State appeal under Section 378 Cr.P.C. against acquittal of parents accused of abandoning a newborn under Section 317 r/w 34 IPC. Key witnesses turned hostile; investigating officer's evidence was never cross-examined and could not be accepted. The High Court upheld the acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC-D:9365 CRL.A No. 100143 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100143 OF 2017 (A)
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB-INSPECTOR, KARWAR RURAL POLICE STATION, KARWAR, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.
(BY SRI M.M. KHANNUR, AGA)
AND:
Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA
(BY SRI S.S. BADAWADAGI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 07.12.2016 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO. 492 OF 2013 AND ETC.,
THIS CRIMINAL APPEAL, COMING ON HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the judgment of acquittal passed by the learned Chief Judicial Magistrate, Karwar in C.C. No. 492/2013 dated 07.12.2016. Parties are referred to as per their ranking before the trial Court.
Court framed charges against the accused for the offence punishable u/S 317 r/w Sec. 34 IPC. The accused have pleaded not guilty and claimed to be tried. To prove the case of prosecution 10 witnesses were examined as PWs.1 to 10 and 8 documents were marked as Exs.P.1 to P.8. On closure of prosecution evidence, statement of accused u/S 313 Cr.P.C. was recorded wherein the accused have denied the incriminating circumstances appearing against them but they have not lead any evidence.
who has seen the accused leaving the new born baby near the place of spot and the fact has not been denied by the accused and also taking care of the baby by the accused even after the said incident. The said fact is admitted by the respondentsaccused. This aspect has not been properly read and appreciated by the trial Court. Ex.P.8 is the DNA report, is also supporting the case of the prosecution and the said report is directly taken into consideration u/S 294 Cr.P.C. Further he submits that the doctor who has treated the accused no.2 has also given certificates Exs.R.4 and R.5 where the accused no.1 who took treatment in the hospital as indoor patient. The said fact was not denied by the accused persons in their defence.
of the accused in leaving the child in a public place, thereby they have shown negligence in abandoning the child and also they have not explained under what circumstance and under what manner they have abandoned the child. Failure to explain the same would result in miscarriage of justice and also it would result in adverse inference against the accused. The trial Court has failed to appreciate the evidence on regard in
accordance with law and facts. On all these grounds he sought to allow the appeal.
REASONS
Regarding Point No.1:
Supreme Court in the case as regards the power of appellate court in the appeal arising out of the judgment of acquittal, so also, the power of appellate Court for the offence under Section 304-A of Indian Penal Code.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
NC: 2024:KHC-D:9365 CRL.A No. 100143 of 2017
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:
NC: 2024:KHC-D:9365 CRL.A No. 100143 of 2017
“16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice.…”
“4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of
NC: 2024:KHC-D:9365 CRL.A No. 100143 of 2017
justice and the misappreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…”
“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction
to be more probable. The interference would be warranted only if the view taken is not possible at all.”
judgment of the trial Court. I have carefully examined the materials placed before the Court. It is alleged that on 14.08.2012 prior to 6.30 a.m., the accused nos.1 and 2 being the parents had left a new born child immediately after the delivery which alleged to have been born prior to their marriage, with an intention to abandon the said child in a shed
on the open floor situated in front of the petty shop of Ankita Chinchankar besides Shree Veera Ganapati Temple, Amdalli village, Karwar Taluk, thereby accused have committed the offence punishable u/S 317 r/w Sec. 34 IPC.
1. Ingredients of offence – The essential ingredients of the offence under Sec.317 are as follows:
to be the material witness. She has not supported the case of the prosecution by denying the contents of Ex.P.1-complaint.
Even in the cross examination by Additional Public prosecutor treating her hostile, she has categorically denied the contents of Ex.P.1-complaint and Ex.P.2-spot mahazar. During the
NC: 2024:KHC-D:9365 CRL.A No. 100143 of 2017
course of cross-examination she has clearly admitted that she has not seen the child at the relevant point of time.
application u/S 311 of Cr.P.C. That on 30.12.2015 arguments were heard on the application and posted for orders on 06.01.2016. On 06.01.2016 application filed u/S 313 Cr.P.C. was allowed on payment of costs of Rs.500/- each to PWs.3 to PW6. Cost was deposited. Thereafter summons were issued to PWs.3 to PW6.
NC: 2024:KHC-D:9365 CRL.A No. 100143 of 2017
the judgment of acquittal needs no interference by this Court. Accordingly, point no.1 is answered in the negative.
23. Point No. 2:For the aforesaid discussions and reasons, I proceed to pass the following:
ORDER
Appeal is dismissed.
Sd/JUDGE
BVV List No.: 1 Sl No.: 26
2 issues framed by the court
Whether the trial court's judgment of acquittal for offence under Section 317 IPC requires interference by the appellate court?
What order should be passed in the State's appeal against acquittal?
Colour shows how this judgement treated each authority
Motiram Padu Joshi & Others v. State of MaharashtraRelied on¶11
2018 SCC ONLINE SC 676 · Who else cites this
Chandrappa v. State of KarnatakaReferred
(2007) 4 SCC 415 · Who else cites this
Munishamappa & Others v. State of Karnataka & Connected AppealsRelied on¶12
2019 SCC ONLINE 69 · Who else cites this
Hari Ram & Others v. State of RajasthanRelied on¶13
2000 SCC ONLINE 933 · Who else cites this
State of Rajasthan v. Kistoora RamRelied on¶14
2022 SCC ONLINE 684 · Who else cites this
Mahavir Singh v. State of Madhya PradeshRelied on¶15
(2016) 10 SCC 220 · Who else cites this
6 provisions across 2 enactments
State of Karnataka, represented by the Police Sub-Inspector, Karwar Rural Police Station
Raghendra S/o Manohar Tandel
Ashwini D/o Shanta Durgekar W/o Manohar Tandel
G Basavaraja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
