Karnataka High Court

Shri Hanamant S/O Mambaleshappa ... vs The State Of Karnataka on 21 February, 2022

Bench: Suraj Govindaraj, J.M.Khazi

                             1




           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

    DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                         PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                           AND
       THE HON'BLE MS. JUSTICE J.M.KHAZI
           CRIMINAL APPEAL No.100296/2020

BETWEEN:

SRI. HANAMANT S/O. MAMBALESHAPPA HUDED
@ MANNUR, AGE 22 YEARS, OCC: AGRICULTURIST,
R/O. MENASAGI, TQ. RON,
DIST. GADAG,
AT PRESENT SERVING SENTENCE AT SUB-JAIL, DHARWAD

                                            ... APPELLANT
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BY RON POLICE STATION,
TQ. RON, DIST. DHARWAD,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                          ... RESPONDENT

(BY SRI. V.M.BANKAR, ADDL. SPP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
25.06.2019 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, GADAG IN S.C.NO.34/2017 THEREBY CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCES PUNISHABLE
                              2


UNDER SECTIONS 302 AND 201 READ WITH SECTION 34 OF THE
IPC, 1860, ETC.,

     THIS APPEAL COMING ON FOR FURTHER HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENET ON 23.12.2021,
THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE
FOLLOWING:

                         JUDGMENT

1. The appellant is before this Court challenging the order

of conviction and sentence passed by the Principal

District and Sessions Judge, Gadag, dated 25.06.2019

in S.C.No.34/2017, the appellant being accused No.2-

Hanamant therein.

2. The case of the prosecution was that, accused No.1-

Churchappa being the son-in-law of the complainant

caused the death of Ningabasappa, the son of the

complainant with the assistance of accused No.2-

Hanamant, in order to knockout the property of the

said Ningabasappa, which on his death would have

been succeeded to by his wife Jayashree who is the

sister of Ningabasappa. It is stated that, the accused

No.2-Hanamant called the deceased to the land of one

Shankrappa Yeligar-C.W.10 (P.W.9). They consumed

alcohol and at about 10.00 p.m., at the instance of and

on promise to make payment of Rs.60,000/- by the

accused No.1-Churchappa, they strangulated

Ningabasappa by using Ningabasappa's shirt, thereby

committing his murder and in order to conceal the

evidence, both the accused threw the dead body in the

canal situated in the land of C.W.10/P.W.9-Shankrappa

Yeligar thereby committing offences under Section 302

and 201 read with Section 34 of IPC.

3. Upon investigation being completed, the CPI, Ron,

submitted a charge-sheet against accused No.1-

Churchappa and accused No.2-Hanamant. Accused

No.1-Churchappa was in judicial custody till his death

on 04.10.2018. Accused No.2-Hanamant, being in

judicial custody, was secured and the matter was

committed to the Sessions Court, accused No.2-

Hanamant was heard before framing of charges,

charges were framed, read over and explained to him

in the language known to him i.e., Kannada. The

accused pleaded not guilty and claimed to be tried.

4. In order to prove its case, the prosecution examined 16

witnesses, P.W.1 to P.W.16, got marked 28 documents

i.e. Ex.P.1 to P.28 and 03 material objects i.e., MO.1 to

MO.3.

5. Upon closure of the evidence of the prosecution, the

incriminating evidence against the accused was put

across to the accused No.2 and he has denied the

same and his Statement under Section 313 of the

Cr.P.C., was recorded. he chose not to lead any

evidence. After hearing the arguments, the trial Court

convicted the accused No.2-Hanamant, for the offences

punishable under Sections 302 and 201 read with

Section 34 of IPC and sentenced him to undergo

imprisonment for life and to pay a fine of Rs.10,000/-,

in default thereof, to undergo simple imprisonment for

three years for the offence punishable under Section

302 read with Section 34 of IPC; to undergo rigorous

imprisonment for 5 years and fine of Rs.10,000/- and

in default thereof, simple imprisonment for 1 year and

3 months for the offence punishable under Section 201

read with Section 34 of IPC. Out of the fine amount,

an amount of Rs.5,000/- was directed to be paid to

P.W.1/C.W.1-Basamma, P.W.5/C.W.6-Jyashree &

P.W.6/C.W.7-Yallavva and balance to be appropriated

to the State.

6. The District Legal Services Authority, Gadag was also

directed to decide the quantum of compensation to be

awarded under Section 357A of Cr.P.C., to

P.W.1/C.W.1-Basamma, P.W.5/C.W.6-Jyashree &

P.W.6/C.W.7-Yallavva.

7. It is challenging the said order of conviction and

sentence that the appellant is before this Court.

8. Sri. Shivaraj S. Balloli, learned counsel appearing for

the appellant submits that-

8.1. The trial Court has not appreciated the

evidence on record in a proper and required

manner, if at all the same would have been

properly appreciated, the appellant would

have been acquitted of the offences.

8.2. There being no eyewitnesses, the entire case

of the prosecution is based on circumstantial

evidence, the story of the prosecution has not

been corroborated in any particular manner,

hence the trial Court could not have

convicted the appellant, thus requiring this

Court to interfere in the matter.

8.3. The motive ascribed to the accused No.1-

Churchappa is that by causing the death of

Ningabasappa the accused No.1-Churchappa

would, through his wife P.W.5/C.W.6-

Jyashree, succeed to the estate of the

deceased Ningabasappa. The prosecution has

not even produced any document to establish

that there was any property standing in the

name of Ningabasappa. In the absence of

such evidence being brought on record, there

could have been no allegation made as

regards the motive as ascribed to the

accused.

