(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
2. The brief facts giving rise to the present appeal
wife Smt. Bhagyashree was murdered by accused No.1,
punishable under Sections 302 and 201 of IPC. In
the respondent-police authorities at 07.30 p.m. on
Trial Court. While the accused No.1 was alleged to have
3. It is a matter of record that accused No.1 and
4. The prosecution examined 21 witnesses as PW1
were marked. The appellant/accused No.2 as well as the
evidence on their behalf. After hearing the parties, the Trial
the offences punishable under Section 109 of IPC.
M. O. 1 to 5 and 8 to 22 being worthless are
ordered to be destroyed subject to appeal after
expiry of appeal period.
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Office is hereby directed to send the copy of
this "Judgment of Conviction and Order of
Sentence" to the District Magistrate, Belagavi as
per Sec. 365 of Cr. P. C.
Office is hereby further directed to furnish
the free copy of the Judgment and Order to
accused no.1 and 2 immediately.
Office to issue conviction warrant
accordingly."
5. Aggrieved by the impugned judgment insofar as
it relates to him, appellant/accused No.2 is before this Court
by way of the present appeal.
6. Learned counsel for the appellant and learned
Addl. SPP submit that to the best of their knowledge, the
accused No.1 has not preferred any appeal and continues to
remain in custody.
7. The said submission is placed on record.
8. Heard the learned counsel for the
appellant/accused No.2 and learned Addl. SPP for
respondent-State and perused the material on record.
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9. Learned counsel for the appellant/accused No.2
reiterates the various contentions urged in the
memorandum of appeal and invited our attention to the
impugned judgment in order to point out that, without there
being any legal or acceptable evidence or proof to establish
that the appellant/accused No.2 was guilty for the offence
of abetment of murder, as contemplated under Section 109
of IPC, the Trial Court committed an error in convicting the
appellant for the aforesaid offence.
10. It was submitted that the impugned judgment
entirely focuses on the alleged offences committed by
accused No.1 and the appellant/accused No.2 has been
convicted on the basis of a sole confessional/voluntary
statement of accused No.1, which is impermissible in law
and except the said factor/circumstance, there is no other
evidence to incriminate the appellant/accused No.2 for the
alleged offence. It was therefore submitted that the
impugned judgment passed by the Trial Court convicting
the appellant/accused No.2 for the offence punishable under
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Section 109 of IPC, deserves to be set aside and the
appellant/accused No.2 be acquitted for the alleged offence.
11. Per contra, the learned Addl. SPP would support
the impugned judgment and submits that there is no merit
to the appeal and the same is liable to be dismissed.
12. We have given our careful consideration to the
rival submissions of the learned counsel for the parties and
perused the material on record.
13. A perusal of the material on record will indicate
that the incident resulting in the murder of the deceased-
Smt. Bhagyashree, is said to have occurred during the
midnight of 08.12.2019. It is an undisputed fact that the
complaint was lodged after a period of 5 days from the date
of the incident. While coming to the conclusion that the
accused No.1, who was none other than the sister of the
deceased was guilty of the offences punishable under
Sections 302 and 201 of IPC, the Trial Court places reliance
upon the evidence of witnesses who are said to have seen
the accused No.1 at the place of the incident on the night of
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the murder and has also considered the material on record
including the Forensic Lab Reports, Post Mortem Report and
DNA Report which indicates that the hair of the accused
No.1 was found at the place of the incident, in order to
come to the conclusion that the accused No.1 was not only
present at the spot when the incident took place but was
also guilty of the alleged offences as contemplate under
Sections 302 and 201 of IPC.
14. The Trial Court also took into account the
material or record which indicate that the demise of the
deceased was a homicidal death and there was sufficient
material to link the accused No.1 to the homicidal death of
the deceased, and that the accused No.1 was guilty of
committing murder and also notices that as on the date of
the incident which occurred in the house of the deceased,
only the accused No.1 and deceased were present and their
presence was spoken to by the witnesses in their
testimonies. Under these circumstances, the Trial Court
came to the conclusion that the accused No.1 was guilty of
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the offences alleged against her and passed an order of
conviction and sentenced the accused No.1 for the offences
punishable under Sections 302 and 201 of IPC.
15. However, when it came to appellant/accused
No.2, the Trial Court places reliance on the sole
confessional/voluntary statement of accused No.1, which is
marked at Ex.P23, in order to come to the conclusion that
the appellant/accused No.2 was guilty of the offence of
abetment to murder as contemplated under Section 109 of
IPC. The Trial Court also noticed the allegation that the
appellant/accused No.2 was said to be having an illicit
relationship with the accused No.1 and since, the deceased
warned the accused No.1 about this extramarital/illicit affair
between the accused No.1 and accused No.2, the
appellant/accused No.2, abetted the accused No.1 for
committing the murder of the deceased.
