Karnataka High Court
Srishail S/O Muttappa Mali vs The State Of Karnataka on 19 February, 2026
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 100085 of 2020
C/W CRL.A No. 100156 of 2020
CRL.A No. 100232 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY 2026
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
CRIMINAL APPEAL NO.100085 OF 2020 (C)
C/W
CRIMINAL APPEAL Nos.100156 OF 2020 AND 100232 OF 2020
IN CRL.A NO. 100085/2020
BETWEEN:
SRI.KIRAN
S/O. RAMAPPA PADASALAGI @ HALINGALI,
AGE: 20 YEARS, OCC. AGRICULTURE,
R/O. NANDGAON, TQ. ATHANI,
DIST. BELAGAVI.
...APPELLANT
(BY SRI.K.L. PATIL, ADVOCATE)
VIJAYALAKSHMI
M KANKUPPI
AND:
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
Location: HIGHCOURT OF
THE STATE OF KARNATAKA,
KARNATAKA DHARWAD
BENCH DHARWAD BY ITS C.P.I. BANAHATTI,
NOW REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.JAIRAM SIDDI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCING DATED
03/01/2020 & 04/01/2020 PASSED BY THE LEARNED I ADDL.
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NC: 2026:KHC-D:2670-DB
CRL.A No. 100085 of 2020
C/W CRL.A No. 100156 of 2020
CRL.A No. 100232 of 2020
HC-KAR
DISTRICT AND SESSIONS, BAGALKOTE SITTING AT JAMAKHANDI IN
SC NO.112/2017 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 201, 120(B), 109 R/W SECTION 34 OF IPC AND
ACQUIT THE APPELLANT FOR CHARGES LEVELLED AGAINST HIM, IN
THE INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO. 100156/2020
BETWEEN:
SHRISHAIL S/O. MUTTAPPA MALI,
AGE: 22 YEARS, OCC. AGRICULTURE,
R/O. NANDGAO, TQ. ATHANI,
DIST. BELAGAVI-423106.
...APPELLANT
(BY SRI.K.L. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH BANAHATTI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.JAIRAM SIDDI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO CALL FOR THE RECORDS IN S.C.NO.112/2017 ON
THE FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOTE,
SITTING AT JAMKHANDI AND ALLOW THIS CRIMINAL APPEAL AND SET
ASIDE THE JUDGMENT OF CONVICTION DATED 03/01/2020 AND ORDER
OF SENTENCE DATED 04/01/2020 PASSED BY I ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOTE, SITTING AT JAMKHANDI, IN
SC.NO.112/2017 CONVICTING THE APPELLANT FOR OFFENCES
PUNISHABLE UNDER SECTIONS 302, 201, 120B R/W. SECTION 34 OF
IPC, AND ACQUIT THE APPELLANT / ACCUSED NO.2 OF THE OFFENCES
PUNISHABLE SECTIONS 302, 201, 120-B, R/W. 34 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY.
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NC: 2026:KHC-D:2670-DB
CRL.A No. 100085 of 2020
C/W CRL.A No. 100156 of 2020
CRL.A No. 100232 of 2020
HC-KAR
IN CRL.A NO. 100232/2020
BETWEEN:
SRI.SHIVANANDHA @ SHIVAGONDA
S/O. NANASAB SOLAKHAN,
AGE: 25 YEARS, OCC. AGRICULTURE,
R/O. NANDGOAN, TQ. ATHANI,
DIST. BELAGAVI.
...APPELLANT
(BY SRI.K.L. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ITS C.P.I. BANAHATTI,
NOW REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.JAIRAM SIDDI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCING DATED
03/01/2020 & 04/01/2020 PASSED BY THE LEARNED I ADDL. DISTRICT
AND SESSIONS, BAGALKOTE SITTING AT JAMKHANDI IN SC
NO.112/2017 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302,
201, 120(B) R/W. SECTION 34 IPC IN RESPECT OF THE APPELLANT AND
ACQUIT THE APPELLANT FOR CHARGES LEVELLED AGAINST HIM, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE CRIMINAL APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
HON'BLE MRS JUSTICE GEETHA K.B.