8.4. The entire story of the prosecution to link the

deceased with accused No.2-Hanamant is

stated to be phone calls, allegedly made by

accused No.2-Hanamant and received by the

deceased at 6.30 p.m. on 25.03.2017. The

Investigating Officer has not produced any

evidence to establish such a call. No mobile

phone has been seized nor any call detail

records pertaining to the said phone and or

the phone calls were produced. Thus, the trial

Court could not have, without documentary

evidence being on record, accepted the oral

statement of P.W.1/C.W.1-Basamma and

P.W.5/C.W.6-Jyashree as regards the phone

call alleged to have been made by accused

No.2-Hanamant to the deceased.

8.5. There is a contradiction in terms of the

complaint and the evidence, inasmuch as in

the complaint, it is alleged that the accused

No.1-Churchappa was also helping

P.W.1/C.W.1-Basamma and P.W.5/C.W.6-

Jyashree in tracing out the deceased. If that

be so, accused No.1-Churchappa could not

have committed the murder of the deceased.

Hence, the entire case against both the

accused is only a figment of imagination and

not based on any cogent evidence.

8.6. The panchas to the seizure mahazar have

turned hostile and as such, they are

unreliable witnesses. Their evidence in this

regard could not have been accepted by the

Court.

8.7. The trial Court has convicted the appellant

solely on the ground of suspicion without

there being any cogent evidence to prove

their guilt and for all the above reasons, he

submits that the appeal needs to be allowed

and the order of conviction needs to be set

aside.

8.8. The entire case of the prosecution being

based on circumstantial evidence, it is

required for the prosecution to prove all

circumstances to arrive at a conclusion that it

is only the accused who is guilty and has

committed the offence and there is no any

other conclusion which could be arrived at

than the guilt of the accused. He relies upon

the decision of the Apex Court in the case of

Padala Veera Reddy Vs. State of A.P. and

others, reported in AIR 1990 SC 79, more

particularly paragraph No.10 and 20 thereof,

which is reproduced hereunder for easy

reference:

10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held 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.

20. In Chandrakant Ganpat Sovitkar Vs. State of Maharashtra, (1975) 3 SCC 16 : (AIR 1984 SC 1290 at p. 1299), it has been observed:

"It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety"

8.9. He also relies upon the decision of the Apex

Court in the case of Shanti Devi Vs. State

of Rajasthan, reported in AIR 2012 SC

(supp) 737, more particularly paragraph

No.10 thereof:

"10. Having heard learned counsel for the respective parties and having bestowed our serious consideration to the judgment impugned before us and other material papers, as it is a case of circumstantial evidence, we wish to quote the well settled principles laid down by this Court in various decisions which are to be applied in order to examine the conclusions arrived at by the Courts below while convicting the accused based on circumstantial evidenee. The principles laid down in those decisions can be mentioned before finding out whether or not the conviction and sentence on the appellant can be held to have been established as stated in the judgment of the High Court as well as that of the learned Trial Court. The principles can be set out as under:

10.1. The circumstances from which an inference of guilt is sought to be proved must be conjointly or firmly established.

10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that with an all human probability, the crime was committed by the accused or none else.

10.4. The, circumstances should be incapable of explanation on any reasonable hypothesis, same that of the guilt of the accused."

8.10. There is no confession, let alone on extra

judicial confession which has been made by

the accused, inasmuch as what P.W.1/C.W.1-

Basamma and P.W.5/C.W.6-Jyashree have

stated is as regards their inference and or

assumption as regards the death of the

deceased. Therefore, the conclusion that

there is extra-judicial confession is

completely misplaced.

8.11. P.W.2/C.W.2-Kariappa and P.W.3/C.W.3-

Sannamallappa are shaky witnesses, who are

unreliable and untrustworthy, inasmuch as

initially they did not support the case of the

prosecution and were declared hostile by the

public prosecutor, thereafter during the

course of cross-examination, they supported

the case of the prosecution. Hence, their

testimony cannot be looked into in the

present matter.

8.12. He submits that, the so called extra-judicial

confession is not supported by any evidence,

the same is contrary to what is stated in the

FIR, the elders and other villagers before

whom the alleged statement is made have

not been examined, the phone calls said to

have been received on the phone of accused

No.1-Churchappa have not been established

inasmuch as neither the mobile phone has

been seized nor the CDRs secured and

produced.

8.13. The names of the villagers and or the elders

before whom the confession is said to have

been made is also not mentioned. In this

regard, he relies upon the decision of the

Apex Court in the case of Sahadevan and

another Vs. State of Tamil Nadu, reported

in (2012) 6 SCC 403, more particularly

paragraph No.13, 14, 15 and 16 which are

reproduced hereunder for easy reference:

"13. There is no doubt that in the present case, there is no eye-witness. It is a case based upon circumstantial evidence. In case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. Furthermore, in case of circumstantial evidence, where the prosecution relies upon an extra-judicial confession, the court has to examine the same with a greater degree of care and caution.

14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

15. Now, we may examine some judgments of this Court dealing with this aspect.

15.1. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that "an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance".

15.2. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that it is well settled that "it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession".

15.3. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that "there is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made."

15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that "an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made."

The Court, further expressed the view that,

" such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that

he may have a motive of attributing an untruthful statement to the accused."

15.5. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra- judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:

"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.

XXX XXX XXX

89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."

15.6. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-

"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore,

Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.]

30. In the present case, the extra- judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."

15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under :

"It appears therefore, that the appellant has retracted his confession. When an extra- judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."

15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find

out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].

16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused.

The Principles

i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi) Such statement essentially has to be proved like any other fact and in accordance with law.

