Karnataka High Court
Kalappa Hanamant Kamakeri vs The State Of Karnataka on 22 December, 2021
Bench: Suraj Govindaraj, J.M.Khazi
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100096/2018
C/W
CRIMINAL APPEAL No.100109/2018
IN CRL.A.No.100096/2018
BETWEEN:
1. KALAPPA HANAMANT KAMAKERI
AGE:59 YEARS,
OCC:AGRICULTURE,
R/O. FARMHOUSE,
METAGUDD,
TAL:MUDHOL,
DIST:BAGALKOT.
2. ANAND JAKKAPPA PUJARI @ GADDADAR
AGE:30 YERS,
OCC:AGRICULTURE,
R/O.METAGUDD,
TAL:MUDHOL,
DIST:BAGALKOT.
... APPELLANTS
(BY SRI.VIJAY K.NAIK, ADVOCATE)
CRL.A.No.100096/2018 C/W
CRL.A.No.100109/2018
2
AND:
THE STATE OF KARNATAKA,
THROUGH MUDHOL PS,
DIST:BAGALKOT,
R/BY ADDL.STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD. ... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO SET-
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED
14.02.2018 FOR THE OFFENCES PUNISHABLE U/SEC.364, 302,
404, 201 R/W 34 OF IPC, 1860 PASSED IN SESSIONS CASE
NO.59/2013 BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT SITTING AT JAMAKHANDI AND ACQUIT THE
APPELLANTS (ACCUSED NOS.1 & 2) OF ALL THE CHARGES.
IN CRL.A.No.100109/2018
BETWEEN
1. IMAMSAB @ HANIF DASTAGIRSAB PASCHAPUR
AGED: 60 YEARS,
OCC: AGRICULTURE,
R/O: ITNAL,
TQ: RAIBAG,
DIST: BELAGAVI.
2 . MAHADEV SIDRAM HULLOLLI
AGED: 45 YEARS,
OCC: AGRICULTURE,
R/O: ITNAL,
TQ: RAIBAG,
DIST: BELAGAVI.
... APPELLANTS
(BY SHRI RAMACHANDRA MALI, ADVOCATE)
CRL.A.No.100096/2018 C/W
CRL.A.No.100109/2018
3
AND
THE STATE OF KARNATAKA
REP. BY MUDHOL PS,
DIST: BAGALKOTE,
NOW REP. BY ITS SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO SET
ASIDE THE JUDGEMENT/ORDER OF CONVICTION AND SENTENCE
DATED 14.02.2018 MADE IN S.C.NO.59/2013 PASSED BY THE I
ADDL. DISTRICT AND SESSIONS JUDGE BAGALKOT, SITTING AT
JAMAKHANDI FOR THE OFFENCE PUNISHABLE UNDER SECTION
364, 302, 404, 201 READ WITH SECTION 34 OF IPC AND ACQUIT
THE APPELLANTS OF THE ALLEGED OFFENCES.
THESE APPEALS COMING ON FOR FINAL HEARING ON
14.12.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
1. Criminal Appeal No.100096/2018 has been filed by
accused No.1-Kalappa Hanmanth and accused
No.2-Anand Pujari and Criminal Appeal
No.100109/2018 has been filed by accused No.3-
Imamasab and accused No.4-Mahadev Sidram
aggrieved by the judgment of conviction and order
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of sentence passed by the I Additional District and
Sessions Judge, Bagalkot, sitting at Jamakhandi,
dated 14.02.2018 in Sessions Case No.59/2013.
2. The case of the prosecution is that on 25.03.2013,
the complainant-PW.1/CW.1-Basanagowda had
filed a complaint stating that his mother Bebakka
went missing from 23.03.2013 after she had gone
with her brother - accused No.1-Kalappa
Hanmanth to the market at Mudhol. At that point
of time, she was wearing gold ornaments weighing
20 tholas and carrying mobile phone with two sim
cards. On that basis, Cr.No.59/2013 came to be
registered by Mudhol police.
3. During the investigation, a burnt body was found in
Mullur Ghat Forest, coming within the jurisdiction
of Ramdurg police station who registered a case in
Cr.No.47/2013 against unknown persons for the
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offences punishable under Section 302 of the IPC
on the first information submitted by the
PW.2/CW.2-Forest Guard.
4. Upon PW.1/CW.1-Basanagowda and other family
members coming to know of the same, they had
seen the body which had been found in Mullur,
recognised the same to be that of the mother of
PW.1/CW.1-Basanagowda on which basis further
information was given by PW.1/CW.1-
Basanagowda, and another case in Cr.No.67/2013
came to be registered for the offences punishable
under Sections 364, 302, 404 and 201 read with
Section 34 of IPC. The Ramdurg police transferred
Cr.No.47/2013 registered by them to the Mudhol
police who had registered Cr.No.67/2013.
5. It is thereafter that accused No.1-Kalappa
Hanmanth was interrogated, who implicated
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accused No. 2-Anand Pujari, accused No.3-
Imamasab and accused No.4-Mahadev Sidram,
and on his own statement, gold ornaments, Petrol
Can, plastic wire rope and a car were recovered. In
pursuance thereto, accused No.2-Anand Pujari,
accused No.3-Imamasab and accused No.4-
Mahadev Sidram were arrested.
6. On the basis of the information gathered on the
strength of the extra-judicial confession made by
accused No.1-Kalappa Hanmanth as also other
circumstantial evidence, namely the deceased
Bebakka having been last seen with accused No.1-
Kalappa Hanmanth when they had visited a
jewellery shop, as also a utensil shop and
thereafter being seen when accused No.1-Kalappa
Hanmanth was driving with deceased Bebakka
being seated in the passenger seat of his car, when
accused No.2-Anand Pujari, accused No.3-
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Imamasab and accused No.4-Mahadev Sidram
boarded the car at Ranna Circle, Mudhol.
7. It was contended that there was a motive on the
part of accused No.1-Kalappa Hanmanth in causing
the death of Bebakka in view of the deceased
requesting accused No.1-Kalappa Hanmanth to
return the amounts advanced to accused No.1-
Kalappa Hanmanth.
8. On 02.07.2013, pursuant to the extra-judicial
confession, recovery of the gold ornaments, petrol
can, plastic wire rope and the car, a charge-sheet
came to be presented by the CPI, Mudhol. On the
same day, cognizance was taken and on
25.07.2013, the Additional JMFC, Mudhol,
committed the said case to the Sessions Court,
Bagalkot, which came to be registered as
S.C.No.59/2013 and made over to the I Additional
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District and Sessions Judge, Bagalkot, sitting at
Jamkhandi. After hearing both sides, charges were
framed against all the accused on 25.11.2015
when all of them denied the charges and claimed
to be tried.
9. The prosecution in order to prove its case, in all
had examined 24 witnesses as PWs-1 to 24, got
marked 66 documents at Ex.P.1 to 66 as
also material objects as M.Os.1 to 21. Thereafter,
the incriminating evidence against the accused
were put across to them when each of them denied
all the incriminating evidence while recording their
respective statements under Section 313 of Cr.P.C.
The accused did not lead any evidence in support
of their defence nor did they get any documents
marked.
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10. After hearing the arguments on behalf of the
counsel for the accused and the Public Prosecutor,
the trial Court found all the accused guilty of the
offences punishable under Sections 364, 302,
404, 201 read with Section 34 IPC and convicted
them of the said offences.
11. After hearing the accused, an order
of sentence also came to be passed on 14.02.2018
wherein accused Nos.1 to 4 were sentenced to
undergo imprisonment for life for the offences
punishable under Section 364 read with Section 34
of IPC and fine of Rs.50,000/- each, to undergo
imprisonment for life for the offence punishable
under Section 302 read with Section 34 IPC and
pay fine of Rs.50,000/- each, imprisonment for
three years for the offence punishable under
Section 404 read with Section 34 IPC and pay fine
of Rs.5,000/- each, to undergo imprisonment for 7
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years for the offence punishable under Section 201
read with Section 34 of IPC and fine of Rs.50,000/-
each. It was also ordered that all the sentences
shall run concurrently.
12. Apart from the above, the accused were directed
to make payment of Rs.1,00,000/- to the
complainant-PW.1/CW.1-Basanagowda as
compensation under Section 357(B) of the Cr.P.C.
13. It is aggrieved by the aforesaid judgment of
conviction and order of sentence, that the
appellants are before this Court in the aforesaid
two appeals.
14. Shri Vijay K.Naik, learned counsel for the
appellants - accused No.1-Kalappa Hanmanth and
accused No. 2-Anand Pujari in Crl.A.No.
100096/2018 submits that
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14.1. The first complaint about the deceased being
missing is belated inasmuch as even
according to the complaint, the deceased
went missing between 5.00 to 5.30 p.m. on
23.03.2013 but the complaint was filed only
on 25.03.2013 at 21.00 hours.
14.2. Though additional information was furnished
on 25.03.2013, the second complaint making
allegations against the accused came to be
filed on 03.04.2013 at 18.30 hours which is
much subsequent to the body being found on
27.03.2013 and this complaint is an
afterthought filed with an intention to fix
accused No.1-Kalappa Hanmanth as also the
other accused due to disputes between
accused No.1-Kalappa Hanmanth and the
family of the deceased.
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14.3. Even as per the missing complaint, accused
No.1-Kalappa Hanmanth was assisting the
family members in the search of deceased
Bebakka between 5.00 to 5.30 p.m. on
23.03.2013 and hence, the question of him
being seen going towards Lokapur while
taking the deceased along with accused No.2-
Anand Pujari, accused No.3-Imamasab and
accused No.4-Mahadev Sidram is again a
made up story.
14.4. The story of the prosecution contradicts the
evidence of PW.7/CW.16-Ramappa as also
the statement of CW-17 who has not been
examined in the matter.
14.5. There was no motive for accused No.1-
Kalappa Hanmanth to have caused the death
of the deceased. He relies upon the judgment
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of the Hon'ble Apex Court in Criminal
Appeal No.1323/2011 (Sujit Biswas Vs.
State of Assam) decided on 28.05.2013
more particularly paragraphs 6 and 7 thereof,
which are reproduced hereunder for easy
reference:
"6. Suspicion, however grave it may be, cannot
take the place of proof, and there is a large
difference between something that `may be'
proved, and something that `will be proved'. In a
criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of
proof. This is for the reason that the mental
distance between `may be' and `must be' is quite
large, and divides vague conjectures from sure
conclusions. In a criminal case, the court has a
duty to ensure that mere conjectures or suspicion
do not take the place of legal proof. The large
distance between `may be' true and `must be'
true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the
prosecution, before an accused is condemned as a
convict, and the basic and golden rule must be
applied. In such cases, while keeping in mind the
distance between `may be' true and `must be'
true, the court must maintain the vital distance
between mere conjectures and sure conclusions to
be arrived at, on the touchstone of dispassionate
judicial scrutiny, based upon a complete and
comprehensive appreciation of all features of the
case, as well as the quality and credibility of the
evidence brought on record. The court must
ensure, that miscarriage of justice is avoided, and
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if the facts and circumstances of a case so demand,
then the benefit of doubt must be given to the
accused, keeping in mind that a reasonable doubt
is not an imaginary, trivial or a merely probable
doubt, but a fair doubt that is based upon reason
and common sense. (Vide: Hanumant Govind
Nargundkar & Anr. v. State of M.P., AIR 1952 SC
343; State through CBI v. Mahender Singh Dahiya,
AIR 2011 SC 1017; and Ramesh Harijan v. State of
U.P., AIR 2012 SC 1979).
7. In Kali Ram v. State of Himachal Pradesh, AIR
1973 SC 2773, this Court observed as under:
"Another golden thread which runs through the
web of the administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case one pointing to the
guilt of the accused and the other to his innocence,
the view which is favourable to the accused should
be adopted. This principle has a special relevance
in cases where in the guilt of the accused is sought
to be established by circumstantial evidence."
14.6. He also relies on the unreported judgment of
the Hon'ble Apex Court in Criminal Appeal
No.632/2011 (Vijay Thakur Vs. State of
Himachal Pradesh) decided on 19.09.2014,
more particularly, paragraphs 13 and 16
thereof which are reproduced hereunder are
for easy reference:
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"13. It is to be emphasized at this stage that
except the so-called recoveries, there is no other
circumstances worth the name which has been
proved against these two appellants. It is a case of
blind murder. There are no eyewitnesses.
Conviction is based on the circumstantial evidence.
In such a case, complete chain of events has to be
established pointing out the culpability of the
accused person. The chain should be such that no
other conclusion, except the guilt of the accused
person, is discernible without any doubt. Insofar as
these two appellants are concerned, there is no
circumstance attributed except that they were with
Rajinder Thakur till Sainj and the alleged disclosure
leading to recoveries, which appears to be
doubtful. When we look into all these facts in
entirety in the aforesaid context, we find that not
only the chain of events is incomplete, it becomes
somewhat difficult to convict the appellant only on
the basis of the aforesaid recoveries.
16. Likewise, in Mustkeem alias Sirajudeen v.
State of Rajasthan, (2011) 11 SCC 724, this Court
observed as under:
"24. In a most celebrated case of this
Court, Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116, in para 153, some
cardinal principles regarding the appreciation of
circumstantial evidence have been postulated.
Whenever the case is based on circumstantial
evidence the following features are required to be
complied with. It would be beneficial to repeat the
same salient features once again which are as
under: (SCC p.185)
"(i) The circumstances from which the conclusion of
guilt is to be drawn must or should be and not
merely 'may be' fully established;
(ii) The facts so established should be consistent
only with the hypothesis of the guilt of the accused,
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that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty;
(iii) The circumstances should be of a conclusive
nature and tendency;
(iv) They should exclude every possible hypothesis
except the one to be proved; and
(v) There must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused."
25. With regard to Section 27 of the Act, what is
important is discovery of the material object at the
disclosure of the accused but such disclosure alone
would not automatically lead to the conclusion that
the offence was also committed by the accused. In
fact, thereafter, burden lies on the prosecution to
establish a close link between discovery of the
material object and its use in the commission of
the offence. What is admissible under Section 27 of
the Act is the information leading to discovery and
not any opinion formed on it by the prosecution."
It is settled position of law that suspicion, however
strong, cannot take the character of proof."
