Karnataka High Court

Basavaraj S/O Shantappa ... vs The State Of Karnataka on 4 November, 2025

Author: S.R. Krishna Kumar

Bench: S.R. Krishna Kumar

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                                                       CRL.A No. 100514 of 2022


                   HC-KAR




                     IN THE HIGH COURT OF KARNATAKA,AT DHARWAD

                      DATED THIS THE 4TH DAY OF NOVEMBER, 2025

                                         PRESENT

                      THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                                           AND
                          THE HON'BLE MR. JUSTICE C.M. POONACHA

                          CRIMINAL APPEAL NO. 100514 OF 2022 (C)

                   BETWEEN:

                   BASAVARAJ
                   S/O SHANTAPPA SHETTEPPANAVAR
                   AGED ABOUT 50 YEARS,
                   OCC. COOLIE WORK,
                   R/O. BHAGAVAN GALLI, KALADAGI
                   BAGALKOT TALUK AND DISTRICT -587101
                                                                 ...APPELLANT
                   (BY SRI. S.H.MITTALKOD, ADVOCATE)

                   AND:

                   THE STATE OF KARNATAKA
                   REPTD. BY STATE PUBLIC PROSECUTOR
                   HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
                   DHARWAD-580001,
                   (BY KALADAGI POLICE STATION)
Digitally signed
by NIRMALA                                                       ...RESPONDENT
DEVI               (BY SRI. M.B. GUNDAWADE, ADDITIONAL S.P.P.)
Location: HIGH
COURT OF                 THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
KARNATAKA
                   PRAYING TO CALL FOR THE RECORDS, ALLOW THE APPEAL AND SET
                   ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
                   06.09.2022 AND SENTENCE DATED 07.09.2022 PASSED BY THE II
                   ND ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT IN
                   SESSIONS CASE NO.9/2019, FOR THE OFFENCE U/S 302, 307 AND
                   326 OF IPC, AND SET THE ACCUSED AT LIBERTY.
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                                                   CRL.A No. 100514 of 2022


    HC-KAR



     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.08.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, POONACHA J., DELIVERED THE FOLLOWING:

    CORAM:        THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                   AND
                   THE HON'BLE MR. JUSTICE C.M. POONACHA

                                      CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present appeal is filed under Section 374(2) of the

Criminal Procedure Code1 by the accused No.1 calling in

question the judgment dated 06.09.2022 passed in

S.C.No.9/2019 by the II Additional District and Sessions Judge,

Bagalkote2, whereunder, the accused No.1 was convicted for

the offences punishable under Sections 302, 307 and 326 of

the Indian Penal Code3 and acquitted for the offences

punishable under Sections 341, 504 and 506 of IPC. The

accused No.1 was sentenced to undergo imprisonment for life

and pay fine of Rs.1,00,000/- for the offence punishable under

Section 302 of IPC, rigorous imprisonment for 7 years and pay

fine of Rs.10,000/- for the offence punishable under Section

Hereinafter referred as 'Cr.P.C.'

Hereinafter referred as 'trial Court'

Hereinafter referred as 'IPC'

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307 of the IPC. The accused No.2 was acquitted of all the

charges.

2. It is the case of the prosecution that one Boravva-

PW.7(CW.6)4 was the wife of Saidusab Davalsab Mehtar5. That

PW.7 and deceased were married about 30 years ago. That

PW.7 is the daughter of the first wife of her father and the

appellant-accused No.1 is the son of the second wife of the

father of PW.7. That land bearing R.Sy.No.113 of Kaladagi

village was the joint family property of the PW.7 and accused

No.1. As accused No.1 refused to give a share to PW.7, she

filed a suit for partition and got her share in the joint family

property. That accused No.1 and his wife6 decided to commit

murder of PW.7 and her husband. That on 04.03.2018 at about

10.30 am., PW.7 and her husband came to the land bearing

R.Sy.No.113 of Kaladagi village and upon seeing them, accused

No.1 became angry and questioned them as to why they came

near the land when PW.7 has no right over the land.