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CRL.A No. 100085 of 2020
C/W CRL.A No. 100156 of 2020
CRL.A No. 100232 of 2020
HC-KAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ) The Court of I Additional District and Sessions Judge, Bagalkot, sitting at Jamkhandi, by its judgment and order dated 03.01.2020 and 04.01.2020 has convicted and sentenced accused Nos.1 to 3 for the offence punishable under Sections 120B, 302 and 201 read with Section 34 of the Indian Penal Code (Hereinafter referred to as 'the IPC', for short).
2. Assailing the judgment and order of conviction and sentence, accused No.1 has preferred Crl.A. No.100232/2020, accused No.2 has preferred Crl.A. No.100156/2020 and accused No.3 has preferred Crl.A. No.100085/2020.
3. We have heard the learned counsel for the appellants and the learned High Court Government Pleader -5- NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR for the respondent/State and perused the evidence and material on record.
4. Brief facts of the prosecution case: the deceased Sunil is the son of the first informant Bhagavant Savadhi (PW.8). His marriage with Arpitha took place about a year and half prior to the date of the incident. After the marriage, Arpitha was residing along with her husband and in-laws in the house situated in their land bearing Sy.No.214/4/2 at Terdal village. Arpitha had an illicit relationship with accused No.1 since two years prior to her marriage. However, due to the pressure of her parents, she had married Sunil. Even after the marriage, she was constantly in touch with accused No.1 through phone. Both of them hatched a plan to commit the murder of Sunil and in this connection, they conspired with accused Nos.2 and 3, close friends of accused No.1. At the instigation of Arpitha and in furtherance of the conspiracy hatched, on 16.05.2017, accused No.1 secured accused Nos.2 and 3 and came near the house of the -6- NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR deceased on a motorcycle bearing registration No.KA.23/EB-4259, handed over a mobile and told Arpitha to inform about the movements of the deceased. When the deceased proceeded to the land on his motorcycle bearing No.KA.48/Q-2620, Arpitha informed accused No.1. All the three accused came near the land of one Padmaraj Heerachand Aalagur (PW.11) waiting for the deceased. At about 7:30 pm, when the deceased arrived on his motorcycle, the accused in the guise of enquiring the location of some land, stopped him and all of a sudden pushed him down and held his hands and legs. Accused Nos.1 and 3 strangulated him with kerchief and committed his murder. Thereafter, they shifted the dead body as well as the motorcycle and dumped near the land of one Mahaveer (CW-19) and to make it appear as if it is a case of accident.
5. On the basis of the complaint of PW.8, father of deceased, as per Ex.P-22, initially FIR was registered for the offence punishable under Section 279 and 304A of -7- NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR IPC. Later, PW.8, suspected the conduct of his daughter- in-law Arpitha, as she had left the matrimonial home and gone to her parental home within a short period of her husband's death. He along with PW.7-Sheetal Jinnappa Gulannavar and CW-14-Dhanapal went to Nandagaon village i.e., to the parental home of Arpitha. They were informed by the villagers about the prior illicit intimacy between Arpitha and accused No.1, which was not within their knowledge. Thereafter, they returned to the village and informed the matter to the police, suspecting the role of Arpitha and accused No.1. On the basis of the further statement of PW.8 given to the police on 29.05.2017, as per Ex.P-23, the investigation continued.
6. P.W.20-the Investigation Officer collected the call detail records regarding the calls made between Arpitha and accused No. 1. He instructed PW19 to arrest the accused. Accordingly PW.19, arrested accused No. 1, 2 and Arpitha on 04.06.2017 and accused No.3 on 07.06.2017. On their voluntary statements, incriminating -8- NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR articles were recovered. On completion of the investigation, charge sheet was filed against accused Nos.1 to 3 and Arpitha, arraying her as accused No.4.
