Acquital could not be distrubed unless it is a perverse order =there were 8 accused who were chargesheeted in S.C. No. 60 of 99 in the Fast Track Court, Additional Sessions Judge, Chitradurga. The appellant and the accused no. 6 faced the trial and as we have noticed that though acquitted by the Trial court appellant stood convicted by the High Court. 17. As far as the other accused are concerned, it is stated as follows: Venkatappa alias Venkataramana and accused no. 2 Narayana faced trial in S.C. No. 84 of 2002. It resulted in their acquittal. It further states that State had not preferred any appeal and acquittal is confirmed. In the order dated 16.10.2003 the chargesheet was made against the other absconding accused i.e. accused no. 3 and accused no. 8. Accused nos. 3 and 8 were also not found guilty and states that they had not preferred any appeal against the said judgment rendered in S.C. 85 of 2003. Still 18 19 further accused nos. 5 and 7 were tried in S.C. No. 57 of 2004 and they were also not found guilty by Sessions Judge and acquitted by the judgment dated 02.05.2005. Thus, against all the other accused, other than the appellant who stood charged under Section 397 have been acquitted. 18. Having regard to the circumstances, we are inclined to take the view that the High Court has erred in interfering with the acquittal of the appellant bearing in mind the principles which govern the question as to in what circumstances the Appellate Court can reverse an acquittal.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.66 OF 2012
NAGARAJA … APPELLANT
VERSUS
STATE OF KARNATAKA … RESPONDENT
J U D G M E N T
K.M. JOSEPH, J.

  1. By the impugned judgment, the High court has
    allowed the appeal filed by the State and found the
    appellant (Accused No.4) guilty of the offence under
    Section 397 of the Indian Penal code (for short
    “IPC”) and he was ordered to undergo R.I. for a
    period of 7 years and to pay a fine of Rs.1000/- with
    default clause. Though the State has challenged the
    acquittal of the sixth accused, his acquittal was
    confirmed by the High court.
    1
    2
  2. A complaint was submitted by PW 1 on 16.9.1996 at
    about 10.15 p.m. to PW 12, the Head constable. It
    was her complaint inter alia as follows:
    While she was in her house with her husband, sonin-law and other relatives, they heard the barking
    of dogs and came outside. It was found 6-7
    unknown persons wearing lungi and shirt armed with
    the club surrounded the complainant and their
    family members and insisted upon them to give
    their ornaments, watch and cash threatening that
    in case it is not so given they will be finished.
    They were pushed inside the house and PW4, PW5 and
    PW6 were assaulted with clubs. A golden chain was
    snatched. So also was the mangal sutra of PW1. A
    silver chain, ear rings and an amount of Rs.400/-
    were also snatched and they ran away from the
    place.
  3. It is on this complaint that finally after
    investigation was carried out charge sheet was filed.
    It would appear that accused No.1 to 3 though were on
    bail, they did not appear for the trial. Rest of the
    2
    3
    accused except the appellant and accused No.6 were
    absconding. The case was split up and trial
    proceeded against appellant and A6 for the charge
    under Section 397 IPC. During the trial, PWs 1 to PW
    15 were examined. Documents were marked as Exhibits
    P1 to P15 and MOs 1 to 17 were produced. The High
    court found as follows:
    (1) The incident took place on 16.9.1996 in the
    night at about 9.00 p.m.. PW1, the wife of
    PW4, PW5 and PW6 were all present besides other
    members.
    (2) The complaint was lodged within one hour of the
    incident
    (3) The names of the accused are not revealed and
    it is stated to be only against the unknown
    persons
    (4) There is no identification parade held. The
    High court found that as the incident took
    place in the night, the identification parade
    was essential and the evidence of the
    prosecution witness could not be accepted
    insofar as the identity is concerned.
    3
    4
  4. It is thereafter that three circumstance
    described by the High Court as strong circumstances
    were found against the appellant.
    1.The appellant was apprehended in the neighbouring
    village during night and was chased by PWs 7, 8
    and 11 and was produced before the Police
    immediately thereafter. Appellants conduct was
    noted.
