Karnataka High Court
Channappa G S/O Malleshappa vs The State Of Karnataka on 22 February, 2024
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CRL.A No. 100438/2019
c/w CRL.A No. 100439/2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22nd DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100438 OF 2019
C/W
CRIMINAL APPEAL NO. 100439 OF 2019
IN CRL.A NO. 100438/2019
BETWEEN:
SAVITHA B. W/O. LATE MUDDAPPA B.,
AED ABOUT 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHIKKAJOGIHALLI VILLAGE,
KUDLIGI TALUK, DISTRICT-BALLRI.
...APELLANT
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
AND:
Digitally signed
THE STATE OF KARNATAKA
by
SHIVAKUMAR
BY CPI, KOTTUR CIRCLE, HOSAHALLI POLICE STATION,
HIREMATH REPRESENTED BY STATE PUBLIC PROSECUTOR,
Date:
2024.02.23 ADVOCATE GENERAL'S OFFICE,
13:16:48 +0530
HIGH COURT PREMISES, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF THE CONVICTION
21/09/2019 AND ORDER OF SENTENCE DATED 24/09/2019
PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND
SESSIONS JUDGE BALLARI (SITTING AT HOSAPETE) IN
SESSIONS CASE NO.5063/2014 THEREBY CONVICTING
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CRL.A No. 100438/2019
c/w CRL.A No. 100439/2019
APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION
120B, 302, 201 R/W. 34 OF IPC AND CONSEQUENTIALLY ACQUIT
THE APPELLANT HEREIN ACCUSED NO. 1 OF ALL THE CHARGES
LEVELED AGAINST HER, IN INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO. 100438/2019
BETWEEN:
CHANNAPPA G. S/O. MALLESHAPPA,
AGE ABOUT 42 YEARS, OCC: FORMER,
R/O: SIDDAPURA VILLAGE, TQ: KUDLIGI,
DIST: BALLARI.
...APELLANT
(BY MISS. RANJITA RADDI ALAGAWADI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CPI, KOTTUR CIRCLE,
HOSAHALLI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT PREMISES, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF THE CONVICTION
21/09/2019 AND ORDER OF SENTENCE DATED 24/09/2019
PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND
SESSIONS JUDGE BALLARI (SITTING AT HOSAPETE) IN
SESSIONS CASE NO.5063/2014 THEREBY CONVICTING
APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION
120B, 302, 201 R/W. 34 OF IPC AND CONSEQUENTIALLY ACQUIT
THE APPELLANT HEREIN ACCUSED NO. 1 OF ALL THE CHARGES
LEVELED AGAINST HER, IN INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR HEARING HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI
K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100438/2019
c/w CRL.A No. 100439/2019
JUDGMENT
These appeals by the convicted accused arising out
of judgment of conviction and order of sentence dated
21.09.2019, passed by the III Addl. District and Sessions
Judge, Ballary (Sitting at Hosapete), in SC No. 5063/2014,
wherein, the learned Sessions Judge has convicted both
the accused for the offences punishable under Sections
120(B), 302 and 201 read with Section 34 of Indian Penal
Code (for short 'IPC') and sentenced them to undergo
rigorous imprisonment for life till their lifetime and to pay
fine of Rs. 25,000/- each, in default of payment of fine
amount, they shall further undergo imprisonment for a
period of six months for the offences punishable under
Sections 302 and 120B read with Section 34 of IPC.
Further, the learned sessions Judge also sentenced them
to undergo rigorous imprisonment for a period of 3 years
and to pay fine of Rs.5,000/- each, in default of payment
of fine, they shall further undergo imprisonment for a
period of 3 months. Learned Sessions Judge has also
ordered that, both the sentences shall run concurrently.
2. Parties are referred to their original rankings
before the trail Court. Accordingly, accused No.1 is the
appellant in Criminal Appeal No.100438/2019, accused
No.2 is the appellant in Criminal Appeal No.100439/2019
and the state is respondent in both the appeals.
3. The factual matrix of the prosecution case in
brief are as follows-
A Complaint came to be filed by B.Basavaraju-PW1
stating that, his brother Muddappa-now deceased in this
case, was married to accused No.1, 15 years back and out
of the said wed-lock, they also have two children, who are
studying in BEST school, Ballari. Further, it is the case of
the prosecution that, since, the deceased was a Head
Master and the children are also studying in Ballari, he
along with his wife-accused No.1, was residing in
Chikkajogihally village, in a rented house belonging to K.
Vamanna-PW.16. It is further presented that, post
marriage, in the recent decade, the marital relationship of
the deceased and accused No.1 was strained, as deceased
used to question the accused No.1, as to her fidelity and
as such, they also had frequent quarrels among them. In
this regard, PW.1-Complainant along with PW.4 and PW.13
had advised, both the deceased and accused No.1 to live a
fruitful marital life. It is also the case of the prosecution
that, in relation to the same quarrel, the brothers and
father of accused No.1 had also quarreled with the
deceased, warning him, not to torture accused No.1 by
questioning her fidelity.