Thereafter, accused No.1 picked up a quarrel with PW.7 and

her husband (deceased) and abused them in filthy language

Hereinafter referred as 'PW.7'

Hereinafter referred as 'deceased'

Hereinafter referred as 'accused No.2'

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and with an intention of committing murder, hit the deceased

with an axe, on his neck, face, chest and shoulder, due to

which injuries, the deceased died on the spot. That when PW.7

attempted to rescue her husband, accused No.2 who is the wife

of accused No.1, caught hold of PW.7 and abused her with

filthy language and assaulted her. That PW.7 escaped from the

clutches of accused No.1 and when she attempted to rescue

her husband, accused No.1 with an intention of committing

murder of PW.7 assaulted her with an axe, as a result of which

PW.7 sustained injuries to the fingers of her left hand and lost

part of the little finger and also sustained injury to her ring

finger. That subsequent to the incident, accused Nos.1 and 2

fled from the spot.

3. PW.3 lodged a complaint with the police authorities

on the basis of which a case was registered against the accused

and charge sheet was filed against the accused persons for the

offences punishable under Sections 506, 341, 504, 302, 307

and 326 r/w Section 34 of the IPC.

4. The prosecution examined PW.1 to PW.20 and

marked Ex.P1 to P28 as well as M.Os.1 to 9. The accused was

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examined under Section 313 of the Cr.P.C., wherein, they

denied the incriminating evidence against them and stated that

they have been falsely implicated. The accused did not choose

to adduce any evidence.

5. The Trial Court framed the following points for

consideration:-

"1. Whether the prosecution proves that deceased Saidusab died a homicidal death?

2. Whether the prosecution has proved beyond all reasonable doubt that the accused named above, in furtherance of their common intention, on 4.3.2018 at 10:30 a.m., in the land bearing R.S. No.113 situated within the limits of Kaladagi village and Kaladagi Police Station, amongst them, accused No.1 intentionally committed murder of Saidusab by assaulting with an axe behind his neck, on the cheek in front of the face, on the chest and shoulder, and thereby committed an offence punishable under S.302 read with S.34 of I.P.C.?

3. Whether the prosecution further proves beyond all reasonable doubt that the accused in furtherance of their common intention, on the aforesaid date, time and place, amongst them, accused No.1 assaulted C.W.6 Boravva D/o Shantappa Shetteppanavar @ Mehatar W/o Saidusab with an axe on her left hand fingers, thereby

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voluntarily caused grievous hurt by means of dangerous weapon and thereby committed an offence punishable under S.326 read with S.34 of I.P.C.?

4. Whether the prosecution further proves beyond all reasonable doubt that the accused in furtherance of their common intention, on the aforesaid date, time and place, amongst them, accused No.1 attempted to commit the murder of C.W.6 Boravva D/o Shantappa Shetteppanavar @ Mehatar W/o Saidusab by assaulting with an axe, with knowledge that if his said act caused her death, he would be guilty of murder and thereby committed an offence punishable under S.307 read with S.34 of I.P.C.?

5. Whether the prosecution further proves beyond all reasonable doubt that the accused in furtherance of their common intention, on the aforesaid date, time and place, amongst them, accused No.2 wrongfully restrained C.W.6 Boravva D/o Shantappa Shetteppanavar @ Mehatar W/o Saidusab from proceeding further and thereby committed an offence punishable under S.341 read with S.34 of I.P.C.?

6. Whether the prosecution further proves beyond all reasonable doubt that the accused in furtherance of their common intention, on the aforesaid date, time and place, amongst them, accused No.2 abused C.W.6 Boravva D/o Shantappa Shetteppanavar @ Mehatar W/o Saidusab in filthy language, provoked her knowing it to

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be likely that such provocation will cause her to break public peace or commit any other offence and thereby committed an offence punishable under S.504 read with S.34 of I.P.C.?

7. Whether the prosecution further proves beyond all reasonable doubt that the accused in furtherance of their common intention, on the aforesaid date, time and place, criminally intimidated and threatened to the life of Saidusab and C.W.6 Boravva D/o Shantappa Shetteppanavar @ Mehatar W/o Saidusab, and thereby committed an offence punishable under S.506 read with S.34 of I.P.C.?

8. If so, what order ?"

6. The trial Court by judgment dated 06.09.2022,

acquitted the accused No.2, convicted accused No.1 and

imposed the sentences as noticed above. Being aggrieved,

accused No.1 has preferred the above appeal.

7. This Court, by order dated 12.12.2022 suspended

the sentence and enlarged the accused No.1 on bail.

