Karnataka High Court

Channabasappa S/O. Ningappa Negalur vs State Of Karnataka on 2 May, 2025

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                                                             R
  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 2ND DAY OF MAY, 2025

                         PRESENT
 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
                           AND
        THE HON'BLE MR. JUSTICE G BASAVARAJA
           CRIMINAL APPEAL NO.100180 OF 2021
         C/W CRIMINAL APPEAL NO.100326 OF 2020

IN CRL.A. NO.100180 OF 2021:
BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
KAGINELE POLICE STATION,
BYADAGI CIRCLE, DIST. HAVERI,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                              ...APPELLANT
(BY SRI. ASHOK T.KATTIMANI, ADDL. GOVT. ADVOCATE)

AND:

CHANNABASAPPA S/O. NINGAPPA NEGALUR,
AGE: MAJOR, OCC: PAINTING WORK,
R/O. HOLALU, TQ: HOOVINAHADAGALI-583219,
DIST: BELLARY.
                                            ...RESPONDENT
(BY SRI. A.M.GUNDAWADE, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SEC.377(1)(B) OF
Cr.P.C., PRAYING TO, CALL FOR RECORDS IN S.C.NO.76/2016
DATED 27.10.2020 ON THE FILE OF II ADDL. DISTRICT AND
SESSIONS JUDGE AT HAVERI (SITTING AT RANEBENNUR) AND TO
SET ASIDE THE JUDGMENT AND ORDER PASSED IN
S.C.NO.76/2016 DATED 27.10.2020 ON THE FILE OF II ADDL.
                           -2-




DISTRICT AND SESSIONS JUDGE AT HAVERI SITTING AT
RANEBENNUR) SO FAR IT RELATES TO IMPOSITION OF LESSER
SENTENCE TO THE RESPONDENT/ACCUSED NO.2 AND MODIFY
THE SENTENCE AND IMPOSE THE MAXIMUM SENTENCE FOR THE
OFFENCE PUNISHABLE UNDER SECTION 201 R/W SEC.34 OF IPC.

IN CRL.A. NO.100326 OF 2020:
BETWEEN:

CHANNABASAPPA S/O. NINGAPPA NEGALUR,
AGE: 41 YEARS, OCC: PAINTING WORK,
R/O. HOLALU, TQ: HOOVINAHADAGALI,
DIST: BAELLARI-583217.
                                             ...APPELLANT
(BY SRI. A.M.GUNDAWADE, ADVOCATE)

AND:

STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD,
THROUGH PSI, KAGINELE POLICE STATION,
BYADAGI CIRCLE-581110.
                                            ...RESPONDENT
(BY SRI. ASHOK T.KATTIMANI, ADDL. GOVT. ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SEC.377(2) OF
Cr.P.C., PRAYING TO, CALL FOR RECORDS FROM II ADDL.
DISTRICT AND SESSIONS JUDGE AT HAVERI (SITTING AT
RANEBENNUR), PERTAINING TO S.C.NO.76/2016 AND TO PASS A
JUDGMENT OF ACQUITTAL BY SETTTING ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED 27.10.2020,
PASSED     AGAINST  THE    APPELLANT/ACCUSED    NO.2  IN
S.C.NO.76/2016, PASSED BY II ADDL. DISTRICT AND SESSIONS
JUDGE AT HAVERI SITTING AT RANEBENNUR) FOR THE OFFENCE
PUNISHABLE UNDER SECTION 201 R/W SEC.34 OF IPC.

      THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
07.03.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:   THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
                                AND
               THE HON'BLE MR. JUSTICE G BASAVARAJA
                                    -3-




                          CAV JUDGMENT

(PER: THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM)

The present criminal appeal has been filed by

Accused No. 2, challenging the judgment and order of

conviction passed in Sessions Case No. 76 of 2016,

whereby the learned Sessions Judge convicted the

appellant under Section 201 read with Section 34 of the

Indian Penal Code (IPC). The appellant was sentenced to

undergo rigorous imprisonment for a period of two years

for having assisted in the destruction of evidence

pertaining to the murder of one Kumaraswamy Viraya

Hiremath.

2. A connected appeal has been preferred by the

State seeking enhancement of sentence, contending that

the Trial Court erred in convicting the appellant only under

Section 201 read with Section 34 IPC, instead of under

Section 302 IPC.

