Fedrick Cutinha vs State Of Karnataka

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.2251 OF 2010

FEDRICK CUTINHA … APPELLANT

VERSUS

STATE OF KARNATAKA … RESPONDENT

WITH

CRIMINAL APPEAL NO.2265 OF 2010

JUDGMENT

PANKAJ MITHAL, J.

1. All eleven accused persons pursuant to the FIR registered as

Signature Not Verified Crime No.109/1999 dated 11.09.1999 were acquitted by the Digitally signed by POOJA SHARMA Date: 2023.04.18 17:55:22 IST Reason: trial court for offences under Sections 143, 147, 148, 323, 324, 2

307, 302 read with Section 149 of the Indian Penal Code, 1860

(“the IPC”), Police Station: Puttur Town Circle, District:

Dakshina Kannada, Mangalore. The acquittal of nine of them

has been affirmed by the High Court except for accused Nos.1

and 3, i.e., Krishnappa Naika @ Kittu Naika and Fedrick

Cutinha, who have been convicted under Section 302 read with

Section 34 of the IPC with life imprisonment and under Section

326 read with Section 34 of the IPC for causing grievous injuries

with imprisonment of five years.

2. Aggrieved by the above conviction, the accused – A1 and A3

have preferred separate appeals as above. The main appeal is

that of A3, i.e., Fedrick Cutinha.

3. We have heard Mr. S.N. Bhat, learned Senior Counsel on behalf

of the appellant/accused A3 in the main appeal and Ms. N.

Annapoorani, learned counsel for the appellant/accused A1 in

criminal appeal no.2265 of 2010 as well as the State counsel. 3

4. The story as set out in the FIR, lodged by one Honnappa Gowda

reveals that the incident occurred at 12 noon on 11.09.1999,

which happened to be a polling day for the Lok Sabha and

Assembly Elections in the District. According to the informant,

on the said date, he along with his brother – Jagdish, father –

Poovani Gouda, his neighbours – Umanath Naika, Lingappa

Naika and Balachandra were going towards Zila Parishad

Higher Primary School, Kodipady to cast their votes. He himself,

his father and his brother had casted their votes and reached

the shop of Abdul Khadar. Then Umanath Naika asked them to

stay there to enable him to cast his vote. After, he was returning

from the polling booth and was about to reach the shop, an

autorickshaw came from the Puttur side and stopped in front of

the shop. Krishnappa Naika, Fedrick Cutinha, Laxman Naika,

Dheeraj Gowda, Inas Veigas, Cyril Veiga, Maurice Veigas,

Shivappa Naika and Padmanabha Gowda got down from the

said autorickshaw and came towards them. Laxman Naika and

Fedrick Cutinha threw chili powder on the face of Umanath

Naika. When Umanath Naika tried to escape, Krishnappa Naika 4

(who is none other than the brother of Umanath Naika) came

out from the autorickshaw, stabbed him on his left shoulder

with a sharp knife. He then stabbed him on the left eyelid and

the left eyebrow. Krishnappa Naika also stabbed the right

portion of the chest of Lingappa Naika, who was by the side of

Umanath Naika, with the same knife. Laxman Naika, who was

accompanying Krishnappa Naika, stabbed his father – Poovani

Gowda on the back with the knife. Fedrick Cutinha assaulted

on the head of Balachandra with an iron rod. He then kicked

Jagdish on the left thigh. Fedrick Cutinha also assaulted on his

head by rod. The others also joined them in assaulting. Upon

raising an alarm, all of them returned to the autorickshaw, in

which they had come and fled.

5. Lingappa Naika, who had sustained injuries, ran towards the

school and fell down at a short distance. A home-guard at the

Election Booth lifted Lingappa Naika and sent him and

Umanath Naika, Poovani Gowda and Balachandra to the

Government Hospital, Puttur for treatment in an autorickshaw.

Thereafter, the informant and his brother – Jagdish also went 5

for treatment to the Government Hospital, where they came to

know that Lingappa Naika had succumbed to the injuries. The

doctors attended to them. All injured – Umanath Naika,

Balachandra and Poovani Gowda were admitted in the hospital,

but the informant and his brother – Jagdish were discharged

after treatment.

6. The reason behind the above incident was a property dispute

between Umanath Naika and his brother – Krishnappa Naika.

It was on account of the property dispute between the two and

the past enmity that Krishnappa Naika caused an unlawful

assembly and attacked all of them stabbing Lingappa Naika

with knife causing his death.

7. It is apparent from the narration of facts, as stated in the FIR,

that there were two factions; one consisting of the informant

Honnappa Gowda, his father – Poovani Gowda, his brother –

Jagdish and his neighbours – Umanath Naika with Lingappa

Naika, in all five persons; and the other which came in an

autorickshaw consisting of eight persons headed by A1 - 6

Krishnappa Naika including A3 – Fedrick Cutinha. In other

words, the attacking party of eight persons was headed by

Krishnappa Naika and included Fedrick Cutinha. The victim’s

side had five persons headed by Umanath Naika and the

informant – Honnappa Gowda and others. Thus, the two

brothers, i.e., Krishnappa Naika and Umanath Naika were in

the rival groups.

8. The judgment and order of the trial court reveals that the

Inspector of Police, Puttur, submitted charge sheet in C.C.

No.4444/99 against 11 persons. Since some of the accused

persons were not traceable despite issuance of non-bailable

warrant, the case was split up. Two Session Cases Nos.18/2000

and 130/2000 came to be registered before the Court of II

Additional Sessions Judge, Dakshin Kannad, Manglore. Both

the aforesaid cases were decided by common judgment and

order dated 21st August, 2001. The trial court recorded that the

only independent witness PW-19 Abdul Khadar had turned

hostile and that the evidence of the star witnesses lacked

neutrality. The Court upon consideration of the entire evidence 7

recorded that the prosecution had failed to prove its case

beyond all reasonable doubts and as such all are entitled to

benefit of doubt. Accordingly, all were acquitted.

