Bhat, learned Senior Counsel on behalf of the appellant/accused A3 in the main appeal and Ms. Annapoorani, learned counsel for the appellant/accused A1 in criminal appeal 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. 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.
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. Thus, the two brothers, i.e., Krishnappa Naika and Umanath Naika were in the rival groups.
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 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. 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.
Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”
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.
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.
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.
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.
Case Title: FEDRICK CUTINHA Vs. STATE OF KARNATAKA (2023 INSC 384)
Case Number: Crl.A. No.-002251-002251 / 2010
