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TMI Blog2024 (2) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 2. Pertinently, eight accused persons were tried and acquitted by the Trial Court. The High Court agreed with the acquittal of all the accused persons, except the three appellants before us. PROSECUTION CASE 3. The case of the prosecution begins from one Nagamma, who is the wife of Accused No. 5 and deceased Marthandappa was allegedly having an illicit relationship with her. On account of the alleged illicit relationship, the relations between A1-A8 and Marthandappa were strained. On 28.06.1997, the fateful day, Marthandappa (the deceased), PW3 and PW4 were travelling in a bullock-cart from village Aidbhavi to the village Nagaral for cultivating their lands. They left the house of PW-2 (father of the deceased) at around 9 A.M. in a bullock cart to go to village Nagaral. PW-2 had agricultural lands at Aidbhavi as well as Nagaral. While they were travelling to village Nagaral, they crossed village Shan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case as Crime No. 78/97 and sent FIR (Ex.P13) through PW-1 to the Judicial Magistrate First Class [Hereinafter referred as "JMFC"], Shorapur. The copy of FIR was handed over to JMFC at around 4:30 P.M. 7. The facts further reveal that on 29.06.1997 at about 12:30 P.M., PW-4 went to the Government Hospital, Shorapur, and met the doctor (PW-8). He showed his injuries to PW-8 and PW-8 found three injuries (simple) on PW-4 and gave treatment to him, and later sent him for further treatment to the Government Hospital, Gulbarga. The doctor at Gulbarga treated PW-4 and issued a simple injury certificate to PW-8 (Ex.P12). After registering the case, PW-10 went to the scene of offence at Shorapur village along with PW-9 and saw the dead body of Marthandappa and collected panchas (PW-7 and Malleshi). In the presence of Panchas, he conducted inquest mahazar on the dead body of Marthandappa, as per Ex.P9. On 29.06.1997, between 4.30 P.M. to 6.00 P.M. and thereafter, he handed over the dead body of Marthandappa to PW-9 with the requisition letter (Ex.P2) directing PW-9 to take the dead body to Government Hospital, Kakkera for getting the postmortem examination done. PW-9 took the dead body of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d A3 gave information leading to discovery as per Ex.P17. Thereafter, on 15.07.1997, A1 led police and panchas (PW6 and Yamanappa) to his house and from his house, he produced one stick (MO9) before the police and panchas and PW-10 conducted mahazar of seizure as per Ex.P5. PW-10 took the signatures of the panchas on it. Thereafter, A2 led police and panchas to his house and from his house, he produced one stick (MO-10). PW-10 conducted mahazar of seizure of these articles, as per Ex.P7. A3 led police and panchas to his house at Aidbhavi and from his house, he produced one axe (MO7) and PW10 seized the same as per mahazar (Ex.P6) and took signatures of the panchas on it. PW-10 thereafter obtained judicial custody remand of A1 to A4 from JMFC, Shorapur. On 25.07.1997, PW10 arrested A7 from his house and remanded him to judicial custody and on 17.07.1997 at 6.30 a.m., arrested A6 from Gurgunta bus stand and interrogated him. A6 gave him information leading to discovery as per Ex.P18 and from his house, one knife (MO8) was recovered and PW-10 seized it under mahazar Ex.P8. Thereafter, A6 was also remanded to judicial custody. On 07.10.1997, PW-10 sent all the seized articles to FSL, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lingasgur to Shorapur and Gulbarga. However, his version, that he could catch the bus only on the next day at 6.00 A.M., is artificial. He could have availed the transport facility on 28.06.1997 itself after the assailants had left. iv. PW-3 states that his relatives are residing in Nagaral village, which is 4 km from the scene, but he did not go and inform them. v. PW-3 did not inform the people at Devpura or the passengers plying in the bus in which he travelled to go to Gurugunte. From there, he catched another bus to Aidbhavi village. The incident took place around 4 P.M. and it took more than 18 hours for PW-3 to inform the father of the deceased PW-2. In the meanwhile, although he had opportunity, he did not inform the out-post police, which must have come in the course of his journey from Devpura to Aidbhavi. vi. PW-3 admitted that he was conscious that he should get PW-4 treated after the incident, yet he did not make any sincere effort to get him treated. The deceased and PW-4 were assaulted by the accused. There was no reason for the accused persons to not assault PW-3. His version that he escaped and hid behind the bushes is artificial. Further, the evidence of PW- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of PW-3 who was the eye witness of the incident. The High Court has observed that PW-3 certainly had several options, like informing by-standers at the bus-stop, going to Nagaral village or going to the police, but he went to the village of the deceased father at his Aidbhavi village as he was keen on informing PW-2, as he was the most appropriate person to be informed about the incident. In such circumstances, the High Court has arrived at the conclusion that the conduct of PW-3 in not informing others and going to Aidbhavi village to inform PW-2, could not be a reason to disbelieve his statement. The High Court has arrived a conclusion that the evidence of PW-3 and PW-4, if read together, proves the alleged incident and the evidence of PW-3 and PW-4 establishes that Al, A2, A7 and A8 assaulted the deceased with clubs, however, there are no injuries reflected on the dead body of the deceased. 18. It has been further held that in respect of A3 to A6, the evidence of PW-3 and PW-4 is consistent and establishes their involvement in the assault and proves their guilt. The manner of assault in the overt acts of A3 to A6 corresponds with the injuries noted in the wound certificate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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.4 [(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 evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, as it is admitted that the place of incident fell on a bus route and buses were indeed plying. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack 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. 32. Furthermore, PW-4 travelled to the hospital at Shorapur by a bus, but he failed to inform any passenger about the assault. Despite such injuries, including on the head, no one noticed his condition. He was unconscious for over 20 days and after he regained consciousness, his statement was recorded by PW-10. It is difficult to comprehend as to how a severely injured person, who could not gain consciousness before 20 days, managed to go to the hospital on his own by using a public bus and later, to another hospital at a different place. It is difficult to comprehend that PW-4 was conscious enough to undertake two journeys to two different hospitals, by public transport, but did not have the senses to give a statement to the IO PW-10 before the passage of almost 30 days. During cross examination, PW- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standard for turning an acquittal into conviction would be fraught with the danger of failure of justice. 35. So far as the question of independent appreciation of evidence by the High Court is concerned, be it noted that the High Court was fully empowered to do so, but in doing so, it ought to have appreciated the evidence in a thorough manner. In the present case, the High Court has not done so. Even the aspects discussed by the Trial Court have not been fully addressed and the High Court merely relied on a limited set of facts to arrive at a finding. The factors which raised reasonable doubts in the case of the prosecution were ignored by the High Court. For instance, the contradictions pertaining to time, which were carefully analyzed by the Trial Court, were not examined by the High Court at all. Similarly, the contradictions qua the nature of injuries were also not discussed. In an appeal, as much as in a trial, appreciation of evidence essentially requires a holistic view and not a myopic view. Appreciation of evidence requires sifting and weighing of material facts against each other and a conclusion of guilt could be arrived at only when the entire set of facts, lined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, 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. 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 test ..... X X X X Extracts X X X X X X X X Extracts X X X X
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