9. Per contra, Sri. V.M.Banakar, learned Addl. SPP would

submit that-

9.1. P.W.1/C.W.1-Basamma the mother,

P.W.5/C.W.6-Jyashree the Sister of the

deceased, who is also incidentally, the wife of

the accused No.1-Churchappa, and

P.W.6/C.W.7-Yallavva, the wife of the

deceased were consistent in their statements

and have supported the case of the

prosecution.

9.2. The conduct of the accused would establish

that they are guilty of the offences alleged

against them, inasmuch as the accused No.1-

Churchappa was absconding from the date on

which the body was found i.e. 29.03.2013 and

was arrested only on 14.05.2013. The accused

No.2-Hanamant, the appellant herein, was also

absconding and was only arrested on

04.04.2013. He submits that, if at all the

accused had nothing to hide and they were not

involved in the alleged crime, they ought not

to have absconded, but should have been

present in their usual residence, since accused

No.1-Churchappa's house and the deceased

house is one and the same.

9.3. Though P.W.7/C.W.8-Kedaragowda and

P.W.8/C.W.9-Neelappa have not entirely

supported the case of the prosecution, they

have confirmed that their phone was used to

call Accused No.2 and the deceased

Ningabasappa. Thus, to that extent, the case

of the prosecution is established.

9.4. The confession was made before the witnesses

who have deposed thereto, the evidence on

record is sufficient to establish the guilt of the

accused.

9.5. On this basis, he submits that, the order of

conviction and sentence passed by the trial

Court is proper and correct.

10. The evidence of the various witnesses who have

deposed in the matter are as under:

11. C.W.1/P.W.1 is the mother of the deceased

11.1. She has stated that the deceased

Ningabasappa is her son. Accused No.1-

Churchappa is her son-in-law, who is married

to her daughter P.W.5/C.W.6-Jayashree. She

stated that accused No.2-Hanamant is a friend

of her deceased son. They have two acres of

land with a house, she has two children, the

deceased Ningabasappa and C.W.7/P.W.5-

Jayashree who is married to accused No.1-

Churchappa. The deceased was married to

P.W.6/C.W.7-Yallavva, however she had gone

back to her matrimonial home.

11.2. P.W.1/C.W.1-Basamma has stated that on

Ugadi day, someone from her village had

expired, hence, she had gone there and when

she came back home her son(Deceased) was

not there, hence she asked her daughter

(P.W.5/C.W.6-Jyashree) about it, when she

had informed that accused No.2-Hanamant had

called the deceased son's phone 4-5 times, and

asking him to come. Hence, the deceased

informing P.W.5/C.W.6-Jyashree that he has to

go there, had left home. P.W.1/C.W.1-

Basamma has further stated that at that time

her son-in-law accused No.1-Churchappa was

not present at home, she and her daughter

P.W.5/C.W.6-Jyashree, went around the village

searching for the deceased.

11.3. They requested P.W.7/C.W.8-Kedaragowda to

call the mobile no of Accused No.2 Hanamant

when he informed them that her son was at

home. When they came back home, they did

not find the deceased at home. Thereafter,

they requested P.W.8/C.W.9-Neelappa to call

her son when her son picked up the phone and

replied that he was not able to see and that

someone had brought him to some place and

he was in a shed.

11.4. She has stated that both the accused came to

the village on the next day at 11 pm, they

assisted the complainant in the search of her

son and they searched for him in all the nearby

villages. She has further stated that near

Jakanoor bridge, the accused No.2-Hanamant

had asked her to look below the bridge, with

an intention to push her and kill her also.

Thereafter, they went to Konnur, Shiralli,

Hallihal, searching for her son.

11.5. Around 12.00 midnight accused No.2-

Hanamant had called accused No.1-

Churchappa several times in between 1.00 am

to 2.00 am. Accused No.1-Churchappa had left

the phone at home and was sleeping on the

terrace. She did not received the call. Next

day, she took the said phone and shown it to

the people in the village asking whose number

it was, from which the phone calls had been

received, when she was informed that it

belongs to accused No.2-Hanamant. Her

neighbors brought accused No.2-Hanamant

and asked him why he was calling so late in

the night. At that time, accused No.2-

Hanamant is stated to have informed before

everyone that deceased was called to work at

a farm at which point they killed him and

shoved the body in some thorny bushes at

P.W.9/C.W.10-Shankarappa Yaligar's farm.

11.6. She has stated that thereafter she and others

went to the place described by accused No.2-

Hanamant, found and identified the body to be

that of her son. She saw that the shirt of her

son was wrapped around the neck of her son.

Maggots had eaten the body. She has further

stated that the body was secreted in some

thorny bushes.

11.7. It is only then, she came to know that the

accused No.1-Churchappa and accused No.2-

Hanamant have caused the death of her son.

Thereafter, she gave a complaint in this

regard. She states that, accused No.1-

Churchappa and accused No.2-Hanamant had

absconded from the place. She further stated

that accused No.1-Churchappa promising to

make payment of Rs.60,000/- and having

given an advance of Rs.30,000/- to accused

No.2-Hanamant had together caused the

death of the deceased.

11.8. In the cross-examination she has stated that

P.W.6/C.W.7-Yallavva is her daughter-in-law.

She has denied that P.W.6/C.W.7-Yallavva has

filed any case against her son. She has denied

that her son and daughter-in-law were

divorced. She has denied that since

P.W.6/C.W.7-Yallavva has not come back

home, her son was in a depressed mood,

because of this he would come back home

whenever he wanted during the night time.

11.9. She has stated that, when she found him on

the fateful day, accused No.1-Churchappa was

not at the house. She has denied that in the

complaint lodged with the police she has stated

that accused No.1-Churchappa had

accompanied her and her daughter while

searching for her son.

