STATE OF KARNATAKA Vs. SHIVANNA

JUDGEMENT

(1.) 1. We have the learned Addl. SPP on merits as also on I. A. I the reason being that this court is obliged before issuing notice to the accused in an appeal against acquittal, to do a prima facie assessment for purposes of being satisfied that there are reasonably good prospects of the order of acquittal being interfered with. We are required to point this out because of the basic position in criminal jurisprudence which starts with a presumption of innocence in favour of the accused and once the accused is acquitted by the trail court this presumption gets reinforced and the Supreme Court had occasion to point out that it is almost on par with a double presumption of innocence. The accused has faced the rigors of a trail and we do concede that if the order of acquittal is unjustified or if it is even vulnerable, that in cases of consequence the High Court would be obliged to issue notice to the accused, hear the accused and decide as to whether or no the order of acquittal should be sustained. Experience has however shown, that in the majority of cases where the trial court acquits the accused that the State almost mechanically prefers and appeal against acquittal. Apart from assessing the merits, often times there are other compelling circumstances such as where the victim is a child or a woman or where the offences are heinous and antisocial, the State invariably proceeds on the footing that the order of acquittal does require a second look. Even in this class of cases, the High Court is conscious of the fact that once the notice is issued or if the appeal is admitted that the accused is at the receiving end and therefore, out of a sense of responsibility the issuance of notice will have to be confined only to those cases where at the admission stage the High Court is genuinely satisfied that there are reasonably good chances of success as far as the State is concerned. One important factor which the court takes into cognizance is the fact that in many cases such as the present one the accused person is a rustic villager, that the accused is a person of very modest means or the accused belongs to the weaker sections of society and the issuance of notice puts the accused under such immense pressure because the accused has virtually no capacity to enter upon a defence. While it is true that this court will provide an amicus curiae Counsel, we need to also consider those situations wherein the accused appears before the Court purely in order to void an adverse verdict but the accused is put through tremendous economic and mental trauma which the court is virtually unaware of only because the accused might have sold almost all the earthly possessions purely out of fear in order to engage a defence. These are all considerate factors which this court needs to place in the forefront and therefore, do the scrutiny exercise or rather an indepth examination at the admission stage itself.

(2.) WE have heard the learned Addl. SPP both on I. A. I as far as delay is concerned and on merits. For the reasons set out I. A. I is allowed. The delay is condoned. Coming to the merits, it is submitted that undoubtedly the trial court has recorded a finding that the motive which has been adduced by the prosecution borders on absurdity. It is contended that there was an illicit live affair between the mother of the accused and some other person in the village who happens to be P. W. 7 who incidentally has denied it and so has the mother. The prosecution case is that the deceased who was a 10 year old shepherd boy is supposed to have been a go between in this illicit affair. What the learned Counsel submits is that in criminal cases motive is not of any consequence and he reminds us of the legal position that even in cases where the prosecution is unable to determine the motive, that if the evidence makes out a sufficiently sustainable case that a conviction is tenable. We do not dispute this proposition, and we have therefore examined rest of the evidence de hors the so-called motive.

(3.) THE strongest evidence that is relied upon is the so-called extrajudicial confession which is attributed to the accused. The trail court has very correctly scrutinized this evidence and what is observed is that the conduct of the complainant is totally unacceptable in so far as if the accused had for no ostensible reason confessed to the witness that he had murdered the deceased along with his juvenile companion, there is no reason why the accused would not have been apprehended and more importantly as to why the witness would not have straightaway gone to the police. More importantly, the learned Trial Judge is right when he points out that the moment such a disclosure has been made the normal human conduct would have been to proceed to the spot where the body is alleged to have been concealed, but this does not also take place.