3. Prosecution's Case:

The prosecution alleges that Accused No. 1 shared a

strained relationship with the deceased, Kumaraswamy,

arising out of the deceased having reprimanded Accused

No. 1 for misbehaving with his wife. This admonishment

purportedly led to animosity.

4. On the morning of 20th September 2015 at

about 8:30 AM, Accused No. 1 took the deceased in his

Tata Ace vehicle (bearing registration number KA-27/B-

1044) to Byadagi, where he allegedly made the deceased

consume alcohol. Subsequently, Accused No. 1 contacted

Accused No. 2 via phone. Later that evening, both accused

allegedly drove Kumaraswamy near the Tungabhadra

bridge. Between 11:00 PM and 11:30 PM, it is alleged that

the accused persons, sharing a common intention, forcibly

made the deceased consume alcohol until he became

unconscious. Thereafter, Accused No. 1 is said to have run

the vehicle over Kumaraswamy and then dropped a large

stone on his head, resulting in his death. The two accused

allegedly disposed of the body in the Tungabhadra River to

conceal the offence.

5. Both accused were charged under Sections 302

and 201 read with Section 34 IPC. The prosecution

examined 30 witnesses and produced documentary and

material evidence, including a stone marked as MO1. After

the prosecution closed its case, the statements of both

accused under Section 313 CrPC were recorded. Accused

No. 2 also stepped into the witness box and produced two

documents, marked as Exhibits D1 and D2.

6. The Trial Court, relying upon the confessional

statements of both accused, including the judicial

confession recorded under Section 164 CrPC by the

Magistrate (PW-30), found Accused No. 1 guilty of murder

and Accused No. 2 guilty of destruction of evidence. The

following points would arise for determination by this

court.

i) Whether the confessional statement of Accused No. 2 violates Section 5 of the Karnataka Criminal Rules of Practice, 1968 and Article 20(3) of the Constitution of India, and is thereby inadmissible?

         ii)        Whether   non-compliance         with    the
    procedural       mandates    of    Section   164        CrPC

renders the confessional statement unreliable or inadmissible?

iii) Whether the conviction and sentence

r/w Section 24 of IPC suffers from legal infirmities warranting interference by this Court?

Findings on Point Nos. (i) and (ii):

7. Before scrutinizing the admissibility of the

confessional statement of Accused No.2 marked as Exhibit

P48, it is necessary to refer to Rules 4 and 5 of Chapter V

of the Karnataka Criminal Rules of Practice, which govern

the procedure for recording statements under Section 164

CrPC. These Rules, designed to safeguard the

voluntariness and authenticity of confessional statements,

impose strict procedural obligations on Magistrates.

Section 164 of CrPC and rule 4 and 5 of Chapter V of the

Karnataka Criminal Rules of Practice are relevant and the

same are extracted which read as under:

Section 164 CrPC :

"164. Recording of confessions and statements.-- (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial 1[Provided that any confession or statement made under this sub-

section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.] (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:--

"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B. Magistrate."

(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

2 [(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub- section (2) of section 376, 3 [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB,] section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in

sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:

Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.

(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.] (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried."

Rule 4 and 5 of Chapter V of the Karnataka

Criminal Rules of Practice:

"4. When a requisition for recording a statement under Section 164 of the Code is received by a Magistrate having jurisdiction to try the offence or commit the accused for trial, he shall direct the accused to be taken before another Magistrate for that purpose, unless the Magistrate, for reasons to be recorded in writing, deems fit to record the statement himself; and when he does so, he shall report the case to the Sessions Judge, who may take case on his own file or refer it to another Magistrate.

5. Recording of Confession Statements.- (1) When an accused person is produced before a Magistrate for recording a confession statement, the Magistrate shall explain to him that he is before a Magistrate, that he is under no obligation at all to make any statement, that he is free to make a statement or refrain from making any as he pleases, that it is not intended to take him as an approver and that anything

said by him will · be taken down and thereafter may be used as evidence against him

The Magistrate shall make a record of the fact that he has complied with the above requirements. [Vide Section 164 (2) of the Code] (2)

(a) A Magistrate may put such questions as he considers necessary to assure himself that the accused 1s making the statement voluntarily.