4. Further, on 15.06.2014, at about 07.00 am,
one Thipperudrappa, relative of PW.1, informed PW.1 that,
Muddappa (now deceased) was lying dead near the field of
Kurihatti Thippeswamy, which is adjacent to
Chikkajogihalli-Gundumunagu road. Soon after receiving
such information, PW.1 rushed to the spot along with PW.4
and witnessed that, his brother Muddappa was lying dead
with clots and marks on his neck, along with swelling in his
male gonads and injuries in between the right hand fingers
so also scratches on his right knee. PW.1 also witnessed
that, the deceased right leg below the knee seemed
fractured. On witnessing the same, PW.1 filed the
complaint as per Ex.P1, against accused No.1, her
brothers and father so also one Sri. Pruthwiraja Naik
before the jurisdictional Police. The same has been
registered under Crime No.81/2014 for the offences
punishable under Sections 302, 201 read with Section 34
of IPC as per Ex.P39. Thereafter, PW.41 conducted the
investigation by drawing the spot and inquest panchanama
and subsequently, handed over the investigation to
PW.44, who examined the witnesses and arrested accused
No. 1 and on her voluntary statement arrested accused
Nos.2 and 3 and laid the chargesheet against them before
the committal Court and dropped the father and brothers
of the accused No.1, including one Pruthwiraja Naik.
5. After committal of the case before the Sessions
Court, the learned Sessions Judge framed the charges
against the accused for the aforesaid offences and read
over the same to the accused. However, the accused
denied the charges and claimed to be tried.
6. In order to prove the guilt of the accused for
the offences charged against him, the prosecution in total
examined 44 witnesses as PW.1 to PW.44 and also got
marked 56 documents as Ex.P.1 to Ex.P.56 so also got
identified 17 material objects at MO.1 to M.O.17.
7. After completion of the prosecution evidence,
the learned Sessions Judge read over the incriminating
evidences of the material witnesses to the accused as
contemplated under the provisions of Section 313 of
Cr.P.C. The accused denied the same. However, the
accused have not chosen to examine any witnesses on
their behalf but have got marked 2 documents as Exs.D1
and D2 during the course of evidence.
8. After assessment of the oral and documentary
evidences placed before the learned Sessions Court, the
learned Sessions Judge framed following charges for
consideration:
i. Whether prosecution proves beyond all reasonable
doubt that, the accused No.1 to 3 on 14.06.2014 at
about 10:30 p.m. in the house of C.W.22 Lalsingh
near Girls High School of Chikkajogihalli, conspired
to commit the murder of deceased Muddappa, the
husband of accused No.1 to continue the illicit
relationship of accused No.1 with accused No.2
while he was sleeping in the house and thereby
committed the offence punishable U/Sec. 120B R/W
Sec. 34 of 1.P.C.?
ii. Whether prosecution proves beyond all reasonable
doubt that, the accused person on the above said
date, time and place in furtherance of their common
intention, assaulted the deceased, accused No.2
tried to stab the deceased with knife provided by
accused No.1, squeezed the testicles, accused No.3
squeezed the neck of deceased while accused No.1
was holding his legs and committed his murder and
thereby committed the offence punishable U/Sec.
302 R/W Sec. 34 of I.P.C.?
iii. Whether prosecution proves beyond all reasonable
doubt that, the accused person on the above said
date, time and place in furtherance of their common
intention, shifted the dead body of deceased on the
motor cycle of accused No.2 bearing registration
No.KA-17/L-1523 along-with accused No.3 towards
the land of C.W.7 Thippeswamy in order to destroy
the evidence and thrown the dead body by the side
of road, so as to pose it as an road accident and
thereby committed the offence punishable U/Sec.
201 R/W Sec. 34 of I.P.C.?
iv. What order?
9. Learned Sessions Judge, answered Point Nos.1 to 3
in the affirmative, Point No.4 as per the Final Order and
convicted the accused Nos.1 and 2 and sentenced them as
stated supra. As accused No.3 had expired during the trial, the
case against him was abated. The correctness and legality of
the said Judgment is challenged under these appeals by the
accused Nos.1 and 2 in Criminal Appeal No.100438/2019 and
Criminal Appeal No.100439/2019, respectively.
10. Heard Sri.Aravind D Kulkarni for the appellant in
Crl.A.No.100438/2019, Kum.Ranjitha for the appellant in
Crl.A.No.100439/2019 and Sri. M.B. Gundawade learned
Addl.SPP for the state in both the appeals.
11. The learned counsels for the appellants vehemently
contend that, the judgment under these appeals suffers from
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perversity and illegality and the learned Sessions Judge
convicted the accused only based on surmises and conjectures,
without appreciating the evidences deposed by the witnesses.
They would further contend that, since the case totally rests on
circumstantial evidences, the prosecution has failed to prove
the circumstances unerroringly pointing towards the guilt of the
accused and even if all the circumstances are considered
together, they are incapable of drawing any explanation or any
reasonable hypothesis to point out the guilt of the accused in
the crime.
12. Except the circumstances of homicidal death of the
deceased, absolutely no other circumstances are proved by the
prosecution. The learned Sessions Judge totally relied on the
evidences of P.W.8 and P.W.15 for recovery of the clothes of
the accused No.2 so also recovery of one T-shirt and one pillow
cover at the instance of accused No.1 at her residence based
on their voluntary statements. However, according to learned
counsels, the prosecution has failed to prove the recovery of
the motorcycle-M.O.17, said to have been used for the
transportation of the dead body of the deceased, post
committing the crime on 14.06.2014, at the instance of
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accused No.2, since P.W.8 and P.W.15 have partly turned
hostile to the prosecution case. According to the learned
counsels, except the said evidences, absolutely no other
evidence is placed by the prosecution to prove the chain of
circumstances to connect the accused in the crime. Further,
they would contend, the prosecution utterly failed to prove the
alleged murder committed by the accused Nos.1 to 3 in the
house of deceased and thereafter, transportation of the dead
body from the house to the place where the dead body is
recovered i.e., in an open place. Such being the position,
according to the learned counsels, the accused No.1 cannot be
held liable to explain the death of deceased as contemplated
under Section 106 of Indian Evidence Act. Even otherwise,
before such explanation by the accused, the prosecution has to
prove its initial burden. They would further contend that, the
recovery of incriminating articles at the instance of accused
Nos.1 and 2 cannot be considered as a major circumstance, for
the reason that, the same has not recovered within the ambit
of Section 27 of Indian Evidence Act and also as per the law
laid down by the Hon'ble Apex Court in the case of
Subramanya v. State of Karnataka, reported in 2022 SCC
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OnLine SC 1400. With these grounds, they pray to allow the
appeals.
