STATE OF KARNATAKA Vs. SHEIK KHADER

JUDGEMENT

(1.) THE facts of this case which we shall refer to presently are extremely gruesome and the investigating authorities had put up for trial two accused persons on the charge that in pursuance of their common intention, on 30-7-1992 at about 6. 30 p. m. at Chikkabettahalli in the limits of Yelahanka Police Station, that they had assaulted the deceased Sheikh Ghouse with matchu and that pursuant to the injuries inflicted on him, they had caused his death. The prosecution had contended that the deceased who is a married man, had eloped with the sister of the two accused about six months earlier and that they had returned recently. The accused were supposed to have been infuriated by this act on the part of the deceased apart from which there is also a suggestion that he was a regular bad character of the area. In the evening in question, it is alleged that the two accused stopped him when he was returning from his work at the nearby quarry at a point near his brother's house which is about 100 feet from that residence and he was mercilessly assaulted by the accused. The first blow is alleged to have been given on the back of his legs and there is also one fatal blow that has landed on the rear of the neck. Thus he virtually collapsed under the blows and died on the spot. The accused are alleged to have discarded one of the weapons at that place and ran away with the other one. The second weapon was recovered sometime later in the course of the investigation on 1-8-1992 pursuant to a voluntary statement which accused No. 1 had made. He is stated to have taken the police to a spot near the Savitha Bar from where M. O. 1, the matchu was recovered under a mahazar Ext. P. 2. On completion of the investigation, the two accused were put up for trial and the learned trial Judge on the conclusion of the trial recorded a finding that the prosecution has failed to establish the charges and acquitted the two accused. The present appeal has been preferred by the State and it assails the acquittal order in question. The State is represented by the learned Additional State Public Prosecutor and we have also heard the learned advocate Mr. J. Nisar Ahmed, who appears on behalf of the respondents-accused. The two learned advocates have taken us elaborately through the entire record which has been carefully reviewed. We have considered the submissions canvassed by them on points of facts as also with regard to the legal position and we have done a total and complete review of the entire record.

(2.) ONE of the principal submissions canvassed by the respondents' learned advocate is that this is an appeal against acquittal and the submission was that if a perusal of the judgment of the trial Court indicates that all the evidence has been considered, that the law on the point has also been borne in mind and that afterhaving carefully evaluated all the relevant aspects, the trial Court has recorded a verdict of acquittal, that the High Court should not interfere with that verdict if that judgment is sustainable. We are well aware of this proposition of law which we subscribe to and which we endorse and it is from this point of view that we have carefully perused the judgment under appeal for purposes of first of all deciding as to whether it is sustainable. Unfortunately, in our considered view, the judgment is not only thoroughly unsatisfactory, we find that the conclusions are not only incorrect but down right wrong even on the factual aspects and that there is a total misreading of the law. We are aware of the fact that a sustainable judgment or a view taken by the trial Court which is a possible, probable and correct view will not be interfered with merely because another view is possible or better reasonings could be recorded but having perused the judgment and the submissions canvassed on either side, we do find that this is a case which requires a thorough re-examination.

(3.) MR. Ahmed has relied on a decision of the Bombay High Court reported in 1996 (4) Crimes 352 : (1997 Cri LJ 2377) (State of Maharashtra v. Ahmed Gulam Nabi Shaikh wherein the Division Bench of the Bombay High Court had occasion to observe that unless conclusions reached on facts are unreasonable or the impugned order is vitiated by any illegality, the appellate Court will not interfere. The circumstance that the appellate Court would have taken a different view of the evidence from that taken by trial Court, would be no ground for interfering in appeal. We are in respectful agreement with this proposition and it was precisely for this reason that even though the appeal having been admitted, this Court is obliged to review the record, we have commenced by perusing the judgment of the trial Court for purposes of deciding as to prima facie whether there appears to be substance in the contentions canvassed by the learned Additional State Public Prosecutor that this is a case which requires interference. Mr. Ahmed has also relied on an earlier Division Bench decision of this Court reported in 1996 (1) Crimes 292 (State of Karnataka v. Mahadeva) wherein the Court while deciding an appeal against acquittal held that where the prosecution case was full of infirmities and discrepancies, the High Court would not be justified in interfering on appeal. We concur with this view and it is bearing in mind these principles that we have re-examined the records of this case. We need to add that we are conscious of the fact that this is an appeal against acquittal and that the crystallised case law on the point leads to the proposition that the presumption of innocence available to the accused in a criminal trial gets fortified when the trial Court records an acquittal and that it is only if it is demonstrated that the decision of the trial court has virtually led to a miscarriage of justice and that it is legally unsustainable, that in such an event alone will the High Court be justified in interfering and reversing the order of acquittal. These briefly are the tenets that we have borne in mind while hearing the present appeal.