seek protection from the local police despite such a drastic assault and instead, chose to wait for 18 hours, raises a reasonable doubt on the credibility of his version. This circumstance assumes a greater importance in light of the fact that PW4 was the cousin brother of PW3 and not some stranger. The conduct of PW-3 was not that of a reasonable man placed in such circumstances and the Trial Court was right in terming it as artificial.

Conduct of P.W-3’s presence at the place of incident doubtful though there was a heavy assault by multiple accused persons but did not do any harm to P.W-3

29) The conduct of PW-3 renders his very presence at the place of incident as doubtful. Despite a heavy assault by multiple accused persons, he did not suffer any injury at all. That too when he was indeed chased by A3 while attacking PW-4. It is extremely doubtful that the assailants simply chose to give up on PW-3 and did not pursue him behind the bushes, despite knowing that PW-3 could turn out to be an eye witness of the incident. The story that follows the story of hiding behind the bushes is equally doubtful and leaves one speculating. The timelines, the route taken by PW-3, complete disregard for severely injured PW-4, failure to inform the police post despite access to it etc. are some of the factors that raise a reasonable doubt on the entire story. The chain of circumstances created by the testimony of PW-3 is not consistent with the outcome of guilt.

Conduct of P.W-4 unbelievable: P.W-4 self-admitted himself in the hospital despite he was unconscious

30) The version of PW-4 is that he was attacked from the back by A3 and thereafter, he fell unconscious. As per his testimony and the testimony of PW-3, PW-4 was attacked by an axe on his head, back and scrotum. The first point of corroboration is to be seen from the circumstances following the assault. The assault on PW-4 took place at around 4 P.M. and he was admittedly unconscious thereafter. He remained as such until he was “self-admitted” in the hospital at around 12:30 P.M. the following day. The second point for corroboration of this version could be taken from the wound certificate issued by PW-8 during the treatment of PW-4 at Government Hospital, Shorapur. The Trial Court relied upon the wound certificate and noted a contradiction between the condition of PW-4 at the time of admission. In the certificate, PW-4 is stated to be “self-admitted” but at the same time, he is stated to be unconscious. The High Court rejected this contradiction as material by observing that PW-4 was semi-conscious at the time of admission and therefore, he could have admitted himself in the hospital. However, the inherent contradictions in the statement of PW-4 are not limited to this point.

Injuries not believable: Injuries on the P.W-4 as per the wound certificate were simple in nature even though he was attacked by an axe at three sensitive places

31) The injuries found on PW-4, as per the wound certificate, were simple in nature. PW-8 gave some treatment to PW-4, however the nature of treatment is not indicated. Thereafter, PW-8 forwarded him to a hospital at Gulbarga where injury certificate Ex.P12 was prepared. Ex.P12 also recorded the nature of injury to be simple in nature. The nature of injury is to be corroborated with the nature of assault, as deposed by PW-4 and PW-3. They deposed that A3 had attacked PW-4 with an axe at three sensitive places i.e. head, back and scrotum. The attack was so severe that PW-4 immediately fell unconscious. In the ordinary course of natural events, an injury inflicted by an axe, that too in a manner that the injured immediately fell unconscious and remained unconscious for almost 20 days, could not have been a simple injury. More so, a simple injury of a standard that required no admission in the hospital.

Trial court was carefully analysed and appreciated all the factors

33) Notably, all these aspects have been carefully analysed and appreciated by the Trial Court, but the High Court rejected all the doubts by observing that PW-4 was an injured witness and there was no reason to disbelieve his testimony. The High Court omitted to take note of two material aspects – the fact that the statement of PW-4 was recorded after a period of one month from the date of incident and the factum of family relationship between the deceased and PW-4. The former aspect raises a grave suspicion of credibility, whereas the latter raises the suspicion of being an interested witness. In normal circumstances, where a testimony is duly explained and inspires confidence, the Court is not expected to reject the testimony of an interested witness, however, when the testimony is full of contradictions and fails to match evenly with the supporting evidence (the wound certificate, for instance), a Court

High court cannot reverse the acquittal without recording any illegality error of law or of fact in the Trial court judgment

34) Pertinently, the Trial Court had reached its decision after a thorough appreciation of evidence and we have no doubt in observing that the view taken by the Trial Court was indeed a legally permissible view. The High Court went on to reverse the decision by taking its own view on a fresh appreciation of evidence. Moreover, the High Court did so without recording any illegality, error of law or of fact in the decision of the Trial Court. In our considered view, the same was not permissible for the High Court, in light of the law discussed above. Setting aside an order of acquittal, which signifies a stronger presumption of innocence, on a mere change of opinion is not permissible. A low standard for turning an acquittal into conviction would be fraught with the danger of failure of justice.

Principles while deciding an appeal from acquittal

36) Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:

(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive – inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.

If there is no credible direct evidence then the case falls back to circumstantial evidence

37) In this case, the appellants, as a separate argument, have also submitted that the case is not based on circumstantial evidence and is based on direct evidence of PW-3 and PW-4, and therefore, the principles of circumstantial evidence shall not apply. The submission is erroneous for various reasons. First, the direct evidence of PW-3 and PW-4 is to be tested on its own strength, especially in light of their subsequent conduct after the incident. As per their version, they were accessories to the fact, however, their subsequent conduct left much to be desired and therefore, their direct testimony was found to be incredible, as already discussed above. Secondly, in the absence of credible direct evidence, the case essentially falls back on the circumstantial evidence, and thirdly, the prosecution has failed to complete the chain of circumstances. The contradictions between oral testimonies and medical examination reports, failure to seize essential materials from the scene of crime, failure to explain the mode of conveyance while going from one place to another, failure to prove the presence of PW-3 at the place of incident, failure to corroborate the injuries etc. are some of the deficiencies in the chain of circumstances. It would be apposite to refer to the decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra10, wherein the “Panchsheel” or five principles of circumstantial evidence were laid down as follows:

“153. ……………………”

38) The circumstances in this case are far from conclusive and a conclusion of guilt could not be drawn from them. To sustain a conviction, the Court must form the view that the accused “must have” committed the offence, and not “may have”. As noted in Sharad Birdichand Sarda [(1984) 4 SCC 116], the distinction between “may have” and “must have” is a legal distinction and not merely a grammatical one.

39) In light of the foregoing discussion, we hereby conclude that the High Court had erred in reversing the decision of acquittal, without arriving at any finding of illegality or perversity or error in the reasoning of the Trial Court. Even on a fresh appreciation of evidence, we find ourselves unable to agree with the findings of the High Court. Accordingly, the impugned order and judgment are set aside. We find no infirmity in the order of the Trial Court and the same stands restored. Consequently, the appellants are acquitted from all the charges levelled upon them. The appellants are directed to be released forthwith, if lying in custody.

Parties

Mallappa & Ors versus State of Karnataka – CRIMINAL APPEAL NO. 1162 OF 2011 – 2024 INSC 104 – February 12, 2024

https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=108082011&type=j&order_date=2024-02-12

Mallappa vs. State of Karnataka – 108082011_2024-02-12

Further study

Conviction on sudden provocation

Must have judgment for defense counsels: Prosecution cannot prove a fact during trial through witness which was not stated to the police during investigation

Yardstick in convicting accused in circumstantial evidence and invoking s. 106 I.E Act

Acquittal: Section 304B IPC: Appreciation of cross-examination explained