13. Per contra, the learned Additional State Public
Prosecutor vehemently contends that, the learned Sessions
Judge has rightly convicted the accused, by meticulously
examining the evidences of the witnesses before the trial Court.
According to him, the learned Sessions Judge appreciated the
evidences on a right perspective and to emphasize, he would
persuade this Court to rely on the evidences of P.W.8 and
P.W.15, who are the independent witnesses and have
categorically deposed in respect of the recovery of clothes of
the accused No.2, so also, the blood stained T-shirt and pillow
cover in which, the accused No.1 wiped the blood stains found
on the floor of the house, while committing the murder of the
deceased. Further, according to the learned Addl. SPP the
evidence of these two witnesses corroborates to the evidence of
the Investigating Officer P.W.44. As such, there is no reason to
disbelieve their version. The learned Addl. SPP would also
contend that, the blood stained clothes were sent for FSL and
scientific Officer, RFSL examined as P.W.32 and placed the
report as per Ex.P.51 which clearly depicts that the blood stains
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found on the clothes so also the baniyan and pillow cover
recovered at the instance of accused Nos.1 and 2 are stained
with the human blood of A-group. In such circumstances, the
oral testimonies of P.W.8 and P.W.15 also corroborates with the
scientific evidence. He would further contend the defence of the
accused No.1 that she had lodged a complaint before the police
soon after the incident cannot be believable for the reason that,
no such complaints are forthcoming in the entire chargesheet
or produced by the accused No.1. According to her the police
failed to register her complaint, but no such efforts have been
made by her to approach the higher authority for registering
the case against the perpetrator of the crime. Hence, according
to learned Addl. SPP, the defense of the accused No.1 is not a
probable one. Per contra, the prosecution has successfully
proved the strained relationship of the deceased and accused
No.1, for the reason that the accused No.1 had extra-marital
affair with some third party. In such circumstance, the
inference can be drawn against accused Nos.1 and 2 and
accordingly, the learned Sessions Judge has rightly convicted
the accused for the charges aforementioned. With these
grounds, he prays to dismiss the appeal by confirming the
order of the learned Sessions Judge.
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14. Having heard the learned counsel for the respective
parties, so also on perusal of the evidence and materials placed
before us, points that would arise for our consideration are
that:
"1.Whether the learned Sessions Judge has
committed an error by convicting the accused for the
offence punishable under Exception I to Section 300
of IPC and sentencing him under Section 304 Part I
of IPC?
2.Whether the Judgment under these appeals is
suffers from any perversity or illegality?"
15. Since, both these points are interlinked with each
other; they are taken up together for common discussion in
order to avoid the repetition of facts. Accordingly, this Court
being the appellate Court is required to relook and re-
appreciate the materials and evidences made available before
this Court and on a cursory glance of the evidence adduced by
the prosecution before the trial Court, we find -
PW.1-Basavrajappa- brother of the deceased, lodged
complainant in this case as per Ex.P.1. By reiterating the
contents of Ex.P.1, he deposed that, on 15.06.2014 at about
7.00 a.m., one Thippe Rudrappa informed him about the death
of his brother and that the corpus of his brother was lying near
the farm of one Thippe Swamy situated adjacent to the road.
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Thereafter, he rushed to the spot along with P.W.4 and seen
the dead body of his brother with injuries. Subsequently he
lodged the complaint before the respondent-police as per
Ex.P.1. However, during the course of his evidence, he deposed
about the strained relationship between the accused No.1 and
the deceased.
PW.2- Sanna Mareppa, P.W.5-Basavaraja, P.W.6-Nagaraj,
P.W.17-Kodandarama are the villagers, among them P.W.2 is a
witness for inquest panchanama drawn on the dead body of the
deceased as per Ex.P.5. He is also a witness for spot mahazar
as per Ex.P.4 wherein, M.O.1 to M.O.7 were seized. P.W.5 is
also a co-pancha for Ex.P.4 and Ex.P.5. P.W.6 though a co-
pancha for Ex.P.4 and Ex.P.5, turned hostile to the prosecution
case. P.W.17, is a witness who identified M.O.1 to M.O.5 on the
spot.
PW.3-Rathnamma, sister of deceased in this case. P.W.4
Mooganna, uncle of the deceased, P.W.13-Hemashekhara,
cousin brother of deceased, P.W.14-Sharadamma, another
sister of deceased. All these witnesses are circumstantial
witnesses, deposed that after receiving the information about
the death of the deceased they reached the scene of offence
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and witnessed the body of the deceased. They also noticed the
slippers and shirt of deceased besides the body. All these
witnesses are panch witness for the inquest panchanama i.e.,
Ex.P.5.
P.W.7-Thippeswamy, panch witness to the recovery
mahazar drawn under Ex.P.8, wherein, M.O.3, M.O.4 and M.O.5
were seized at the instance of accused No.2.