8. Learned counsel for the appellant assailing the

order of conviction passed by the Trial Court contends as

under:

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i) That there are various inconsistencies in the case

put forth by the prosecution and that the

conviction is solely based on the testimony of PW.7

who is the wife of the deceased;

ii) That while it is the case of the prosecution that the

portion of little finger of PW.7 has been cut, there is

no other material regarding the same nor has the

cut portion of the little finger of PW.7 recovered;

iii) That PW.15 (CW.22) has deposed that finger is not

cut but is only a fracture;

iv) That there is no explanation as to where PW.7 was

between the time of the alleged incident i.e., 10.30

a.m. to the time when she went to the hospital at

3.15 p.m.;

v) That there was a delay in PW.7 being examined by

the doctor which has not been explained;

vi) That the deceased and PW.7 were staying in

Bagalkote which is 25 kms away from the place of

occurrence;

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vii) That PW.7 has gone to the Government Hospital,

Bagalkote which is 25 Kms away and later referred

to Kumareshwara Hospital Bagalkote, when a

medical facility was available at the Government

Hospital at Kaladagi, which is an un-natural

circumstance;

viii) That the deceased and PW.7 were stated to have

gone to the spot on a two wheeler. However, the

said two wheeler has not been seized and there is

no evidence regarding the same;

ix) That the accused persons were not named in the

complaint that was lodged;

x) That there was no blood of PW.7 on the axe;

xi) That the suit for partition filed by the PW.7 had

been decreed. That the final decree proceedings

had not yet been initiated pursuant to the

preliminary decree passed. That since there was a

legal recourse available to the complainant and

PW.7 to recover possession, the question of them

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voluntarily going to the spot of the occurrence

which is the land in question does not arise.

9. Hence, learned counsel for the appellant seeks for

allowing of the appeal and for accused No.1 to be acquitted of

the offences charged.

10. Per contra, learned Additional SPP appearing for the

State justifying the order of conviction passed against the

accused No.1 contends as under:

i) That the incident occurred at 10.30 a.m. and the case

was registered at 1 p.m. and there was no inordinate

delay in lodging the complaint;

ii) That the testimony of the PW.7 has not been in any

manner impeached and that PW.7 who is the wife of the

deceased will not suppress the name of the real accused

persons;

iii) The non-recovery of the cut portion of the little finger of

PW.7 will not weaken the case of the prosecution;

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iv) That the preliminary decree-Ex.P.12 in the suit for

partition whereunder, the PW.7 was granted a share in

the suit property is the motive for the accused No.1 to

commit the crime;

v) That the material on record clearly demonstrates that

the death of deceased was homicidal in nature and that

the accused No.1 was guilty of causing the death of the

deceased.

11. Hence, the additional SPP seeks for dismissal of the

above appeal.

12. The submissions made by both the counsel have

been considered and material on record have been perused.

13. The Trial Court has appreciated the testimony of

PW.7 and recorded a finding that the accused had strong

motive to commit the murder of the deceased. Further,

considering the specific defence of the accused that PW.7 (wife

of the deceased) was not present at the spot of the incident,

held that the presence of PW.7 on the spot at the time of the

alleged incident can be believed. While recording the said

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finding, the testimonies of PW.15 and PW.17, along with the

testimony of the complainaint-PW.3, were also appreciated, as

also testimony of PW.6. The trial Court also took into

consideration the fact that the accused No.1 voluntarily

surrendered before the police along with the weapon (M.O.7)

which was seized under exhibit P.9-seizure panchnama. The

testimony of PW.4 who stated that he had seen the accused

No.1 in the police station at the time of his (alleged) surrender

was also noticed.

14. The blood stained clothes of the accused No.1 were

seized under MOs.8 and 9. The Investigating Officer (PW.20)

deposed that the accused No.1 had voluntarily surrendered

before him, along with a weapon. Hence, the trial Court

noticing the testimony of PW.4 along with the testimony of

PW.20 held that the prosecution has successfully established

Ex.P9 in accordance with law. The trial Court appreciated the

case of the prosecution regarding the conduct of accused No.1

that after the incident he had voluntarily surrendered before

police along with the weapon.

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15. The trial Court while noticing the testimony of PW.5

and PW.6 held that they were hearsay witnesses. However,

their evidence that they came to the spot and saw the dead

body and they deposed regarding the presence of PW.7 on the

spot when they reached the place of the incident could be

appreciated. The Trial Court has also held that the accused,

when examined under Section 313 of the CrPC, except denying

the incriminating circumstances against him, did not choose to

offer any explanation.