14.7. As regards the recovery of the ornaments of
the deceased, he submits that recovery has
occurred in the property which has been sold
by accused No.1-Kalappa Hanmanth to
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PW.10/CW.18-Ningappa on 11.12.2012 and
thereafter it is PW.10/CW.18-Ningappa and
his wife who are in possession of the said
property.
14.8. The recovery having occurred much later, the
question of the accused No.1 having secreted
the same in the said property would not
arise. The jewellery has been secreted there
and recovered with an intention to fix
accused No.1-Kalappa Hanmanth
14.9. The prosecution has not been able to prove
any conspiracy on the part of accused Nos.1
to 4. Therefore, the question of them being
guilty of the offences alleged would not at all
arise.
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14.10. On the basis of the above, he submits that
the benefit of doubt needs to be extended to
the accused and they be acquitted.
15. Sri Ramachandra Mali, learned counsel appearing
for Appellants - accused No.3-Imamasab and
accused No.4-Mahadev Sidram in
Crl.A.No.100109/2018 submits that
15.1. There is no motive on the part of accused
No.3-Imamasab and accused No.4-Mahadev
Sidram to cause the death of the deceased.
15.2. PW.3/CW.3-Avappa and PW.4/CW.5-Sachin
are the panch witnesses for both the spot and
seizure panchanama as recorded at Ex.P.7
and 8. He submits that the panchanama has
not been recorded properly. There is
no continuity as regards where and when the
accused went after each spot.
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15.3. The seizure has also been made not under
these panch witnesses but by Ramdurg police
in another crime number.
15.4. As regards the seizure of M.Os.12 to 18
namely the jewellery, he submits that this
jewellery had been secreted in the property
of accused No.1-Kalappa Hanmanth with
which they are not concerned with.
PW.5/CW.14-Rakesh being the goldsmith and
the owner of the jewellery shop and
PW.6/CW.15-Ramachandra being the owner
of the utensil shop have only spoken about
the deceased being in the company of
accused No.1-Kalappa Hanmanth.
15.5. PW.5/CW.14-Rakesh and PW.6/CW.15-
Ramachandra have not spoken about accused
Nos.2 to 4. Admittedly, they were not there
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with the deceased at that time and
therefore, the question of the last seen
theory being made applicable to accused
No.2-Anand Pujari , accused No.3-Imamasab
and accused No.4-Mahadev Sidram would not
at all arise.
15.6. PW.7/CW.16-Ramappa who is stated to be a
star witness who has allegedly seen accused
No.1-Kalappa Hanmanth driving his Maruti
800 car with the deceased sitting in the
passenger seat in the front, when accused
No.2-Anand Pujari, accused No.3-Imamasab
and accused No.4-Mahadev Sidram boarded
the said car at Ranna Circle and thereafter,
the car left towards Lokapur.
15.7. In this regard, his submits that PW.7/CW.16-
Ramappa does not even know accused No.3-
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Imamasab and accused No.4-Mahadev
Sidram. Thus, the question of him identifying
accused No.3-Imamasab and accused No.4-
Mahadev Sidram would not at all arise. This
would also show that the accused are sought
to be fixed in the matter and there is no truth
in the allegations made against them.
15.8. As regards the medical evidence on record,
he submits that there is a contradiction in the
medical evidence inasmuch as PW.17/CW.25-
Dr.Tanaji, PW.18/CW.26-Dr.Dayanand and
PW.23 Dr Chandarashekhar the Scientifical
Officer at RFSL, who are the experts have
opined that the cause of death is injury to the
head while the case of the prosecution is that
the deceased had been strangulated. Since
the medical evidence did not support the
prosecution story, the benefit of doubt has to
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be extended to the accused and they be
acquitted.
15.9. PW.7/CW.16-Ramappa is a planted witness to
try and make the chain of circumstantial
evidence stronger as there being
contradictions and omissions in the evidence
of PW.7/CW.16-Ramappa, his evidence is
untrustworthy and has to be discarded.
15.10. There is no Test Identification Parade which
has been conducted in respect of accused
No.2-Anand Pujari, accused No.3-Imamasab
and accused No.4-Mahadev Sidram, more so,
when PW.7/CW.16-Ramappa who is stated to
have identified accused No.3-Imamasab and
accused No.4-Mahadev Sidram does not
know them personally and has only stated to
have seen them at Ranna Circle, there being
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no prior acquaintance. Even as per the
evidence of PW.7/CW.16-Ramappa, the
deceased was traveling with accused No.1-
Kalappa Hanmanth of her own will and
volition. Hence, the question of an offence of
abduction under Section 364 would not at all
apply.
15.11. There is no conspiracy which has been proved
by the prosecution and no evidence has been
led to indicate meeting of minds between
accused Nos.1 to 4 for causing the murder of
the deceased and therefore, all of them could
not have been tried together.
15.12. That on 04.04.2013, the Investigation Officer
has carried out too many activities namely
recording of statement of witnesses, arrest of
accused, recovery of material objects,
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transfer of case from Ramdurg to Mudhol
etc., which he submits could not have
happened in the regular course of events.
The number of acts done on one single day
indicates that all of these accused are set up
and stage-managed and not true.
15.13. The spot panchnama does not speak of
accused No.1-Kalappa Hanmanth having
travelled from Bhavani Steel Centre of Ranna
circle, picking up accused No.2-Anand Pujari,
accused No.3-Imamasab and accused No.4-
Mahadev Sidram and proceeding towards
Lokapur road. Though a spot mahazar was
conducted at i) the place where the accused
No.1-Kalappa Hanmanth allegedly picked up
the deceased, ii) the place where the accused
allegedly murdered the deceased, iii) the
place where the dead body was burnt, iv) the
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place where the car was parked v) the place
where the rope, can and gold ornaments
were allegedly hidden by accused No.1-
Kalappa Hanmanth. No panchnama was
conducted at the place where accused No.2-
Anand Pujari, accused No.3-Imamasab and
accused No.4-Mahadev Sidram are stated to
have boarded accused No.1-Kalappa
Hanmanth's car. Thus, accused No.2-Anand
Pujari, accused No.3-Imamasab and accused
No.4-Mahadev Sidram cannot be implicated
in the alleged offence.
15.14. The decision of the Hon'ble Apex Court in
STATE OF UTTAR PRADESH VS. RAM
BALAK AND ANOTHER reported in (2008)
15 SCC 551 more particularly paragraphs
12, 13 and 15 thereof which are reproduced
hereunder for easy reference:
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"12. So far as the last seen aspect is concerned it
is necessary to take note of two decisions of this
court. In State of U.P. v. Satish [2005 (3) SCC
114] it was noted as follows:
"22. The last seen theory comes into play where
the time-gap between the point of time when the
accused and the deceased were seen last alive and
when the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes impossible.
It would be difficult in some cases to positively
establish that the deceased was last seen with the
accused when there is a long gap and possibility of
other persons coming in between exists. In the
absence of any other positive evidence to conclude
that the accused and the deceased were last seen
together, it would be hazardous to come to a
conclusion of guilt in those cases. In this case there
is positive evidence that the deceased and the
accused were seen together by witnesses PWs. 3
and 5, in addition to the evidence of PW-2."
13. In Ramreddy Rajesh Khanna Reddy v. State
of A.P. [2006 (10) SCC 172] it was noted as
follows:
"27. The last-seen theory, furthermore, comes into
play where the time gap between the point of time
when the accused and the deceased were last seen
alive and the deceased is found dead is so small
that possibility of any person other than the
accused being the author of the crime becomes
impossible. Even in such a case the courts should
look for some corroboration".
Out of the circumstances highlighted above really
none is of any significance. Learned counsel for the
appellant-State highlighted that the extra judicial
confession itself was sufficient to record the
conviction. On a reading of the evidence of CW-1 it
is noticed that accused Ram Balak did not a say a
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word about his own involvement. On the contrary
he said that he did not do anything and made some
statements about the alleged act of co-accused.
Additionally, in his examination under Section
313 of Code, no question was put to him regarding
his so called extra judicial confession. To add to the
vulnerability, his statement is to the effect that
after about 11 days of the incidence the extra
judicial confession was made. Strangely he stated
that he told the police after three days of the
incidence about the extra judicial confession. It is
inconceivable that a person would tell the police
after three days of the incidence about the
purported extra judicial confession which according
to the witness himself was made after eleven days.
Learned counsel for the State submitted that there
may be some confusion. But it is seen that not at
one place, but at different places this has been
repeated by the witness.
15.15. The decision of this Court in
Crl.A.No.1128/2016 and connected
matters decided on 06.05.2021 more
particularly paragraphs 32, 33, 56 and 57
thereof which are reproduced hereunder for
easy reference:
"32. In the cross-examination, PW.1 has admitted
that the deceased and Accused No.1 are good
friends. Till he reached the Police Station, except
Accused No.1, he did not know the names of
others. Ex.P2-spot mahazar does not indicate the
light. In the cross-examination by counsel for
Accused No.2, PW.1 had admitted that he came to
know from others that the deceased was involved
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in the rowdy activities and further he came to know
the names of accused persons only when the Police
apprehended and published their names in the
newspaper. At the time of the incident, as his eyes
were blocked out (blurred) and also due to shock,
he was frightened and could not do anything. He
further admitted in the cross-examination that the
photos reflected in the newspaper were in the
Police Station. On 14.11.2011 the Police shown to
him 4 to 5 persons, who are unknown persons to
him. He also admitted that in the complaint lodged
before the Police, he has not given the particulars
of the assailants and their identity and the clothes
worn by them, but they were wearing pants. He
further stated that on 17.11.2011 the Police shown
to him 10 persons not mixed with any other
persons. He further admitted that he did not know
the gang members of Accused No.1.
33. From the evidence of PW.1, it is clear that in
the absence of any Test Identification Parade
conducted, PW.1 has identified when the accused
themselves mentioned their names and when the
Police stated that the assailants have been
arrested. A careful reading of the examination-in-
chief and cross-examination of PW.1, it clearly
depicts that PW.1 identified only Accused No.1 and
he could not identify the other persons. As
admitted by him, they are unknown persons to
him. He has identified 4 to 5 persons only after the
Police shown to them that those persons are
involved and their names and photos published in
the newspaper. PW.1 identified 4 to 5 persons not
on his personal knowledge, but on account of the
paper publication and at the instance of the Police
people alone. The entire incident took place within
five minutes or so and he came to know the names
of other persons only after the Police shown to
them and therefore, there is no identification of
other accused persons from the personal
knowledge of PW.1.
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56. Further, the present case, the Test
Identification Parade was not conducted by the
Investigating Authority and the so called eye
witnesses - PWS.1 and 2 have not identified the
accused Nos.2 to 11 and in fact they have admitted
in the examination-in-chief that they are able to
identify Accused Nos.2 to 6 on the basis of the
paper publication disclosing the names and photos
and the information given by the Police. The
purpose of conducting a Test Identification Parade
is that persons who claim to have seen the
offender at the time of the occurrence identify
them from amongst the other individuals without
tutoring or aid from any source. An identification
parade, in other words, tests the memory of the
witnesses, in order for the prosecution to
determine whether any or all of them can be cited
as eye witnesses to the crime.
57. Our view is fortified by the judgment of the
Hon'ble Supreme Court in the case of Rajesh v.
State of Haryana, (2021) 1 SCC 118, wherein the
Hon'ble Supreme Court held at paragraphs 43,
43.4 and 43.8 as under:
"Refusal to undergo test identification parade
(TIP):
43.. The prosecution has submitted that an adverse
inference should be drawn against the appellants
for refusing to submit themselves to a TIP. Before
we deal with the circumstances in which the
appellants declined a TIP, it becomes essential to
scrutinise the precedent from this Court bearing on
the subject. A line of precedent of this Court has
dwelt on the purpose of conducting a TIP, the
source of the authority of the investigator to do so,
the manner in which these proceedings should be
conducted, the weight to be ascribed to
identification in the course of a TIP and the
circumstances in which an adverse inference can be
drawn against the accused who refuses to undergo
the process. The principles which have emerged
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from the precedents of this Court can be
summarised as follows:
XXX XXX XXX XXX 43.4. A TIP should ordinarily be
conducted soon after the arrest of the accused, so
as to preclude a possibility of the accused being
shown to the witnesses before it is held.
43.8. As a rule of prudence, the court would,
generally speaking, look for corroboration of the
witness' identification of the accused in court, in
the form of earlier identification proceedings. The
rule of prudence is subject to the exception when
the court considers it safe to rely upon the
evidence of a particular witness without such, or
other corroboration."
15.16. The sketch/map drawn by PW.13/CW.26-
Assistant Engineer at Exs.P.29 and 30 and
those drawn by PW.14/CW.28-Assistant
Engineer at Exs.P.54 to 56 do not show the
spot where accused No.2-Anand Pujari,
accused No.3-Imamasab and accused No.4-
Mahadev Sidram are stated to have boarded
the car at Ranna circle.
15.17. The voluntary statement of the accused does
not come within the purview of Section 27 of
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the Indian Evidence Act inasmuch as when
PW.24/CW.33-CPI,Mudhol along with accused
Nos. 1 to 4 visited the place where the body
was burnt, he did not seize any material from
the said place, the seizure having already
been done by the Ramdurg police in
Cr.No.47/2013, Section 27 would make the
voluntary statement admissible to the extent
of any recovery made on the basis of such a
statement. There being no recovery made,
the exception under Section 27 would not
apply, therefore bringing into play the bar
under Section 26 of the Indian Evidence Act.
15.18. In the statement under Section 313 of the
Cr.P.C., of the accused, there is no question
put across as regards what the accused have
to say, as regards their alleged confession
statement at Exs.P. 50 to 53. Without doing
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so, the accused could not have been held
guilty applying the exception under Section
27 of the Indian Evidence Act.