(b) Further, the Magistrate shall put the following questions:-

(i) When were you arrested?

(ii) When did the police first question you?

(iii) How often did they question you?

(iv) Were you detained anywhere before you were taken to custody? If so, when and where? (v) Were you induced to make a confession statement and are you making the statement as a result of any ill-treatment?

(c) The questions put by the Magistrate as well as the answers given by the accused shall be reduced to writing.

(3) If the accused person, after being so questioned still expresses a desire to make a statement, the Magistrate shall give him reasonable time for reflection, which shall ordinarily be not less than 24 hours. During this period he shall be kept in judicial custody."

8. Rule 4 mandates that when a requisition for

recording a statement under Section 164 CrPC is received,

the Magistrate having jurisdiction to try the offence or

commit the accused for trial shall ordinarily direct the

accused to be taken before another Magistrate for that

purpose. The Magistrate is empowered to record the

statement himself only if reasons are recorded in writing.

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Further, upon doing so, the Magistrate is required to

report the matter to the Sessions Judge, who may either

take the case on his own file or refer it to another

Magistrate. The essence of Rule 4 is to ensure impartiality

and eliminate any perceived coercion or conflict of

interest, particularly where the same Magistrate is tasked

with committal proceedings.

9. Rule 5 stipulates the manner in which

confessional statements must be recorded. It obligates the

Magistrate to inform the accused that:

a) He is before a Magistrate,

b) He is under no obligation to make any

statement,

c) He is free to make or refuse to make a

statement,

d) The statement can be used as evidence against

him, and

e) He is not being treated as an approver.

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10. The Magistrate must record compliance with

these procedural safeguards. Further, to ensure

voluntariness, Rule 5 requires the Magistrate to:

a) Put specific mandatory questions (about the

timing of arrest, police interrogation, detentions,

inducements, or ill-treatment),

b) Reduce both the questions and the answers into

writing,

c) Allow reasonable time for reflection (ordinarily

not less than 24 hours), during which the accused must be

kept in judicial custody.

11. These requirements are mandatory, not

directory, and non-compliance strikes at the root of the

admissibility of the confession.

12. Upon a careful examination of Exhibit P48 and

the deposition of PW-30, the Magistrate who recorded the

confession, the following grave procedural infractions are

evident:

13. Administration of Oath to Accused No.2:

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The Magistrate administered an oath to Accused

No.2 before recording his statement. This practice is

fundamentally flawed. Article 20(3) of the Constitution of

India guarantees an accused the right against self-

incrimination. Administering an oath, thereby compelling a

sense of obligation or truthfulness, violates this

constitutional protection and undermines the voluntariness

of the confession. The Hon'ble Supreme Court

in Shivappa v. State of Karnataka1 has categorically

stated that voluntariness is the cornerstone of a valid

confession under Section 164 CrPC.

14. Incorrect Format of Recording:

Instead of adopting the mandatory question-and-answer

format as envisaged under Rule 5(2)(c), the Magistrate

recorded the statement in a narrative format akin to

recording the deposition of a witness. The format

prescribed under Rule 5 is intended to ensure that every

step of the inquiry into voluntariness is evident on the face

of the record. The deviation from this format casts serious

(1995)2 SCC 76

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doubt on whether the Magistrate genuinely satisfied

himself about the voluntariness of the confession.

15. Failure to Grant Reflection Time:

Rule 5(3) specifically provides that if the accused, after

initial questioning, still expresses willingness to confess,

the Magistrate must grant reasonable time for reflection,

ordinarily not less than 24 hours. This safeguard ensures

that the confession is not a result of a momentary impulse

or police pressure. In the present case, the record reveals

that the confession was recorded on the very same day

the accused was produced, without any provision for

reflection time. This glaring omission severely affects the

credibility and voluntariness of the confession.

16. Conflict of Interest, Same Magistrate Recording

and Committing the Case:

In breach of Rule 4, the Magistrate who recorded the

confession (PW-30) was also the committal Magistrate in

the same case. The Rule clearly intends that the

confession should ideally be recorded by a different

Magistrate to maintain objectivity. If the Magistrate

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chooses not to refer the matter to another officer, he must

record detailed reasons justifying such action and report

the matter to the Sessions Judge. In this case, there is

neither a recording of reasons nor any communication to

the Sessions Judge, as mandated. This conflict of roles not

only violates procedural safeguards but also creates an

apprehension of bias and coercion, thus rendering the

confession suspect.