16. It is clear that the entire case of the prosecution

primarily rests on the testimony of PW.7 who is the wife of the

deceased. While the defence of the accused is that PW.7 was

not present at the spot, to put forth the said defence, various

inconsistencies in the testimony of PW.7 have been highlighted

by the learned counsel for the appellant as has been noticed

above.

17. It is forthcoming from the testimony of PW.7 that

the relationship between the accused, the deceased and PW.7

is undisputed. It is also an admitted fact that PW.7 had initiated

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legal proceedings against accused No.1 seeking for a share in

their ancestral property.

18. PW.7 - Boravva Settappanavar, in the examination-

in-chief deposes regarding the incident in question, wherein she

has stated that on 04.03.2018 when she and her husband

(deceased) reached the property in question (which is situated

at Kalagaddi) at 10.30 a.m., accused No. 1 started a fight and

assaulted her and her husband. It is further deposed that

accused No.2 held PW-7 from behind when accused No.1 killed

her husband with an axe. That when she broke free and tried to

help her husband, accused No.1 hit her with the axe, which cut

her little finger in the left hand. That the husband of PW-7 died

on the spot and that the accused threatened her and went

away on their Bike. That the police took her, initially to

Bagalkote District Hospital for treatment and subsequently to

Kumareshwara Hospital.

19. In the cross-examination, PW.7 has stated that

when she was in the hospital, the police have recorded her

statement. That the distance between her house and Kalagaddi

is 25 kms., and the same could be covered in half an hour.

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That she woke up at 6.00 a.m., to go from Bagalkot to

Kalagaddi with her husband on a bike and they had packed

"avalakki chooda" in a box to eat in the field. That the box has

fallen at the scene of the crime and was seen by the police.

That when the deceased was attacked, the clothes as well as

body of PW-7 was stained with his blood. That two police

officers came to the spot. That she does not know why the

police did not take her to Kalagaddi Government Hospital.

20. PW.7 has further stated in the cross-examination

that the police took her to the hospital and that she does not

know the time. That her husband's relatives had no role in

taking her either to the hospital or to the police station. That

nobody from the neighboring plots of land heard her and only

the police came to the scene of the crime and took her in a

jeep. That her husband's motorcycle was at the scene of the

crime, but was collected later by her husband's brothers.

21. PW.1 - Tajuddin Dadiwale is the brother of the

deceased and is a witness to the inquest panchanama (Ex.P3)

and spot panchanama (Ex.P4). PW.2-Allabaksh Dadiwale is a

witness to Exs.P3 and P4 as well as the Cloth panchanama

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(Ex.P7). PW.1 has turned hostile and denied the Mahazar.

PW.2 has also turned hostile and denied the seizure.

22. PW.3 - Maiboobsab Mehtar is the complainant, who

lodged the complaint (Ex.P8) and is the younger brother of the

deceased. He has deposed that PW.7 informed him over phone

regarding the incident and he came to the spot and saw the

dead body of the deceased. PW.3 has also stated that there

was a civil dispute between PW.7 and accused No.1. That

accused Nos.1 and 2 committed the murder of the deceased.

He also admits that the distance between Bagalkot and

Kalagaddi is 25 kms., and the spot of the incident is 3 kms.,

from the village. PW.3 has turned partly hostile. However, the

testimony of PW.3 as regards the incident in question i.e., the

murder of the deceased by accused No.1 cannot be relied upon

since he is not an eye-witness to the incident and his testimony

insofar as the incident is hearsay.

23. The axe allegedly used by accused No.1 to kill the

deceased has been seized and marked as MO.7 and the clothes

of accused No.1 have been marked as MOs.8 and 9.

PW.4 - Ameensab Bilagi is the witness to MOs.7 to 9.

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24. PW.5 - Rehamansab Mehtar has deposed that upon

intimation from a relative, he went to the spot and saw the

dead body of the deceased and that PW.7 was injured. He also

states that PW.7 informed him that accused No.1 killed the

deceased. PW.6 - Asif Mehtar has deposed on similar lines as

that of PW.5. PWs.5 and 6 had accompanied the complainant

(PW.3) to the spot. The testimony of PWs.5 and 6 as regards

the incident cannot be relied upon as they are not eye-

witnesses to the incident and have reached the spot upon being

informed of the said incident.