15.19. He relies upon the decision of the Hon'ble
Apex Court in VIJENDER VS. STATE OF
DELHI reported in 1997 (6) SCC 171
more particularly paragraphs 13, 15, 17, 21
and 25 which are reproduced hereunder for
easy reference
"13. Sequentially stated, the next circumstance
related to the recovery of a dead body which was
later on identified by P.W. 6 as that of her son
Khurshid. Evidence on this point was furnished by
S.I. Santosh Kumar (P.W.20), Constable Suresh
Kumar (P.W. 18) and Ravinder Singh (P.W. 11), all
of Loni Police Station. Their evidence proves that
on June 27, 1992 they found the dead body of a
young boy aged about 17/18 years lying near the
Railway lines in village Banthala. There P.W. 20 got
photograph of the dead body taken (Ext. PW20/B),
held inquest thereupon and then sent it to
Ghaziabad mortuary for post-mortem examination,
through PW. 11 and P.W. 18. It is further evidence
of PW.s 11 and 18 that On the following day, i.e.
June 28, 1992, the relatives of the deceased
reached the mortuary and identified the dead body.
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15. The next circumstance on which the
prosecution relied to establish the complicity of
three appellants relates to their arrest and their
subsequent conduct. The witnesses to prove this
circumstance were Inspector Ram Chander (P.W.
14) and S.H.O. Ram Singh (P.W.19). On perusal of
their testimonies we are surprised to find that the
trial Judge permitted the prosecution to let in
statements made by Jitendra (P.W. 2) to them in
utter disregard of the provisions of Section
162 Cr.P.C., which lays down an elementary but
fundamental principle to be followed in criminal
trial that a statement made before a police officer
during investigation cannot be used for any
purpose whatsoever; except when it attracts the
provisions of Section 27 of Section 32(i) of
the Evidence Act. If, however, such a statement is
made by a witness examined by the prosecution it
may be used by the accused to contradict such a
witness, and with the permission of the Court, by
the prosecution in accordance with Section 145 of
the Evidence Act. To eschew prolixity, we quote
below only the relative portion of the evidence of
P.W. 13 in this regard :
"One boy named Jeetu @ Jitender met us at Johri
Pur and told that Gyanender was having one House
at Khajani Nagar which was less known to the
people. We then went to Khajani Nagar and
reached there at 4.45 p.m. along with Jeetu. Jeetu
pointed out to the house and then he went inside
the premises and peeped into the room. After
peeping inside the room he told the police party
that Vijender. Davinder and Mukesh, the three
boys, were present inside the room and they were
the same persons who had kidnapped and killed
the deceased."
(emphasis supplied)
17. Another elementary statutory breach which
we notice in recording the evidence of the above
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witnesses is that of Section 27 of the Evidence Act.
Evidence was led through the above three police
witnesses that in consequence of information
received from the three appellants on June 30,
1992 they discovered the place where the dead
body of Khurshid was thrown. As already noticed,
the dead body of Khurshid was recovered on June
27, 1992 and therefore the question of discovery of
the place where it was thrown thereafter could not
arise. Under Section 27 of the Evidence Act if an
information given by the accused leads to the
discovery of a fact which is the direct outcome of
such information then only it would be evidence but
when the fact has already been discovered as in
the instant case the evidence could not be led in
respect thereof.
21. Without going into the probative value of the
evidence adduced by the prosecution witnesses and
fully replying upon the same if we proceed on the
assumption that the above facts and circumstances
stand established, it can be said that the
prosecution has succeeded in only proving that
khurshid was kidnapped. As regards the proof of
his murder, the evidence relied upon by the
prosecution is that of P.W. 6, who identified the
dead body, found by the officers of Loni Police
Station near the Railway lines and later on brought
to the Ghaziabad nortuary, as that of his son and
the report of the post mortem examination, (Ext.
PW 21/A) which we have found to be legally
inadmissible for non-examination of the doctor who
held the autopsy. Even if we accept the post
mortem report as a valid piece of documentary
evidence, we notice therefrom that it relates to an
unknown male aged about 25/30 years, and not to
a boy aged 17/18 years. We next get that on the
person of the dead body the doctor found three
external injuries : one large swelling on the right
side of the head, another large swelling over the
right side of the jaw and fracture of right parietal
bone. The opinion given by the doctor therein is
that death was caused by shock and haemorrhage
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as a result of the injuries. In absence of any
medical opinion that the injuries were homicidal,
accidental death of the victim cannot therefore be
ruled out.
25. We are constrained to say that the above
observations have been made by the trial Judge
casting away the basic principles regarding
reception and appreciation of evidence, misreading
the evidence. So far as the report of P.W. 5 before
the Vigilance Cell is concerned the trial Judge failed
to notice that it did not contain the names of the
above two appellants, namely, Mukesh and
Devinder & Bhinder; and on the contrary therein
the names of two other persons, namely, Jeetu and
Pappu find place as the miscreants. Indeed, in
none of the three reports that PW-5 lodged with
the police he mentioned the names of the above
two appellants. We hasten to add that even if he
had so named it could not have been treated as
legal evidence for reasons earlier mentioned. Then
again, the trial Judge could not have relied upon
the knowledge of P.W, 5 that the appellants were
the miscreants as he was not a witness to the
kidnap-ping and P.W. 4 did not state that he saw
the miscreants and, for that matter, that the
appellants were the miscreants. The reliance of the
trial Judge on the result of investigation to base his
findings is again patently wrong. If the observation
of the trial Judge in this regard is taken to its
logical conclusion it would mean that a finding of
guilt can be recorded against an accused without a
trial, relying solely upon the police report
submitted under Section 173 Cr.P.C, which is the
outcome of an investigation. The result of
investigation under Chapter XII of the Criminal
Procedure Code is a conclusion that an
investigating Officer draws on the basis of
materials collected during investigation and such
conclusion can only form the basis of a competent
Court to take cognizance thereupon under Section
190 (l) (b) Cr.P.C. and to proceed with the case for
trial, where the materials collected during
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investigation are to be translated into legal
evidence. The trial Court is then required to base
its conclusion solely on the evidence adduced
during the trial; and it cannot rely on the
investigation or the result thereof. Since this is an
elementary principle of criminal law, we need not
dilate on this point any further. Equally
unsustainable is the trial Judge's reliance upon the
statement made by Jeetu (P.W. 2) before the police
in view of the express bar of Section 162 Cr.P.C.,
which we have discussed earlier. Indeed, we find,
the trial Judge placed strong reliance on the
purported statement made by Jitender before the
police that they (the appellants) were hiding and
that (they were involved in kidnapping and murder
of Khurshid to convict them (emphasis supplied).
15.20. The decision of the Hon'ble Apex Court in
DIGAMBER VAISHNAV AND ANOTHER
VS. STATE OF CHATTISGARH reported in
(2019) 4 SCC 522 more particularly
paragraphs 11, 15, 28 and 29 thereof which
are reproduced hereunder for easy reference
"11. Appearing for the appellants
Shri.S.Nagamuthu, learned senior counsel has
mainly contended that there was an unexplained
delay in reporting the offence. Secondly, the courts
below have mainly relied on the testimony of PW-8.
PW-8 is a child witness who was present in the
house at the time of the incident. She is not a
witness to the actual incident. Her testimony has
not been corroborated. Therefore, it is risky to rely
on uncorroborated identification of the appellants
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at her instance. It is further argued that the
evidence of recoveries made under Section 27 of
the Indian Evidence Act is also unreliable. The
recovery of motorcycle is also unreliable and that
the articles recovered are not connected to the
crime. The testimony of PW-9 is hearsay and
cannot be relied upon by the prosecution. Even the
finger print report cannot be relied on. Finally, he
submits that the evidence of last seen is insufficient
to establish the guilt.
15. This Court in Jaharlal Das v. State of Orissa,
(1991) 3 SCC 27, has held that even if the offence
is a shocking one, the gravity of offence cannot by
itself overweigh as far as legal proof is concerned.
In cases depending highly upon the circumstantial
evidence, there is always a danger that the
conjecture or suspicion may take the place of legal
proof. The court has to be watchful and ensure that
the conjecture and suspicion do not take the place
of legal proof. The court must satisfy itself that
various circumstances in the chain of evidence
should be established clearly and that the
completed chain must be such as to rule out a
reasonable likelihood of the innocence of the
accused.
28. At this stage, it is relevant to notice that
there was an unexplained delay in reporting the
crime, as rightly pointed out by the learned senior
counsel for the appellants. PW-8 in her deposition
has stated that when she woke up in the morning,
her room was locked from outside. When she
shouted from inside, wife of Tekram (Anita) opened
the door. This version is further corroborated by
PW-10, Dan Bai, who has stated that in the
morning at about 3 a.m. on Monday that Anita had
opened the door of their house from outside. The
children were inside the room. Amrika Bai, Kondi,
Subhadra Bai and Shri Bai were lying dead.
Though, Anita had opened the door at about 3
a.m., it is unexplained why PW-8 did not inform
anyone till 4 pm and the same was also unreported
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by PW-10, even though the police station was at a
distance of some six kilometers. This also raises
question about veracity of the statement of PW-8,
Chandni.
29. The second circumstance relied upon by the
prosecution is the evidence of recovery.
Under Section 27 of the Indian Evidence Act, it is
not the discovery of every fact that is admissible
but the discovery of relevant fact is alone
admissible. Relevancy is nothing but the connection
or the link between the facts discovered with the
crime. The recovery of the motorcycle is sought to
be relied upon as a circumstance against the
appellants. There is nothing on record to show that
the motorcycle recovered at the instance of
appellant No.1, belongs to him. PW-13, IO, in his
cross-examination admits that he does not know
whether the appellant No.1 is the owner of the
motorcycle. He further admits that no attempts
were made by him to enquire about the owner of
the vehicle."
15.21. The post-mortem report at Ex.P.33 indicates
that the body was burnt with kerosene and
some mixed oil whereas Ex.P.66 being the
FSL report of the plastic can indicates that it
contained petrol residues. Therefore, the said
can or the contents of the can could not have
been used for burning of the deceased.
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15.22. The doctor who took the blood samples of
PW.1/CW.1-Basanagowda and CW.8-Rajesh,
the sons of the deceased for forwardal of the
same to the FSL in order to carry out the DNA
profiling has not been examined. In the
absence of examination of the doctor who
drew the blood samples, the custody of the
same cannot be properly ascertained and
therefore, the report of the FSL stating that
the body belongs to Bebakka the mother of
PW.1/CW.1-Basanagowda and CW.8-Rajesh,
is completely unfounded.
15.23. He submits that the prosecution has failed to
prove all the circumstantial evidence required
to prove the guilt of the accused and in this
regard he relied upon the decision of the
Hon'ble Apex Court in INSPECTOR OF
POLICE VS. BALA PRASANNA reported in
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(2008) 11 SCC 645 more particularly
paragraphs 11 to 15 thereof which are
reproduced hereunder for easy reference:
"11. The conviction based on circumstantial
evidence has been highlighted by this Court in
various orders of this Court.
12. "9. It has been consistently laid down by this
Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can
be justified only when all the incriminating facts
and circumstances are found to be incompatible
with the innocence of the accused or the guilt of
any other person. (See Hukam Singh v. State of
Rajasthan AIR 1977 SC 1063); Eradu v. State of
Hyderabad (AIR 1956 SC 316); Earabhadrappa v.
State of Karnataka (AIR 1983 SC 446); State of
U.P. v. Sukhbasi (AIR 1985 SC 1224); Balwinder
Singh v. State of Punjab (AIR 1987 SC 350); Ashok
Kumar Chatterjee v. State of M.P. (AIR 1989 SC
1890). The circumstances from which an inference
as to the guilt of the accused is drawn have to be
proved beyond reasonable doubt and have to be
shown to be closely connected with the principal
fact sought to be inferred from those
circumstances. In Bhagat Ram v. State of
Punjab (AIR 1954 SC 621), it was laid down that
where the case depends upon the conclusion drawn
from circumstances the cumulative effect of the
circumstances must be such as to negative the
innocence of the accused and bring the offences
home beyond any reasonable doubt.
10. We may also make a reference to a decision of
this Court in C. Chenga Reddy v. State of A.P.
(1996) 10 SCC 193, wherein it has been observed
thus:
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"21. In a case based on circumstantial evidence,
the settled law is that the circumstances from
which the conclusion of guilt is drawn should be
fully proved and such circumstances must be
conclusive in nature. Moreover, all the
circumstances should be complete and there should
be no gap left in the chain of evidence. Further the
proved circumstances must be consistent only with
the hypothesis of the guilt of the accused and
totally inconsistent with his innocence....".
11. In Padala Veera Reddy v. State of A.P. (AIR
1990 SC 79), it was laid down that when a case
rests upon circumstantial evidence, such evidence
must satisfy the following tests:
"(1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and
firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively should
form a chain so complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the
accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of
the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused
but should be inconsistent with his innocence."
12. In State of U.P. v. Ashok Kumar Srivastava
(1992) 2 SCC 86), it was pointed out that great
care must be taken in evaluating circumstantial
evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the
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accused must be accepted. It was also pointed out
that the circumstances relied upon must be found
to have been fully established and the cumulative
effect of all the facts so established must be
consistent only with the hypothesis of guilt.
13. Sir Alfred Wills in his admirable book "Wills'
Circumstantial Evidence" (Chapter VI) lays down
the following rules specially to be observed in the
case of circumstantial evidence:
(1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond
reasonable doubt connected with the factum
probandum; (2) the burden of proof is always on
the party who asserts the existence of any fact,
which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the
best evidence must be adduced which the nature of
the case admits; (4) in order to justify the
inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and
incapable of explanation, upon any other
reasonable hypothesis than that of his guilt, (5) if
there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted".
14. There is no doubt that conviction can be based
solely on circumstantial evidence but it should be
tested by the touch- stone of law relating to
circumstantial evidence laid down by this Court as
far back as in 1952.
15. In Hanumant Govind Nargundkar and Anr. V.
State of Madhya Pradesh (AIR 1952 SC 343), it
was observed thus:
"10.....It is well to remember that in cases where
the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is
to be drawn should be in the first instance be fully
established and all the facts so established should
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be consistent only with the hypothesis of the guilt
of the accused. Again, the circumstances should be
of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but
the one proposed to be proved. In other words,
there must be a chain of evidence so far complete
as not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that within
all human probability the act must have been done
by the accused."