7. In the course of trial, after examination of some of the witnesses, as it was found that Arpitha was minor at the time of incident, the trial Court issued necessary direction to the Investigation Officer to produce her before the Juvenile Court, Bagalkot. The trial continued against accused Nos.1 to 3.
8. The prosecution got examined PW.1 to PW.21 and got marked Exs.P1 to P67, M.O.s 1 to 14 to establish charges leveled against the accused. The defence got marked Exs.D.1 and Ex. D.2, portion of the statements of the witnesses.
9. Learned Sessions Judge vide impugned judgment convicted and sentenced the accused for the charged offences punishable under Section 120B, 302 R/W Section 34 of IPC.
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10. Assailing by the impugned judgment, learned counsel for the appellants contended that there are no eye witnesses to the incident; the entire case is based on circumstantial evidence. The circumstances relied on by the prosecution has not been proved beyond reasonable doubts. There are several missing links in the chain of circumstances. The prosecution has not established that the deceased died a homicidal death, since the FIR itself is registered stating that the deceased died on account of accident. There are several omissions and improvements in the evidence of the prosecution witnesses. The material witnesses who according to the prosecution informed the first informant about the illicit relationship between accused No.1 and Arpitha have denied the prosecution case in toto. There is no material to show that Arpitha was using any mobile phone and even otherwise no certificate under Section 65B of the Evidence Act has been obtained to substantiate the call detail records and the calls made between the accused persons. There is no material or
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR evidence to show that the deceased was in the company of the accused prior to the incident and the evidence of PW6, PW9 and PW10 is not sufficient to hold that the accused have committed the murder or attempted to destroy the evidence so as to screen themselves. The conspiracy theory of the prosecution is also not proved by any convincing evidence. The learned counsel therefore contended that the reasons assigned by the learned Sessions Judge to convict the accused are not in accordance with law and accordingly sought to allow the appeals and acquit the accused of the charged offences.
11. Per contra, learned HCGP contended that the prosecution by adducing legal and convincing evidence has established the charges leveled against the accused beyond reasonable doubts. The chain of circumstances has been proved by examining the material witnesses. The prosecution has established that the deceased Sunil died a homicidal death by examining the doctor and from the Postmortem report. Further, the illicit relationship between
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR accused No.1 and Arpitha is also established and the witnesses have spoken about the presence of accused Nos.1 to 3 near the scene of occurrence prior to the incident. He contended that by assigning valid reasons, the learned trial Judge has convicted the appellants and the judgment does not suffer from any infirmities. Accordingly, sought to dismiss the appeals.
12. In order to establish the charges leveled against the appellants/accused Nos. 1 to 3, the prosecution has relied on the following circumstances, as there are no eyewitnesses to the incident.
i) Homicidal death of Sunil.
ii) Motive
iii) Illicit relationship between accused No.1 and Arpitha w/o deceased.
iv) Conspiracy between the accused.
v) The presence of accused Nos.1 to 3 near the house of the deceased as well as near the place of incident.
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR
vi) The recovery of mobile phones as well as the ligature material-Kerchief
vii) The mobile call details.
13. FIR is registered on the complaint of the father of deceased-PW.8, for the offence punishable under Sections 379, 304A IPC. In the complaint-Ex.P.22, PW.8 has stated that on 16.05.2017 at about 7.30 p.m., his son Sunil went on his motorcycle bearing No.KA.48/Q-2620 so as to go to the land situated at Shegunashi, but he did not return. Hence, his another son Sheetal (PW4) went in search of Sunil and later informed him over phone that Sunil has sustained head injury and is lying dead near the land. Immediately, he went to the spot and noticed his son Sunil with bleeding injuries on his head. With the help of relatives, they brought him to Danigonda Hospital.
14. PW.19 on getting the information, went to Danigonda Hospital and received written complaint given by PW.8, on the basis of which registered the FIR.