    2.During interrogation by the officer, the
    appellant volunteered to produce some articles
    which were looted from the house of PW1. PW3,
    the attesting witness was led with the police
    officers to the place by the side of the national
    highway and from from the ditch in the ‘naala’
    appellant produced the trunk MO2 which contains
    the articles, clothes MOs 8 to 17. This
    recovery took place immediately on the very next
    day of incident, that is, on 17.9.1996. The High
    Court finds that the fact that these articles
    were kept in the ditch in the‘naala’ was not
    known to anybody other than the appellant. The
    4
    5
    evidence of PW3, witness to the recovery, was
    found acceptable. It was also found corroborated
    by the evidence of PW 15 (apparently PW 14).
    3.The third circumstance relied upon by the
    prosecution successfully before the High Court
    was as follows:
    PW15 is a Police Inspector and handwriting
    expert. He visited the spot and checked finger
    prints upon the utensils. After the arrest of
    the appellant, PW 14 had obtained the finger
    prints of the appellant. The fingerprints were
    compared. PW15 issued Ex.P12 certificate. The
    High Court relies on the Certificate and the
    evidence of PW15. Chance prints on Q-1 were
    found identical with the left thumb print and
    Q-2 was found identical to the finger print of
    the appellant. It is noted that the vessels were
    not seized by the investigating officer. It was
    found to be a mistake which was not to be
    considered in appreciating the evidence of PW15.
    PW15 was found to have visited the farmhouse of
    PW-1 on the very next day and developed five
    5
    6
    chance prints Q1 to Q5. The High Court, further,
    finds that the finger prints were lifted by
    means of transparent adhesive lifting tape and
    pasted them on the glass pieces for which Exh.P13 certificate was issued. It was found that P13 certificate along with P-12 letter reveals
    the clinching evidence with regard to
    appellant’s finger prints tallying with the
    chance finger prints obtained by PW15. The
    deposition of PW-11 was referred to find that he
    was a police constable and was on duty on
    16.9.1996 at 10:30 A.M. at Challakere fair. He
    was found to have gone to the house of PW-1 at
    night and came to know about the accused having
    run away after the dacoity. He went towards
    forest and saw a person running in the jungle
    and after chasing the person running ahead
    assaulted him with stones and tried to escape.
    At that time some persons came to help PW-11 and
    they apprehended the person who was found to be
    the appellant. The High Court relied on the
    circumstances revealed from the evidence of PW6
    7
    11, namely, the conduct of the appellant running
    in the jungle at night and this conduct
    supported the version of the prosecution. It was
    found that the PW-11 was not cross-examined and
    his evidence can be accepted in toto. It is
    stated only after PW-11 produced the appellant
    before the Investigating Officer, interrogation
    was done and appellant volunteered with a
    statement resulting in the recovery being made.
    The High Court, further proceeds to hold that
    the only conclusion is that the appellant
    participated in the incident (dacoity). The
    Trial Court was found to have committed the
    illegality in acquitting the appellant.
  5. We heard learned counsel for the appellant and
    also learned counsel appearing on behalf of the
    respondent-State. As already noticed, the High Court
    has found that the evidence of the prosecution
    witnesses were not reliable for identifying the
    appellant. Admittedly, the incident took place at
    night and no identification parade was held. The
    7
    8
    appellant not being identified and the High Court
    having not accepted the deposition of the prosecution
    witnesses regarding the identity of the appellant,
    the finding of guilt rendered by the High Court and
    that too in an appeal against acquittal, is
    questioned as impermissible.
  6. It is contended that the High Court was not right
    in relying upon the finger prints even when the
    articles from which the chance finger prints Q1 to Q5
    were found were not produced before the Court.
    Reliance is placed in this regard of the judgment of
    this Court in Mohd. Aman v. State of Rajasthan1.
  7. It is further contended that no reliance could be
    placed on the so-called recovery. It is complained
    that the recovery was effected from a public place.