16. In this context, it is pertinent to note that except
the aforesaid two circumstances, there is absolutely no
other material either produced or considered or appreciated
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by the Trial Court for the purpose of recording or finding
that the appellant/accused No.2 was guilty of the offence of
abetment of murder. In fact, two witnesses i.e., PW4 who is
a pancha and PW7 who is the complainant turned partially
hostile and did not support the case of the prosecution
insofar as murder was concerned. So also, the Investigating
Officer who was examined as PW18 admits that he did not
collect any material nor placed the same before the Trial
Court to evidence the alleged illicit relationship between the
accused No.1 and accused No.2. As stated supra, the Trial
Court places reliance upon the sole confessional/voluntary
statement of accused No.1, for the purpose of recording the
finding that the appellant accused No.2 was guilty of the
offence abetment to murder as contemplated under Section
109 of IPC, which is impermissible in law as held by the
Hon'ble Apex Court and this Court in various judgments
including the judgment of the Hon'ble Apex Court in the
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case of Kalinga Alias Kushal Vs. State of Karnataka1,
wherein it is held as under;
"15. The conviction of the appellant is largely
based on the extra-judicial confession allegedly
made by him before PW 1. So far as an extra-
judicial confession is concerned, it is considered as
a weak type of evidence and is generally used as a
corroborative link to lend credibility to the other
evidence on record. In Chandrapal v. State of
Chhattisgarh, this Court reiterated the evidentiary
value of an extra-judicial confession in the
following words : (SCC OnLine SC para 11)
"11. At this juncture, it may be noted that as per
Section 30 of the Evidence Act, when more persons
than one are being tried jointly for the same offence,
and a confession made by one of such persons
affecting himself and some other of such persons is
proved, the court may take into consideration such
confession as against such other person as well as
against the person who makes such confession.
However, this court has consistently held that an
extra-judicial confession is a weak kind of evidence
and unless it inspires confidence or is fully
corroborated by some other evidence of clinching
nature, ordinarily conviction for the offence of
murder should not be made only on the evidence of
extra-judicial confession. As held in State of
M.P. v. Paltan Mallah, the extra-judicial confession
made by the co-accused could be admitted in
evidence only as a corroborative piece of evidence.
In absence of any substantive evidence against the
accused, the extra-judicial confession allegedly
made by the co-accused loses its significance and
(2024) 4 SCC 735
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there cannot be any conviction based on such extra-
judicial confession of the co-accused."
16. It is no more res integra that an extra-
judicial confession must be accepted with great
care and caution. If it is not supported by other
evidence on record, it fails to inspire confidence
and in such a case, it shall not be treated as a
strong piece of evidence for the purpose of
arriving at the conclusion of guilt. Furthermore,
the extent of acceptability of an extra-judicial
confession depends on the trustworthiness of the
witness before whom it is given and the
circumstances in which it was given. The
prosecution must establish that a confession was
indeed made by the accused, that it was voluntary
in nature and that the contents of the confession
were true. The standard required for proving an
extra-judicial confession to the satisfaction of the
Court is on the higher side and these essential
ingredients must be established beyond any
reasonable doubt. The standard becomes even
higher when the entire case of the prosecution
necessarily rests on the extra-judicial confession."
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17. A perusal of the impugned judgment of the Trial
Court in relation to convicting the appellant/accused No.2
for the offence of abetment to murder is as under;
"53. Coming back to the facts and circumstances of
instant case, the learned counsel for defense all
through out the case never disputed the presence
of accused no.1 with deceased at the spot on the
alleged date and time. Under the circumstances, in
reliance with testimony of C.W.10 examined as
P.W.7, it could be safely concluded that the
prosecution is successful in establishing the actual
presence of accused no.1 with deceased in the
closed proximity of house, wherein, the accused
no.1 alone had access as consistently deposed by
each one of the close relatives of deceased and
accused no.1. Consequently, the explanation
offered by the accused no.1 to the effect that the
deceased used to invite ghost and no body could
be expected to stay with her cannot be acceptable
one. Moreover, when the offence occur within the
family, it is but quite natural that strangers may
not be interested to come and depose before the
Court. Under the circumstances, the testimony of
close relatives shall have to be accepted for the
simple reason that accused no.1 is also equally
related to them. I, therefore, do not find any just
cause to disbelieve the testimony of P. W. 7, 1, 8
and 9. Moreso, the cause of death as well as
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recovery including discovery stood well establish
through examination of independent panchas and
experts including the doctors and scientific officer.
And the testimony of official witnesses is found to
be consistent with story of prosecution. Indeed,
the delay in lodging the complaint is properly
explained and the nexus in between accused no.1
and 2 also stood well established. And this accused
no.1 is also found to be convicted for the murder
of her own son and for the very reason of illicit
relationship with accused no.2 in S. C. No.