9. In the criminal appeals preferred by the State, as stated earlier,

the acquittal of all accused was affirmed except for accused

Nos.1 and 3. It is, therefore, that both the above

accused/convicts have preferred these appeals.

10. In the appeals before us against the conviction of A1 and A3, it

is submitted that in a case for acquittal of all accused by the

trial court, the High Court ought not to have overturned the

acquittal of any of the accused much less, i.e., of A1 –

Krishnappa Naika and A3 – Fedrick Cutinha, until and unless,

there was any perversity in appreciating the evidence by the

trial court. The High Court as an appellate court in convicting

and sentencing the accused A1 and A3 ought to have given both

of them an opportunity of hearing on the quantum of

punishment before sentencing them to life imprisonment and

imprisonment for five years for offences under Sections 302 and 8 326 of the IPC respectively read with Section 34 of the IPC.

Lastly, A3 had not assaulted the deceased. He had only been

assigned the role of assaulting and kicking some of the other

persons of the victim’s side and throwing of chili powder on the

face of Umanath Naika and as such do not warrant the above

punishment.

11. The High Court accepts most of the observations made by the

trial court that the evidence of several witnesses was in the

nature of interested testimony which does not find

corroboration by any independent witness. The testimony of

PW-9 was disbelieved as a setup witness whose presence at the

place of incident was held to be doubtful. The independent

witness PW-19 was reported to have turned hostile. However,

solely on the evidence of PW-5, Mr. K. Dheeraj Gowda, the High

Court recorded a finding that the participation of A1 and A3 is

convincingly proved and as such ordered for their conviction

and imprisonment.

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12. The High Court in recording the above conviction has not

assigned any good reasons from deviating with the findings

returned by the trial court and at the same time has not even

stated that the findings so recorded by the trial court in

acquitting all the accused, including A1 and A3 are in any way

perverse.

13. There is no room to doubt the powers of the appellate court and

that it has full power to review, reappreciate and reconsider the

evidence upon which the order of acquittal is founded. However,

the appellate court has to bear in mind that in case of acquittal

there is double presumption of innocence in favour of the

accused. First, the presumption of innocence is available to all

accused under the criminal jurisprudence as every person is

presumed to be innocent unless proved to be guilty before the

competent court of law. Secondly, the accused having secured

the acquittal, the presumption of their innocence gets further

reinforced and strengthened. Therefore, the appellate court

ought not to lightly interfere with the order of acquittal recorded

by the trial court unless there is gross perversity in the 10

appreciation of the evidence and even if two views are possible,

it should follow the view taken by the trial court rather than

choosing the second possible version.

14. In Rohtash vs. State of Haryana, (2012) Vol.6 SCC 589, the Apex

Court held as under:

“The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well- settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”

15. In view of the above settled legal position and the fact that the

trial court has recorded acquittal of all accused upon careful

appreciation of the entire evidence on record with which the

High Court had not found fault with, we are of the opinion that

the appellate court committed an error of law in recording 11

conviction of A1 and A3 merely for the reason that their

presence and participation in the crime was proved by the

evidence of one of the witnesses.

16. The case of the A3 stands on altogether a different pedestal

insofar as neither the allegations in the FIR nor the evidence

establishes his role in the killing of the deceased. As stated

earlier, his role is confined to kicking, hitting and throwing

chili powder rather than assaulting any of the injured persons

or the deceased with the knife.

17. This Court in Darshan Singh & others vs. State of Punjab

(2009) 16 SCC 290 ruled that accused have to be convicted on

the basis of their individual acts and where an accused

inflicted simple injuries with lathis etc., he is ordinarily not to

be convicted for the offence of murder.

18. This apart, in view of sub-Section (2) of Section 235 of CrPC,

the court is obliged to hear the accused persons after their

conviction on the quantum of sentence before passing a

sentence against them. Even otherwise as a general rule, the

trial court is duty bound to adjourn the matter to a future date 12

after recording the conviction so as to call upon both the sides

to hear on the question of sentence before sentencing the

accused persons.

19. The principle of according opportunity of hearing to the convict

before sentencing him is equally applicable where the

sentencing is done by the appellate court. It may be true that

opportunity of hearing may not have a bearing, if minimum of

the sentence is being imposed. It may also not be necessary in

every case to fix a future date after conviction for the purpose

of sentencing but the convicts are entitled to opportunity of

hearing on sentence.

20. In the case at hand, the trial court had acquitted A1 and A3

but they were convicted by the appellate court. Therefore, the

appellate court was obliged under law to hear them on the

quantum of sentence in accordance with the mandate of sub-

Section (2) of Section 235 of CrPC before pronouncing any

sentence against them. The appellate court has ex-facie failed

to follow the said procedure.

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21. It is to be noted that convict A1 Krishnappa Naika @ Kittu

Naika has already spent over 11 years in actual custody as is

reflected by order of this Court dated 02.12.2022 passed in his

bail application.

22. In view of the above facts and circumstances, we are of the

opinion that the High Court in exercise of its appellate

jurisdiction could not have interfered with the acquittal of the

accused persons so as to convict A1 and A3. Accordingly, the

conviction of A1 and A3 is hereby set aside and the judgment

and order of the High Court dated 28.06.2008 is also set aside.

23. The appeals are allowed.

……………………………………J. [V. Ramasubramanian]

……………………………………J. [Pankaj Mithal] New Delhi;

April 18th, 2023.