H. D. SUNDARA & ORS. versus STATE OF KARNATAKA
[2023] 14 S.C.R. 47, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2023] 14 S.C.R. 47 : 2023 INSC 858
47
CASE DETAILS
H. D. SUNDARA & ORS.
v.
STATE OF KARNATAKA
(Criminal Appeal No. 247 of 2011)
SEPTEMBER 26, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: The question which arose for consideration 
was whether the High Court was justiﬁ ed in setting aside the order of 
acquittal passed by the trial court.
Code of Criminal Procedure, 1973 – s. 378 – Appeal against 
acquittal – Matter pertaining to dispute over property between accused 
and the family of complainant – Accused assaulted the complainant 
and his family – Acquittal of all the accused by the trial court, however 
conviction for the oﬀ ences punishable u/s. 304 Part I and s. 324/149 IPC 
by the High Court – Correctness: 
Held: No ﬁ ndings recorded by the High Court after re-appreciating 
the evidence, no discussion about the testimony of eyewitnesses and no 
ﬁ nding to indicate that the High Court considered the question whether 
the view taken by the trial court was a possible view – High Court held the 
accused guilty without recording any reasons and without recording any 
ﬁ nding regarding the role played by the accused individually and collectively 
– Nothing stated as to who were the authors of the injuries sustained by 
deceased and injured witnesses – No ﬁ nding as to how s.149 IPC attracted – 
Thus, the High Court, as an appellate court, while hearing the appeal against 
acquittal, has not done its duty – However, matter cannot be remanded
back 
since the oﬀ ence took place about two decades back – Findings of the trial 
court and evidence of eyewitnesses have been perused – Trial court was 
unable to accept the testimony of the witnesses after in-depth scrutiny –
48  
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
Conclusions recorded by the trial court were possible conclusions – Thus, 
the impugned judgment set aside – Penal Code, 1860 – ss. 304 Part I and 
324/149 . [Paras 11-15]
Code of Criminal Procedure, 1973 – s. 378 – Appeal against 
acquittal – Exercise of appellate jurisdiction while dealing with 
an appeal against acquittal u/s. 378 – General principles – Stated.
[Paras 7 and 8]
Appeal against acquittal – Appreciation of evidence:
Held: In many cases, the trial judge passing the order of acquittal 
has an occasion to record the oral testimony of all material witnesses 
– While deciding about the reliability of the version of prosecution 
witnesses, their demeanour remains in the back of the mind of the trial 
judge – Demeanour of a witness frequently furnishes a clue to the weight 
of his testimony – It has to be borne in mind while dealing with an appeal 
against acquittal. [Para 9]
LIST OF CITATIONS AND OTHER REFERENCES
Law of Evidence by Sarkar – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.247 
of 2011.
From the Judgment and Order dated 21.09.2010 of the High Court of 
Karnataka at Bangalore in CRLA No.1807 of 2004.
Appearances:
S. Nagamuthu, Sr. Adv., C. B. Gururaj, Shreyas Kaushal, Sudhakaran, 
Prakash Ranjan Nayak, Animesh Dubey, Advs. for the Appellants.
Nishanth Patil, AAG, V. N. Raghupathy, Mahendra Pal Gupta, Md. 
Apzal Ansari, Ayush P.
Shah, Vignesh Adithiya S., Shubhranshu Padhi, 
Advs. for the Respondent.
49
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
ABHAY S. OKA, J.
1. This is an appeal preferred by the accused challenging the impugned 
judgment of the High Court of Karnataka at Bangalore by which the order of 
their acquittal, passed by the Sessions Court, was overturned. The appellants 
were convicted for the oﬀ ences punishable under Part I of Section 304 and 
Section 324 read with Section 149 of the Indian Penal Code, 1860 (for short, 
‘IPC’). They were sentenced to undergo rigorous imprisonment for seven 
years and pay a ﬁ ne of Rs. 5,000/-.
 FACTUAL ASPECTS
2. We may refer to a few factual aspects of the case. PW-1 
(Jagadeesha) is the complainant. The complainant’s family had property 
in the village Hebbale. The appellant no.1 - accused no.1-Mariyappa is 
PW-1’s uncle, with whom PW-1’s family was having a dispute over water. 
Manjunatha and Shivarama are the brothers of PW-1, who are the victims 
of the oﬀ ence. On 29th August 1999, both entered the village Hebbale to 
engage labourers for plucking ginger. PW-1 followed them. On the road to 
the village, he found that PW-2 (Sundara) and PW-6 (Ravi) were sitting on 
a culvert. When he was talking to them, they heard the hue and cry from 
the village, and therefore, they rushed to the village and found that the 
appellants, who are relatives of PW-1, were holding various weapons like 
sticks, kathi and club and they were assaulting Manjunatha and Shivarama. 
It is alleged that accused no.1-Mariyappa assaulted
Shivarama by using a 
club. Accused no.8-Puttappa also assaulted Manjunatha by using a club. 