166/2020, giving sufficient corroboration to the
case of prosecution with regard to motive of
offence and actual abetment caused by accused
no.2 to accused no.1, which one, further well
established by the confessional statement.
54. In that view of the matter, this Court having had
carefully appreciated the oral and documentary
evidence including the material objects placed on
record finds it appropriate to conclude that the
prosecution is very much successful in establishing
the guilt of accused no.1 and 2 beyond all
reasonable doubts on the basis of unimpeached
testimony. Consequently, the minor discrepancies
which are bound to occur cannot be given much
weightage.
56. In that regard, when the material placed on record
is carefully appreciated, although, the learned
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legal aid counsel for accused no.1 through
consistent suggestions made to each one of the
close relatives attempted to establish that the
relationship in between accused no.1 and
deceased was very much cordial, and they used to
live with peace. But the kind of overt act on the
part of accused no.1 and 2 continuing in illicit
relationship despite repeated warning by the
victim is shown to have led to this consequence
and therefore, it cannot be inferred that the
accused no.1 and 2 never thought of murdering
the victim. In fact, the guilty mind must be
inferred from the conduct, which is very much
explicit from the testimony of each one of the
material witnesses examined on behalf of
prosecution. Under the circumstances, the overt
acts as complained of cannot be brought under
any of the exceptions U/Sec. 300 of I. P. C, and
intention of the accused no.1 & 2 could be readily
inferred. And therefore, taking into consideration
of the entire material placed on record and the
case of prosecution as charge sheeted; this Court
is of the further considered opinion that the
prosecution is very much successful in establishing
the intention as well as overt acts in furtherance of
common intention, and prior abetment caused by
accused no.2. It could, therefore, be safely
concluded after careful appreciation of the entire
material on record from the above mentioned
discussion and reasoning that the prosecution has
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proved its case beyond all reasonable doubts to
record an Order of conviction U/Sec. 302, 109,
201 of I. P. C. With the above observation and
for the reasons stated supra, I am inclined to
answer the Points No.2 to 4 in the
affirmative."
18. It is interesting to note that except the aforesaid
findings recorded by the Trial Court, in the remaining part
of the judgment there are no findings whatsoever recorded
against the appellant/accused No.2 in relation to the alleged
offence of abetment to murder, for which he was convicted
by the Trial Court. In fact, even in the aforesaid paragraph
Nos.53, 54 and 56, the sole ground on which the
appellant/accused No.2 has been held to be guilty of the
offence of abetment to murder as contemplated under
Section 109 of IPC, is by placing reliance upon the alleged
confessional/voluntary statement of accused No.1, which is
inadmissible and impermissible and incapable of being relied
upon by the prosecution, as erroneously held by the Trial
Court.
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19. It is also pertinent to note that nothing is
recovered from the accused No.2 for the purpose of
incriminating him for the alleged offences. So also, none of
the prosecution witnesses speak about the presence of the
accused No.2 at the time or before the time of the murder
said to have taken place during the midnight of 08.12.2019.
Further, none of the other witnesses, in their testimonies,
have stated anything against the appellant/accused No.2,
so as to incriminate him for the alleged offences.
20. Under these circumstances, we are of the
considered opinion that the Trial Court completely
misdirected itself in coming to the erroneous conclusion that
the appellant/accused No.2 was guilty of the alleged
offences punishable under Section 109 of IPC, without there
being any legal or acceptable evidence in this regard so as
to prove the guilt of the appellant/accused No.2 beyond
reasonable doubt.
21. We are of the view that the impugned judgment
passed by the Trial Court deserves to be set aside and the
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appellant/accused No.2 be acquitted of the charges levelled
against him.
22. It is made clear that this order is passed only in
relation to the accused No.2 and this order will not have any
impact/bearing on any claim or any appeal put forth by the
accused No.1 before any Court or forum including this Court
and the present order is restricted only to accused No.2.
23. In the result, we pass the following:
ORDER
(i) The appeal is hereby allowed;
(ii) The impugned judgment dated 12.03.2025
in Sessions Case No.168/2020 passed by
the VII Addl. Sessions Judge, Belagavi
sitting at Chikkodi, insofar as it relates to
convicting and sentencing the
appellant/accused No.2 for the offence
punishable under Section 109 of IPC is
hereby set aside;
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(iii) The appellant/accused No.2 is acquitted
for all the offence punishable under
Section 109 of IPC;
(iv) The respondent and the concerned jail
authorities are directed to release/set at
liberty the appellant/accused No.2
immediately upon receipt of this order,
unless required in respect of any other
case;
(v) The Registry is directed to communicate
the operative portion of this order to the
respondent and concerned jail authorities
forthwith both telephonically and
electronically;
(vi) Pending applications, if any, are disposed
of accordingly.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