16. A reference may be made to a later decision
in Sharad Birdhichand Sarda v. State of
Maharashtra, (AIR 1984 SC 1622). Therein, while
dealing with circumstantial evidence, it has been
held that onus was on the prosecution to prove
that the chain is complete and the infirmity of
lacuna in prosecution cannot be cured by false
defence or plea. The conditions precedent in the
words of this Court, before conviction could be
based on circumstantial evidence, must be fully
established. They are:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned must or should and not
may be 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 the 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
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(5) there must be a chain of evidence so compete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
These aspects were highlighted in State of
Rajasthan v. Rajaram (2003(8) SCC 180), State of
Haryana v. Jagbir Singh (2003) 11 SCC 261).
13. The main circumstances relied upon by the
prosecution relates to the statements of the
accused leading to discovery of materials facts,
admissible under Section 27 of the Indian Evidence
Act, 1872 (in short the 'Evidence Act').
14. Law is well settled that the prosecution while
relying upon the confessional statement leading to
discovery of articles under Section 27 of the
Evidence Act has to prove through cogent evidence
that the statement has been made voluntarily and
leads to discovery of the relevant facts. The scope
and ambit of Section 27 of the Evidence Act had
been stated and restated in several decisions of
this Court. However, in almost all such decisions
reference is made to the observation of the Privy
Council in Pulukuri Kotayya v. Emperor (AIR 1947
PC 67). It is worthwhile to extract such quoted
observation:
"[I] It is fallacious to treat the 'fact discovered'
within the section as equivalent to the object
produced; the fact discovered embraces the place
from which the object is produced and the
knowledge of the accused as to this and
the information given must relate distinctly to this
fact. Information as to past user or the past
history, of the object produced is not related to his
discovery in the setting in which it is discovered.
Information supplied by a person in custody that 'I
will produce a knife concealed in the roof of my
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house' does not lead to the discovery of the knife;
knives were discovered many years ago. It leads to
the discovery of the fact that a knife is concealed in
the house of the informant to his knowledge, and if
the knife is proved to have been used in the
commission of the offence, the fact discovered is
very relevant. But if to the statement the words be
added 'with which stabbed A', these words are
inadmissible since they do not related to the
discovery of the knife in the house of the
informant."
15. "15. At one time it was held that the expression
"fact discovered" in the section is restricted to a
physical or material fact which can be perceived by
the senses, and that it does not include a mental
fact, now it is fairly settled that the expression
"fact discovered" includes not only the physical
object produced, but also the place from which it is
produced and the knowledge of the accused as to
this, as noted in Pulukuri Kottaya's case (supra).
16. The various requirements of the section can be
summed up as follows:
(1) The fact of which evidence is sought to be given
must be relevant to the issue. It must be borne in
mind that the provision has nothing to do with the
question of relevancy. The relevancy of the fact
discovered must be established according to the
prescriptions relating to relevancy of other
evidence connecting it with the crime in order to
make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence
of some information received from the accused and
not by the accused's own act.
(4) The person giving the information must be
accused of any offence.
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(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of
information received from an accused in custody
must be deposed to.
(7) Thereupon only that portion of the information
which relates distinctly or strictly to the fact
discovered can be proved. The rest is inadmissible.
17. As observed in Pulukuri Kottaya's case (supra)
it can seldom happen that information leading to
the discovery of a fact forms the foundation of the
prosecution case. It is one link in the chain of proof
and the other links must be forged in a manner
allowed by law. To similar effect was the
view expressed in K. Chinnaswamy Reddy v. State
of A.P. (AIR 1962 SC 1788).
15.24. Based on the above he submits that the order
of conviction is required to be set aside.
16. Shri V.M.Banakar, learned Additional SPP supports
the judgment of conviction and order of sentence.
He submits that
16.1. Insofar as conspiracy is concerned though
there are no independent witnesses, the
surrounding circumstances have been taken
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into consideration by the trial Court and
ought to be taken into consideration by this
Court, namely the evidence of PW.7/CW.16-
Ramappa indicating that he saw accused
Nos.1 to 4 travelling with the deceased
Bebakka
16.2. The voluntary statements of all the accused
at Exs.P.50 to 53 would indicate that there
was a conspiracy between them. Accused
No.1-Kalappa Hanmanth in his voluntary
statement at Ex.P.50 had categorically stated
that he had approached accused No.2-Anand
Pujari who was known to accused No.3-
Imamasab and accused No.4-Mahadev
Sidram, and through accused No.2-Anand
Pujari, accused No.1-Kalappa Hanmanth had
promised to make payment of a sum of Rs.1
lakh each to accused No.3-Imamasab and
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accused No.4-Mahadev Sidram to carry out
his work. In this regard, he relies upon the
decision of the Hon'ble Apex Court in STATE
(NCT OF DELHI) VS. NAVJOT SANDHU
reported in 2005 SCC (Cri) 1715, more
particularly, paragraphs 145, 146 and 147
which are reproduced hereunder for easy
reference:
"145. Before parting with the discussion on the
subject of confessions under Section 27, we may
briefly refer to the legal position as regards joint
disclosures. This point assumes relevance in the
context of such disclosures made by the first two
accused viz. Afzal and Shaukat. The admissibility of
information said to have been furnished by both of
them leading to the discovery of the hideouts of
the deceased terrorists and the recovery of a
laptop computer, a mobile phone and cash of Rs.
10 lakhs from the truck in which they were found
at Srinagar is in issue. Learned senior counsel Mr.
Shanti Bhushan and Mr. Sushil Kumar appearing
for the accused contend, as was contended before
the High Court, that the disclosure and pointing out
attributed to both cannot fall within the Ken
of Section 27, whereas it is the contention of Mr.
Gopal Subramanium that there is no taboo against
the admission of such information as incriminating
evidence against both the informants/accused.
Some of the High Courts have taken the view that
the wording "a person" excludes the applicability of
the Section to more than one person. But, that is
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too narrow a view to be taken. Joint disclosures to
be more accurate, simultaneous disclosures, per
se, are not inadmissible under Section 27. 'A
person accused' need not necessarily be a single
person, but it could be plurality of accused. It
seems to us that the real reason for not acting
upon the joint disclosures by taking resort
to Section 27 is the inherent difficulty in placing
reliance on such information supposed to have
emerged from the mouths of two or more accused
at a time. In fact, joint or simultaneous disclosure
is a myth, because two or more accused persons
would not have uttered informatory words in a
chorus. At best, one person would have made the
statement orally and the other person would have
stated so substantially in similar terms a few
seconds or minutes later, or the second person
would have given unequivocal nod to what has
been said by the first person. Or, two persons in
custody may be interrogated separately and
simultaneously and both of them may furnish
similar information leading to the discovery of fact.
Or, in rare cases, both the accused may reduce the
information into writing and hand over the written
notes to the police officer at the same time. We do
not think that such disclosures by two or more
persons in police custody go out of the purview
of Section 27 altogether. If information is given one
after the other without any break almost
simultaneously, and if such information is followed
up by pointing out the material thing by both of
them, we find no good reason to eschew such
evidence from the regime of Section 27. However,
there may be practical difficulties in placing
reliance on such evidence. It may be difficult for
the witness (generally the police officer), to depose
which accused spoke what words and in what
sequence. In other words, the deposition in regard
to the information given by the two accused may
be exposed to criticism from the stand point of
credibility and its nexus with discovery.
Admissibility and credibility are two distinct
aspects, as pointed out by Mr. Gopal
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Subramanium. Whether and to what extent such a
simultaneous disclosure could be relied upon by the
Court is really a matter of evaluation of evidence.
With these preparatory remarks, we have to refer
to two decisions of this Court which are relied upon
by the learned defence counsel.
146. In Mohd. Abdul Hafeez vs. State of Andhra
Pradesh [AIR 1983 SC 367], the prosecution
sought to rely on the evidence that the appellant
along with the other two accused gave information
to the IO that the ring (MO 1) was sold to the
jeweler PW3 in whose possession the ring was.
PW3 deposed that four accused persons whom he
identified in the Court came to his shop and they
sold the ring for Rs.325/- and some days later, the
Police Inspector accompanied by accused 1, 2 and
3 came to his shop and the said accused asked
PW3 to produce the ring which they had sold. Then,
he took out the ring from the showcase and it was
seized by the Police Inspector. The difficulty in
accepting such evidence was projected in the
following words by D.A. Desai, J. speaking for the
Court:
"Does this evidence make any sense? He says that
accused 1 to 4 sold him the ring. He does not say
who had the ring and to whom he paid the money.
Similarly, he stated that accused 1 to 3 asked him
to produce the ring. It is impossible to believe that
all spoke simultaneously. This way of recording
evidence is most unsatisfactory and we record our
disapproval of the same. If evidence otherwise
confessional in character is admissible
under Section 27 of the Indian Evidence Act, it is
obligatory upon the Investigating Officer to state
and record who gave the information; when he is
dealing with more than one accused, what words
were used by him so that a recovery pursuant to
the information received may be connected to the
person giving the information so as to provide
incriminating evidence against the person".
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There is nothing in this judgment which suggests
that simultaneous disclosures by more than one
accused do not at all enter into the arena
of Section 27, as a proposition of law.
147. Another case which needs to be noticed is the
case of Ramkishan Mithanlal Sharma vs. State of
Bombay [AIR 1955 SC 104]. The admissibility or
otherwise of joint disclosures did not directly come
up for consideration in that case. However, while
distinguishing the case of Gokuldas Dwarkadas
decided by Bombay High Court, a passing
observation was made that in the said case the
High Court "had rightly held that a joint statement
by more than one accused was not contemplated
by Section 27". We cannot understand this
observation as laying down the law that
information almost simultaneously furnished by two
accused in regard to a fact discovered cannot be
received in evidence under Section 27. It may be
relevant to mention that in the case of Lachhman
Singh vs. The State [1952 SCR 839] this Court
expressed certain reservations on the correctness
of the view taken by some of the High Courts
discountenancing the joint disclosures."
16.3. There is simultaneous recovery of material
objects on the basis of the statement made
by accused No.1-Kalappa Hanmanth
inasmuch as M.Os.12 to 18 have been
recovered through accused No.1-Kalappa
Hanmanth namely, the jewellery which were
worn by the deceased at the time of her
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disappearance in the land belonging to
accused No.1-Kalappa Hanmanth as regards
which accused No.1-Kalappa Hanmanth had
entered into an agreement of sale on
11.12.2012.
16.4. Though the agreement was entered into prior
to the incident that occurred on 23.03.2013,
the sale deed was executed only in June 2013
in favour of PW.10/CW.18-Ningappa and his
wife only after his arrest in the above matter,
till then accused No.1-Kalappa Hanmanth had
access to the said land since PW.10/CW.18-
Ningappa was not carrying out any
agricultural or diary activities in the said land.
He submits that in terms of question No.20 in
the 313 statement, this aspect of possession
has been put across to the accused and it has
not been denied by the accused,
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PW.10/CW.18-Ningappa has also supported
the above contention and he was not cross-
examined by the accused.
16.5. In so far as identification of accused No.3-
Imamasab and accused No.4-Mahadev
Sidram, he submits that the statement of
PW.7/CW.16-Ramappa was recorded on
05.04.2013, accused No.3-Imamasab and
accused No.4-Mahadev Sidram having
arrested at 6.30 a.m. on 04.04.2013,
accused No.3-Imamasab and accused No.4-
Mahadev Sidram were shown to
PW.7/CW.16-Ramappa on 05.04.2013, when
he recognised and identified accused No.3-
Imamasab and accused No.4-Mahadev
Sidram and as such, he submits that the
identification being done properly by
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PW.7/CW.16-Ramappa cannot be found fault
with by the accused.
16.6. As regards the cause of death, he submits
that as could be seen from Ex.P.33 namely,
the PM report, only small pieces of bones
were recovered at the site. The doctor has
given his evidence and/or his opinion that the
death might have occurred due to the injury
to the skull. The accused are trying to make
use of their own voluntary statement to
contend that the death was by
strangulating which is contradictory to the
postmortem report which is not permissible.
16.7. He further submits that when there is a
contradiction between ocular evidence and
medical evidence, ocular evidence has to be
preferred. In this regard, he relies upon the
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decision of the Hon'ble Apex Court in STATE
OF HARYANA VS. BHAGIRATH reported in
(1999) 5 SCC 96 more particularly,
paragraphs 15 and 16 thereof which are
reproduced hereunder for easy reference:
"15. The opinion given by a medical witness need
not be the last word on the subject. Such opinion
shall be tested by the court. If the opinion is bereft
of logic or objectivity, court is not obliged to go by
that opinion. After all opinion is what is formed in
the mind of a person regarding a fact situation. If
one doctor forms one opinion and another doctor
forms a different opinion on the same facts it is
open to the judge to adopt the view which is more
objective or probable. Similarly if the opinion given
by one doctor is not consistent with probability the
court has no liability to go by that opinion merely
because it is said by the doctor. Of course, due
weight must be given to opinions given by persons
who are experts in the particular subject.
16. Looking at the width of the wound on the
neck (4.5 cm) and its length (14 cms) a doctor
should not have ruled out the possibility of two
successive strikes with a sharp weapon falling at
the same situs resulting in such a wide incised
wound. If the doctor does not agree to the
possibility of causing such a wound the doctor
should have put-forth cogent reasons in support of
such opinion. But PW-7 did not give any such
reason for the curt answer given by him that such
an injury could not have been caused by two
strikes with the same weapon or with different
weapons of the same type. We are, therefore, not
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persuaded to entertain any doubt regarding
prosecution version on that score."
16.8. He submits that the fact is that the deceased
is dead, the burnt body is identified as that
belonging to deceased Bebakka who is the
mother of PW.1/CW.1-Basanagowda and
CW.8-Rajesh, the body being burnt itself
would indicate that the death is homicide.
Accused No.1-Kalappa Hanmanth in his
voluntary statement has stated that they
used a rope to strangulate her, but the doctor
says that the death is due to a skull injury on
the basis of what he found in the pit where
the body was burnt. He states that the
voluntary statement may be made to mislead
the investigators. The fact is that the death
has occurred and the accused have been
implicated therein. This issue would not
assume much significance. He relies upon the
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decision of the Hon'ble Apex Court in
YOGESH SINGH VS. MAHABEER SINGH
reported in (2017) 11 SCC 195, more
particularly, paragraph 43 which is
reproduced hereunder for easy reference:
"43. The learned counsel appearing for the
respondents has then tried to create a dent in the
prosecution story by pointing out inconsistencies
between the ocular evidence and the medical
evidence. However, we are not persuaded with this
submission since both the Courts below have
categorically ruled that the medical evidence was
consistent with the ocular evidence and we can
safely say that to that extent, it corroborated the
direct evidence proffered by the eye-witnesses. We
hold that there is no material discrepancy in the
medical and ocular evidence and there is no reason
to interfere with the judgments of the Courts below
on this ground. In any event, it has been
consistently held by this Court that the evidentiary
value of medical evidence is only corroborative and
not conclusive and, hence, in case of a conflict
between oral evidence and medical evidence, the
former is to be preferred unless the medical
evidence completely rules out the oral evidence.