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15. The postmortem examination was conducted by PW17- medical officer, Government Hospital, Banahatti on 17.05.2017 between 08.45 a.m. to 10.45 a.m. He issued the post mortem report as per Ex.P31 opining that the death was due to asphyxia secondary to strangulation. He noticed the following injuries on the dead body:-
1) Two strangulation marks on the anterior aspect of the neck measuring 16X 1cm and other one 11 X1 cm.
2) 4 X 3 cm dark coloured contusion swelling on the left side of neck.
3) ½ X ½ cm cut lacerated wound on middle of forehead.
4) 1 X ½ cm abrasion on the right great toe.
5) 1 X 1 cm contusion marks on the left shoulder.
6) 2 X 2 cm abrasion on the right side of back.
7) 3 X 2 cm abrasion on left side of back.
16. Injury No.1 is on the anterior aspect of the neck measuring 16X 1cm and other one 11 X1 cm.
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17. The counsel for the appellant contended that the prosecution has not established that Sunil died homicidal death, as FIR has registered stating that it is a case of accident. However, we find from the evidence of PW17 that the injury No.1 are two strangulation marks over the neck. He has stated that the death is due to asphyxia secondary to strangulation. He has also furnished his opinion with regard to the kerchief, the ligature material, which was sent for his examination and opined that the strangulation mark at injury No.1 could be caused with the said kerchief.
18. It is the contention of the learned counsel that in the postmortem report, it is not shown that the mark is encircling the neck or it is horizontal or vertical to find out whether it is accidental, suicidal or homicidal. However, PW17 has unequivocally stated that injury No.1 are strangulation marks could be caused by the kerchief. His opinion is marked as Ex.P32. Insofar as other injuries are concerned, he has stated that those injuries could be
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR caused if a person falls from a motorcycle. In the cross- examination, to the suggestion put by the defence, regarding the injuries over the neck, he has stated that if a person falls from the motorcycle violently and comes in contact with the dome of motorcycle or surrounding object, the first injury cannot be caused because the injury on its neck is a circular injury.
19. We have perused the inquest report marked as Ex.P1; Inquest conducted on 17.05.2017, wherein the injuries marked over the neck have been described as measuring 16cms and 11 cms.
20. The learned counsel tried to contend that PW.17 in his cross-examination has stated that the death could have been caused more than 24 hours prior to his examination and less than 36 hours and therefore, the case of prosecution that the incident occurred on 16.05.2017 between 7.30 to 8.45 pm., itself is doubtful.
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21. We have perused the P.M. report as Ex.P31, wherein the time of death is mentioned as within 24 hours and the rigor mortis was present all over the body. Further, PW.17 in the chief examination itself has stated that the death has been caused within 24 hours of autopsy. He has clearly denied the suggestion that even the injury on the neck, i.e., the strangulation mark, also can be caused due to fall from the motorcycle. From his evidence, it is established that Sunil died a homicidal death and it is not an accidental death.
22. According to the prosecution, about two years prior to the marriage of Sunil with Arpitha, the said Arpitha had developed illicit relationship with accused No.1 but due to the pressure of her parents, she married Sunil. After the marriage, she was constantly in touch with accused No.1 and conspired with him to commit the murder of Sunil and with the help of accused Nos.2 and 3, the murder was committed.
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23. In order to establish that there was an illicit relationship between Arpitha and accused No.1, the prosecution relies on the call detail records, wherein the prosecution wants to show that Arpitha was in constant touch with accused No.1 and she was making calls. Further, according to the prosecution, PW.8, father of the deceased suspected the conduct of Arpitha after the incident and he went to Nandagaon village, wherein the villagers informed him about the prior intimacy between accused No.1 and Arpitha.
