1. Robbery with attempt to cause death or grievous hurt — Conviction under Section 397, IPC — Appeal against reversal of acquittal. (Para 1 , 2 )
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2019 Supreme(SC) 1328
SUPREME COURT OF INDIA
Sanjay Kishan Kaul, K.M. Joseph, JJ.
NAGARAJA – APPELLANT
Versus
STATE OF KARNATAKA – RESPONDENT
CRIMINAL APPEAL No. 66 of 2012
Decided on : 06-12-2019
Advocates Appeared:
For the Appellant(s) :B. Sridhar, Advocate
For the Respondent(s):V.N. Raghupathy, Manendra Pal Gupta, Prikshit P. Angadi, Advocates
For the Appellant(s) :B. Sridhar, Advocate
For the Respondent(s):V.N. Raghupathy, Manendra Pal Gupta, Prikshit P. Angadi, Advocates
IMPORTANT POINT
An order of acquittal cannot be reversed unless perverse or if the view taken by trial court is a possible view.
Headnote:
(a) Administration of Criminal justice - Appeal against acquittal by trial court - presumption of innocence gets strengthened by acquittal - High court should be slow in reversing an order of acquittal - Order of acquittal should not be reversed unless it is perverse or if the view taken by trial court is a possible view. (Para 9)
(b) Criminal trial - All 8 accused acquitted by trial court - Acquittal of 6 accused becoming final - High Court reversing acquittal off appellant - Identification of accused persons found doubtful by High Court - High Court convicting the appellant on evidence of PW 11 which is erroneous - Matching of finger prints without permission of Magistrate and without producing the utensil - Recovery effected from a public place - high court erred in convicting the appellant. (Para 18)
Facts of the case:
The appellant along with others was tried for offence u/s 397 IPC. Trial court acquitted the appellant. However, the High Court finding the appellant guilty convicted him.
Finding of the Court:
High court erred in convicting the appellant.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Challenge to conviction based on lack of identification parade, unreliable fingerprint evidence due to non-production of articles, and misattribution of conduct to the accused. (Para 5 , 6 , 7 , 8 )
3. High Court erred by relying on misidentified conduct and fingerprint evidence where articles were not produced and Magistrate's permission for specimen prints was absent. (Para 10 , 11 , 12 , 14 , 15 )
4. Appellate courts should be slow to reverse an acquittal if the trial court's view is one of two possible views and not perverse. (Para 9 )
5. Appeal allowed — High Court judgment set aside — Conviction reversed and acquittal restored. (Para 18 )
6. Under what circumstances can a High Court reverse an order of acquittal?
The High Court should be slow to interfere with an acquittal, particularly if the view taken by the Trial Court is one of two possible views and is not perverse. (Para 9 )
7. What is the evidentiary impact of failing to produce articles from which chance fingerprints were lifted?
The non-production and exhibition of the articles from which chance prints were lifted constitutes a significant infirmity in the prosecution's case, rendering such evidence unreliable for conviction. (Para 14 , 15 )
8. Is a Magistrate's order necessary for taking specimen fingerprints of an accused?
While police may be competent to take fingerprints, it is eminently desirable that they be taken under a Magistrate's order to dispel suspicions of fabrication and ensure bona fides. (Para 14 )
JUDGMENT
K.M. Joseph, J.
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.
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, son-in-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 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.
4. It is thereafter that three circumstance described by the High Court as strong circumstances were found against the appellant.
l. 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 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 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 v