[See Solanki Chimanbhai Ukabhai Vs. State of
Gujarat, (1983) 2 SCC 174; Mani Ram Vs. State of
Rajasthan, 1993 Supp (3) SCC 18; State of U.P.
Vs. Krishna Gopal (1988) 4 SCC 302, State of
Haryana Vs. Bhagirath, (1999) 5 SCC 96;
Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat,
(2003) 9 SCC 322; Thaman Kumar Vs. State (U.T.
of Chandigarh), (2003) 6 SCC 380; Krishnan Vs.
State, (2003) 7 SCC 56; Khambam Raja Reddy Vs.
Public Prosecutor (2006) 11 SCC 239; State of U.P.
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Vs. Dinesh (2009) 11 SCC 566; State of U.P. Vs.
Hari Chand (2009) 13 SCC 542; Abdul Sayeed Vs.
State of M.P., (2010) 10 SCC 259 and Bhajan
Singh & Ors. Vs. State of Haryana (2011) 7 SCC
421].
16.9. He refers to the complaint at Ex.P.1 and
further statement of the complainant at
Ex.P.2. By referring to the same, he submits
that the ornaments worn by the deceased
have been clearly stated in the complaint and
have been reiterated in the further statement
so also the clothes which were worn by the
deceased at the time of her disappearance.
He submits that it is on the basis of the
clothes which were found near the pit where
the body was burnt that initially the body was
identified and later on the same is confirmed
by the DNA evidence.
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16.10. As regards motive, he submits that
PW.1/CW.1-Basanagowda is the son of the
deceased Bebakka, PW.8/CW.7-Lakshmikant
husband of the deceased, PW.9/CW.10-
Ravindra the son-in-law of the deceased,
have stated about how accused No.1-Kalappa
Hanmanth had from time to time borrowed
monies from the deceased, who was looking
after the financial matters in the family,
amounting to nearly Rs.20 lakhs, which was
being demanded by the deceased from
accused No.1-Kalappa Hanmanth despite
which accused No.1-Kalappa Hanmant did not
make payment of the monies. They have also
spoken about how the deceased was insisting
upon accused No.1-Kalappa Hanmanth to
give the share of another brother which
accused No.1-Kalappa Hanmanth was not
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willing to do, which had caused friction
between the deceased and accused No.1-
Kalappa Hanmant and hence, there was
sufficient motive on the part of accused No.1-
Kalappa Hanmanth to cause the death of the
deceased in order to stop the demands for
the monies as also the demand for allotment
of a share to another brother.
16.11. As regards the last seen theory, he submits
that PW.5/CW.14-Rakesh who is a jeweller
has categorically stated that the deceased
along with accused No.1-Kalappa Hanmanth
came to his shop at 3.30 p.m. on
23.03.2013. PW.6/CW.15-Ramachandra who
is the owner of the utensil shop has stated
that the deceased and accused No.1-Kalappa
Hanmanth came to his shop at 4.45 p.m.
PW.7/CW.16-Ramappa has stated about him
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having seen the deceased in the company of
accused No.1-Kalappa Hanmanth in accused
No.1-Kalappa Hanmanth's Maruti 800 car
which was being driven by accused No.1-
Kalappa Hanmanth and the deceased sitting
in the passenger seat as also accused No.2-
Anand Pujari, accused No.3-Imamasab and
accused No.4-Mahadev Sidram having
boarded the vehicle of accused No.1-Kalappa
Hanmanth at Ranna Circle and going towards
Lokapur.
16.12. As regards the location and involvement of
the accused, he submits that M.O.9 being the
mobile phone of accused No.1-Kalappa
Hanmanth was seized from accused No.1-
Kalappa Hanmanth. The Investigating
Officer secured the CDRs of the mobile
numbers of the deceased as also of accused
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No.1-Kalappa Hanmanth which were marked
as Ex.P.60. By referring to page 87, he
submits that the deceased was in Mudhol at
17.19 hours on 23.03.2013. Thereafter, there
has been no phone calls to the deceased. The
accused No.1-Kalappa Hanmanth was in
Mudhol at 17.01 hours on 23.03.2013, but at
21.07 hours he was at Batakurki i.e., the
place where the body was burnt. Relying on
the same, he submits that the location of the
mobiles indicates the presence of the accused
at the place where the body was burnt. Apart
therefrom the ornaments of the deceased
were recovered through Accused no.1. In this
regard, he relies upon the decision of the
Hon'ble Apex Court in SHRI BHAGWAN VS.
STATE OF RAJASTHAN reported in (2001)
SCC (Cri) 1095, more particularly,
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paragraphs 11 and 12 thereof which are
reproduced hereunder for easy reference:
"11. The possession of the fruits of the crime
recently after it has been committed, affords a
strong and reasonable ground for the presumption
that the party in whose possession they are found
was the real offender, unless he can account for
such possession in some way consistent with his
innocence. It is founded on the obvious principle
that if such possession had been lawfully acquired,
that party would be able to give an account of the
manner in which it was obtained. His unwillingness
or inability to afford any reasonable explanation is
regarded as amounting to strong, self-inculpatory
evidence. If the party gives a reasonable
explanation as to how he obtained it, the courts will
be justified in not drawing the presumption of guilt.
The force of this rule of presumption depends upon
the recency of the possession as related to the
crime and that if the interval of time be
considerable, the presumption is weakened and
more especially if the goods are of such kind as in
the ordinary course of such things frequently
change hands. It is not possible to fix any precise
period. This Court has drawn similar presumption
of murder and robbery in series of decisions
especially when the accused was found in
possession of these incriminating articles and was
not in a position to give any reasonable
explanation. Earabhadrappa @ Krishnappa vs.
State of Karnataka (1983) 2 SCC 330 was a case
where the deceased Bachamma was throttled to
death and the appellant was taken into custody and
gold ornaments and other articles were recovered
at his instance. This Court observed:
"13. This is a case where murder and robbery are
proved to have been integral parts of one and the
same transaction and therefore the presumption
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arising under Illustration (a) to Section 114 of the
Evidence Act is that not only the appellant
committed the murder of the deceased but also
committed robbery of her gold ornaments which
form part of the same transaction."
12. In another case reported in (1997) 10 SCC
130 [Mukund vs. State of M.P.], the prosecution
case was that in the night intervening 17.1.1994
and 18.1.1994, the appellants trespassed into the
residential house of one Anuj Prasad Dubey,
committed murders of his wife and their two
children and looted their ornaments and other
valuable articles. On the next night, the appellants
were arrested and interrogated. Pursuant to the
statement made by one of the accused, gold and
silver ornaments and other articles were recovered.
This court, relying on an earlier decision reported
in Gulab Chand vs. State of M.P. (1995) 3 SCC
574, observed :
"If in a given case - as the present one - the
prosecution can successfully prove that the
offences of robbery and murder were committed in
one and the same transaction and soon thereafter
the stolen properties were recovered, a court may
legitimately draw a presumption not only of the
fact that the person in whose possession the stolen
articles were found committed the robbery but also
that he committed the murder."
16.13. He also relies upon the decision of the
Hon'ble Apex Court in CHARANDAS SWAMI
VS. STATE OF GUJARAT reported in AIR
2017 SC 1761, more particularly, paragraph
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49 thereof which is reproduced hereunder for
easy reference:
"49. As regards the identity of the dead body, the
Courts below took note of the evidence of PW57
and PW50. PW50 had informed the local police of
Barothi on 4th May, 1998 about the dead body of
an unknown person lying at the same spot, later on
discovered to be that of Gadadharanandji due to
the disclosure made by Accused No. 3. PW57
conducted the post-mortem of the burnt dead body
found at Barothi village in Rajasthan. He deposed
that the death was homicide. He also deposed
about the golden teeth and a key found near the
dead body. During the course of investigation, it
was revealed that the said key could open the lock
put up on the room of the deceased in the Vadtal
Temple complex. PW3 corroborated that fact.
Further, the identity of the dead body was
conclusively established from the DNA testing
results of the skin sample of the body which
matched with the blood samples of the biological
sister of the deceased. Additionally, PW1 also
confirmed that he had treated the deceased in
1993 by implanting gold caps on his teeth. That
statement was corroborated by the receipts and
diary entries of PW1. Indeed, the Appellants have
vehemently contended that the said medical
records are fabricated because of the discrepancies
therein. However, the said discrepancies would not
discredit the other evidence regarding the identity
of the dead body which has been duly
corroborated. This view taken by the High Court, in
our opinion, is a possible view. It is certainly not a
perverse view. As the identity of the dead body of
deceased Gadadharanandji is established, it is a
strong circumstance to link it to Accused No.3 who
had voluntarily disclosed to the investigating
agency about the spot/location where the dead
body of the deceased was dumped by him and that
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being the same place in Barothi village in Rajasthan
from where the dead body of an unknown person
was recovered earlier by the local police."
16.14. By relying upon the aforesaid decisions, he
submits that the discovery and recovery of
material having been done through accused
No.1-Kalappa Hanmanth, the same are
admissible.
16.15. Hence, he submits that the prosecution has
proved the guilt of the Accused beyond
reasonable doubt and the appeal is liable to
be dismissed.
17. In reply, Shri Vijay K.Naik, learned counsel for
accused/appellants submits that the call details of
accused No.1-Kalappa Hanmanth are as relating to
Sagar Lodge which is in Bijapur and not in Mudhol.
Therefore, accused No.1-Kalappa Hanmanth being
at Bijapur could not have been at Mudhol and be
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seen in the company of the deceased at 17.30
hours. By relying upon some of the suggestions
put across to PW.1/CW.1-Basanagowda, he
submits that all the gold ornaments which were
recovered were new and did not belong to the
deceased and they had been created only for the
purpose of fixing the accused. He submits that the
possession of the land had already been handed
over on 11.12.2012 by accused No.1-Kalappa
Hanmanth to PW.10/CW.18-Ningappa. Hence, he
was not in possession of the land, and recovery of
any material from a premise of which accused
No.1-Kalappa Hanmanth was not in possession
cannot be attributed to accused No.1-Kalappa
Hanmanth. He therefore submits that the
judgment of conviction and order of sentence as
against accused No.1-Kalappa Hanmanth and
accused No.2-Anand Pujari is to be set aside.
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18. Shri Ramachandra Mali, learned counsel appearing
for accused No.3-Imamasab and accused No.4-
Mahadev Sidram in Crl.A.No.100109/2018 submits
that prosecution cannot resort to pick and choose
by referring to and relying upon aspects which are
in support of the prosecution being Ex.P.33
inasmuch as, the Post Mortem report stating that
the death has caused due to an injury to the skull,
the case of the prosecution is given a go-bye
inasmuch as the prosecution had contended that
the deceased had been strangulated using a rope
which was recovered as per M.O.10. Relying on the
decision of the Hon'ble Apex Court in DIGAMBER
VAISHNAV's case he submits that the burden of
proof is on the prosecution and does not ever shift
to the defence. No order of conviction can be
passed on the basis of the conjectures or
presumptions. He again reiterates that
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PW.7/CW.16-Ramappa is a planted witness and
this time he supports it by contending that
PW.7/CW.16-Ramappa's statement was not
recorded when the missing complaint was filed. On
the basis of all the above, he submits that the
order of conviction is required to be set aside and
the accused acquitted in the matter.
19. It is in the above background that we are called
upon to ascertain whether accused Nos. 1 to 4 are
guilty of the offences alleged against them, namely
those under Sections 364, 302, 404 and 201 read
with Section 34 of IPC, which would require us to
re-appreciate the evidence on record.
20. PW-1/CW-1 - Basanagouda @ Milana, son of
Lakshmikant Nadagouda @ Hunasikatti, has
deposed that
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20.1. PW.8/CW.7-Lakshmikant is his father and
deceased Bebakka is his mother. They were
residing in Metagudda village in Mudhol
Taluk. CW-8/Rajesh and CW-9/Shailashree
are also children of PW.8/CW.7-Lakshmikant
and deceased Bebakka.
20.2. His sister Shailashree was married and was
residing with her husband at Mudhol. The
family has about 100 acres of land which is
looked after by his father and elder brother.
The deceased Bebakka was looking after the
financial transactions in the house.
20.3. Accused No.1-Kalappa Hanmanth, who he
identifies in the Court, is his uncle i.e., the
elder brother of his mother, he has stated
that his mother Bebakka had gone to the
house of his sister Shailashree at 11.30 a.m.
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on 23.03.2013 to meet her and the younger
brother of Bebakka namely, Suresh. When
Bebakka did not return home till 5.30 p.m.,
he had called his sister CW-9/Shailashree and
enquired wherein his sister replied that
Bebakka had gone to her younger brother
Suresh's house and thereafter, she along with
her elder brother accused No.1 had gone to a
jewellery shop as also to utensil shop and
that she would make enquiries.
20.4. PW.1/CW.1-Basanagowda thereafter
contacted accused No.1-Kalappa Hanmant
who informed him that he had taken his
mother to the jewellery shop and after the
jewellery shop, he had taken his mother to
the utensil shop and left her there.
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20.5. It is in this background, that the family
members of the deceased started searching
for her and upon not finding her, lodged a
complaint on 25.03.2013 at 9 pm about his
mother having gone missing which came to
be marked as Ex.P1.
20.6. He has stated that thereafter he came to
know that PW.7/CW.16-Ramappa had
informed him about seeing accused No.1-
Kalappa Hanmanth taking his mother at 6
p.m. in his Maruti 800 car near Ranna circle
when accused No.2-Anand Pujari and two
others had boarded the car. When confronted
with this, accused No.1-Kalappa Hanmanth
had informed PW.1/CW.1-Basanagowda that
he had not taken his mother anywhere. Later
on, on 03.04.2013, they came to know that 4
to 5 days prior to that date, Ramdurg police
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had found an unidentified burnt body as
regards which they had registered a
complaint. Hence, on 03.04.2013, they went
to Ramdurg police station and upon seeing
the clothes which had been seized from the
spot, he identified it as belonging to his
mother.