24. Firstly, it is not the case of prosecution that there was any mobile SIM in the name of Arpitha. According to prosecution, Arpitha was using mobile of her husband Sunil. Neither, PW.8, father of the deceased nor PW.4, brother of the deceased has stated that Arpitha was using mobile phone of her husband. Further, the prosecution has relied on the call detail records to contend that there were frequent calls made between accused No.1
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR and Arpitha prior to the incident and on the date of incident.
25. The learned Sessions Judge, while appreciating the evidence with regard to the call detail records, has held that the accused has never contended that Sunil is either known to accused No.1 or he is his friend and therefore, relying on the calls made from the mobile SIM of Sunil to the mobile number of accused No.1, held that the prosecution is successful in proving the contact of Arpitha with accused No.1 even after her marriage. Further, held relying on the decision in the case of Shafhi Mohammad V/s. The State of Himachal Pradesh, decided on 30.01.2018 that even in the absence of certificate under Section 65(B) of the Indian Evidence Act, the said call detail records is admissible in evidence.
26. Firstly, the trial Court was not justified in holding that the calls made from the mobile SIM Nos.9108799878 to 9845973015 was between accused No.1 and Arpitha, when there is no mobile SIM in the
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR name of Arpitha and merely because the defence never contended that deceased Sunil is a friend of accused No.1, such a conclusion cannot be arrived at. As we have already observed, there is no convincing material to show that Arpitha was using the mobile phone of her husband Sunil. Merely, because calls were made from the mobile phone of deceased to the mobile phone of accused No.1, it cannot be held that the said calls were made by Arpitha. Insofar as the certificate under Section 65B of the Evidence Act is concerned, the learned counsel for the appellants has relied on a decision of the Hon'ble Apex Court in the case of Arjun Panditrao Khotkar V/s. Kailash Kushanrao Gorantyal and others1, wherein, it is held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. In the said judgment, it is held that the judgment in the case of Shafhi Mohammad referred (supra) reported in 2018(5) SCC 311 does not 1 AIR 2020 SC 4908
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR lay down the law correctly and therefore, overruled. It is also held that the requisite certificate is unnecessary if the original document is produced. However, in the case on hand, the original document is not produced and the certificate as required under Section 65B(4) is also not produced and marked in evidence. Hence, the reasons assigned by the learned Session Judge, based on the call detail records that there was a illicit relationship between accused Nos.1 and 4 as they were talking frequently prior to the incident and they held a conspiracy etc., is erroneous.
27. Secondly, according to the prosecution, PW.8, i.e., the father of the deceased along with PW.7 and one Dhanapal went to Nandagaon village, wherein they were informed by the villagers that even prior to the marriage of Arpitha, she was having an illicit relationship with accused No.1. PW.8 is said to have gone to Nandagaon village after the incident, along with PW.7- Sheetal Jinnappa Gulannavar and CW.14-Dhanaraj. Though PW.7
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR and PW.8 have stated that they have gone to Nandagaon village, wherein the villagers have informed about the illicit relationship between accused No.1 and Arpitha, even prior to the marriage, the villagers who are examined as PW.13 and PW.14 have completely given a go by to the prosecution case denying the same. Both PW.13 and PW.14 have denied that they have informed either PW.8 or PW.7 about the illicit relationship. Hence, it cannot be held that the prosecution has established beyond doubt that there was illicit relationship between Arpitha and accused No.1 even prior to her marriage with the deceased and they continued with the said illicit relationship even after the marriage and also conspired to commit the murder of Sunil.
28. The prosecution has relied on the evidence of PWs.6, 9 and 10 to establish that prior to the incident, they saw accused Nos.1 to 3 near the scene of occurrence and PW6 saw the deceased going towards Shegunasi at the same time. It is the contention of the learned HCGP
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR that the presence of accused Nos.1 to 3 near the scene of offence is a strong link in the chain of circumstances as they were waiting for the deceased who was going towards Shegunasi to his land. He contended that PWs.6, 9 and 10 have seen accused Nos.1 to 3 and a black coloured motorcycle and PW.9 and PW.10 have also spoken about the accused near the house of the deceased and one of the accused entering the house to hand over the mobile phone to Arpitha, for the purpose of collecting information about the movements of the deceased. He contended that PW.9 has identified accused Nos.1 to 3 in the police station.
