Mallappa & Ors.  [Appellants]  Vs.  State of Karnataka   [Respondent]

(CRIMINAL APPEAL NO. 1162 OF 2011)

(2JB, Bela M. Trivedi and Satish Chandra Sharma JJ., delivered by SATISH CHANDRA SHARMA, J.)

Facts: The wheels of justice may grind slow, but they grind fine. Mallappa S/o Ningappa Kanner, Hanamanth S/o Ningappa Kanner and Dharamanna S/o Ningappa Kanner are the appellants before the court who were put on a trial, as accused no. 3, 4 and 5, for the commission of murder of deceased namely Marthandappa and were acquitted by the Trial Court/Fast Track Court-I at Gulbarga on 24.03.2005. The judgment was not meant to finally seal the fate of the appellants as the State of Karnataka preferred an appeal against the order of the Trial Court before the High Court of Karnataka which was registered as Criminal Appeal No. 1363/2005. On 31.05.2010, the High Court reversed the order of acquittal and held the appellants guilty of the commission of murder of deceased Marthandappa. Accordingly, the appellants stood convicted and were sentenced to undergo life imprisonment. The appellants stand before us assailing the order of conviction of the High Court and praying for a declaration of innocence. Pertinently, eight accused persons were tried and acquitted by the Trial Court. The High Court agreed with the acquittal of all the accused persons, except the three appellants before us.

Issue: Whether the present appeal is maintainable in the facts and circumstances of the case?

Arguments on behalf of counsel for appellants:

The case of the prosecution begins from one Nagamma, who is the wife of Accused No. 5 and deceased Marthandappa was allegedly having an illicit relationship with her. On account of the alleged illicit relationship, the relations between A1-A8 and Marthandappa were strained. On 28.06.1997, the fateful day, Marthandappa (the deceased), PW3 and PW4 were travelling in a bullock-cart from village Aidbhavi to the village Nagaral for cultivating their lands. They left the house of PW-2 (father of the deceased) at around 9 A.M. in a bullock cart to go to village Nagaral. PW-2 had agricultural lands at Aidbhavi as well as Nagaral. While they were travelling to village Nagaral, they crossed village Shantpur as they were proceeding on the bullockcart towards Nagaral village. At around 4 P.M., when their bullock-cart arrived near the land of Balwantappa Channur, A1 to A8 came out of their hiding place and stopped the bullock-cart.

Arguments on behalf of counsel for respondents:

Per contra, it is submitted by the respondent State that the Trial Court did not appreciate the evidence in a proper manner which led to the acquittal of the accused persons. It is further submitted that the testimonies of PW-3 and PW-4 were incorrectly rejected by the Trial Court despite the fact that one of them was an eye witness of the entire incident and the other one was a victim of the assault. It is further submitted that once a grave error is found in the decision of the Trial Court, the High Court is fully empowered to re-appreciate the entire evidence and reach a different conclusion.

Held: The court disposed of the present appeal and held that, “The circumstances in this case are far from conclusive and a conclusion of guilt could not be drawn from them. To sustain a conviction, the Court must form the view that the accused “must have” committed the offence, and not “may have”. As noted in Sharad Birdichand Sarda, the distinction between “may have” and “must have” is a legal distinction and not merely a grammatical one. In light of the foregoing discussion, we hereby conclude that the High Court had erred in reversing the decision of acquittal, without arriving at any finding of illegality or perversity or error in the reasoning of the Trial Court. Even on a fresh appreciation of evidence, we find ourselves unable to agree with the findings of the High Court. Accordingly, the impugned order and judgment are set aside. We find no infirmity in the order of the Trial Court and the same stands restored. Consequently, the appellants are acquitted from all the charges levelled upon them. The appellants are directed to be released forthwith, if lying in custody. The captioned appeal stands disposed of in the aforesaid terms. Interim applications, if any, shall also stand disposed of.”