P.W.8-Thimmappa and P.W.15-Bosaiah are the
independent panch witness to the recovery mahazar at Ex.P.9,
Ex.P.10 and Ex.P.11. These mahazars were drawn based on the
voluntary statements of accused Nos.1 and 2. According to
them, accused No.2 took the witnesses and police officials to
Siddapur stockyard, there accused No.2 produced Lungi-M.O.8,
Baniyan-M.O.9 and Cell phone-M.O.10 and motorcycle under
Ex.P.9. They also deposed about the recovery of T-shirt, cell
phone, knife and pillow cover, produced by accused No.1, in
the house of the accused No.1 and the deceased as per M.O.11
to M.O.17.
P.W.9-Nagaraj, P.W.10-Sarojamma, P.W.11-Prasad,
P.W.12-Hampanna, are the circumstantial and hearsay
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witnesses. However, all these witnesses have not supported the
case of the prosecution and turned hostile.
P.W.16-Vamanna, the owner of the house, where the
accused No.1 and deceased were residing. He has deposed
about the strained relationship between the accused No.1 and
the deceased. He also deposed that, he had been the place
where the dead body was found.
P.W.18, circumstantial witness, turned hostile to the
prosecution case.
P.W.21 who runs the photocopy shop, deposed that,
accused No.1 got photocopied the documents pertaining to one
Hanumakka to purchase sim-card.
P.W.24-Manjunatha, photographer, taken photos at the
time of recovery of material objects under Ex.P.9 to Ex.P.11.
P.W.25-Jeetendra, P.W.27-Nagaveni, P.W.28-Jeelan are
the police officials, apprehended the accused persons and
produced them before P.W.44 and reported accordingly.
P.W.26-B. Shekarappa, ASI, scribe to mahazar at Ex.P.9
to Ex.P.11.
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P.W.29-Dr. Mehaboob Ali, Medical Officer, conducted the
autopsy on the dead body and issued Post-Mortem report as
per Ex.P.32.
P.W.30-Thippeswamy, another circumstantial witness,
husband of Hanumakka in whose name accused No.1
purchased the Idea sim-card. However, he turned hostile to the
prosecution case.
P.W.31-Prabhakara, the scribe of Ex.P.5 i.e. inquest
panchanama.
P.W.32-the Assistant Executive Engineer drawn spot
sketch where the dead body found, so also the place where the
accused has allegedly committed the murder as per Ex.P.37
and Ex.P.36 respectively.
P.W.33- another circumstantial witness, turned hostile to
the prosecution case.
P.W.34-Shivakumar, the then police constable,
transmitted FIR as per Ex.P.39 to the jurisdictional Magistrate.
P.W.35-Nagarajachari, supplied the service records of the
deceased as per Ex.P.40 and attendance copies as per Ex.P.41
and Ex.P.42.
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P.W.36 the then police constable, took viscera to FSL.
P.W.37,P.D.O, issued RTC of the house of accused as per
Ex.P.23.
P.W.38-Dr.Pradeep, Medical Officer examined accused
Nos.1 and 2 and issued Wound Certificate as per Ex.P.43 in
respect of accused No.2.
P.W.39-Rajesh and P.W.40 Stanlee are the Nodal Officers
supplied CDRs, pertaining to the accused Nos.1 and 2 as per
Ex.P.45, Ex.P.46, Ex.P.47 and Ex.P.48.
P.W.41-the then CPI of the respondent-police conducted
partial investigation of the case and handed it over to P.W.44.
P.W.42-Dr. Geeta Lakshmi, Scientific Officer, examined
the blood stains found on the clothes of accused Nos.1 and 2
and issued FSL report as per Ex.P.51.
P.W.43-Raghunath, the then S.H.O. of the respondent
police, registered the FIR and also conducted the recovery
mahazars at Ex.P.9 to Ex.P.11 after arresting accused No.2.
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P.W.44-N.Lalya Naik, CPI, completed the investigation
and laid the charge-sheet against the accused for the offences
stated supra.
16. On careful perusal of the above evidences available
on record, in order to prove the homicidal death of the
deceased, the prosecution mainly relied on the evidence of
Doctor-P.W.29, who conducted the autopsy on the dead body
and issued Post-Mortem report as per Ex.P.32. On cautious
examination of Ex.P.32, it depicts that; death is due to 'vagal
inhibition as a result of injury to scrotum'. Further, the Doctor
also opined that, the injuries found on the dead body of the
deceased are ante mortem in nature. In addition to, the
prosecution has also relied on the inquest panchanama
conducted by P.W.41 in the presence of P.W.2, P.W.3, P.W.4,
P.W.5, P.W.6 and P.W.17 as per Ex.P.5. All these witnesses
have supported the case of the prosecution, in respect of
drawing of inquest panchanama on the dead body of the
deceased and identified their signature on Ex.P.5. Hence, on a
collective reading of the evidence of Doctor and above
witnesses, along with Ex.P.32 and Ex.P.5, we are of the
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considered view that, the prosecution has proved the homicidal
death of the deceased beyond all reasonable doubt.