    It is the case of the appellant also that no
    negatives of the photograph were filed before the
    Court and the person who took the photograph was also
    not examined. Regarding the recovery the following
    1 1997 (10) SCC 44
    8
    9
    findings of the trial Court is enlisted by the
    appellant in his support.
  8. PW2 is a spot panchaname PW3 is a
    panch for Ex. P3. His evidence is at
    the time of preparation of Ex.P3 i.e.
    recovery of the articles from accused
    persons, namely, as per panchaname
    Ex.p3 Narayana, Mohana and Nagaraja
    were present and at the instance of
    Nagaraja A4 the trunk was recovered
    along with the clothes. Ex.P3 is in
    respect of the recovery of trunk and
    clothes from accused Nagaraja is,
    “…… Accused Nagaraj S/o. Bheemappa
    told that clothes and trunk had come
    to his share, which he had concealed
    at a place, and if he was taken there
    he would show the same. All the above
    said articles were seized in the
    presence of the Panchayatdars for
    further proceedings…” (Translated from
    Kannada)
    Panchaname was drawn at Kengaiahna
    hatti. Exp3 does not disclose that the
    trunk was hidden any where and from
    which place accused took out and
    produced before the police and
    panchas. It was mentioned that
    panchaname Ex.P3 was drawn at
    Kengaiahna hatti but in the evidence
    PW3 Boomalingaiah states the police
    seized from accused Anjaneya manihara
    tali, 18 bagarada gundu and he further
    states the police seized silver leg
    chain Rs. 106/- and panchaname Ex.p3.
    In further evidence he says “P.C. took
    us the both panchas and accused person
    9
    10
    before the court. Harijana Kambajjara
    Hola the trunk mO2 was kept in a pit
    it was taken out. MO2 contains some
    cloth and the same was seized under
    panchaname Ex.P4.” His evidence is
    that Anjaneya accused No. 6 was
    present on the date of Ex. P3 and Ex.
    P4 is in correct. Since PW14 has
    already stated that A6 was arrested on
    26.9.1996 and no property was seized
    from him. In respect of the recovery
    from accused No. 4 Nagaraja has not a
    recovery at all at the instance of the
    accused Nagaraja as per the evidence
    of PW3 P.C. took them accused to
    Harijana Kambajjara hola and from
    there seized the articles under Ex.P4.
    It is also contended that the witnesses have not
    supported the recovery.
  9. In regard to reliance placed on the circumstances
    that the appellant ran away when PW-11 chased him,
    the contention of the appellant is that the evidence
    of PW-11 has been misconstrued. The evidence of PW-11
    was not at all relevant in respect of the appellant
    and the evidence of PW-11 actually relates to the
    apprehending of another accused, namely,
    Venkataramanappa. The error has led the High Court to
    find the circumstance against the appellant, though
    10
    11
    none existed. Per contra, learned counsel for State
    supported the impugned order.
  10. The principles are well-settled in regard to the
    approach to be adopted by this Court in an appeal
    against the order reversing an acquittal. The
    principles are well settled in regard to the power of
    High Court in the matter of reversal of acquittal.
    The presumption of innocence prior to a verdict by
    the criminal court become strengthened with an
    acquittal rendered by the Trial Court. The High Court
    would be slow to interfere with an acquittal,
    particularly, if the view taken by the Trial Court is
    one of the two views possible and it is not perverse.
    WHETHER THE HIGH COURT WAS CORRECT IN PLACING THE
    RELIANCE ON THE DEPOSITION OF PW-11 TO FIND THAT THE
    APPELLANT RAN AWAY AND THIS CONDUCT STRENGTHENED THE
    PROSECUTION CASE AGAINST HIM.
    The deposition of PW-11 reads as follows:-
    ‘I was working in year 1996 at
    Challakera P.S. I was deputed on
    16.9.96, at Challakere Jatre Bandobast
    10:30 p.m. CW 25 and 26 took me to
    11
    12
    police station my self 24, 25, and 26
    went to Giriminahalli Kapile as there
    was a dacoit, we went to the house of
    PW1 and came to that the accused
    person ran towards the forest we went
    in the jungle I saw one person running
    the jungle I followed that person he
    through the stone on me and has
    sustained injury that person escaped
    my clutches meanwhile CW24, 25, 26
    came there in a jeep again we followed
    and apprehended that person. I can
    identify the person is before the
    court he is A4. He discloses as
    Venkatramanappa S/o Ramachandrappa
    Pillhalli A4 has disclosed as name
    Venkataramanappa.’