17. Thus, when tested against the mandatory

safeguards of Rules 4 and 5 and the settled principles laid

down by the Hon'ble Supreme Court in Bhagwan Singh

v. State of M.P2. and Shivappa v. State of

Karnataka(supra), the confessional statement marked as

Exhibit P48 is found to be vitiated by serious illegalities.

18. In light of these multiple fatal irregularities

namely, the unconstitutional administration of oath,

recording in an improper format, denial of reflection time,

and conflict of interest in the Magistrate's role the

confessional statement is rendered inadmissible in law.

(2003)3 SCC 21

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These defects strike at the root of the procedure

prescribed under Section 164 CrPC and are not curable by

corroboration or by the testimony of the recording

Magistrate (PW-30). Accordingly, Point Nos. (i) and (ii) are

answered in the affirmative.

Finding on Point No. (iii):

19. Upon the exclusion of the inadmissible

confessional statement, it becomes necessary to critically

reappraise the remaining prosecution evidence. A careful

examination reveals the following serious deficiencies:

20. Exhibit P2 is the initial complaint filed by PW9-

Shashikala Kumaraswamy Hiremath, who is the wife of the

alleged deceased, Kumaraswamy Hiremath. In her

deposition, PW9 stated that on 20th September 2015, her

husband had left their residence to travel to Ranebennur

with the purpose of procuring "Govina jola patte" (a type

of maize fodder) and failed to return thereafter. She

further deposed that she subsequently filed a missing

person complaint with the Kaginele Police on 24th April

2016. However, a discrepancy arises from Exhibit P22,

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another complaint lodged by the same witness, which

indicates that her husband went missing on 2nd March

2016 at approximately 6:30 AM, and that the complaint

was filed on 28th April 2016. The inconsistencies between

these two documents, both filed by PW9, cast serious

doubt on the accuracy and reliability of the timeline of the

alleged disappearance. These contradictory dates

undermine the credibility of the prosecution's version of

events.

21. Moreover, during her cross-examination, PW9

candidly admitted that she does not know whether her

husband is alive or dead. She stated that it was only the

police who informed her that her husband had been killed.

This statement is crucial as it suggests that her belief in

the alleged murder is not based on firsthand knowledge or

any concrete evidence but solely on what she was

informed by the police. Importantly, she has not made any

allegation or specific imputation against Accused No.2 in

her testimony.

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22. PW25, Meenakshi, has also deposed in a

manner consistent with the testimony of PW9, but

similarly, has not made any statement incriminating

Accused No.2 in the alleged offence.

23. A number of other prosecution witnesses,

namely PW1-Anjaneyappa, PW2-Raghavendra Bovekar,

PW4-Rudraiah Hiremath, PW5-Girijappa Kodadar, and

PW6-Siddappa Hosahalli, have not supported the case of

the prosecution. None of these witnesses have deposed

anything adverse to Accused No.2. Their testimony, or

lack thereof, substantially weakens the prosecution's case

as against Accused No.2.

24. PW7-Rudramma Hiremath, the mother of the

alleged deceased, testified that her son had left their home

on 20th September 2015 at around 6:00 AM to visit

Ranebennur to procure "Govina jola patte," and never

returned. She lodged a complaint which is marked as

Exhibit P16. On the basis of this complaint, a case was

registered in Crime No. 87 of 2016 under Sections 302 and

201 of the Indian Penal Code. The First Information Report

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(FIR), marked as Exhibit P43, was submitted to the

jurisdictional court on 5th July 2016 at 4:30 PM. It is

significant to note that the FIR initially named only

Accused No.1 and not Accused No.2. Further, the date of

the disappearance of Kumaraswamy Hiremath, as

mentioned in Exhibits P16 and P22, is inconsistent with

each other, once again reflecting the lack of a coherent

timeline in the prosecution's case.

25. PW8 has also not made any statement

implicating Accused No.2. PWs11 and 12 stated that they

had heard that Accused No.1-Chandrappa, had confessed

in a village temple that he had murdered Kumaraswamy.