29. We have perused the evidence of PWs.6, 9 and 10.
30. PW.6 has deposed that at about 06.30 p.m. he had been to his land for watering the plants and at about 07.10 p.m. while he was returning, he saw three strangers with a two wheeler standing near the land of Padmaraja. Thereafter, he went half a kilometre further and on the
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR way, he met deceased Sunil, who was also going on his two wheeler towards Shegunasi. Thereafter, at about 10.00 p.m., CW1(PW8) informed that his son has met with an accident. Subsequently, he identified the said three accused shown by the police in the police station.
31. PW9 and 10 are said to be the shopkeepers who have their shops near the house of the deceased. PW9 has stated that about 06.00 to 06.30 p.m. when he was in the shop, he saw the strangers on a motorcycle coming from Teradal and they stopped near Hanumanthana Gudi. One of them went to the house of PW8 and returned in 5 minutes. Thereafter, they went towards Shegunasi. He went to the house of the deceased to meet him and at that time, Arpitha prepared tea and took the mobile phone and went upstairs. At about 09.00 p.m., he came to know that Sunil met with an accident and admitted to the hospital.
32. PW10 has stated that at about 06.30 to 07.00 p.m. he saw three strangers coming from Teradal on a motorcycle and they stopped near Hanumanthanagudi and
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR one of them went to the house of PW.8 and returned in 5 minutes and thereafter, all the three went towards Shegunasi road. He identified accused Nos.1 to 3 in the police station.
33. According to PW.9 and PW.10, they saw the three accused coming on a motorcycle from Teradal while they were in the shop. Further, they have stated that one of the accused went inside the house of PW8 and returned in 5 minutes. PW9 has stated that his shop is situated at about 500 feets from Shegunasi road, one of the accused went to the house of PW8, but did not notice as to whom he met in the house. Though, according to the said witnesses, they informed about the same to PW8, after the incident, but admitted in the cross-examination that they have not given statement to the Police that they have told PW.8 about seeing the accused near shop.
34. PW10 has stated that his shop is situated in front of the house of PW.8. In the cross-examination, he has stated that Hanumanthadevara gudi is situated at
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR about 50 to 60 feet from his shop. According to him, the three accused remained at that place for about half an hour, but, whereas, PW9 has stated that after one of the accused entered the house, he returned within 5 minutes and all the three went towards Shegunasi.
35. Admittedly, both PW8 and PW4 were very much present in the house before the deceased went to the land on his motorcycle. In the complaint itself, it is stated that the deceased Sunil left the house at around 07.30 p.m. so as to go to the land and since he did not come back, PW4 i.e., his brother went in search of him. Thereafter, PW4 informed PW8 that Sunil has met with an accident and then even PW8 went to the spot. If, PW9 has seen one of the accused entering the house of the deceased, then certainly, PW8 and PW4 who were very much present in the house could have seen the said accused in the house. However, they have not stated about anyone coming near the house or giving the mobile phone to Arpitha. In the cross-examination, PW8 has admitted that from his house,
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR the shops are not visible and if a person sits inside the shop his house will not be visible.
36. The learned HCGP contended that one of the accused met Arpitha in the backyard of the house and therefore, PW4 and PW8 were not aware of the said accused coming to their house. When it is the specific case of PW9 that he went to the house of the deceased after one of the accused went near the house and returned in 5 minutes, he would have certainly informed the same to PW8 or PW4. However, they have not stated about PW.9 informing them about seeing one of the accused coming near their house. PW.8 in the cross examination has said that if a person sits in the shop situated near his house, he cannot see his house from the said shop. PW.10 also admitted in the cross examination that from his shop the house of PW.8 is not visible. Hence, the case of prosecution that PWs.9 and 10 having their shops near the house of deceased saw the three accused near the house
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR of deceased and one of the accused went to the house is not proved beyond all reasonable doubt.