20.7. On enquiry, he was informed that there were
no ornaments which were found at the place
where the body was found. He has also
deposed about how his mother had helped
accused No.1-Kalappa Hanmanth and had
advanced a sum of Rs.20 lakhs from time to
time to accused No.1-Kalappa Hanmanth,
about how accused No.1-Kalappa Hanmanth
had sold about 10 acres of land belonging to
him without giving any share to Suresh, the
younger brother of his mother and it is for
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this reason that he believed accused No.1-
Kalappa Hanmanth along with accused No.2-
Anand Pujari, accused No.3-Imamasab and
accused No.4-Mahadev Sidram had caused
the death of his mother.
20.8. On 04.04.2013, the Investigation Officer had
called him to Mudhol Police Station where he
was shown accused No.1-Kalappa Hanmanth
along with three persons and informed him
that they had admitted to have committed
the murder of his mother and that the
ornaments worn by his mother had been
recovered through accused No.1-Kalappa
Hanmanth. He identified the said ornaments
in Court, saree pieces and bangle pieces
recovered by Ramdurg police marked as
M.Os.1 and 2 and the ornaments shown in
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the police station were marked as M.Os.12 to
18.
20.9. During the course of cross-examination,
PW.1/CW.1-Basanagowda has stated that he
did not know about the missing complaint
filed by his uncle. He denied that accused
No.1-Kalappa Hanmanth had left his mother
near Bhavani Utensil Shop on 23.03.2013 at
3.30 p.m. and had gone to Metagudd. He has
admitted that all the family members
searched for his mother including accused
No.1-Kalappa Hanmanth. He has denied that
he has got PW.7/CW.16-Ramappa to give
false evidence in the case.
20.10. He does not remember as to when CW-17-
Timanna (who has not been examined)
informed him regarding he having seen
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accused No.1-Kalappa Hanmanth along with
other accused taking his mother in the car of
accused No.1-Kalappa Hanmanth. Though he
admitted that his mother was looking after
the financial transactions, he denied that she
was lending money for interest and had many
enemies in the village.
20.11. He denied that his father had sold 17
acres 39 guntas of land standing in his name
to accused No.1-Kalappa Hanmanth for
consideration of Rs.80 lakhs for which he had
received Rs.40 lakhs but had not executed
sale deed in favour of accused No.1-Kalappa
Hanmanth.
20.12. He denied that with an intention to cheat
accused No.1-Kalappa Hanmanth of Rs.40
lakhs, a false complaint has been lodged
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against accused No.1-Kalappa Hanmanth. On
enquiry he has stated that there are no
written documents indicating that his
mother had lent a sum of Rs.20 lakhs to
accused No.1-Kalappa Hanmanth. He denied
all other suggestions put to him.
21. PW.2/CW.2- Dayanand Rudrappa Dyamanni, the
Forest Guard has deposed that
21.1. He was working as a Forest Guard along with
CW-19 in the Dadamangadi Reserve Forest
Area. While on patrolling duty on 27.03.2013,
they smelt burnt flesh and when they went to
the spot, they found burnt bones and at a
distance, one skull and a burnt sari piece and
bangle pieces and they informed the same to
the higher Officers and lodged a
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complaint before the police on the same day
at 10 a.m.
21.2. Later on, police had called him to the spot,
called two persons going on a motorcycle and
drew up panchnama in his presence. When
the police seized two pieces of saree, one
silver toe ring, two bloodstained stones, some
blood stained mud, sample mud, burnt
bones, ashes, bangle pieces and some hairs
from the spot which were marked as M.Os.1
to 8. Later on, he has given a statement to
PW.24/CW.33-CPI,Mudhol, who had called
him for enquiry. This witness was not cross-
examined.
22. PW-3/CW-3-Avvappa Siddappa Angadi is the
witness for the inquest panchnama as per Ex.P.4
conducted by Ramdurg police on 28.03.2013 and
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also witness to the seizure panchnama of M.Os.1
to 8 as per Ex.P.5. He has stated that when he and
CW-4/Ramanagouda were going to Ramdurg on
Mullur-Ramdurg Road on a motor bike, at about
8.00 a.m., the police stopped, asked them to
accompany them for a panchanama and took them
to the spot where they found burnt body of a
woman. The police took the photographs, prepared
panchnama and took their signatures. He has
identified the panchnama as Ex.P.4.
23. PW-4/CW-5 - Sachin Ramappa Malali is
the mahazar and panch witness for mobile seized
from accused No.1 as per Ex.P.7 as also to the five
spot panchnamas carried out at five different
places, namely Ingalagi cross where the accused is
stated to have committed the murder of Bebakka,
a spot where Bebakka's body was burnt, when
each of the accused individually took the police and
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PW.4/CW.5-Sachin to the spot where the body was
burnt. The spot where the Maruti 800 car
belonging to accused No.1-Kalappa Hanmanth was
parked, when accused No.1-Kalappa Hanmanth
opened the door and from the toolbox produced
one plastic wire rope measuring about 5 ft. in
length which was used to strangulate deceased
Bebakka and from the dicky of the vehicle, he has
shown one plastic can in which petrol was stocked,
which petrol was used to burn the body of
deceased Bebakka, then the spot in the cattle shed
where the gold ornaments were hidden namely 2
patlis, (big bangles), 4 bilawars (another kind of
big bangles), 1 bendawale (earring), 1
Venkataramana locket chain, 1 tali (nuptial knot),
1 suttungura (ring) and 1 Navaratna gold ring. He
has stated that thereafter panchnama at Ex.P.8
was drawn up, the rope, can and car were seized
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and marked as M.Os.10 and 11, the jewellery was
marked as M.Os.12 to 18, the handkerchief used
for tying the ornaments was marked as M.O.19
and the car was marked as M.O.20, photographs of
all the spots had been taken and they were
identified by him and were marked as Ex.P.7 to
Ex.P.23. During the course of cross-examination,
he has stated that no one had called him to act as
pancha. The police requested him to be a pancha
when he was travelling on Ramdurg road. He
denied that the panchnama was written by the
police sitting in the police station or that he was
depositing falsely. He has supported the case of
the prosecution.
24. PW-5/CW-14 - Rakesh Rattanchand Ora has
deposed that he is running a jewellery shop at
Tambakchowk for the last 13 years. The
deceased's family as also her maternal family were
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doing business in their shop, the deceased used to
come to the shop on several occasions. Suresh
Kamakeri, the brother of the deceased Bebakka
had come to his shop some time ago , pledged a
Venkataramana locket chain and took Rs.50,000/-
as it was required for accused No.1-Kalappa
Hanmanth's son's marriage.
25. Later on, the said Suresh, brother of the deceased
had come to his shop, gave money and took back
the chain which was pledged. On the next day,
deceased Bebakka and accused No.1-Kalappa
Hanmanth came at about 3.45 p.m. to 4 p.m. to
his shop, asked the rate of gold, when he asked
them how much gold they wanted, they informed
that in 2 to 3 days, there was a function and they
will come and buy gold. He states that they left the
shop to buy some utensils. He has deposed that on
the next day, the children of deceased Bebakka
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came to his shop, asked him about whether their
mother had come to his shop and he had informed
them about the above and one day later,
PW.5/CW.14-Rakesh came to know of the missing
complaint filed as regards the deceased Bebakka.
PW.5/CW.14-Rakesh identified M.O.13 to be the
same Venkataramana locket chain which had been
pledged in his shop. He has also identified accused
No.1-Kalappa Hanmanth who came along with
deceased Bebakka to his shop. He has further
deposed that he came to know about accused and
certain others having been arrested for the murder
of deceased Bebakka. He denied having given any
statement to the police. At this stage, the
prosecutor sought permission of the Court to treat
PW.5/CW.14-Rakesh as hostile and cross-
examined him. During the course of cross-
examination, he denied all suggestions put to him.
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He also denied all suggestions put to him by the
counsel for the accused during his cross-
examination.
26. PW-6/CW-15 - Ramachandra Tulajansa
Kalpavruksha is the owner of Bhavani Steel Centre,
Tambakchowk, Mudhol. He has deposed that he is
running Bhavani Steel Centre and that he
knows the Nadagouda and Kamkeri families who
used to come to his shop to buy utensils. He has
stated about how the deceased Bebakka and her
brother accused No.1-Kalappa Hanmanth came to
his shop and bought two boxes. Later on, they
returned the boxes saying that they are small and
they wanted big boxes and that they would return
in 10 minutes. They came back at 4:45 p.m. and
asked for two quintal sized boxes. Since the same
could not be fitted in the car, they informed him
that they would send somebody to collect the
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boxes. He has stated that on the next day, the
children of Bebakka came to his shop asking about
their mother. He informed them about the above.
Later, when the police came, he informed the same
to the police also. After 8 or 10 days, he came to
know of accused No.1-Kalappa Hanmanth having
committed murder of deceased Begakka. He
denied having given any statement to the police.
Hence, the Public Prosecutor sought permission of
the Court to treat him as hostile and cross-
examined him. During the course of cross-
examination, nothing much was elicited. He
however admitted that on 05.04.2013, police had
called him to the police station and showed him
accused No.1-Kalappa Hanmanth and three other
accused and told him that they had committed the
murder of Bebakka. He admitted having given a
further statement as per Ex.P.25. During the
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course of cross-examination by the counsel for the
accused, he denied that Bebakka had not
purchased any boxes nor exchanged any boxes. He
also denied that it is on account of the relationship
with PW.1/CW.1-Basanagowda, that he is deposing
falsely to implicate accused No.1-Kalappa
Hanmanth on account of the business relationship
that he had with PW.1/CW.1-Basanagowda.
27. PW-7/CW-16 - Ramappa Timmappa Mareguddi has
deposed that he knows the family of Nadagouda of
Metagud who owned about 100 acres of land. He
has admitted that deceased Bebakka was looking
after the money transaction of the family and
accused No.1-Kalappa Hanmanth was the elder
brother of deceased Bebakka. He has stated that
one day at about 5:30 p.m., when he was standing
at Ranna Circle at Mudhol, CW-17 (who has not
been examined) also came there and while he was
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talking to CW-17, accused No.1-Kalappa Hanmanth
and deceased Bebakka came in a Maruti 800 car
from Mudhol Shivaji Circle towards Ranna Circle.
When the vehicle stopped, accused No.2-Anand
Pujari, accused No.3-Imamasab and accused No.4-
Mahadev Sidram boarded the car. At the time, CW-
17 tried to go and speak to accused No.1-Kalappa
Hanmanth and deceased Bebakka who were his
relatives. By the time he could reach the car, the
car left and went towards Lokapur. He has stated
that after 4 to 5 days, he came to know that
Begakka was missing. Hence, he informed
PW.8/CW.7-Lakshmikant that he and CW-17 had
seen deceased Bebakka and accused No.1-Kalappa
Hanmanth on the day she went missing. He has
also disposed about coming to know of deceased
Bebakka's body being found in Mullur hill and a
complaint having been lodged. The police had
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called him to the police station and inquired about
the matter. When he informed about what he had
seen, he has further stated that later on he came
to know that accused No.1-Kalappa Hanmanth
had borrowed hand loan from Bebakka and when
Bebakka insisted for the return of the amount as
also for a share to be given to her younger brother
in the family properties, accused No.1-Kalappa
Hanmanth being unhappy with Bebakka murdered
her with the help of the other accused. During the
course of cross-examination by the counsel for the
accused, he has admitted that his ancestors used
to know the ancestors of PW.1/CW.1-
Basanagowda, PW.8/CW.7-Lakshmikant. He has
stated that after 10-12 days of the incident, his
statement was recorded. He denied that he was
deposing falsely to help PW.1/CW.1-Basanagowda
and PW.8/CW.7-Lakshmikant.
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28. PW-8/CW-7 Laxmikant Pandappa Nadagoudar @
Hunashikatti has deposed that the deceased is his
wife and PW.1/CW.1-Basanagowda, the
complainant is his son, they are doing agricultural
work and they own 100 acres of land. CWs-1 and 8
are doing agricultural activities and raising
sugarcane crops, earning Rs.35 to 40 lakhs in a
year and all financial transactions were looked
after by his wife. He has identified accused No.1-
Kalappa Hanmanth to be his wife's elder brother in
Court. He has deposed that financial condition of
accused No.1-Kalappa Hanmanth was not good
and he had taken loan from his wife amounting to
Rs.12,00,000/- for constructing dairy and
Rs.8,00,000/- for performing marriage of his son.
In all, he had borrowed Rs.20 lakhs from his wife.
Though accused No.1-Kalappa Hanmanth had
promised to repay the loan when he sells his land,
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it was not done. Accused No.1-Kalappa Hanmanth
also did not give a share to the younger brother of
the deceased and accused No.1-Kalappa
Hanmanth. On 23.03.2013 at about 11 a.m. when
his wife deceased Bebakka had been to Mudhol to
get back the gold as also to bring boxes for storing
grains, he came to know that she had been to the
house of her daughter. Thereafter, to the house of
her brother Suresh and thereafter, along with
accused No.1-Kalappa Hanmanth she went to bring
back gold and boxes from the utensil shop. The
deceased Bebakka did not return until 6 p.m. He
thought she might have gone to meet her friends.
When she did not return till night, his children and
others tried to search for her, and on the next day
evening, his son PW.1/CW.1-Basanagowda had
lodged a missing complaint. After that, they came
to know about a woman's burnt body being found
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in the forest of Ramdurg. Hence, his daughter,
son-in-law PW.9/CW.10-Ravindra and son
PW.1/CW.1-Basanagowda had been there and they
found bangle pieces and saree pieces and identified
the same to be belonging to the deceased. He has
deposed similar to PW.1/CW.1-Basanagowda as
regards the enquiry made with PW.5/CW.14-
Rakesh and PW.6/CW.15-Ramachandra, lodging of
complaint etc., He has stated that Suresh/CW-13,
younger brother of the deceased and accused
No.1-Kalappa Hanmanth had also expired. During
the course of cross- examination by the counsel for
the accused, he has denied all suggestions put
across to him. He has denied that his wife had
enmity with lot of people on account of money
lending business. He has denied about any
agreement of sale being entered into by him with
accused No.1-Kalappa Hanmanth for purchase of
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his land for Rs.80,00,000/-. He denied that any
false allegations are made or false complaint is
filed. He has withstood the test of cross-
examination and supported the case of the
prosecution.