25. PW.13 - Rajahmad Mehatara is the brother of the

deceased, who saw the deceased with neck injuries, but did not

know about the murder. He has admitted to the injuries to

PW.7. He is also not an eye-witness to the incident.

26. PW.14 - Dr.Vijay has conducted the Post Mortem

and he has deposed that there were four incised wounds and

abrasions and that the cause of death is due to shock from the

injuries to the neck. PW-15 - Dr. Mallikarjun Tippa has treated

PW.7 and has deposed that there is auto-amputation of the left

little finger, crush injury and fracture of the left ring finger of

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PW.7. He has deposed that the injuries have been caused by a

sharp weapon. In the cross-examination he has admitted that

the injuries may be self-inflicted. PW.18 - Dr.H.Vijaykumar has

treated PW.7 and deposed in line with the testimony of PW.15.

He has further deposed that the injuries to PW.7 could be

caused by MO.7 and also explained regarding "auto-

amputation".

27. PW.17 - Vittal Siddanal is the Police Sub Inspector

who registered the FIR pursuant to the complaint lodged by

PW.3 and handed over the same to the higher officer.

28. PW.20 - Devendrappa Dhulked is the Investigating

Officer, who conducted the inquest, spot panchanama and

seizure as well as recorded the statement of PW.7. He has

deposed that accused No.1 surrendered with axe and clothes

and he had carried out investigation and filed a charge sheet.

29. The complaint (Ex.P8) was lodged at 1.00 p.m., at

Kalagaddi Police Station with regard to the incident that

occurred at 10.30 a.m., pursuant to which FIR (Ex.P23) was

registered.

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30. The wound certificate (Ex.P24) of PW.7 discloses

that her left little finger has been auto-amputated and there is

crush injury to the left ring finger as well as fracture of the

phalanx of the left finger.

31. The report of the Regional Forensic Science

Laboratory (Ex.P28) discloses that MOs.1 to 8 were sent for

examination. It is forthcoming from Ex.P28 that all the articles

sent for examination were stained with blood of blood group

"A". It is pertinent to note that it is not categorically stated in

Ex.P28 as to whether the blood group is A+VE or A-VE. Further,

no eye-witness has been examined to prove Ex.P28. Also, there

is no material on record to indicate the blood group of either

the deceased, accused No.1 or PW.7.

32. Insofar as the testimony of the Investigating Officer

- PW.20 with regard to the surrender of accused No.1, it is

pertinent to notice Section 25 and 27 of the Indian Evidence

Act, 18907 which reads as under:

"25. Confession to police-officer not to be proved.--No confession made to a police-officer3 , shall be proved as against a person accused of any offence.

Hereinafter referred as 'Evidence Act'

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26. ............

27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered inconsequence 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."

33. The Hon'ble Supreme Court in the case of Balaram

v. State of Madhya Pradesh8, relied upon by the learned

counsel for the appellant, while considering the aspect of

appreciation of evidence of witnesses has held as under:

"11. It is well settled, as laid down in a locus classicus case of Vedivelu Thevar v. State of Madras (AIR 1957 SC

614), there are three types of witnesses, which are

(i) wholly reliable,

(ii) wholly unreliable, and

(iii) neither wholly reliable nor wholly unereliable. The law laid down in Vedivelu Thevar (supra) is consistently followed by this Court in a catena of judgments. It can thus be seen that, there are three types of witnesses. If the witness is wholly reliable, there is no difficulty inasmuch as relying on even the solitary testimony of such a witness conviction could be based. Again, there is no difficulty in the case of wholly unreliable witnesses inasmuch as his/her testimony is to be totally discarded.

It is only in the case of the third category of witnesses which is partly reliable and partly unreliable that the Court faces the difficulty. The Court is required to separate the chaff from the grain to find out the true genesis of the incident."

(emphasis supplied)

Crl.A.No.2300/2009: Order dated 08.11.2023

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34. The Hon'ble Supreme Court in the case of Sharad

Birdhichand Sarda v. State of Maharashtra9, relied upon by

the learned counsel for the appellant, while considering the

manner of appreciation of evidence has held as under:

"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court."

(emphasis supplied)

35. The Hon'ble Supreme Court in the case of

Krishnegowda v. State of Karnataka by Arkalgud Police10

relied upon by the learned counsel for the appellant held as

under:

"20. Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the Court, but if these contradictions create such serious doubt in the

(1984) 4 SCC 116

judgment dated 28.3.2017 in Criminal Appeal No.635/2006 (SC)

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mind of the Court about the truthfulness of the witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such evidence.