It is only subsequently, and without explanation, that they

claimed to have come to know about the alleged

involvement of Accused No.2. This secondary assertion is

hearsay and unsubstantiated by direct evidence.

26. PW13 is categorically a hearsay witness and,

therefore, his testimony holds little evidentiary value.

PW14-Jagadish V, has also not stated anything

incriminating Accused No.2 and was declared hostile by

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the prosecution. Witnesses PW15 through PW20, as well

as PW22, have similarly failed to support the prosecution's

narrative and have not testified against Accused No.2.

27. PW21 is a doctor who deposed solely in relation

to the examination of a stone, and the issuance of a

corresponding certificate, which is marked as Exhibit P37.

This evidence is peripheral and not directly connected to

establishing the guilt of Accused No.2.

28. PW23-Dr. Suparna, deposed regarding the

treatment of Accused No.2, who was admitted to the

District Hospital in Haveri after allegedly consuming

poison. However, there is no conclusive link established

between this hospitalization and the commission of the

offence.

29. PW24-S. Huligeppa, Assistant Engineer, has

testified regarding the preparation of a sketch, Exhibit

P42, which was made under the direction of the

investigating officer. This procedural step does not

independently establish any guilt on the part of Accused

No.2.

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30. The investigating officers-PW26 (Circle

Inspector), PW27 (Sub-Inspector), PW28 (Circle Inspector

Santosh), and PW29 (Inspector Chidananda) have

deposed in relation to the investigation they conducted.

Despite their extensive depositions, a critical aspect

remains unresolved: the dead body of Kumaraswamy

Hiremath has not been recovered. This omission is of

serious consequence. There is no legally admissible

document or credible testimony on record to show that the

police made earnest and effective efforts to trace and

recover the body of the alleged deceased. To this date, it

remains uncertain whether Kumaraswamy is indeed

deceased.

31. It is also significant to observe that the only

material obtained against the accused is allegedly based

on voluntary statements. One such recovery is marked as

Exhibit P6. However, there is no corroborative evidence to

establish that Accused No.2 was involved in the murder of

Kumaraswamy Hiremath. In the absence of a recovered

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body and in light of the conflicting timelines, the

foundation of the prosecution's case is severely shaken.

32. Given that the recovery of the dead body a

fundamental component in establishing the offence of

murder has not been achieved, and in the absence of any

reliable or direct evidence against Accused No.2, it cannot

be held that the offence under Section 302 of IPC has

been proved beyond reasonable doubt. Further, the

requirements for invoking Section 201 IPC pertaining to

causing disappearance of evidence or providing false

information with intent to screen the offender are not

fulfilled in the absence of proof of the primary offence.

Since the prosecution has not even established the

occurrence of the alleged murder with certainty, much less

the involvement of Accused No.2 in concealing evidence,

the applicability of Section 201 IPC does not arise.

33. Finally, PW30-Srinivas Hanumanthappa, a

Magistrate, has not deposed regarding compliance with the

mandatory procedures laid down under Section 164 of the

Criminal Procedure Code and Rule 5 of the Karnataka

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Criminal Rules of Practice while recording the alleged

confessional statement of Accused No.2 (Exhibit P48). This

lack of procedural compliance further undermines the

evidentiary value of the confession. Accordingly point

No.(iii) is answered in the Affirmative.

CONCLUSIONS AND REASONS FOR REVERSAL OF

CONVICTION

34. Upon a comprehensive re-appreciation of the

evidence on record, and careful scrutiny of the findings of

the learned Trial Court, this Court arrives at the

following conclusions and reasons justifying the reversal of

conviction of Accused No. 2 under Section 201 read with

Section 34 of the Indian Penal Code:

35. The conviction of Accused No. 2 is

fundamentally anchored upon his purported confessional

statement recorded under Section 164 of the Criminal

Procedure Code. However, this Court finds that:

36. The confession was recorded under oath,

violating Article 20(3) of the Constitution which protects

an accused from compelled self-incrimination.

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Administering an oath undermines the voluntariness of

such a statement.

37. The statement was not recorded in the proper

format. It follows the deposition format typically used for

witnesses, rather than the prescribed question-and-answer

format, thereby casting grave doubt on its reliability.