Accused no.7-Rajappa used a stick as a weapon of assault for assaulting 
Shivarama. Accused no.5-Somashekara stabbed Shivarama by using a knife. 
Accused no.6-Krishnappa assaulted Manjunatha on his head by using a 
club. Further, an assault was made by accused no.3-Chandrahasa by putting 
a stone on the chest of Shivarama. Even accused no.4-Rajakumara crushed 
the leg of Shivarama with a stone. Though PW-1, PW-2 and PW-6 tried 
to rescue the deceased, they could not save the deceased. Accused no.3-
Chandrahasa caught hold of PW-2 (Sundara) and assaulted him by using 
H. D. SUNDARA & ORS. v. STATE OF KARNATAKA
50  
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
a sickle (kathi). Accused no. 1 assaulted PW-1 with a club. Accused no.1 
also assaulted PW-1’s mother on the right hand.
3. The Trial Court acquitted all the accused. However, by the impugned 
judgment, the High Court has interfered and convicted the appellants as 
narrated above.
4. Accused no.6 died during the pendency of the trial. The accused 
no.1 - appellant no.1 and accused no.7 – appellant no.7 died during the 
pendency of this appeal. Counsel for the appellants has ﬁ led I.A. No. 71417 
of 2023 – application for permission to ﬁ le additional documents. Annexure 
A-1 and A-2 are copies of the Death Certiﬁ cates of appellant no.1 and 
appellant no.7 respectively. The said application is allowed and the Cause 
Title stands modiﬁ ed accordingly. Formal amendment to the Cause Title 
be carried out accordingly. The appeal stands abated as regards these two 
appellants. Accused no.2 - appellant no.2, accused no.3 - appellant no.3, 
accused no.4 - appellant no.4 and accused no.6 - appellant no.6 have so far 
undergone incarceration for a period of about one year and two months. 
Accused no.5 – appellant no.5-Somashekar has been incarcerated for ﬁ ve 
years and three months. 
SUBMISSIONS
5. Mr. S. Nagamuthu, the learned senior counsel appearing for the 
appellants submitted that the High Court did not apply its mind to the 
evidence on record. Moreover, the High Court has not recorded any ﬁ nding 
that the only conclusion
possible was that the guilt of the accused has 
been established beyond a reasonable doubt. Without recording any such 
ﬁ nding, the High Court has overturned the order of acquittal. Moreover, 
no speciﬁ c ﬁ nding is recorded by the High Court that every accused or 
any particular accused caused the death of the two deceased persons.He 
pointed out that there is no ﬁ nding about the applicability of Section 149 
of IPC. He would, therefore, submit that the impugned judgment cannot be 
sustained. Moreover, there is a delay in recording FIR. The learned senior 
counsel also pointed out that though a grievous injury was suﬀ ered by 
accused no.1 - appellant no.1, the prosecution oﬀ ered no explanation about 
the said injury. He submitted that in view of the said injury, in fact, a First 
Information Report (for short, ‘FIR’) ought to have been registered, and an 
investigation ought to have been carried out.
51
6. Mr. Nishanth Patil, the Additional Advocate General for the State 
of Karnataka, submitted that the delay in registering the FIR may be of 
a very few hours, which has been explained. Moreover, the evidence of 
eyewitnesses PW-1, PW-2, PW-3, PW-6 and PW-7 proves the appellants’ 
guilt beyond a reasonable doubt. In fact, that would have been the only 
conclusion which could be drawn on the basis of evidence on record. He 
submitted that if the impugned judgment is not satisfactory, this Court, after 
re-appreciating the evidence of the prosecution witnesses and other material 
on record, can satisfy its conscience about the correctness of the ultimate 
conclusion of the High Court. 
 CONSIDERATION OF SUBMISSIONS
7. In this appeal, we are called upon to consider the legality and 
validity of the impugned judgment rendered by the High Court while 
deciding an appeal against acquittal under Section 378 of the Code of 
Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). The principles which govern 
the exercise of appellate jurisdiction while dealing with an appeal against 
acquittal under Section 378 of Cr.P.C. can be summarised as follows: -
(a) The acquittal of the accused further strengthens the presumption 
of innocence;
(b) The Appellate Court, while hearing an appeal against acquittal, 
is entitled to re-appreciate the oral and documentary evidence;
(c) 
The Appellate Court, while deciding an appeal against acquittal, 
after re-appreciating the evidence, is required to
consider whether 
the view taken by the Trial Court is a possible view which could 
have been taken on the basis of the evidence on record; 
(d) If the view taken is a possible view, the Appellate Court cannot 
overturn the order of acquittal on the ground that another view 
was also possible; and 
(e) 
The Appellate Court can interfere with the order of acquittal 
only if it comes to a ﬁ nding that the only conclusion which can 
be recorded on the basis of the evidence on record was that the 
guilt of the accused was proved beyond a reasonable doubt and 
no other conclusion was possible.
H. D. SUNDARA & ORS. v. STATE OF KARNATAKA
[ABHAY S. OKA, J.]