21. In the case on hand, the evidence of eyewitnesses is only consistent on the aspect of injuries inflicted on the deceased but on all other factors there are lot of contradictions which go to the root of the matter.

26. Latches in Investigation: (i) One of the major lacuna in the case is non-mentioning of the names of A2 & A5 by PW1 to the police at the earliest point of time. The High Court went wrong in observing that this will not amount to latches and it will not go to the root of the matter. These are the glaring defects which will virtually collapse the case of the prosecution. It is no doubt true that the FIR need not be an encyclopedia and also it need not contain all the details but when the names of A2 & A5 were not figured in the FIR it casts a doubt on the whole episode. According to the eyewitnesses, accused had inflicted major injuries and that was the reason for the death of the deceased. It is expected from a prudent man to disclose the names of accused. If the accused cannot be identified or not known to the PWs then it is not a serious thing to dwell upon but these people are very much known to PW1's family. It therefore creates a serious doubt in the mind of the Court.

(ii) The other glaring defect in the investigation is when A1 has sustained injuries and admittedly a complaint was given by his father, a duty is cast upon the prosecution to explain the injuries. The doctor has also categorically deposed about the injuries sustained by A1. These lapses on the part of Investigating Officer assume greater importance and prove to be fatal to the case of the prosecution. When the Investigating Officer deposed before the Court that the complaint given by A5's father was investigated and he filed 'B form' and the case was closed, not marking the document is fatal to the case of prosecution. Investigating Officer further suppressed the fact that there was a direct evidence to seize the gun used by the deceased and register a complaint against the deceased under the relevant provisions of the Arms

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Act which is evident from the endorsement made on Exhibit P22.

(iv) The Investigating Officer himself deposed that he had not seen the MOs and as per the panch witnesses also they were not seized. The Doctor (PW10) deposed that those articles were not placed before her and no opinion was sought.

(v) PW2 was also an injured witness. According to the prosecution he was injured on 27-02-1991. But he went to the hospital on 08-03-91 and the reasons for delay were left unexplained."

(emphasis supplied)

36. The Hon'ble Supreme Court in the case of Aghnoo

Nagesia11 while considering the legal position of a confession

and noticing various provisions of the Evidence Act, including

Section 25 of the Act, held as under:

"9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides:

"No confession made to a police officer, shall be proved as against a person accused of an offence". The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession

1965 SCC OnLine SC 109

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made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides 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. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub- section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and

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should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.

10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non- confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant, see Faddi v. State of Madhya Pradesh [ Criminal Appeal No. 210 of 1963 decided on January 24, 1964] explaining Nisar Ali v. State of U.P. [AIR 1957 SC 366] and Dal Singh v. King-Emperor [LR 44 IA 137] . But a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act.

11. The Indian Evidence Act does not define "confession".

For a long time, the courts in India adopted the definition of "confession" given in Article 22 of Stephen's Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayanaswami v. King-Emperor [(1939) LR 66 IA 66, 81] . Lord Atkin observed:

"...no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and

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was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession." These observations received the approval of this Court in Palvinder Kaur v. State of Punjab [(1952) 2 SCC 177 :

(1953) SCR 94, 104] . In State of U.P. v. Deoman Upadhyaya [(1961) 1 SCR 14, 21] Shah, J. referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime.

12. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant v. State of U.P. [(1952) 2 SCC 71 : (1952) SCR 1091, 1111] and Palvinder Kaur v. State of Punjab [(1952) 2 SCC 177 : (1953) SCR 94, 104] . The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.

13. Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non- confessional statement. Each part discloses some incriminating fact i.e. some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional

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statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.

14. If proof of the confession is excluded by any provision of law such as Section 24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted.

15. Sometimes, a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under Section 304-A of the Indian Penal Code and a statement made by him to a police officer that "I was drunk; I was driving a car at a speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the horn; 1 made no attempt to stop the car; the car knocked down A". No single sentence in this statement amounts to a confession, but the statement read as a whole amounts to a confession of an offence under Section 304-A of the Indian Penal Code, and it would not be permissible to admit in evidence each sentence separately as a non-confessional statement. Again, take a case where a single sentence in a statement amounts to an admission of an offence. 'A' states "I struck 'B' with a tangi and hurt him". In consequence of the injury 'B' died. 'A' committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negatives the right of private defence, accident and other possible defences. Each and every

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admission of an incriminating fact contained in the confessional statement is part of the confession.

