Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 380

SUPREME COURT OF INDIA
V. RAMASUBRAMANIAN, PANKAJ MITHAL, JJ.
Fedrick Cutinha – Appellant
Versus
State of Karnataka – Respondent
Criminal Appeal Nos. 2251, 2265 of 2010
Decided On : 18-04-2023

Advocates appeared:
For the Appellant(s) : Ms. N. Annapoorani, AOR Ms. Anuradha Mutatkar, AOR Mr. Tarun Kumar Thakur, Adv. Ms. Parvati Bhat, Adv. Mrs. Anuradha Mutatkar, Adv.
For the Respondent(s): Mr. Shubhranshu Padhi, AOR Mr. Vishal Banshal, Adv. Ms. Rajeshawari Shankar, Adv. Mr. Niroop Sukrithy, Adv. Mr. Jai Nirupam, Adv.

IMPORTANT POINTS
(1) Accused having secured acquittal, presumption of their innocence gets further reinforced and strengthened.
(2) As a general rule, trial court is duty bound to adjourn matter to a future date after recording conviction so as to call upon both sides to hear on question of sentence before sentencing accused persons.

Headnote:
(A) Indian Penal Code, 1860 – Section 302 read with Section 34 and Section 326 read with Section 34 – Murder and grievous hurt – Common intention – Life sentence – Acquittal of co-accused persons – High Court in recording conviction has not assigned any good reasons from deviating with findings returned by trial court and at the same time has not even stated that findings so recorded by trial court in acquitting all accused, including A1 and A3 are in any way perverse – Appellate court has full power to review, reappreciate and reconsider evidence upon which order of acquittal is founded – However, appellate court has to bear in mind that in case of acquittal there is double presumption of innocence in favour of accused – Accused having secured acquittal, presumption of their innocence gets further reinforced and strengthened – Appellate court ought not to lightly interfere with order of acquittal recorded by trial court unless there is gross perversity in appreciation of evidence and even if two views are possible, it should follow view taken by trial court rather than choosing second possible version – Appellate court committed error of law in recording conviction of A1 and A3 merely for reason that their presence and participation in crime was proved by evidence of one of witnesses – High Court in exercise of its appellate jurisdiction could not have interfered with acquittal of accused persons so as to convict A1 and A3 – Conviction of A1 and A3 hereby set aside and judgment and order of High Court also set aside. (Paras 12, 13, 15 and 22)
(B) Criminal Procedure Code, 1973 – Section 235 – Conviction – Quantum of sentence – As a general rule, trial court is duty bound to adjourn matter to a future date after recording conviction so as to call upon both sides to hear on question of sentence before sentencing accused persons – Principle of according opportunity of hearing to convict before sentencing him is equally applicable where sentencing is done by appellate court – Opportunity of hearing may not have a bearing, if minimum of sentence is being imposed – It may also not be necessary in every case to fix a future date after conviction for the purpose of sentencing but convicts are entitled to opportunity of hearing on sentence. (Paras 18 and 19)
Facts of the case:
All eleven accused persons pursuant to the FIR registered as Crime No.109/1999 dated 11.09.1999 were acquitted by the trial court for offences under Sections 143, 147, 148, 323, 324, 307, 302 read with Section 149 of the Indian Penal Code, 1860, Police Station: Puttur Town Circle, District: Dakshina Kannada, Mangalore. The acquittal of nine of them has been affirmed by the High Court except for accused Nos.1 and 3, i.e., Krishnappa Naika @ Kittu Naika and Fedrick Cutinha, who have been convicted under Section 302 read with Section 34 of the IPC with life imprisonment and under Section 326 read with Section 34 of the IPC for causing grievous injuries with imprisonment of five years.
Findings of Court:
Opinion that High Court in exercise of its appellate jurisdiction could not have interfered with acquittal of accused persons so as to convict A1 and A3.Accordingly, conviction of A1 and A3 hereby set aside and the judgment and order of the High Court dated 28.06.2008 is also set aside.
Result : Appeals allowed.