17. Before adverting to the evidences relied upon by
the prosecution, to connect the accused to the homicidal death
of the deceased, on carefully examining the entire evidences
and materials available on record, we find that, the case of the
prosecution totally rests on circumstantial evidences. Therefore,
we find it relevant to refer to the decision of Hon'ble Apex Court
in the case of Sharad Birdhichand Sarda v. State of
Maharashtra, reported in (1984) 4 SCC 116, wherein, the
Hon'ble Apex Court has laid down the
principles(panchasheela's) that are to be proved by the
prosecution to prove the guilt of the accused in a case resting
on circumstantial evidence. The same is reiterated by the
Hon'ble Apex Court in the case of Shankar Vs. State of
Maharastra, reported in 2023 SCC OnLine SC 268,
wherein, paragraph Nos. 8,9 and 10 of the order reads thus-
"8. In the decision in Prakash v. State of Rajasthan3,
this Court took note of the following principles laid
down regarding the law relating circumstantial evidence
in Sharad Birdhichand Sarda v. State of
Maharashtra4:--
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"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. It may
be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may
be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and 'must be
or should be proved' as was held by this Court
in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793] where the following
observations were made:
19. ..."Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the
mental distance between 'may be' and 'must
be' is long and divides vague conjectures
from sure conclusions."
(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
(5) 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.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence."
9. After noting the above five golden principles, it was
held in Prakash's case (supra), that they would
constitute the Panchsheel of the proof of a case based
on circumstantial evidence and conviction could be
sustained on the basis of last seen, motive and
recovery of incriminating articles in pursuance of the
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information given by the accused if those five golden
principles of the proof of a case based on circumstantial
evidence are satisfied.
10. Virtually, the law laid down relating circumstantial
evidence in those decisions are unfailingly followed by
this Court while dealing with the cases where conviction
is rested on circumstantial evidence."
18. In the case on hand, in order to prove the charges
leveled against the accused, the prosecution has mainly relied
upon the evidences of P.W.8, P.W.15 and P.W.44. Among
them, P.W.8 and P.W.15 are the independent witnesses for the
recovery mahazars drawn as per Ex.P.9 to Ex.P.12. On
thoughtful scrutiny of these mahazars, Ex.P.9 drawn at
Siddapur stockyard based on the voluntary statement of
accused No.2 and recovered one baniyan, one lungi, cell-phone
and motorcycle as per M.O.8, M.O.9, M.O.10 and M.O.17.
However, P.W.8 and P.W.15 have partially turned hostile in
respect of seizure of motorcycle at the instance of accused No.2
and mobile phone at the instance of accused No.1 as per
M.O.16.
19. Further, these witnesses have also deposed about
drawing of Ex.P.10, in the house of accused No.1 and seizure of
M.O.11, M.O.12 and M.O.13 i.e., one T-shirt, pillow cover and
knife, so also bed-sheet and cotton box, used by accused No.1
- 24 -
after the commission of the offence, to wipe the blood stains as
per M.O.14 and M.O.15 under Ex.P.11. However, during the
course of cross-examination of P.W.8, he admitted that, the
accused have not stated anything before them in respect of the
material objects which they have allegedly kept in their house
where Ex.P.8 to Ex.P.11 drawn. Further, P.W.8 has also failed
to identify the color of the clothes recovered at the instance of
accused No.2. He also deposed that, he was not aware of the
place where the mahazars were drawn. He further admitted
that, he signed the mahazars at Hospital. P.W.15 also stated
that, he did not witness the handing over of the cell phone by
the accused No.2 to the police authorities. Further, he admitted
that, he was not aware of the contents of mahazars i.e., Ex.P.9
to Ex.P.12. On meticulous examination of evidences of P.W.8
and P.W.15, keeping in view the law laid down by the Hon'ble
Apex Court in the case of Subramanya v. State of
Karnataka, reported in 2022 SCC OnLine SC 1400, wherein,
paragraph Nos.82,87,93,94 and 98 of the Order reads as
under-
"82. Keeping in mind the aforesaid evidence, we
proceed to consider whether the prosecution has been
able to prove and establish the discoveries in
- 25 -
accordance with law. Section 27 of the Evidence Act
reads thus:
"27. How much of information received
from accused may be proved.--
Provided that, when any fact is deposed to as
discovered in consequence of information
received from a person accused of any
offence, in the custody of a police officer, so
much of such information, whether it
amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may
be proved."
***
87. The conditions necessary for the applicability of
Section 27 of the Act are broadly as under:--
(1) Discovery of fact in consequence of an information
received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he
gave information; and
(4) So much of information as relates distinctly to the
fact thereby discovered is admissible - Mohmed
Inayatullah v. The State of Maharashtra : (1976) 1 SCC
828 : AIR 1976 SC 483.
Two conditions for application : -
(1) information must be such as has caused discovery
of the fact; and
(2) information must relate distinctly to the fact
discovered - Earabhadrappa v. State of Karnataka
: (1983) 2 SCC 330 : AIR 1983 SC 446.