11.10. She has denied that, because accused No.1-

Churchappa cannot see properly, he does not

go out in the night. When she called her son

using the phone of P.W.8/C.W.9-Neelappa, her

son has informed that he was in a shed,

however, when she went to the shed there was

no one found. She has further stated that, only

she and her daughter had gone to the shed.

She has denied that, accused No.1-Churchappa

was searching for her son.

11.11. She stated that, when her son informed her

that he has been put in a dark place, she did

not lodge a complaint, but informed the elders

in the village. She has denied all other

suggestions put across to her. She has denied

that she has given a false statement or a false

complaint. She has denied that the dead body

was not that of her son. She has reiterated the

prosecution story. She has stood the test of

cross-examination and supported the case of

the prosecution.

12. C.W.2/P.W.2 Kariyappa Pujar, a witness to the inquest

mahazar has identified the same as Ex.P.4.

12.1. He has stated that the accused had shown the

scene of crime where the panchanama was

conducted which he has identified as Ex.P.5

and his signature at Ex.P.5A. He states that,

the body of the deceased was found in the

Canal of the land of Mr. Yaligar. He has stated

that when he saw the body, the body had been

eaten by maggots. He then stated that he was

not aware of the contents of the documents.

He has confirmed that the accused No.2-

Hanamant was present with the police at that

time, but he has denied that any item was

seized in his presence.

12.2. Hence, the learned Public Prosecutor sought

permission to treat C.W.2/P.W.2 as a hostile

witness and sought permission to cross-

examine him.

12.3. During the course of cross-examination, he has

stated that, on 04.04.2017, the accused No.2-

Hanamant had taken everybody and shown

them the place where the murder of

Ningabasappa was committed. He has stated

that after seeing that the police prepared

mahazar and got his signature.

12.4. Near the Shami tree (Banni Gida) one plastic

glass with Hayward's beer tetra packet was

shown to the police, but he does not know

whether the police took them or not. He stated

that, the accused No.2-Hanamant had told the

police in front of him that accused No.2-

Hanamant and accused No.1-Churchappa had,

together, strangulated Ningabasappa and

thrown the body near the canal in Yalagar's

land.

12.5. In the cross-examination by the counsel for the

accused, he states that he does not know the

contents of Ex.P.5. He has denied all

suggestions put across to him.

13. C.W.3/P.W.3 who is another witness to the inquest and

spot mahazar.

13.1. He has identified his signature as Ex.P.4B and

Ex.P.5B. He has stated that he has seen the

body of the deceased in Yalagar's land when

the body's neck was wrapped in a shirt. He has

stated that the police have seized few items in

his presence. But he does not know what those

items were. He does not know who showed the

items to them and from where they came. At

this time, the learned Public Prosecutor sought

permission to treat him as hostile and cross-

examine him.

13.2. In his cross-examination he has admitted that,

on 04.04.2017 between 2.15 p.m to 3.15 p.m.,

the accused No.2-Hanamant had taken them

to P.W.9/C.W.10 Shankrappa Yaligar's land,

underneath the Shami tree (Banni Gida).

Accused No.2-Hanamant has stated that on

25.3.2017, he along with accused No.1-

Churchappa removed the shirt of the deceased

and strangulated the neck by using the shirt of

the deceased and the spot shown by him was

identified, where one plastic glass with

Hayward's beer tetra pack was also shown,

which was seized by the police. He admitted

that, the plastic glass and Hayward's beer tetra

pack, shown in the Court were the ones which

had been seized on that day. They are marked

as MO.2 and MO.3.

13.3. He admits that accused No.2-Hanamant had

informed everyone that after murdering the

deceased they had thrown the body of the

deceased in the Canal near P.W.9/C.W.10

Shankrappa Yaligar's land.

13.4. In the cross-examination by the counsel for the

accused, he has denied all the suggestions put

across to him. He has reiterated the

statements made in his deposition. He has

supported the case of the prosecution and

nothing much was elicited from him during the

course of cross-examination.

14. C.W.4/P.W.4 Nagappa Asuti is a spot mahazar witness.

14.1. He admits his signature in the mahazars which

are marked as Ex.P.6 and P.7., wherein his

signatures are marked as Ex.P.6A and Ex.P.7A.

He has admitted that in the photo at Ex.P.3

himself, C.W.5 Subash, P.W.1/C.W.1-

Basamma, accused No.1-Charchappa are seen,

but later he retracts his statement and states

that accused No.1-Charchappa is not there.

The police are seen in the said picture. He has

stated that the photographs were taken as

regards the death of son of P.W.1/C.W.1-

Basamma. He states that the panchanama

was drawn between 3.00 p.m. to 5.00 p.m. as

per Ex.P.6. There was another mahazar as per

Ex.P.7 prepared which he has signed on that

day. He has identified the shirt of Ningappa

which has been marked as MO.1.

14.2. In the course of cross-examination, he has

stated that at 9.30 a.m., C.W.1/P.W.1-

Basamma had sent one Shivappa Hubballi,

asking him to go to a place to conduct

panchanama, hence, he had gone there. He

states that he does not know who wrote the

panchanama or what is written in the mahazar.

Because the police called him, he stood in the

photograph.

15. C.W.6/P.W.5 Jayashree Gadadar is the sister of the

deceased; wife of accused No.1 and daughter of PW1;

15.1. She has stated that P.W.1/C.W.1-Basamma is

her mother, the deceased is her elder

brother, the accused No.1-Churchappa is her

husband, accused No.2-Hanamant is the

friend of her deceased brother. She states

that, her father and mother have only two

children i.e. herself and the deceased brother

and her father has expired. Her brother had

been married around two years ago to

P.W.6/C.W.7-Yallavva, she knows

P.W.7/C.W.8-Kedaragowda, P.W.8/C.W.9-

Neelappa and P.W.9/C.W.10-Shankarappa.