52  
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
8. Normally, when an Appellate Court exercises appellate jurisdiction, 
the duty of the Appellate Court is to ﬁ nd out whether the verdict which is 
under challenge is correct or incorrect in law and on facts. The Appellate 
Court normally ascertains whether the decision under challenge is legal or 
illegal. But while dealing with an appeal against acquittal, the Appellate 
Court cannot examine the impugned judgment only to ﬁ nd out whether 
the view taken was correct or incorrect. After re-appreciating the oral and 
documentary evidence, the Appellate Court must ﬁ rst decide whether the 
Trial Court’s view was a possible view. The Appellate Court cannot overturn 
acquittal only on the ground that after re-appreciating evidence, it is of 
the view that the guilt of the accused was established beyond a reasonable 
doubt. Only by recording such a conclusion an order of acquittal cannot 
be reversed unless the Appellate Court also concludes that it was the only 
possible conclusion. Thus, the Appellate Court must see whether the view 
taken by the Trial Court while acquitting an accused can be reasonably taken 
on the basis of the evidence on record. If the view taken by the Trial Court 
is a possible view, the Appellate Court cannot interfere with the order of 
acquittal on the ground that another view could have been taken. 
9. There is one more aspect of the matter. In many cases, the learned 
Trial Judge who eventually passes the
order of acquittal has an occasion to 
record the oral testimony of all material witnesses. Thus, in such cases, the 
Trial Court has the additional advantage of closely observing the prosecution 
witnesses and their demeanour. While deciding about the reliability of the 
version of prosecution witnesses, their demeanour remains in the back of the 
mind of the learned Trial Judge. As observed in the commentary by Sarkar 
on the Law of Evidence, the demeanour of a witness frequently furnishes 
a clue to the weight of his testimony. This aspect has to be borne in mind 
while dealing with an appeal against acquittal.
10. Coming back to the facts of the case, after having carefully 
perused the impugned judgment, we ﬁ nd that there is no discussion about 
the testimony of eyewitnesses for deciding whether their testimony could 
be believed. In fact, there are no ﬁ ndings recorded by the High Court after 
re-appreciating the evidence. There is not even a ﬁ nding to indicate that the 
High Court considered the question whether the view taken by the Trial Court
53
was a possible view. Without recording any reasons and without recording 
any ﬁ nding regarding the role played by the appellants individually and 
collectively, the High Court has jumped to the conclusion that the guilt of 
the accused has been established. The judgment does not throw any light on 
the question who were the authors of the injuries sustained by the deceased 
and the injured witnesses. There is no ﬁ nding as to how Section 149 of IPC 
gets attracted. 
11. Thus, the only conclusion which can be drawn is that the High 
Court, as an Appellate Court, while hearing the appeal against acquittal, 
has not done its duty.
12. However, we cannot take recourse to the order of remand since the 
subject oﬀ ence has taken place about twenty-three and half years back. We 
have perused the evidence of the eyewitnesses, namely PW-1, PW-2, PW-3, 
PW-6 and PW-7, and the Trial Court ﬁ ndings. We ﬁ nd that the Trial Court 
has made a very detailed analysis of the depositions of the witnesses. The 
incident was of 9:00 p.m. The Trial Court noted that at 11:40 p.m. on the 
date of the incident, PW-1 was examined by a doctor in a hospital. FIR was 
not lodged immediately thereafter. It was registered at 1:30 a.m. on the next 
date. The Trial Court noted that the appellant no.1’s thumb was disﬁ gured. 
For this grievous injury suﬀ ered by the appellant no.1 - accused no.1, there 
was no explanation by the prosecution.
13. The Trial Court found that the failure to investigate the
cause of 
injury suﬀ ered by the accused no.1 is a serious lacuna in a prosecution 
case. On facts, it is further noted by the Trial Court that on the basis of prior 
complaint ﬁ led by the accused no.1 - appellant no.1 alleging commission 
of assault by PW-1, PW-2, PW-7, and PW-12, all of them got anticipatory 
bail from the competent court.
14. There was a ﬁ ght over property between the accused and the 
family of the complainant. After in-depth scrutiny of the testimony of 
the eyewitnesses, for the reasons recorded, the Trial Court was unable to 
accept their testimony. After having examined the evidence of the material 
prosecution witnesses and ﬁ ndings of the Trial Court, we must hold that the 
conclusions recorded by the Trial Court were possible conclusions which 
could have been recorded on the basis of the evidence on record.
H. D. SUNDARA & ORS. v. STATE OF KARNATAKA
[ABHAY S. OKA, J.]

54  
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
15. Therefore, the appeal succeeds, and we set aside the impugned 
Judgment dated 21st September 2010. We direct that unless the appellants 
are required to be detained in custody in connection with some other case, 
they shall be forthwith set at liberty.
16. The Appeal is accordingly allowed. 
Headnotes prepared by:  
Appeal allowed.
Nidhi Jain