  11. Next, we may also notice that in the evidence of
    PW-12 who was working as Head Constable, he says that
    at 2:00 A.M., PW-11 brought one person to the police
    station. He secured CW-2 and CW-3 to a police station
    and he seized HMT watch MO4 in the Panchanama. In the
    cross-examination, he says that he seized the watch
    from a person by name Venkataramanappa. He is A1. The
    evidence of PW-11 would thus show that he along with
    charge witnesses 24, 25 and 26 and the accused ran
    12
    13
    towards the forest and the person was followed. He
    sustained injuries as the stones were thrown. That
    thereafter, CW-24, 25 and 26 came there in a jeep and
    that person was apprehended. As the officer
    identified the person before the Court and he is
    appellant and his name is disclosed as
    Venkataramanappa s/o Ramachandrappa Pillhalli. He
    states that the appellant disclosed his name as
    Venkataramanappa. PW-12 also refers to
    Venkataramanappa but he says that he is A1.
  12. The evidence of PW-14 may be noticed. He was CPI
    Traffic R.S. On receiving information, he collected
    staff and proceeded to Giriyammana hally village. The
    PSI, and the staff produced before him one person by
    name Venkataramana. He directed his S.I. to take the
    persons to the police station for further
    investigation. Then, he visited the police station at
    3:30 a.m.. He received information about some persons
    attacking house at Kengaiahna hatty. On getting
    information of three persons being apprehended, he
    proceeded. Three persons were arrested, their names
    13
    14
    were disclosed as Narayana, Mohan and Nagaraj.
    Nagaraj appears to be appellant before us. If Nagaraj
    is arrested by PW-14, then reliance on evidence of
    PW-11 by the Court does not appear to be justified at
    all.
  13. Continuing with deposition of PW-14 he states he
    proves the statement of the appellant marked as
    Ex.P11 and he claims to have seized the trunk and
    clothes as per PW4. He also says that he recorded
    voluntary statement of Venkataramanappa. He claims
    to have taken the finger prints of person arrested by
    him and forwarded it to PW-15 for comparison. In his
    cross examination he inter alia states that has not
    taken permission from the Magistrate for taking the
    finger prints of the accused. The upshot of the
    above discussion is that the High Court may not be
    justified in relying on deposition of PW11 to
    conclude that appellant, according to PW11, ran away
    and this conduct constituted a circumstance against
    the appellant.
    14
    15
  14. The second circumstance relied upon by the High
    Court to convict the appellant, is the recovery of
    MO2 to MO 17 clothes. It is also not a matter which
    was overlooked by the Trial Court. However, the Trial
    Court after referring to the recovery concluded that
    so called recovery was effected from a public place.
    It is true that it is reasoned by the High Court that
    the fact of the articles being kept in a ditch was
    not known to anybody. Also, reference is made in
    this regard and support drawn from the evidences of
    PW-3 and Pw-14.
  15. We may also refer to the other circumstance,
    namely, matching the fingerprints of the appellant
    with the chance fingerprints, which were found on
    certain utensils. PW-14, in his deposition admitted
    that he has not obtained permission from the
    Magistrate for taking the fingerprints of the
    accused. The Magistrate, in fact, has referred to the
    judgment of this Court reported in Mohd. Aman’s case
    (supra). In the said case, it was held as follows
    inter alia:-
    15
    16
    “Even though the specimen fingerprints of Mohd. A man had to be taken on
    a number of occasions at the behest of
    the Bureau, they were never taken before
    or under the order of a Magistrate in
    accordance with Section 5 of the
    Identification of Prisoners Act. It is
    true that under Section 4 thereof police
    is competent to take finger-prints of
    the accused but to dispel any suspicion
    as to its bona fides or to eliminate the
    possibility of fabrication of evidence
    it was eminently desirable that they
    were taken before or under the order of
    a Magistrate. The other related
    infirmity from which the prosecution
    case suffers is that the brass, jug,
    production of which would have been the
    best evidence in proof of the claim of
    its seizure and subsequent examination
    by the Bureau, was not produced and
    exhibited during trial – for reasons
    best known to the prosecution and
    unknown to the Court. Thus the accused
    could not be convicted for murder.”
