Author: Abhishek Wadhawan


1. Kamalagowda v. Smt. Parvathamma

Case No.: Criminal Appeal No.228 of 2016

Bench and author: Dr. Justice H.B. Prabhakara Sastry

Date: November 16, 2018

The following appeal was sought by the complainant against the decision of the lower court wherein the lower court had dismissed the case for non- prosecution and hence had acquitted the accused. The appellant in the case argued that he and his counsel were present in the lower court on all dates of hearing except the last two hearings before the judgment to dismiss the case for non-prosecution was passed. On careful consideration of the facts of the case, the High Court came to the conclusion that the contention of the appellant was correct and the case was dismissed on non-acceptable grounds. The Court accordingly allowed the appeal and ordered the lower court to reconsider the case.

Key takeaway: No court may dismiss a case on the basis of non-prosecution if the counsel and the complainant were not present for two hearings if both of them were present on all previous hearings before the court.


2. Krishnappa v. V. Yashodha Kumar

Case No.: Criminal Appeal No. 465 of 2014

Bench and author: Dr. Justice H.B. Prabhakara Sastry

Date: November 15, 2018

Case referred: Baswaraj & Anr. Vs. The Special Land Acquisition

In the instant case, an appeal was filed by the appellant after a gap of 196 days and hence due to Limitation Act, his right to file an appeal was already diluted. But in order to justify the delay on his part in filing the appeal, the appellant put forward that he could not convey the message to his lawyer to file an appeal due to some family problems. He also put forward that he was suffering from viral fever at the same time. The Court held that the appellant had not given any medical certificate in order to prove his contention that he was suffering from viral fever. Also, no doctor would ideally ask the patient to take such a long rest in case of a mere viral fever.

As far as the contention for family problems is concerned, the Court ruled that the appellant had not mentioned what exactly the problem was and how did it not allow the appellant to file an appeal before the Court. The Court referred to the judgment of the Supreme Court in the case of Baswaraj & Anr. Vs. The Special Land Acquisition Officer in which it was mentioned that the statute of Limitation was founded so as to burry all acts of the past which had not been agitated for a long time with no reasonable explanation and hence had become stale due to the lapse of time. Only in cases of a ‘Sufficient Cause’ the Act of Limitation may not apply. Sufficient cause means an adequate and enough reason which prevented the appellant to approach the Court within the limitation.

The Court in the instant case held that the reasons provided by the appellant justifying the delay in filing the appeal were not convincing and hence the appeal was dismissed.

Key takeaway: The Act of Limitation was passed in order to ensure that the acts which were not questioned legally for a long period of time are not questioned at a later time as the matter become stale due to the lapse of time. The Limitation Act may only not be used in cases where a person is able to prove a sufficient cause justifying the delay on his part in filing the case. Sufficient cause means an adequate and enough reason which prevented the appellant to approach the Court within the limitation.


3. Nanjundaswamy Vs. State of Karnataka

Case No.: Criminal Appeal No. 652 of 2014

Bench: Justice K.N. Phaneendra and Justice K Somashekhar

Author: Justice K.N. Phaneendra

Date: November 16, 2018

The relevant facts of the case are that the prosecution alleged that the deceased wife’s husband and his parents ill-treated and harassed her for dowry. The deceased was not given food for two days and one day kerosene was poured on her by her husband and the deceased was later set on fire. Later, the deceased was taken to a hospital where she survived for ten days and subsequently died. While the husband was convicted under Section 132 of the Indian Penal Code, the husband and his parents were acquitted from the charges under Section 498A, 304B read along with Section 34 of IPC and they were also acquitted from charges under Section 3, 4 and 6 of the Dowry Prohibition Act.

The appeal was sought by the accused husband against his conviction. The Court took into reference two dying declarations of the deceased, statements of the doctor and statements of the parents of the deceased. Since there was a contradiction in the statements of all other witnesses, the witnesses had turned hostile. The Court came to a finding that when the deceased was firstly taken to the hospital, she told the doctor and her parents that she had got burn injuries due to an accident while blowing kerosene on the house stove. The parents of the deceased also stated that their daughter and the accused were staying together happily and their daughter had never complained about any ill-treatment or harassment by her in-laws. It was only in the two dying declarations given by the deceased, thee deceased stated that kerosene was put on her by her husband and also her body was set on fire by the husband.

The Court stated that such dying declarations which are taken in a completely legal manner are strong evidences and the Court can easily rely upon such dying declarations by taking into consideration the surrounding circumstances. By taking into consideration the various circumstances, the Court stated that there were two possible views in front of it. One presented by the dying declaration of the deceased that the accused had set her on fire. The other possible view is that the burn injuries were caused due to an accident as contended by the accused and based on the statements of various evidence. The Court ruled that in cases where two views are available before the Court, the Court should take the view that supports the acquittal of the accused. It is a basic principle of Criminal Jurisprudence that the accused should be set free on the basis of benefit of doubt when the prosecution is not able to prove a case beyond reasonable doubt against the accused. Accordingly, the appeal was allowed and the appellant was set free.