38. The Magistrate (PW-30) failed to provide

sufficient reflection time, as required under Section 164(2)

CrPC. The statement was taken on the very day of

appearance, without ensuring the accused was free from

police influence.

39. The same Magistrate acted as both recording

and committal Magistrate, in contravention of Rule 4,

Chapter V of the Karnataka Criminal Rules of Practice,

1968. This creates a serious conflict of interest and raises

questions regarding the independence and impartiality of

the process.

40. These procedural infractions are not mere

technicalities but go to the root of the voluntariness and

admissibility of the confession. Therefore, Ex.P48 is held to

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be inadmissible and incapable of forming the basis of

conviction.

41. There exists no eyewitness or direct evidence

implicating Accused No. 2 in either the commission of the

murder or the destruction of evidence. The case is entirely

based on circumstantial evidence, which fails to meet the

well-established standard of forming a complete chain

excluding every hypothesis other than the guilt of the

accused.

42. The prosecution has not established any overt

act or specific conduct attributable to Accused No. 2

suggestive of a role in tampering with evidence.

43. No recovery has been made at his instance.

There is no credible corroboration of his alleged presence

at the scene or of any assistance rendered in disposing of

the body.

44. A majority of material witnesses either turned

hostile or failed to corroborate the prosecution version

PW-18 and PW-19, alleged eyewitnesses to a panchayat

confession by Accused No. 1, turned hostile. PW-14 and

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PW-15, brothers of Accused No. 1, and PW-17, an

independent landowner, did not support the alleged motive

or presence of the accused at the scene.

45. PW-9 (wife of the deceased), who was relied

upon to establish motive, admitted to cordial relations

between Accused No. 1 and the deceased and provided no

substantive evidence against Accused No. 2.

46. The missing report was filed on 20.09.2015, but

the formal complaint was filed nearly 10 months later, on

05.07.2016. Such inordinate and unexplained delay casts

serious doubt on the authenticity and spontaneity of the

prosecution's case. There is no cogent explanation as to

why the wife or family members did not raise any

suspicion against the accused for almost a year.

47. The alleged weapon of offence (MO1 - a stone)

was recovered nearly a year after the incident, without any

credible independent corroboration. The mahazar witness

(PW1) denied witnessing the recovery and admitted to

signing the document in the police station.

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48. The recoveries and scene of offence

panchanamas are tainted by procedural irregularities and

lack of independent witnesses, and therefore cannot be

relied upon.

49. The prosecution failed to establish any strong

motive on the part of Accused No. 2. Even assuming

Accused No. 1 had a grievance with the deceased, there

is no material indicating a shared common

intention between Accused No. 1 and Accused No. 2. Mere

presence, even if proved (which itself is not conclusively

established), is insufficient to infer constructive liability

under Section 34 IPC.

50. The Trial Court's conviction of Accused No. 2

appears to have been predominantly influenced by the

inadmissible confession, with little to no independent

evidence to substantiate the charges. The findings are:

a) Not based on legally admissible material.

b) Contrary to settled principles of criminal

jurisprudence, particularly the burden of proof.

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c) Reflective of a perverse and untenable

interpretation of circumstantial evidence.

51. In view of the aforementioned reasons, this

Court is of the firm view that the prosecution

has miserably failed to establish the guilt of Accused No. 2

beyond reasonable doubt. The conviction is unsupported

by lawful evidence, vitiated by procedural irregularities

and violative of constitutional safeguards.

ORDER

(i) Crl.A.No.100326/2020 is allowed.

(ii) The Judgment of conviction and order on sentence passed by the II Addl. District and Sessions Judge at Haveri, sitting at Ranebennur in Sessions Case No. 76/2016, dated 27.10.2020 is set aside.

(iii) Appellant/accused No.2 is acquitted for the offences punishable under Sections 201 read with Section 34 of IPC.

(iv) The fine amount, if any deposited by the accused shall be refunded to him.

(v) Registry is directed to send a copy of this judgment along with trial Court records to the concerned trial Court.

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(vi) The appeal filed by the State in Crl.A.No.100180 of 2021 seeking enhancement of sentence is dismissed.

Sd/-

(SACHIN SHANKAR MAGADUM) JUDGE

Sd/-

(G BASAVARAJA) JUDGE MBS/AM Ct:vh