29. PW-9/CW-10 - Ravindra Venkappa Lendi has
deposed that PW.8/CW.7-Lakshmikant is his
father-in-law, he has married Shailashree, who is
the daughter of PW.8/CW.7-Lakshmikant and
deceased Bebakka. He has also stated about the
ownership of land by the deceased family, financial
transaction being looked after by the deceased,
deceased having lent Rs.12 lakhs to accused No.1-
Kalappa Hanmanth for dairy business and
thereafter, several small sums of monies being
borrowed totalling upto Rs.20 lakhs as also about
borrowing of money at the time of marriage of the
son of accused No.1-Kalappa Hanmanth. He has
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also disposed about how the deceased had come to
Mudhol and gone to jewellery shop and utensil
shop and had been missing, about the search
being carried out, lodging of complaint, information
furnished by PW.7/CW.16-Ramappa, tracing of the
burnt body, identification of the body etc., During
the course of cross-examination, he has denied
that his mother-in-law used to lend money to
public on interest. He has denied that
PW.7/CW.16-Ramappa and CW-17 have deposed
falsely in view of the transaction between
themselves and PW.6/CW.15-Ramachandra as also
PW.9/CW.10-Ravindra. He has withstood the test
of cross-examination and supported the case of the
prosecution.
30. PW-10/CW-18 - Ningappa Appanna Batakurki is
stated to be the purchaser of the land belonging to
accused No.1-Kalappa Hanmanth situated
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in Jaliberi village in terms of an agreement of sale
dated 11.12.2012. One agreement having been
entered into in his wife's name from accused No.1-
Kalappa Hanmanth and another agreement
executed in his name and wife's name by
Chandrakant Kamakeri, another brother of accused
No.1-Kalappa Hanmanth. He has stated that
till June 2013, he had not carried out any
agricultural activities in the land. It is only in June
2013 that a sale deed was executed in his favour
through the Power of Attorney Holder of accused
No.1-Kalappa Hanmanth.
31. PW.11/CW.20 and PW.12/CW.22 are the police
constables working in Mudhol police station.
PW.11/CW.20 carried the FIR to the Magistrate,
PW.12/CW.22 accompanied the accused during the
time when the spots where various incidents
occurred were shown by the accused as also when
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seizure was made. Both of them have withstood
the test of cross-examination and supported the
case of the prosecution.
32. PW-13/CW-27 - Raghavendra Ranganath Korti, is
the Assistant Executive Engineer, PWD, who has
drawn the sketch/maps of the various spots. The
sketches having been identified as Ex.P.28 and
Ex.P.29, he has withstood the test of cross-
examination and supported the case of the
prosecution.
33. PW-14/CW-28 - Ramesh Channappa, Assistant
Executive Engineer, has deposed that he was
working as Assistant Engineer in Ramdurg during
the relevant time. He along with police constable
from Mudhol police station had visited the Mullur
hill and prepared a sketch of the spot where the
body was burnt which is marked as Ex.P.30. He
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has withstood the test of cross-examination and
supported the case of the prosecution.
34. PW 15/CW-21 -Vicharsagar Laxman Nayak, is the
one who has arrested the accused on 04.04.2013
in Cr.No.67/2013 of Mudhol police station. He
accompanied the accused during the visit of the
various spots subject matter of Ex.P.8. He has
taken the pictures at Exs.P.20 to 23. He has
withstood the test of cross-examination and
supported the case of the prosecution.
35. PW-16/CW-23 - Maruthi Mallappa
Dyamanagoudar, carried the FIR from Ramdurg
police station in Cr.No.47/2013 to the Magistrate.
He has supported the case of the prosecution.
36. PW-17/CW-25 - Dr.Tanaji Limbaji Shintre, Medical
Officer, has stated that on a requisition being
received from CPI, Ramdurg, he accompanied PSI
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of Ramdurg police station and other police staff to
the Mullur forest area where the body was found.
For the purpose of recovery, he divided the spot
into two portions, one as regards the first 20 feet
and another beyond 20 feet to 40 feet. He has
stated that in the first 20 feet in the centre, there
was a ditch measuring 4 ft. X 3 ft. in which burnt
bones, ashes, red bangle pieces, green colour
saree and one ring were found. The same were
collected and handed over to the police constable.
He collected the bones at the site in another
division of 40 feet. He found jawless skull and
found foul smelling brain material in it. Near the
skull, he found 10 cms. to 15 cms. long black hair
as also bloodstained stones. In another portion, he
found the jaws and the upper jaw was broken. He
also found a bone of leg which was broken on both
sides which was handed over to the police to be
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sent to an expert. He prepared the Post Mortem
report as unidentified body and thereafter, on
coming to know the name of the deceased her
name was entered into in the records. All the items
were sent to the Regional Forensic Science
Laboratory for their opinion. He has stated that the
death of the deceased had occurred due to injuries
caused to her head. During the course of cross-
examination, he has stated that it is not possible to
identify the body belonging to either a male or
female without the RFSL report. He has denied that
he has prepared a report to suit the prosecution.
He has withstood the test of cross- examination
and supported the case of the prosecution.
37. PW-18/CW-26 - Dr.Dayanand Gurubasappa
Genneue, has deposed that he has examined the
bones and parts sent by CPI, Mudhol and he was of
the opinion that it belongs to a woman who was
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aged more than 35 years and he has concluded
that she might have died due to injuries on the
head. He identifies his report as per Ex.P.34. The
bones were marked as M.O.21. He has further
stated that, it was not possible to say the reason
for the death of the deceased exactly on the basis
of examination carried out. He has withstood the
test of cross- examination, denied the suggestions
put to him and supported the case of the
prosecution.
38. PW-19/CW-30 - Sanjeev Shivanand Baligar, who
was working as PSI in Ramdurg police station has
stated that he received the complaint of PW-
2/Dayanand Rudrappa Dyamanni and registered a
crime in Cr.No.47/2013 in Ramnagar police station
and sent the FIR to the Court.
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39. PW-20/CW-24 - Hanamappa Bhimappa Madinni,
has deposed that he has given the requisition to
the doctor of the Government Hospital for
conducting postmortem. He had accompanied the
doctor to Mullur Hill. He has further stated that the
doctor had preserved the bones and parts of the
body found after giving his report. He has
withstood the test of cross-examination and
supported the case of the prosecution.
40. PW-21/CW-31 - Holeppagouda Rajendragouda
Patil, has proposed that he was working as PSI,
Mudhol. He had taken over the case filed
pertaining to Cr.No.59/2013 from CW-29 (dead).
He has recorded the statement of CWs-7 to 15 as
also that of accused No.1-Kalappa Hanmanth.
He had sent the requisition to the Superintendent
of Police, Bagalkote, to supply call details of the
mobile sims of the accused. He has got a search
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carried out for the missing woman from
27.03.2013. He again sent an email to the
Superintendent of Police, Bagalkote, on
28.03.2013 for call details. He received the
complaint in Cr.No.59/2013 from the complainant
PW.1/CW.1-Basanagowda on 03.04.2013 which
came to be registered as Cr.No.67/2013 and
handed over the case to PW.24/CW.33-CPI,Mudhol
for further Investigation. On 04.04.2013, he
arrested accused No.1-Kalappa Hanmanth in the
farm house as also accused No.2- -Anand Pujari,
produced them before CW-33 (PW.24.). During the
course of cross-examination, he has denied all
suggestions put across to him. He has denied that
a false case has been lodged and/or investigated at
the instance of PW.1/CW.1-Basanagowda and
PW.8/CW.7-Lakshmikant. He has denied about
knowing of any dispute as regards sale deed to be
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executed in favour of accused No.1-Kalappa
Hanmanth. He has withstood the test of cross-
examination and supported the case of the
prosecution.
41. PW-22/CW-32- M.Pandurangayya Yanandayya who
was CPI, Ramadurg, at the relevant point of time,
has deposed that he had witnessed the inquest
panchnama. He had submitted the requisition for
carrying out post mortem on 02.04.2013.
PW.1/CW.1-Basanagowda and his sister
Shailashree had come to the police station and
when the seized property was shown to them, they
identified the saree and the bangles as belonging
to their mother. Accordingly, he sent a requisition
to the Ramdurg Court to transfer Cr.No.47/2013 of
Ramdurg police station to Mulund Court. During
the course of cross- examination, he has denied
that he had prepared false document to help
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Mudhol police in Cr.No.67/2013. He has denied
that PW.2/CW.2-Forest Guard and CW-19 (not
examined) have not given any statement before
him. He has denied all other suggestions put
across to him. He has withstood the test of cross-
examination and supported the case of the
prosecution.
42. PW-23, Dr.Chandrashekhar Ambegouda was
working as a Scientific Officer, RFSL, Bengaluru, at
the relevant point of time. He has deposed that he
received 4 sealed objects from Mudhol police for
DNA testing. He has carried out the same and
opined that the bone sent were human in origin
and belonged to female sex which was matching to
the profile sent to him to that of PW-
1/Basanagouda @ Milan and CW-8/Rajesh
Lakshmikant Nadagouda and accordingly, he was
of the opinion that the bones belonged to their
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mother. He has also withstood the test of cross-
examination and supported the case of the
prosecution. He denied various suggestions put
across to him.
43. PW-24 - Holebasappa Devaraddi Mudaraddi, who
at the relevant point of time was the CPI of Mudhol
had taken over the case from CW-31/PW-21-
PSI,Mudhol on 03.04.2013 for investigation. On
04.04.2013, the accused were arrested at about
6:30 a.m. and produced before him. During
enquiry the accused had admitted the commission
of the offence and their guilt. Their voluntary
statements have been recorded as per Exs.P.50 to
53 and their respective signature identified as
Ex.P.50 (a) to Ex.P.53 (a). Accused No.1-Kalappa
Hanmanth and accused No.3-Imamasab
have signed and accused Nos.2-Anand Pujari and
accused No.4-Mahadev Sidram have put their
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thumb impression. The mobile phone of accused
No.1-Kalappa Hanmanth was seized in the
presence of PW.4/CW.5-Sachin and CW.6,
panchanama to that effect is as per Ex.P.7. He had
accompanied the accused for 5 different spot
mahazars as also the seizure mahazar in
pursuance of which Ex.P.8 was drawn up. He has
drawn up the rough sketches of the spots. He sent
the accused for medical examination, FIR to the
Court, requested for call detail records etc., up to
the stage of submitting the charge-sheet. During
the course of cross- examination, he has denied all
the suggestions put across him. He has reiterated
that he has carried out the investigation and
supported the investigation carried out
by documentary evidence as marked earlier.
44. The evidence as detailed above support the various
facets of the case of the prosecution as under:
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45. Identity of the Body: It is sought to be
contended that the body found was not that of
Bebakka. The bones found in Mullur forest are that
belonging to the deceased Bebakka which has been
verified and certified by PW. 23-Dr.Chandrashekar,
who has conducted the DNA profile examination
and opined that the bones which were found
belongs to the mother of PW.1/CW.1-Basanagowda
and CW.8-Rajesh. The contention raised that the
person who drew the blood of PW.1/CW.1-
Basanagowda and CW.8-Rajesh which was sent to
forensic examination has not been examined,
giving raise to probable contamination is also
negated by the fact that the blood was drawn in
the presence of the magistrate, packed sealed and
sent to the RFSL, thus the non examination of the
person who drew the blood of PW.1/CW.1-
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Basanagowda and CW.8-Rajesh is immaterial and
would not have any consequence.
46. Homicide or Accident: The body of Bebakka
having been found in Mullur forest in a burnt
condition, it is clear that her death is an homicide,
the same is definitely not a suicide and cannot also
be an accident taking into consideration the
location where the body was found and the
condition in which the body was found.
47. Cause of Death: Coming to the minor
discrepancies pointed out by Shri Vijay Naik and
Sri Ramachandra Mali, learned counsels appearing
for the appellants/accused, one of the
discrepancies pointed out is that in terms of the
postmortem report, the death of the deceased has
occurred due to skull injury whereas the case of
the prosecution was that the deceased died due to
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throttling/strangulating. This issue would have to
be appreciated on the basis of the material
available i.e., the remnants of the body of the
deceased available. As is deposed to by the
witnesses, more particularly, PW.17/CW.25-
Dr.Tanaji who has deposed that various pieces of
the body were in the form of bones which were
found in a pit in the Mullur forest area and the skull
was found at a different spot after 20 ft. from the
pit and the jaw was found at another place. There
is no skin or flesh available let alone around the
neck of the deceased, since admittedly the neck
itself was not available. In such a background, in
our considered opinion, it is impossible to ascertain
if the death has occurred due to
strangulation/throttling by using M.O.10 being the
plastic wire rope. The skull being found at another
place, it is probable that PW.17/CW.25-Dr.Tanaji
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has mentioned in his Post Mortem report that the
death has occurred due to head injury. In the
cross- examination, on a suggestion being made
that death could have occurred due to any other
reason, he has answered in the affirmative. In our
considered opinion, the opinion of PW.17/CW.25-
Dr.Tanaji is a probable cause of death of the
deceased and not the actual cause of the death of
the deceased.
48. Though the accurate cause of death would
normally be relevant and important in the present
facts, whether the death was due to strangulation
or due to an injury to the skull pales into
insignificance considering that the death has
occurred. The decision relied upon by the Addl SPP
as regards discrepancy in the ocular evidence and
medical evidence in STATE OF HARYANA VS.
BHAGIRATH reported in (1999) 5 SCC 96 and
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YOGESH SINGH VS. MAHABEER SINGH
reported in (2017) 11 SCC 195 would not be
applicable to the present case.