P.W.6/C.W.7-Yallavva is residing in her

matrimonial home.

15.2. On 25.03.2017 between 6.30 p.m to 7.00

p.m., she and her brother were at home and

her mother had gone to a funeral. At that

time, accused No.2-Hanamant had called her

brother on his phone and asked him to come

immediately. She states that, accused No.2-

Hanamant called him 2-3 times, due to which

her brother had told her that he would go and

meet him and come back. She further states

that, at that point of time, her husband was

not at home.

15.3. Thereafter at 7.30 to 8.00 p.m, when her

mother came back home, using the phone of

P.W.7/C.W.8-Kedaragowda they called up

accused No.2-Hanamant when he informed

them that her brother had gone back home.

Since her brother had not come back, she

and her mother were searching for her

brother Thereafter by using the phone of

P.W.8/C.W.9-Neelappa, they called to the

mobile of her brother when her brother

informed her that it was dark, he could not

see and that he was in a shed, at this time

they returned home.

15.4. She states that her husband got back home at

10.30/11.00 p.m., however, her brother did

not get back. For next two days she and her

mother searched for her brother in Shirolli,

Badami, Konnur, Naragund. However, they

did not find him.

15.5. After 5 days, they came to know that on the

boundary of the land beside their land, her

brother's body was found near some thorny

bushes. Her brother's red shirt had been

removed and was tied around his neck,

maggots were eating into the body.

15.6. On the night before the body was found,

accused No.2-Hanamant had called her

husband between 12.00 midnight to 3.00

a.m. around 2-3 times when her husband

was sleeping on the terrace and the mobile

was inside the house and in the morning, in

the presence of the elders, accused No.2-

Hanamant was brought there and was

enquired as to why he had called at night to

which he replied that the phone call was

made accidentally. She has stated that she

came to know that since accused No.2-

Hanamant used to roam around with her

deceased brother, accused No.2-Hanamant

and her husband accused No.1-Churchappa

with an intent to usurp the property

belonging to her matrimonial home had killed

her brother. Since on his expiry the property

would go to her and in turn to her husband.

15.7. She has further stated that, when they were

searching for her brother near Jakanooru

bridge, accused had also tried to kill her

mother.

15.8. In the cross-examination she has stated that

P.W.6/C.W.7-Yallavva had been married to

the deceased, however, she had gone back to

her matrimonial home, despite efforts being

made by the elders, she did not come back,

she denies that because of this her brother

was unhappy. She denies that, her brother

had 4-5 friends. She has stated that the

deceased had only one friend namely accused

No.2-Hanamant. Her brother would not drink

alcohol, but if somebody forced him, he

would. She admits that, her husband accused

No.1-Churchappa had a visual disability

around 75% and would get Rs.1200/- on

account of that. She denied that because he

was unable to see, he could not go out at

night. She denied all other suggestions put

across to her and has stood the test of cross-

examination and supported the case of the

prosecution.

16. C.W.7/P.W.6 Yallavva Yaligar is the wife of the

deceased.

16.1. She has stated that P.W.1/C.W.1-Basamma is

her mother-in-law, deceased is her husband

and P.W.5/C.W.6-Jyashree is her sister-in-law.

Accused No.1-Churchappa, who has expired,

was the husband of P.W.5/C.W.6-Jyashree.

She knows accused No.2-Hanamant, who is a

friend of her dead husband. P.W.7/C.W.8-

Kedaragowda, P.W.8/C.W.9-Neelappa and

P.W.9/C.W.10 Shankrappa Yaligar are the

members of the village.

16.2. She states that accused No.1-Churchappa and

accused No.2-Hanamant have together caused

the death of her husband and at that time, she

was in her maternal home. She got to know

when someone from Menasagi village called,

then she came to Menasagi and found out that

accused No.1-Churchappa and accused No.2-

Hanamant have caused the death of her

husand to usurp the property of her husband,

she has stated about where the body was

found and the strangulation thereof, and that

she does not know anything else.

16.3. The learned Public Prosecutor sought

permission to treat her as a hostile witness and

sought permission to cross-examine her. In the

cross-examination she has stated that on

26.03.2017 P.W.5/C.W.6-Jyashree had called

and asked her if the deceased had come to her

house. She admits that P.W.5/C.W.6-Jyashree

has told that they had searched for him

everywhere and did not find him.

16.4. On 29.03.2017 in the morning P.W.5/C.W.6-

Jyashree had called and informed her that her

brother Ningabasappa had been killed by

accused No.1-Churchappa and accused No.2-

Hanamant and they have identified the body

on the basis of the clothes worn by him, and

also as regards where his body was found etc.,

16.5. She has reiterated about the time when her

husband went missing, search made for him,

finding of the body, complaint filed, etc., which

had been informed by P.W.1/C.W.1-Basamma

and P.W.5/C.W.6-Jyashree to her.

16.6. In the cross-examination by accused, she

denies that she does not know accused No.2-

Hanamant. She denies that accused No.1-

Churchappa gets Rs.1200/- per month on

account of his visual impairment. She denies

that after 10 p.m accused No.1-Churchappa

does not go out. She has denied all the

suggestions which have been put to her and

she stood the test of cross-examination and

supported the case of the prosecution.

17. C.W.8/P.W.7 Kedaragouda Mannur has stated that, he

does not know anything about the incident and he has

not given any statement to the police. The learned

Public Prosecutor has sought permission to treat him as

hostile and cross-examine him. In furtherance thereof,

he has been cross-examined and in the cross-

examination he has admitted that he had at the

request of P.W.1/C.W.1-Basamma and P.W.5/C.W.6-

Jyashree called the deceased from his phone, and gave

the phone to them when they spoke to the deceased.