37. It is not the case of prosecution that the deceased was seen in the company of the accused prior to the incident. According to prosecution, Accused Nos.1 to 3 were seen together coming from Teradal on a motorcycle and then going towards Shegunasi. Even accepting that PW6, PW9 and PW10 have seen accused Nos.1 to 3 together prior to the incident, that itself will not lead to a conclusion that the said accused have then followed the deceased to the land of Padmaraj and committed his murder and thereafter shifted the dead body on the motorcycle and dumped in the land of CW19-Mahaveera. None of the witnesses have stated that the accused have followed the deceased or the deceased was seen in the company of the accused, prior to the incident.
38. After the arrest, the clothes of the accused, the alleged ligature material i.e., kerchief were seized under separate panchnamas. The clothes were sent to RFSL.
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR However, none of the clothes were found blood stained. The ligature material i.e. the kerchief was recovered from one of the accused i.e. accused No.3 However, the seizure of the said kerchief will not lead to a conclusion that these accused have committed the murder by strangulating the deceased.
39. It is well settled principle of criminal jurisprudence that a conviction may be based purely on circumstantial evidence, provided that such evidence is deemed credible and trustworthy. In cases purely based on circumstantial evidence, it is imperative to ensure that the facts leading to the conclusion of guilt are fully established and that all the established facts point irrefutably to the accused person's guilt. The chain of incriminating circumstances must be conclusive and should exclude any hypothesis other than the guilt of the accused. In other words, from the chain of incriminating circumstances, no reasonable doubt can be entertained about the accused person's innocence.
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR
40. The Hon'ble Apex Court in the case of Sharad Birdichandra Sarda Vs. State of Maharastra reported in 1984 Crl.L.J. 1738 has laid down the following golden principles governing cases based on circumstantial evidence.
1) The Circumstances from which the conclusion of guilt is to be drawn should be fully established.
2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that accused is guilty.
3) The circumstances should be of a conclusive nature and tendency.
4) They should exclude every possible hypothesis except the one to be proved, and
5) There must be a chain of evidence so complete as not to leave reasonable ground for the conclusion consistent with the innocence of the accused and must show
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR that in all human probability the act must have been done by the accused.
41. Having re-appreciated the entire evidence and material on record, we are of the view that the chain of circumstances relied on by the prosecution are not conclusive. The chain of evidence is not complete to hold that in all probability the act must have been done by the accused. It is equally well established that the suspicion however grave will not take the place of proof. The charges leveled against the accused are not proved beyond reasonable doubt. The accused are entitled to benefit of doubt and the impugned judgment of the trial Court is therefore, liable to be set aside.
42. Accordingly, the following:
ORDER
1) The appeals are allowed.
2) The judgment of conviction and order of sentence dated 03.01.2020 and 04.01.2020 passed by the learned I Addl. District and
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NC: 2026:KHC-D:2670-DB CRL.A No. 100085 of 2020 C/W CRL.A No. 100156 of 2020 CRL.A No. 100232 of 2020 HC-KAR Sessions Judge, Bagalkot, sitting at Jamakhandi in S.C.No.112/2017 for the offences punishable under Sections 302, 201, 120(B), 109 R/W 34 IPC is set aside.
3) Appellants/accused Nos.1 to 3 are acquitted of the offences punishable under Sections 120B, 302 and 201 R/W Section 34 of IPC.
4) Bail bonds executed by the appellants- accused Nos.1 to 3 shall be in force for a period of six months.
5) The fine if any deposited, shall be refunded to them.
SD/-
(MOHAMMAD NAWAZ) JUDGE SD/-
(GEETHA K.B.) JUDGE kmv upto para 5 HMB-Para 6 to 20 RKM-21 to 29 HMB-30 -42