  16. In this case also though seized, the utensils
    were not produced and exhibited. Though another view
    of the evidence of PW15 and the reasoning employed by
    the High Court may be possible, we cannot overlook
    that the High Court was considering an appeal against
    acquittal. We may remind ourselves that the High
    Court itself has found prosecution witnesses have not
    been able to identify the appellant. Further, out of
    16
    17
    the three circumstances, quite clearly, one of the
    circumstances, namely, about the conduct of the
    appellant allegedly allegedly based on the evidence
    of PW-11 appears to have been the product of an
    error. We have also noticed the inadequacies as
    observed by the Trial court in regard to the fingerprints.
    On 16.10.2019, we passed the following order: –
    “Arguments concluded.
    Judgment reserved.
    We, however, note that the incident
    pertains to the year 1996 and there were
    8 accused. Out of the 8 accused, only 5
    were apprehended. Three of them were
    enlarged on bail and then absconded. It
    appears that these accused have still
    not been apprehended and put to trial.
    We find the aforesaid completely
    unacceptable that for these accused
    could not be apprehended, if proper
    measures were taken. It is not a case of
    one or two accused disappearing from the
    scene but six accused absconding.
    We thus, call upon the respondentstate to file an affidavit under the
    signatures of superintendent of police
    of the District setting out as to what
    steps have been taken to apprehend these
    accused and as to what endeavours are
    being made now.
    The affidavit be filed within four
    weeks.
    17
    18
    A copy of the order dasti be sent to
    the learned counsel for the State.”
  17. An affidavit has been filed on behalf of the
    respondent-State. Therein, it is stated that there
    were 8 accused who were chargesheeted in S.C. No. 60
    of 99 in the Fast Track Court, Additional Sessions
    Judge, Chitradurga. The appellant and the accused no.
    6 faced the trial and as we have noticed that though
    acquitted by the Trial court appellant stood
    convicted by the High Court.
  18. As far as the other accused are concerned, it is
    stated as follows:
    Venkatappa alias Venkataramana and accused no.
    2 Narayana faced trial in S.C. No. 84 of 2002. It
    resulted in their acquittal. It further states that
    State had not preferred any appeal and acquittal is
    confirmed. In the order dated 16.10.2003 the
    chargesheet was made against the other absconding
    accused i.e. accused no. 3 and accused no. 8. Accused
    nos. 3 and 8 were also not found guilty and states
    that they had not preferred any appeal against the
    said judgment rendered in S.C. 85 of 2003. Still
    18
    19
    further accused nos. 5 and 7 were tried in S.C. No.
    57 of 2004 and they were also not found guilty by
    Sessions Judge and acquitted by the judgment dated
    02.05.2005. Thus, against all the other accused,
    other than the appellant who stood charged under
    Section 397 have been acquitted.
  19. Having regard to the circumstances, we are
    inclined to take the view that the High Court has
    erred in interfering with the acquittal of the
    appellant bearing in mind the principles which govern
    the question as to in what circumstances the
    Appellate Court can reverse an acquittal. The appeal
    is allowed and we set aside the judgment of the High
    Court convicting the appellant. We notice that the
    appellant has already been enlarged on bail by order
    dated 06.01.2012. The appellant’s bail bond stand
    discharged and he need not surrender.
    ………………………………………………J.
    [SANJAY KISHAN KAUL]
    ………………………………………………J.
    [K.M. JOSEPH]
    NEW DELHI
    DECEMBER 06, 2019
    19