In the cross-examination by the counsel for the

accused, he has reiterated the same statement that he

had made the call to the deceased and gave it to

P.W.1/C.W.1-Basamma and P.W.5/C.W.6-Jyashree

who talked to him on that phone, hence his

examination and cross-examination supports the fact of

the call having been made.

18. C.W.9/P.W.8 Neelappa Huded has also stated that, he

does not know anything about the incident and he has

not given any statement to the police. The learned

Public Prosecutor has sought permission to treat him as

hostile and cross-examine him. Nothing much was

elicited during the course of cross-examination to

support the case of the prosecution.

19. C.W.10/P.W.9 Shankrappa Yaligar is the owner of the

land beside which is the canal where the body was

found, he has stated that he does not know anything

about the incident. The prosecution sought permission

to treat him as hostile. He has been cross-examined

and nothing much was elicited from him during the

course of cross-examination.

20. C.W.11/P.W.10 Dr. Neelappa Pujari is the General Duty

Medical Officer at primary health Centre, Hole-Alur, he

has conducted the postmortem of the body of the

deceased Ningabasappa on 29.03.2017. He has stated

that, the death may be due to hanging and may be

caused by use of MO.1 Shirt against the neck and also

by putting pressure and pulling it. In the cross-

examination he denies that U-shaped marks are found

in a case of hanging and that he has given false

evidence.

21. C.W.13/P.W.11 Kashinath Baligerimath who carried the

First Information Report and the complaint to the

jurisdictional magistrate. He has denied the

suggestions put across to him and supported the case

of the prosecution.

22. C.W.12/P.W.12 Ravindra Yaligar is the Assistant

Engineer, P.W.D. who has prepared the sketch of the

spot as per the request made by CPI, which is

identified as Ex.P.20 and his signature at Ex.P.20A. He

has denied all suggestions made to him during the

course of cross-examination. He stood the test of

cross-examination by the prosecution and supported

the case of the prosecution.

23. C.W.14/P.W.13 Veerabhadrappa Hullur is the police

constable who had taken the body for postmortem,

received the postmortem report, handed over the body

to the family. In the cross-examination he has denied

all suggestions put across to him. Nothing much was

elicited from him.

24. C.W.15/P.W.14 Parashuram Maitri stated that on

29.03.2015 at 12.15 p.m., when he was in the police

station, Basamma Yaligar came to the police station

and gave a written complaint on which basis Crime

No.42/2017 came to be registered. He directed the

constable to take it to the Magistrate. He identifies the

complaint as Ex.P.1. In the cross-examination he has

denied the suggestions put across to him. He

supported the case of the prosecution.

25. Additional witness No.1/P.W.15 Ramesh Mijaguppi is

the scribe to the complaint. He has stated that he has

written the complaint as stated by the P.W.1/C.W.1-

Basamma and identified the complaint as Ex.P.1.

Nothing much was elicited from him, during the course

of cross-examination.

26. C.W.16/P.W.16 Siddappa Bilagi is the Investigating

Officer. He has stated how the complaint was received

on 29.03.2017. A spot mahazar was conducted on the

very same day between 2.00 p.m. to 3.00 p.m. as per

Ex.P.4, the body was sent for postmortem. In the

presence of P.W.4/C.W.4-Nagappa and C.W.5-shubash,

the panchas, the spot panchanama was done as per

Ex.P.6. The sketch of the place is as per Ex.P.24. The

inquest panchanama was conducted between 5.15 p.m.

to 6.15 p.m. in the presence of P.W.4/C.W.4-Nagappa

and C.W.5-shubash as per Ex.P.7. The postmortem

report was at Ex.P.22. He has recorded the statement

of P.W.5/C.W.6-Jyashree, P.W.6/C.W.7-Yallavva,

P.W.7/C.W.8-Kedaragowda, P.W.8/C.W.9-Neelappa

and P.W.9/C.W.10 Shankrappa Yaligar , whose

statements have been marked as Ex.P.8, Ex.P.9,

Ex.P.11 and Ex.P.14. The Tahashildar inspected the

place on 04.04.2017. On 04.04.2017 accused No.2-

Hanamant was arrested and produced before him and

his voluntary statement was recorded. Accused No.2-

Hanamant took him to the spot, where the body was

thrown, when P.W.2/C.W.2-Kariyappa, P.W.3/C.W.3-

Sannamalappa were present and acted as panchas. In

the place shown by accused No.2-Hanamant, an empty

Hayward's beer tetra pack was found and there was an

empty plastic glass at that place which have been

marked as MO.2 and MO.3. He took additional

statement of P.W.5/C.W.6-Jyashree, P.W.6/C.W.7-

Yallavva, P.W.7/C.W.8-Kedaragowda, P.W.8/C.W.9-

Neelappa and P.W.9/C.W.10 Shankrappa Yaligar . On

14.05.2017 accused No.1-Churchappa was arrested.

His voluntary statement was recorded. On 19.05.2017,

the sketch of the spot was received. After conducting

the investigation he has submitted the charge-sheet. In

the cross-examination he has stated that, no

documents as regards the property standing in the

name of the deceased Ningabasappa has been

produced. He has denied all other suggestions made to

him.

27. C.W.16/P.W.16-Investigating Officer was recalled on

19.02.2019 and at this time, the voluntary statement

of accused No.2-Hanamant was produced and marked

as Ex.P.26. He identified his signature at Ex.P.26A. In

the cross-examination he has denied that the shirt at

MO.1 was not seized from the spot. He has denied that,

accused No.2-Hanamant did not give a voluntary

statement. He has denied all other suggestions put to

him.