JUDGMENT :

PANKAJ MITHAL, J.

1. All eleven accused persons pursuant to the FIR registered as Crime No. 109/1999 dated 11.09.1999 were acquitted by the trial court for offences under Sections 143, 147, 148, 323, 324, 307, 302 read with Section 149 of the Indian Penal Code, 1860 (“the IPC”) Police Station: Puttur Town Circle, District: Dakshina Kannada, Mangalore. The acquittal of nine of them has been affirmed by the High Court except for accused Nos. 1 and 3, i.e. Krishnappa Naika @ Kittu Naika and Fedrick Cutinha, who have been convicted under Section 302 read with Section 34 of the IPC with life imprisonment and under Section 326 read with Section 34 of the IPC for causing grievous injuries with imprisonment of five years.

2. Aggrieved by the above conviction, the accused-A1 and A3 have preferred separate appeals as above. The main appeal is that of A3, i.e. Fedrick Cutinha.

3. We have heard Mr. S.N. Bhat, learned Senior Counsel on behalf of the appellant/accused A3 in the main appeal and Ms. N. Annapoorani, learned counsel for the appellant/accused A1 in criminal appeal no. 2265 of 2010 as well as the State counsel.

4. The story as set out in the FIR, lodged by one Honnappa Gowda reveals that the incident occurred at 12 noon on 11.09.1999, which happened to be a polling day for the Lok Sabha and Assembly Elections in the District. According to the informant, on the said date, he along with his brother-Jagdish, father-Poovani Gouda, his neighbours-Umanath Naika, Lingappa Naika and Balachandra were going towards Zila Parishad Higher Primary School, Kodipady to cast their votes. He himself, his father and his brother had casted their votes and reached the shop of Abdul Khadar. Then Umanath Naika asked them to stay there to enable him to cast his vote. After, he was returning from the polling booth and was about to reach the shop, an autorickshaw came from the Puttur side and stopped in front of the shop. Krishnappa Naika, Fedrick Cutinha, Laxman Naika, Dheeraj Gowda, Inas Veigas, Cyril Veiga, Maurice Veigas, Shivappa Naika and Padmanabha Gowda got down from the said autorickshaw and came towards them. Laxman Naika and Fedrick Cutinha threw chili powder on the face of Umanath Naika. When Umanath Naika tried to escape, Krishnappa Naika (who is none other than the brother of Umanath Naika) came out from the autorickshaw, stabbed him on his left shoulder with a sharp knife. He then stabbed him on the left eyelid and the left eyebrow. Krishnappa Naika also stabbed the right portion of the chest of Lingappa Naika, who was by the side of Umanath Naika, with the same knife. Laxman Naika, who was accompanying Krishnappa Naika, stabbed his father-Poovani Gowda on the back with the knife. Fedrick Cutinha assaulted on the head of Balachandra with an iron rod. He then kicked Jagdish on the left thigh. Fedrick Cutinha also assaulted on his head by rod. The others also joined them in assaulting. Upon raising an alarm, all of them returned to the autorickshaw, in which they had come and fled.

5. Lingappa Naika, who had sustained injuries, ran towards the school and fell down at a short distance. A home-guard at the Election Booth lifted Lingappa Naika and sent him and Umanath Naika, Poovani Gowda and Balachandra to the Government Hospital, Puttur for treatment in an autorickshaw. Thereafter, the informant and his brother-Jagdish also went for treatment to the Government Hospital, where they came to know that Lingappa Naika had succumbed to the injuries. The doctors attended to them. All injured-Umanath Naika, Balachandra and Poovani Gowda were admitted in the hospital, but the informant and his brother-Jagdish were discharged after treatment.

6. The reason behind the above incident was a property dispute between Umanath Naika and his brother-Krishnappa Naika. It was on account of the property dispute between the two and the past enmity that Krishnappa Naika caused an unlawful assembly and attacked all of them stabbing Lingappa Naika with knife causi

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