***
93. In the aforesaid context, we may also refer to a
decision of this Court in the case of Bodhraj alias
Bodha v. State of Jammu and Kashmir reported
in (2002) 8 SCC 45, as under:
- 26 -
"18. .....It would appear that under Section
27 as it stands in order to render the
evidence leading to discovery of any fact
admissible, the information must come from
any accused in custody of the police. The
requirement of police custody is productive of
extremely anomalous results and may lead to
the exclusion of much valuable evidence in
cases where a person, who is subsequently
taken into custody and becomes an accused,
after committing a crime meets a police
officer or voluntarily goes to him or to the
police station and states the circumstances of
the crime which lead to the discovery of the
dead body, weapon or any other material
fact, in consequence of the information thus
received from him. This information which is
otherwise admissible becomes inadmissible
under Section 27 if the information did not
come from a person in the custody of a police
officer or did come from a person not in the
custody of a police officer. The statement
which is admissible under Section 27 is the
one which is the information leading to
discovery. Thus, what is admissible being the
information, the same has to be proved and
not the opinion formed on it by the police
officer. In other words, the exact information
given by the accused while in custody which
led to recovery of the articles has to be
proved. It is, therefore, necessary for the
benefit of both the accused and the
prosecution that information given should be
recorded and proved and if not so recorded,
the exact information must be adduced
through evidence. The basic idea embedded
in Section 27 of the Evidence Act is the
doctrine of confirmation by subsequent
events. The doctrine is founded on the
principle that if any fact is discovered as a
search made on the strength of any
information obtained from a prisoner, such a
discovery is a guarantee that the information
supplied by the prisoner is true. The
information might be confessional or non-
inculpatory in nature but if it results in
discovery of a fact, it becomes a reliable
- 27 -
information. It is now well settled that
recovery of an object is not discovery of fact
envisaged in the section. Decision of the
Privy Council in Pulukuri
Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri
LJ 533 : (1946-47) 74 IA 65] is the most-
quoted authority for supporting the
interpretation that the "fact discovered"
envisaged in the section embraces the place
from which the object was produced, the
knowledge of the accused as to it, but the
information given must relate distinctly to
that effect. (See State of
Maharashtra v. Damu Gopinath
Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri)
1088 : 2000 Cri LJ 2301].) No doubt, the
information permitted to be admitted in
evidence is confined to that portion of the
information which "distinctly relates to the
fact thereby discovered". But the information
to get admissibility need not be so truncated
as to make it insensible or incomprehensible.
The extent of information admitted should be
consistent with understandability. Mere
statement that the accused led the police and
the witnesses to the place where he had
concealed the articles is not indicative of the
information given."
[Emphasis supplied]
94. Mr. V.N. Raghupathy, the learned counsel for the
State would submit that even while discarding the
evidence in the form of various discovery panchnamas
the conduct of the appellant herein would be relevant
under Section 8 of the Evidence Act. The evidence of
discovery would be admissible as conduct under Section
8 of the Evidence Act quite apart from the admissibility
of the disclosure statement under Section 27 of the said
Act, as this Court observed in A.N. Venkatesh v. State
of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence
Act, the conduct of the accused person is
relevant, if such conduct influences or is
influenced by any fact in issue or relevant
fact. The evidence of the circumstance,
- 28 -
simpliciter, that the accused pointed out to
the police officer, the place where the dead
body of the kidnapped boy was found and on
their pointing out the body was exhumed,
would be admissible as conduct under
Section 8 irrespective of the fact whether the
statement made by the accused
contemporaneously with or antecedent to
such conduct falls within the purview of
Section 27 or not as held by this Court in
Prakash Chand ersus State (Delhi Admn.)
[(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR
1979 SC 400]. Even if we hold that the
disclosure statement made by the accused-
appellants (Exts. P-15 and P-16) is not
admissible under Section 27 of the Evidence
Act, still it is relevant under Section 8....."
[Emphasis supplied]
***
98. Thus, even if it is believed that the accused
appellant had a motive to commit the crime, the same
may be an important circumstance in a case based on
circumstantial evidence but cannot take the place as a
conclusive proof that the person concerned was the
author of the crime. One could even say that the
presence of motive in the facts and circumstances of
the case creates a strong suspicion against the accused
appellant but suspicion, howsoever strong, cannot be a
substitute for proof of the guilt of the accused beyond
reasonable doubt. The trial court rightly disbelieved
motive to commit the crime as the evidence in this
regard is absolutely hearsay in nature."
20. These principles were again reiterated by the
Hon'ble Apex Court in the case of Boby v. State of Kerala,
reported in 2023 SCC OnLine SC 50, wherein, paragraph
Nos.32 and 40 of the Order reads as under -
- 29 -
"32. A three-Judges Bench of this Court recently in
the case of Subramanya v. State of Karnataka7,
has observed thus:
"82. Keeping in mind the aforesaid
evidence, we proceed to consider whether
the prosecution has been able to prove
and establish the discoveries in
accordance with law. Section 27 of
the Evidence Act reads thus:
"27. How much of information
received from accused may be
proved.--
Provided that, when any fact is deposed
to as discovered in consequence of
information received from a person
accused of any offence, in the custody of
a police officer, so much of such
information, whether it amounts to a
confession or not, as relates distinctly to
the fact thereby discovered, may be
proved."
83. The first and the basic infirmity in the
evidence of all the aforesaid prosecution
witnesses is that none of them have
deposed the exact statement said to have
been made by the appellant herein which
ultimately led to the discovery of a fact
relevant under Section 27 of the Evidence
Act.
84. If, it is say of the investigating officer
that the accused appellant while in
custody on his own free will and volition
made a statement that he would lead to
the place where he had hidden the
weapon of offence, the site of burial of
the dead body, clothes etc., then the first
thing that the investigating officer should
have done was to call for two
independent witnesses at the police
- 30 -
station itself. Once the two independent
witnesses would arrive at the police
station thereafter in their presence the
accused should be asked to make an
appropriate statement as he may desire
in regard to pointing out the place where
he is said to have hidden the weapon of
offence etc. When the accused while in
custody makes such statement before the
two independent witnesses (panch-
witnesses) the exact statement or rather
the exact words uttered by the accused
should be incorporated in the first part of
the panchnama that the investigating
officer may draw in accordance with law.