28. It is in the above background that we have to

consider if the prosecution has been able to prove

its allegations against accused No.2 since accused

No.1 has expired even prior to the charges having

been framed.

28.1. There being no eye witnesses, what has to

be ascertained is whether the

circumstances proved and/or established

by the prosecution would lead to an

irresistible conclusion that the accused has

committed a crime that he was charged

with.

28.2. The Apex Court in Padala Veera Reddy's

case as also in Shanti Devi's case has

categorically held that the circumstances

from which an inference of guilt is sought

to be proved must be conjointly or firmly

established. In Shanti Devi's case, the

Apex Court has laid down 4 tests which

have been reproduced hereinabove. It is,

therefore, required to be verified if these

tests have been fulfilled.

28.3. From the analysis of the evidence on

record, the story that emerges is on

25.03.2017, PW-1 had gone to attend a

funeral, the deceased received a call at

6.30 p.m. from accused No.2-Hanamant

upon which he informed his sister-PW-5-

Jayashree that he would go and meet

accused No.2. Thereafter, he did not

return. At that time, accused No.1 was not

at home.

28.4. Upon PW-1 returning home and being

informed of the above by PW-5, PW-1 and

PW-5 went in search of the deceased.

When they did not find the deceased, they

requested PW-7 to call the mobile number

of accused No.2. Upon PW-7 calling

accused No.2 and handing over the phone

to PW-1, accused No.2 is stated to have

informed PW-1 that her son (deceased)

was at home. Upon hearing this, PW-1 and

PW-5 went back to home but they did not

find the deceased at home.

28.5. Later on, again they went in search of the

deceased and this time, they requested

PW-8 to call her son's mobile and when her

son took the call, he informed that

somebody had brought him to a dark place

and that he was in a shed. Hence, PW-1

and PW-5 came back home and looked for

the deceased in their shed but did not find

him. Thereafter, they did not do anything.

28.6. The next day, accused Nos.1 and 2 assisted

PW-1 and PW-5 in the search of the

deceased. They went to nearby villages

but did not find the deceased.

28.7. That night when the accused No.1 was

sleeping on the terrace, accused No.2 is

stated to have called to the mobile of

accused No.1 several times. Though this

call was not received by PW-1 or PW-5, the

next day PW-1 enquired about the phone

number from which the call was made

among the villagers who had informed her

that the same belongs to accused No.2.

Hence, accused No.2 was brought before

PW-1, PW-5 and other villagers where he

has stated that he along with the deceased

had gone to work in a farm when he and

accused No.1 caused the death of the

deceased and threw his body in some

thorny bushes in PW-9's land.

28.8. Pursuant to the said statement made, PW-

1, PW-5 and others went to the place

described by accused No.2 where they

found the body of the deceased with his

shirt wrapped around his neck. Pursuant

thereto, a complaint came to be lodged

against accused Nos.1 and 2. By that time,

accused Nos.1 and 2 had absconded. From

accused No.2, they also came to know that

accused No.1 had promised to pay a sum

of Rs.60,000/- to accused No.2 and the

deceased was murdered so that PW-5, wife

of accused No.1, succeeds to the family

properties on the expiry of the deceased.

28.9. Inquest mahazar was conducted for which

PW-2 and PW-3 were witnesses. Both of

them were treated as hostile witnesses.

However, in the cross-examination, they

have admitted their signature on the

mahazar, they for having seen the body of

the deceased in the land of PW-9 and

accused No.2 having taken them to the

said land, shown the body as also the

plastic glass and Haywards tetra pack.

They have also stated that accused No.2

had admitted before them about having

caused the death of the deceased along

with accused No.1. Similar is the

deposition of PW-4, who is a spot mahazar

witness.

28.10. PW-7 and PW-8 from whose phone, calls

were alleged to have been made to

accused No.2 and deceased have both

stated that from their phone, calls were

made to the deceased. Neither of them

have mentioned anything about the call

having been made to accused No.2. The

other witnesses are official witnesses who

have supported the case of the

prosecution.

28.11. In the above story arising out of the

depositions of the various witnesses in our

considered view there are several lacuna.

28.12. In that, upon the return of PW-1 from the

funeral, there was absolutely no need for

PW-1 and PW-5 to go in search of the

deceased.

28.13. PW-1 has deposed as also stated in the

complaint lodged by her that they

requested PW-7 to make a call to accused

No.2 to enquire about whereabouts of

deceased son. This is also surprising for

the reason that admittedly the deceased

possessed a mobile phone. If that be so,

there was no reason to call accused No.2 to

make enquiries. The call could have been

made to the deceased.

28.14. The deposition of PW-7 is contrary to the

deposition of PW-1 inasmuch as PW-7 has

stated that the call was made to the

deceased whereas PW-1 has stated that

the call was made to accused No.2.

28.15. In the said call, accused No.2 is alleged to

have informed PW-1 that the deceased was

at home. When they came back home and

not finding the deceased, they again went

in search and this time requested PW-8 to

call the deceased. When the deceased had

allegedly informed PW-1 that someone had

brought him to a dark place and put him in

a shed. At this stage, PW-1 and PW-5 are

stated to have returned back home and

seen in their shed and they did not find the

deceased. This again is contradictory

inasmuch as according to PW-1 the

deceased had informed her of someone

having taken him to a dark place and put

him in a shed. If that be so, then PW-1

ought to have immediately approached the

police and/or elders of the village seeking

for intervention and action. However,

nothing was done till the next day.