16. If the confession is caused by an inducement, threat or promise as contemplated by Section 24 of the Evidence Act, the whole of the confession is excluded by Section

24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by Section 24. To hold that the proof of the admission of other incriminating facts is not barred by Section 24 is to rob the section of its practical utility and content. It may be suggested that the bar of Section 24 does not apply to the other admissions, but though receivable in evidence, they are of no weight, as they were caused by inducement, threat or promise. According to this suggestion, the other admissions are relevant, but are of no value. But we think that on a plain construction of Section 24, proof of all the admissions of incriminating facts contained in a confessional statement is excluded by the section. Similarly, Sections 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessions statement of all incriminating facts related to the offence.

17. A little reflection will show that the expression "confession" in Sections 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus fall within the purview of Sections 24, 25 and

26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, Section 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself

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but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession.

18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27."

(emphasis supplied)

37. Having regard to Sections 25 and 27 of the

Evidence Act and the legal position as noticed above, it is clear

that the testimony of the Investigating Officer (PW.20) as to

the surrender of accused No.1, cannot be looked into. Further

the testimony of PW.4, who has deposed that he was present

at the police station and saw the seizure of the axe (MO.7) and

clothes (MOs.8 and 9) from accused No.1 also cannot be looked

into/considered.

38. The testimony of PW.15 - Doctor, PW.17 - PSI who

registered the complaint, which has been relied upon by the

Trial Court and appreciated along with the testimony of PW.7

also will not aid the case of the prosecution as neither PW.15

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nor PW.17 or PW.3 (complainant) are eye-witnesses to the

incident in question. The doctor - PW.15 has treated PW.7 for

the injuries sustained by her. However, it is not the testimony

of PW.15 that the injuries sustained by PW.7 were caused by

accused No.1 in the incident in question. In fact, in the cross-

examination, PW.15 has admitted that the injuries could be

self-inflicted.

39. PW.17 has merely registered the complaint lodged

by PW.3. The investigation of the said complaint was done by

PW.20. PW.3 has lodged the complaint based on the

information provided by PW.7. Hence the testimony of PW.17

and PW.3 vis-à-vis the incident in question also will not aid the

case of the prosecution.

40. It is further pertinent to note here that the

testimony of PW.15, PW.17 and PW.3 also do not corroborate

the testimony of PW.7 since they have deposed based on the

version given by PW.7.

41. Merely on the basis of the testimony of PW.7, it

could not be held that accused No.1 has committed the offence

as charged/alleged in view of the fact that various aspects of

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the testimony of PW.7, have remained unexplained. It is

pertinent to note here that it is the deceased and PW.7, who

have gone to the spot in question. Hence, it cannot be stated

that accused No.1 had a motive to commit the offence. Further,

the presence of PW.7 between the alleged time of the incident

at 10.30 a.m., till the time when the complaint was lodged i.e.,

1.30 p.m., has remained unexplained. The blood stains on the

axe (MO.7) and the clothes of accused No.1 (MOs.8 and 9) also

do not corroborate to the blood group of either accused No.1 or

the deceased.

42. The Trial Court erroneously appreciated the

testimony of PW.15, PW.17 and PW3 along with the testimony

of PW.6 and appreciated the same along with the testimony of

PW.7 for the purpose of convicting accused No.1. PWs.5 and 6

have merely stated regarding seeing the dead body and the

presence of PW.7 at the spot. As already noticed hereinabove,

the testimonies of PW.15, PW.17, PW.3 and PW.6 ought not to

have been appreciated so as to corroborate the testimony of

PW.7, vis-à-vis the incident in question so as to convict accused

No.1. Further, merely because the accused has not offered any

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explanation under the Section 313 statement, the same cannot

be construed as a circumstance to convict the accused.

43. In view of the aforementioned, the conviction and

sentence recorded by the Trial Court is erroneous and liable to

be set aside and the above appeal of accused No.1 is required

to be allowed.

44. Hence, the following:

ORDER

i) The above appeal is allowed;

ii) The judgment of conviction dated 6.9.2022 and order of sentence dated 7.9.2022 passed in SC No.9/2022 by the II Additional District and Sessions Judge, Bagalkot, are hereby set aside.