Key takeaway: Dying declaration of a deceased is a good evidence to convict an accused after taking into consideration all the relevant circumstances surrounding the situation. In cases where two views are available before a Court, the Court must take the view that would result into the acquittal of the accused on the grounds of benefit of reasonable doubt.


4. Pradeep H.A. Vs. M/s Raghuveer Industries & M.R. Bharathkumar

Case No.:  Criminal Appeal No. 608 of 2010

Bench and author: Justice H.B. Prabhakara Sastry

Date: November 09, 2018

The relevant facts of the case are that the accused, the Managing Director of a partnership firm, approached the complainant in order to get a hand loan of Rs. 6,50,000. In return, the accused gave the complainant three cheques. But at the time of realisation of the cheques, the complainant was informed by the bank that there was insufficient fund in the account of the accused. Subsequently, the complainant filed a case against the accused under Section 138 of the Negotiable Instruments Act. While the trial court convicted the accused, the Sessions Court acquitted them. As a result, the complainant had sought this appeal before the High Court against the order of acquittal of the Sessions Court.

The appellant argued that though there was no dispute that the cheques were issued by the accused to the complainant, the Sessions Court committed an error in not giving the benefit of presumption of legally enforceable debt in favour of the complainant, which had been done by the trial court. The respondents argued that no loan had actually been taken. The cheques issued by the accused were delivered to the father of the complainant as a security to a hand loan of Rs. 15,000.  It was further contended that the complainant in his statement had always stated that the loan was issued by him to the accused no.2, the Managing Director. There was no proof that the loan taken, if any, was for the business purposes.

Accordingly, the Partnership Firm should not be made a party to the firm. While there was no oral or documentary proof with the complainant to show that the loan was taken for business purposes, the cheques issued to the complainant were done by the accused no.-1, the Partnership Firm. It was contended that issuance of the cheques and the defence of the accused had to be read together as a result of which the defence of the accused is established as a rebuttal evidence of the accused. The Court held that even when the Sessions Court should not have placed the burden of proving a legally enforceable debt on the shoulders of the complainant solely, the accused had successfully rebutted even if a presumption was made in favour of the complainant. Accordingly, the appeal was dismissed and the order of the Sessions Court was confirmed.

Key takeaway: In cases dealing with Section 138 of Negotiable Instruments Act, when the presumption made in favour of the complainant is successfully rebutted by the accused, the burden of proving the alleged legally enforceable debt or liability by the accused towards the complainant lies on the shoulder of the complainant.


5. Mudera Bopanna Vs. State of Karnataka

Case No.: Criminal Appeal No. 17 of 2014

Bench: Justice K.N. Phaneendra and Justice K. Somashekhar

Author: Justice K.N. Phaneendra

Date: November 13, 2018

The relevant facts of the case are that the complainant’s son was called by the accused at his home. The deceased, complainant’s son, had informed his mother about the same. The accused had called the complainant’s sister and had asked for forgiveness but had not given any reason for the same. The complainant’s son was allegedly found dead in the accused’s home. Subsequently, the accused was convicted for the offence under 302 of the Indian Penal Code. The appeal was filed by the accused against his conviction. The contentions put forward by the prosecution was that the body of the deceased was found in the house of the accused, the deceased had informed his mother that he was going to the accused’s house that days and the fact that the accused had taken away a gold chain from the deceased in order to meet some urgent financial needs. However, on re-examination of the witnesses the contention of the prosecution that the deceased was found dead in the accused’s house was not accepted by the Court. On re-examination, the Court could conclude that there was ambiguity in concluding that whether the body of the deceased was found in the house of the accused or in two other villages as the statements of various witnesses were not in consonance with each other. As far as the contentions of telephone calls received by the deceased’s mother and deceased’s sister is concerned, the Court stated that the Court could not get any information about the call details even after best efforts by the Investigating Officer. Even the motive factor of the accused behind stealing the gold chain from the deceased was not proved beyond reasonable doubt by the prosecution. Section 106 of the Indian Evidence Act may have been invoked in a case where the prosecution could prove beyond reasonable doubt that the body of the deceased was found in the accused’s house. Accordingly, the onus of proof would have shifted to the accused as to how did the body of the deceased came to the accused’s house. But, the prosecution could not prove it beyond reasonable doubt and hence Section 106 of the Indian Evidence Act could not be invoked. The Court ruled that when a case is based on circumstantial evidence, the prosecution gas to prove all the circumstances beyond reasonable doubt. Even if one isolated circumstance is proved beyond reasonable doubt, it is enough to convict the accused. Since, the prosecution could prove no circumstantial evidence beyond reasonable doubt, the Court allowed the appeal and the accused was acquitted.

Key takeaway: Cases which are based on circumstantial evidences, the prosecution has to prove all the circumstances beyond reasonable doubt in order to convince the Court to convict the accused. In a few cases, even proving one circumstance beyond reasonable doubt is enough to convict the accused, but where no such circumstance is proved against the accused beyond reasonable doubt, the accused must be set free and the accused must be given the benefit of reasonable doubt.


About the Author: Abhishek is 2018-23 batch student at Gujarat National Law University, Gandhinagar.


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