This first part of the panchnama for the
purpose of Section 27 of the Evidence
Act is always drawn at the police station
in the presence of the independent
witnesses so as to lend credence that a
particular statement was made by the
accused expressing his willingness on his
own free will and volition to point out the
place where the weapon of offence or any
other article used in the commission of
the offence had been hidden. Once the
first part of the panchnama is completed
thereafter the police party along with the
accused and the two independent
witnesses (panch-witnesses) would
proceed to the particular place as may be
led by the accused. If from that particular
place anything like the weapon of offence
or blood stained clothes or any other
article is discovered then that part of the
entire process would form the second
part of the panchnama. This is how the
law expects the investigating officer to
draw the discovery panchnama as
contemplated under Section 27 of
the Evidence Act. If we read the entire
oral evidence of the investigating officer
then it is clear that the same is deficient
- 31 -
in all the aforesaid relevant aspects of the
matter."
40. A perusal of paragraph 71 of the said
judgment would reveal that the Court has
reiterated that the two essential requirements for
the application of Section 27 of the Evidence
Act are that (1) the person giving information must
be an accused of any offence and (2) he must also
be in police custody. The Court held that the
provisions of Section 27 of the Evidence Act are
based on the view that if a fact is actually
discovered in consequence of information given,
some guarantee is afforded thereby that the
information was true and consequently the said
information can safely be allowed to be given in
evidence.
21. On perusal of the dictum laid down by the Hon'ble
Apex Court in the above Judgments along with the case on
hand, the prosecution, in order to prove the recovery, relied on
the evidences of PW.8 and PW.15. Though they supported the
case of the prosecution, both these witnesses have
categorically deposed that, they do not know the contents of
the Ex.P9 to Ex.P11. Further, according to P.W.8, the police
authorities have not enquired the accused in the presence of
these panch witnesses, before leading to the discovery of M.O.
8 to M.O.17. Further, PW.8 admitted in his cross-examination
that he had signed the mahazars at the Hospital. Even PW.15
in his testimony has admitted in his cross-examination that, he
- 32 -
do not know the contents of Ex.P.9 to Ex.P.11. Moreover, both
these witnesses have turned hostile in respect of the recovery
of the motorcycle at the instance of accused No.2 in the
stockyard, which was allegedly used for the transportation of
dead body of the deceased after commission of the murder by
the accused in the house of accused No.1, to the place where
the dead body was discovered. Further, though these witnesses
have deposed that, the accused No.1 has shown the place
where the dead body was discovered, but the same was after
the recovery of the corpus. The said corpus was initially found
by one Thippe Rudrappa, who in turn informed the same to the
complainant i.e., P.W.1. The said Thippe Rudrappa though cited
as a witness in the chargesheet, the prosecution has failed to
examine him before the trial Court. In such circumstances,
much evidentiary value cannot be attached for the evidences of
P.W.8 and P.W.15, for the recovery of M.O.8 to M.O.17 under
Ex.P.9 to Ex.P.11 or in respect of indicating the place where the
dead body was disposed, by accused No.1. On careful scrutiny
of the evidences of these witnesses, their evidence cannot be
relied to prove the recovery as per the settled position of law
by the Hon'ble Apex Court in the Judgments cited supra. The
Hon'ble Apex Court has clearly held that, in order to prove the
- 33 -
discovery of weapons or the other incriminating articles at the
instance of the accused, the Investigating Officer has to draw a
panchanama in the police station, in the presence of recovery
mahazar witnesses and thereafter, the accused have to lead
the witnesses and the police to the place where the
incriminating articles have been placed. In the present case,
absolutely no such evidences are forthcoming on perusal of the
testimonies of P.W.8 and P.W.15. The learned Sessions Judge,
relied much on the evidence of these two witnesses to connect
the accused in the homicidal death of the deceased which in
our considered view, requires interference.
22. As far as the other circumstance which the
prosecution has relied is, motive for the commission of the
crime. In order to prove the same, the prosecution relied on
the evidences of P.W.1, P.W.2, P.W.3, P.W.4, P.W.13, P.W.14
and P.W.16. All these witnesses have deposed about the
strained relationship of accused No.1 and her husband
deceased. However, none of these witnesses have deposed that
the accused No.1 had illicit affair with the accused No.2. Even
the initial complaint lodged, was against the accused No.1, her
father-Basavarajappa, her brothers-Manjanna and Vijayakumar
- 34 -
and also one Pruthviraj Naik. The contents of Ex.P.1 depicts
that, the deceased was quarreling with accused No.1, for
which, she lodged a complaint before the police and the police
called them and advised, not to indulge in such act and on that
count, the said Pruthviraj Naik, quarreled with the deceased.
Hence, P.W.1 suspected the said Pruthviraj Naik and the parent
and siblings of accused No.1 as the perpetrators of the crime.
Hence, on careful reading of Ex.P.1 coupled with the evidences
of P.W.1 and other family members as stated supra, all these
witnesses have deposed only in respect of the strained
relationship of the accused No.1 and the deceased and they
have not whispered anything about the alleged illicit
relationship between the accused No.1 and accused No.2 is
concerned. It is for this reason, these evidences cannot be
considered as reliable piece of evidence to prove the motive in
this case; that the accused No.1 had illicit relationship with
accused No.2 and they along with accused No.3 hatched a
conspiracy to commit the murder of the deceased and
accordingly, they executed the same. The evidences only in
respect of the strained relationship between the accused No.1
and the deceased in itself, is not a sufficient piece of evidence
to connect accused No.1 in the crime.