28.16. This aspect is also contradictory to the

alleged extra judicial confession inasmuch

as accused No.2 is stated to have

confessed before the villagers that he along

with the deceased had gone to work in a

farm where the accused No.2 and accused

No.1 had strangulated the deceased

causing his death inasmuch as the place of

occurrence is stated to be the farm of PW-9

near a shami tree where there is no shed

situate. Thus, it was not possible for the

deceased to have allegedly informed PW-1

about him having brought to a shed.

28.17. There is one more contradiction inasmuch

as in the complaint-Ex.P1 lodged by PW-1,

the complainant PW-1 has stated that PW-

1, PW-5 and accused No.1 were searching

for the deceased whereas surprisingly in

the deposition and thereafter it has been

stated that accused No.1 was not at home

or not with them. If accused No.1 was not

with them, the complaint could not have

been filed stating that accused No.1, PW-1,

Pw-5 were searching for the deceased. If

accused No.1 was infact with them, then

causing the death of the deceased on that

very night would not have arisen since the

story of the prosecution and that of the

alleged extra judicial confession is that

accused No.1 and 2 and the deceased were

drinking alcohol below the shami tree in the

land of PW-9 when accused No.1 promising

him to make payment of money had sought

the assistance of accused No.2 to cause the

death of the deceased.

28.18. The next contradiction arises when on the

next day, PW-1 and PW-5 along with

accused Nos.1 and 2 are stated to have

gone in search of the deceased to various

villages when it is alleged that near

Jakanoor bridge, the accused had also tried

to kill PW-1. Admittedly, there is no

complaint filed in this regard. All these

aspects was only brought about in

deposition of PW-1 and PW-5. Needless to

say that there are also no witnesses to this

incident.

28.19. On that night, it is alleged that accused

No.2 had called accused No.1 between

12.00 mid night and 3.00 a.m. on several

occasions and on the next day, PW-1 had

enquired from the villagers as to whose

number it was, from where the phone call

was made to accused No.1's mobile, when

she was informed that the said number

belonged to the accused No.2. If that be

so, then it would amount to PW-1 not

knowing the mobile number of accused

No.2, which in turn would mean that the

allegation made by PW-1 that she had

requested PW-7 to call the mobile of

accused No.2 on the date of disappearance

of the deceased is incorrect since

apparently she did not even know the

mobile number of accused No.2.

28.20. Though it is alleged that accused No.2 was

brought before the villagers and he had

confessed about him and accused No.1

having caused the death of the deceased,

none of the villagers before whom such a

statement has been made, have been

examined to give effect to or support this

extra judicial confession. The requirements

laid down by the Apex Court in

Sahadevan's case supra have not been

satisfied inasmuch as the same does not

inspire confidence nor is it supported by

any chain of cogent circumstance or

corroborated by any other prosecution

evidence. As observed, this so called extra

judicial confession suffers from material

discrepancies and the evidence of PW-1

and PW-5 is contradictory to the so called

extra judicial confession.

28.21. The extra judicial confession is premised on

the phone calls alleged to have been made

by accused No.2 to accused No.1 from

12.00 mignight to 3.00 a.m. Neither the

mobile phones of accused No.1 and

accused No.2 have been seized nor Call

Detail Records (CDR) have been produced

by the prosecution to establish that such

calls having been made. In the absence

thereof, the statement of PW-1 and PW-5

not having been supported do not muster

any credibility for our consideration.

28.22. It is the further case of the prosecution

that upon the extra judicial confession

being made, accused No.2 also took the

people to the land of PW-9 and showed

where the body was secreted as also the

spot where accused Nos.1 and 2 and the

deceased consumed liquor.

28.23. The evidence also indicates, by that time,

the police had already arrived at the spot.

28.24. This anomaly has also not been explained

inasmuch as until that time there is no

complaint which had been lodged, the

reason as to why the police had come to

the village and were available at the spot is

not forthcoming. Thus, giving rise to

several doubts in our mind as regards the

occurrence of these events viz., extra

judicial confession and the recovery of the

dead body as also MO-1 to 3 through

accused No.2. This recovery being

suspect.

28.25. It is only on the basis of the said extra

judicial confession and recovery of the

body that a complaint came to be filed by

PW-1, the discrepancies in the complaint

having been already dealt with earlier.

28.26. Lastly coming to the motive, it is alleged

that accused No.1 enlisted the support of

accused No.2 to do away with the deceased

so as to enable his wife, the sister of the

deceased, to succeed to the family

properties. Though such allegations have

been made in the complaint and

statements having been made in the

deposition of PW-1 and PW-5, the

prosecution has not produced any

documents to establish that any property

was owned by the deceased and/or family

of the deceased. Thus, the very foundation

of the case of the prosecution relating to

the motive has not been explained.

29. In the above circumstance, the evidence being

circumstantial, we are of the considered opinion

that the requirements laid down by the Apex Court

in Padala Veera Reddy's case and Shanti Devi's

case have not been fulfilled. The circumstances

established by way of evidence do not lead to an

irresistible inference of guilt. Circumstances are

also not definite to point to the guilt of the accused

No.2. The chain of events are replete with

contradictions and/or discrepancies and do not lead

to a conclusion that accused No.2 had committed a

crime more so that being one of offence under

Section 302 of IPC.

30. The above being our re-appreciation of the

evidence on record, we are of the considered

opinion that the trial Court has misconstrued itself

and has returned a verdict of conviction only on

the basis of surmises, conjectures and suspicion.

The evidence on record does not establish the guilt

of accused No.2 and as such, we are of the

considered opinion that the judgment is required to

be set aside.

31. Hence, we pass the following:

ORDER

i) The appeal filed by the accused is allowed.

ii) The judgment of conviction dated 25.06.2019

and order of sentence dated 04.07.2019

passed in S.C.No.34/2017 by Principal

District and Sessions Judge, Gadag is set

aside.