49. Recovery: What is also of importance is that
M.O.10, the plastic wire rope which was used to
commit the murder and M.O.11 the 10 litres
capacity of plastic can which was used to burn the
body of the deceased were recovered at the
instance of accused No.1-Kalappa Hanmanth in the
Silver Maruti 800 car belonging to accused No.1-
Kalappa Hanmanth, in as much as the plastic Wire
rope was in the tool box and the Plastic petrol can
was in the dicky of the said car. M.Os.12 to 18
being the gold ornaments/jewelleries were also
recovered at the instance of accused No.1-Kalappa
Hanmanth wrapped in a handkerchief M.O.19 from
a property which belonged to accused No.1-
Kalappa Hanmanth. Though, accused No.1-Kalappa
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Hanmanth has contended that he has sold the
property to PW.10/CW.18-Ningappa much prior to
the incident, from the evidence it is gathered that
accused No.1-Kalappa Hanmanth had entered into
an agreement of sale with PW.10/CW.18-Ningappa
on 11.11.2012, but the sale was executed only in
the month of June, 2013 after the incident.
PW.10/CW.18-Ningappa has also categorically
stated in his deposition that they were not carrying
out any agricultural activities in the said property
and there was no one available in the said property
or making use of the property. The panchnama at
Ex.P.8 has been established by cogent evidence.
An independent, third party witness was available
who has supported the case of the prosecution.
The fact that the gold ornaments and jewellery at
M.Os.1 to 18 were recovered through accused
No.1-Kalappa Hanmanth in a place belonging to
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accused No.1-Kalappa Hanmanth, where even the
Silver Maruti 800 car was parked belonging to
accused No.1-Kalappa Hanmanth indicates and
establishes the complicity of accused No.1-Kalappa
Hanmanth in the said crime. The recoveries being
made and the spot of occurrence having been
identified on the basis of simultaneous disclosures
made by the accused we are of the opinion that
the decision of the Apex court in STATE (NCT OF
DELHI) VS. NAVJOT SANDHU reported in 2005
SCC (Cri) 1715 would apply and such recoveries
and statement would be admissible.
50. Identity of Accused 3 and 4: It has been
contended that the Accused no. 3 and 4 were not
known to PW.7/CW.16-Ramappa and as such he
could not have identified them without a test
identification parade.
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51. From the evidence on record it can be gathered
that accused No.3-Imamasab and accused No.4-
Mahadev Sidram were arrested at 6.30 a.m. on
04.04.2013 and shown to PW.7/CW.16-Ramappa
on 05.04.2013 when he identified them as the
same persons that he had seen boarding the
Maruthi car of Accused No.1 it is only thereafter
that the statement of PW.7/CW.16-Ramappa was
recorded. In such circumstances there being no
dispute as regards the identity, there was no need
for a test identification parade to be conducted.
52. It has been contended that accused No.3-
Imamasab and accused No.4-Mahadev Sidram are
not connected to accused No.1-Kalappa Hanmanth
and they have been framed in the matter. The fact
remains that while carrying out the panchnama at
Ex.P.8, accused No.3-Imamasab and accused
No.4-Mahadev Sidram, have also individually
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identified the place where they caused the death of
the deceased Bebakka as also the place where the
body of the deceased was burnt. Apart from the
above, in the proceedings before the trial Court, all
the accused were represented by one single lawyer
which indicates that there was no conflict of
interest between accused Nos.1 to 4. Even in the
cross- examination done by the said counsels of
the various witnesses who have deposed in the
matter, there is no separate suggestion which have
been put across to the witnesses on behalf of
accused No.3-Imamasab and accused No.4-
Mahadev Sidram. All the suggestions and questions
have been put across in common for all the
accused. Thus we are unable to accept that the
accused are not known to each other.
53. Delay in filing complaint: It is contended that
though the deceased went missing between 5.00
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to 5.30 p.m. on 23.03.2013 but the complaint was
filed only on 25.03.2013 at 21.00 hours, as such
there is a delay which will have an adverse impact
on the matter. The evidence on record indicates
that the family members were trying to locate the
missing Bebakka and were searching for her on the
23rd and 24th, it is only after they were unable to
find Bebakka the complaint was filed. Normally
when there is a delay in filing the complaint the
same could raise a suspicion that the accused are
being fixed in the matter. In the present case even
the delayed complaint was one of missing where
there were no allegation which had been made as
against the accused, thus it cannot be said that the
delay in filing of the complaint was to come up
with a story to implicate the accused by creating a
story. Thus this delay in our opinion cannot enure
to the benefit of the accused.
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54. Motive: PW.1/CW.1-Basanagowda, PW.7/CW.16-
Ramappa, PW.8/CW.7-Lakshmikant and
PW.9/CW.10-Ravindra have categorically deposed
that the deceased had lent an amount of Rs.20
lakhs to accused No.1-Kalappa Hanmanth which
despite repeated requests by the deceased,
accused No.1-Kalappa Hanmanth did not make
payment of. Hence, there was a friction between
the deceased and accused No.1-Kalappa
Hanmanth. The accused No.1-Kalappa Hanmanth
had sold family property and retained the money
from such sale with himself and had not given the
rightful share to Suresh, another brother of the
deceased and accused No.1-Kalappa Hanmanth
due to which the deceased was insisting upon
accused No.1-Kalappa Hanmanth to either give
him a share in terms of money or buy a property
as regards his share which accused No.1-Kalappa
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Hanmanth did not want to do. It is an account of
the above two issues that their being dispute and
friction between the deceased and accused No.1-
Kalappa Hanmanth in order to put at rest these
issues wanted to get rid of the deceased. These
depositions of PWs-1, 7, 8 and 9 establish that
there was a motive on the part of accused No.1-
Kalappa Hanmanth to cause the death of the
deceased. Though a suggestion that the Accused
no.1 is sought to be fixed in the case on account of
PW.8/CW.7-Lakshmikant having received 40 lakhs
from accused no.1 for sale of his land to Accused
no.1, which he wanted to knock off has been made
Accused no.1 has not produced any document to
establish the alleged sale or payment of money,
thus this defence or story created to raise a doubt
has not been established. This motive is
established not on the basis of suspicion but on the
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basis of cogent evidence hence we are of the
considered opinion that the decision of the Hon'ble
Apex Court in Criminal Appeal No.1323/2011
(Sujit Biswas Vs. State of Assam) would not be
applicable.
55. Preparation: Accused No.1-Kalappa Hanmanth
and accused No.2-Anand Pujari are known to each
other. Accused No.3-Imamasab and accused No.4-
Mahadev Sidram who were working as coolies and
they are known to accused No.2-Anand Pujari.
Accused No.2-Anand Pujari introduced accused
No.3-Imamasab and accused No.4-Mahadev
Sidram to accused No.1-Kalappa Hanmanth who
promised to make payment of Rs.1,00,000/- each
to accused No.3-Imamasab and accused No.4-
Mahadev Sidram to carry out his work. Though
these facts are sourced from the voluntary
statements made by accused Nos.1 to 4 at
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Exs.P.50 to 53, they are not hit by embargo under
Section 26 of the Indian Evidence Act. Since it is
on the basis of such voluntary statements that the
various recoveries, more particularly, relating to
M.Os.10 to 21 were made i.e., the plastic wire
rope, petrol can, jewellery and car, these voluntary
statements would come within the exception
created by Section 27 of the Indian Evidence Act
and these statements would establish the
preparation on the part of the accused to carry out
the crime.
56. Last scene theory: PW.1/CW.1-Basanagowda
and PW.8/CW.7-Lakshmikant have deposed that
the deceased had at 1130 am gone to the house of
her daughter Shaila and thereafter to the house of
her brother Suresh from where the deceased had
after lunch gone with her brother accused no.1 to
the jewellery shop to get her chain, PW.5/CW.14-
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Rakesh, the owner of jewellery shop has deposed
that the deceased and accused No.1-Kalappa
Hanmanth came to his shop at 3 p.m. and left
together, PW.6/CW.15-Ramachandra the owner of
the utensil shop has deposed that deceased and
accused No.1-Kalappa Hanmanth came to his shop
to buy utensils, left the shop and again came back
at about 4:45 p.m. bought two big boxes, informed
him that they were not able to take the said
boxes and that they would send somebody to
collect the boxes later in the night. PW.7/CW.16-
Ramappa has deposed that he saw the deceased in
the passenger seat of the car-M.O.21 belonging to
accused No.1-Kalappa Hanmanth at Ranna Circle
at 5:30 p.m. when accused No.2-Anand Pujari,
accused No.3-Imamasab and accused No.4-
Mahadev Sidram also boarded the said car and the
car went towards Lokapur. Thus, it is clear that
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from after lunch on the ill-fated day, the deceased
was in the company of accused No.1-Kalappa
Hanmanth. Except to state that he had left the
deceased at the utensil shop, accused No.1-
Kalappa Hanmanth has not stated anything else,
more so, when the deceased and accused No.1-
Kalappa Hanmanth left together from the utensil
shop which falsifies the contention that accused
No.1 had left the deceased at the utensil shop. This
being so from the disposition and evidence tended
by PW.6/CW.15-Ramachandra who is an
independent third party witness. Further more, the
deceased and accused No.1-Kalappa Hanmanth
were seen at Ranna Circle at 5:30 p.m. i.e., after
leaving the utensil shop of PW.6/CW.15-
Ramachandra. Hence, this would also falsify the
assertion made by accused No.1-Kalappa
Hanmanth that he had left the deceased at the
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utensil shop. The CDR marked at Ex.P.60, indicates
that the deceased was in Mudhol at 17.19 hours on
23.03.2013, thereafter, there has been no phone
calls to the deceased. The accused No.1-Kalappa
Hanmanth was in Mudhol at 17.01 hours on
23.03.2013, but at 21.07 hours he was at
Batakurki i.e., the place where the body was burnt
and later found, this also indicates the presence of
Accused no.1 at that place.
57. Circumstantial evidence: The entire case of the
prosecution is based on circumstantial evidence. It
is therefore required to be seen if the chain of
events is categorically established to implicate the
accused in the death of Bebakka. As afore
observed, there was a friction between the
deceased and accused No.1-Kalappa Hanmanth as
regards the amounts payable by accused No.1-
Kalappa Hanmanth to the deceased as also
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allotting the share to the younger brother of the
deceased and accused No.1-Kalappa Hanmanth, in
furtherance of with accused No.1-Kalappa
Hanmanth was introduced to accused No.3-
Imamasab and accused No.4-Mahadev Sidram by
accused No.2-Anand Pujari and accused No.1-
Kalappa Hanmanth promised to make payment of
Rs.1,00,000/- each to accused No.3-Imamasab
and accused No.4-Mahadev Sidram for carrying
out his work, which would necessarily entail taking
care of the deceased by murdering her. As afore
observed, on the ill-fated day i.e., 23.03.2013
accused No.1-Kalappa Hanmanth accompanied the
deceased to the jewellery shop of PW.5/CW.14-
Rakesh and thereafter, to the utensil shop of
PW.6/CW.15-Ramachandra and was last seen in
the company of the deceased on the way to
Lokapur at 530 pm. The panchnama at Ex.P.8
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which was prepared at the behest of the accused
who had shown the route that they took after
leaving Ranna Circle, indicates that the accused
after crossing Jeergad at the distance of 2 kms,
went towards Ingalagi cross and after 1 km,
stopped the car and at that place, committed the
murder of deceased Bebakka by putting the plastic
wire rope around her neck and
throttling/strangulating her. Thereafter, they left
Lokapur and went towards Batakurki and Ramdurg
and at a distance of 4 km from Ramdurg entered
Mullur hill, took a kachcha road(unpaved road),
when they stopped, accused No.1-Kalappa
Hanmanth took the panch witnesses and the police
towards a ditch where he informed that they had
burnt the deceased Bebakka. Thereafter, each of
the accused individually went and identified the
said spot. Thereafter, the accused took the police
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and the panch witnesses towards Metagudd village
and then to the land belonging to accused No.1-
Kalappa Hanmanth subject matter of agreement of
sale in favour of PW.10/CW.18-Ningappa, where
the accused showed them the spot where the
Silver Maruti 800 car belonging to accused No.1-
Kalappa Hanmanth was parked, accused No.1-
Kalappa Hanmanth opened the door and from the
toolbox produced the plastic wire rope of 5 feet in
length and from the dicky produced one plastic can
having petrol which had been used to commit the
offence. Later on, accused No.1-Kalappa Hanmanth
took them to the cattle-shed where the gold
ornaments wrapped in a handkerchief were
secreted. All these items were seized and marked
as M.Os.10 to 20. Accused No.1 being in
possession of the fruits of the crime namely the
jewellery as also the items used for committing the
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murder the decision of the apex court in SHRI
BHAGWAN VS. STATE OF RAJASTHAN reported
in (2001) SCC (Cri) 1095, would be applicable.
The same affords a strong and reasonable ground
for the presumption that Accused No.1 in whose
possession they are found was the real offender,
unless he can account for such possession in some
way consistent with his innocence, which he has
not.
58. The circumstances above established through
evidence lead to an irresistible conclusion of guilt
of the accused. All the facts and evidence are
consistent, the occurrence of events cannot be
explained in any other manner other than the
drawing of the conclusion that they are guilty of
the offence alleged. The chain of evidence are so
complete that they do not leave any reasonable
ground for doubt and establish that in all human
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probability the murder of the deceased has been
committed by the accused. In view of the above
we are of the considered opinion that the decision
of the Hon'ble Apex Court in Criminal Appeal
No.632/2011 (Vijay Thakur Vs. State of
Himachal Pradesh) is not applicable to these
facts in as much as the requirements laid down
therein are satisfied in the present matter.
59. The manner in which the spots were identified and
the items seized through the accused categorically
indicate and establishes the chain of events as
they occurred. There is absolutely no break or
weakness in any of the chain of events and of all
them stand established.
60. On a reappreciation of the evidence on record we
are of the opinion that the accused are guilty of the
offences charged and the trial court has after
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appreciating all the evidence on record has rightly
passed the order of conviction, the sentences
awarded is also commensurate with the crimes
committed and as such there is no requirement to
interfere with such judgement and sentence.
61. In view of the above, we pass the following:
ORDER
The Appeals stand Dismissed.
Since accused No.1 is already in custody, the trial
Court is directed to secure the presence of accused
Nos.2 and 4 to serve the sentence.
Insofar as appellant No.1 (accused No.3) in
Criminal Appeal No.100109/2018, the same stood
abated on his death.
Sd/-
JUDGE
Sd/-
JUDGE
Jm/-