- 35 -
23. The learned Addl. SPP also canvassed his argument
that, the accused No.1 being the wife of the deceased, has not
lodged any complaint after the death of her husband, in spite of
the fact that, they both are living together in a same shared
household at the time of incident. However, on perusal of the
313 statement of accused No.1, she filed a written statement
under Section 313(3) of Cr.P.C, wherein, stated that
immediately after the death of her husband, she went to the
police station and lodged a complaint against the above
mentioned Pruthviraj Naik, however, the police failed to receive
her complaint due to the intervention/influence of the local
politicians. According to her, she made her best efforts to lodge
the complaint before the said police repeatedly, but the police
failed to register the same. As such, it cannot be said that, the
accused No.1 has failed to explain the special knowledge as
contemplated under Section 106 of Indian Evidence Act.
Moreover, though the accused is liable to explain the special
knowledge about the crime, but the initial burden always lies on
the prosecution to prove its case beyond reasonable doubt,
then only such burden shifts on the accused.
- 36 -
24. Hence, in our considered view, the prosecution also
failed to prove the motive and suspicious conduct of the
accused No.1 to connect her in the crime.
25. As stated supra, since the case rests on the
circumstantial evidences, the prosecution has failed to prove
one of the important circumstances i.e., the transportation of
the dead body from the house of accused No.1, after
commission of the murder in the house. As discussed supra,
the prosecution has also failed to prove the recovery of
motorbike i.e., M.O.17 which is allegedly said to be used for the
said purpose by accused No.2. Even otherwise, absolutely there
exists no piece of evidence to prove this circumstance.
26. The other circumstantial witnesses i.e., P.W.9,
P.W.10, P.W.11 and P.W.12 have totally turned hostile to the
prosecution case, as such, the prosecution failed to prove the
other surrounding circumstances to connect the accused in the
alleged crime. Though the prosecution seized the mobile
phones of accused Nos.1 and 2, to prove that the conspiracy
hatched by them, before the commission of the crime; the
prosecution has also failed to prove the said circumstance by
leading cogent evidence. The mobile phone seized at the
- 37 -
instance of accused No.1 and the sim-card in it, was not
standing in her name and in the name of one Hanumakka. To
prove the same, though prosecution examined P.W.30
Thippeswamy i.e., husband of the said Hanumakka, he turned
hostile to the prosecution case. The prosecution has also failed
to prove that, one more mobile phone/sim-card stands in the
name of accused No.2. In such unproven circumstances, mere
obtaining the CDRs and examining the Nodal Officer in itself is
not sufficient to draw an inference that, the sim-cards used in
the cell phones, stands in the name of accused Nos.1 and 2 and
they were using the said mobile phones to hatch the
conspiracy.
27. Hence, on meticulous reading of the overall
evidences placed by the prosecution, except the circumstance
of homicidal death of the deceased the prosecution has
miserably failed to prove all the other circumstances like motive
for the incident, the last scene theory, recovery of the weapons
and other incriminating articles at the instance of the accused,
the transportation of the dead body from the house of accused
No.1, to the open place where the body was discovered and the
conspiracy hatched by the accused Nos.1 to 3. Further, the
- 38 -
prosecution failed to place any piece of evidence in respect of
the commission of the alleged crime on 14.06.2014, by the
accused Nos.1 to 3, by examining any of the neighbours of
accused No.1 and deceased. In such scenario, in our considered
view, the prosecution has miserably failed to prove all the facts,
each one among which leads to the conclusion of guilt of the
accused and when conclusively read, all together would be
justifiably bolster the conclusion of the guilt of the accused.
Prosecution has also failed to connect the facts with sufficient
corroboration, so as to lead to a unilateral hypothesis of the
guilt of the accused and exclude every hypothesis, except the
one sought to be proved by them. Moreover, there has to exist
chain of evidences so complete, closing the doors for any kind
of interpretation consistent with the innocence of the accused
and these evidences must depict, in all the human probability,
the act must have been done by the accused, which, in our
opinion, the prosecution has failed to present before us.
28. Further, the learned Sessions Judge also erred in
convicting the accused for the offence punishable under Section
302 of IPC by sentencing them till the reminder of life, in view
of the law laid down by the Apex Court in Union of India v.
- 39 -
V.Sriharan Alias Murugan and others reported in (2016) 7
SCC 1 and reiterated by the Co-ordinate Bench of this Court, in
Shekhar Babasaheb Hadimani vs State of Karnataka
reported in AIR Online 2023 KAR 1619. However, since this
court has found fault in the appreciation of evidence by the
learned Sessions Judge and inclined to allow the appeal, we are
of the view that, there requires no further detailed examination
of the same.
29. Hence, for the discussions made hereinabove, we
are of the considered view that, the Judgment of conviction and
Order of Sentence passed by the learned Sessions Judge
requires interference at the hands of this Court and
accordingly, by answering the above raised points in the
affirmative and negative, we proceed to pass the following -
ORDER
i. Crl.A.No. 100438/2019 and
Crl.A.No.100439/2019 filed by
accused Nos.1 and 2 respectively are
allowed.
ii. The judgment of conviction and order
of sentence dated 21.09.2019,
- 40 -
passed by the III Addl. District and
Sessions Judge, Ballary (Sitting at
Hosapete), in SC No. 5063/2014 is
set aside. Consequently, the
appellants/accused Nos.1 and 2 are
acquitted for the offences punishable
under Sections 120(B), 302 and 201
read with Section 34 of Indian
Penal Code.
iii. The bail bonds and surety bonds
executed by the accused shall stand
cancelled.
iv. Fine amount paid, if any, by the
accused is ordered to be refunded to
the accused on their proper
identification.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
