[Cites 12, Cited by 0]

Karnataka High Court

Sri.Shivanandha @ Shivagonda S/O ... vs The State Of Karnataka on 19 February, 2026

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                                  NC: 2026:KHC-D:2670-DB
                                                               CRL.A No. 100085 of 2020
                                                           C/W CRL.A No. 100156 of 2020
                                                               CRL.A No. 100232 of 2020
                           HC-KAR



                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 19TH DAY OF FEBRUARY 2026

                                                    PRESENT

                                 THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

                                                          AND

                                    THE HON'BLE MRS JUSTICE GEETHA K.B.

                                CRIMINAL APPEAL NO.100085 OF 2020 (C)
                                                 C/W
                         CRIMINAL APPEAL Nos.100156 OF 2020 AND 100232 OF 2020

                          IN CRL.A NO. 100085/2020
                          BETWEEN:

                          SRI.KIRAN
                          S/O. RAMAPPA PADASALAGI @ HALINGALI,
                          AGE: 20 YEARS, OCC. AGRICULTURE,
                          R/O. NANDGAON, TQ. ATHANI,
                          DIST. BELAGAVI.
                                                                             ...APPELLANT
                          (BY SRI.K.L. PATIL, ADVOCATE)
VIJAYALAKSHMI
M KANKUPPI
                          AND:
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
Location: HIGHCOURT OF
                          THE STATE OF KARNATAKA,
KARNATAKA DHARWAD
BENCH DHARWAD             BY ITS C.P.I. BANAHATTI,
                          NOW REPRESENTED BY
                          STATE PUBLIC PROSECUTOR,
                          HIGH COURT OF KARNATAKA,
                          DHARWAD BENCH, DHARWAD.
                                                                           ...RESPONDENT
                          (BY SRI.JAIRAM SIDDI, HCGP)

                                 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
                          CR.P.C., PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
                          JUDGMENT OF CONVICTION AND ORDER OF SENTENCING DATED
                          03/01/2020 & 04/01/2020 PASSED BY THE LEARNED I ADDL.
                                 -2-
                                        NC: 2026:KHC-D:2670-DB
                                     CRL.A No. 100085 of 2020
                                 C/W CRL.A No. 100156 of 2020
                                     CRL.A No. 100232 of 2020
HC-KAR



DISTRICT AND SESSIONS, BAGALKOTE SITTING AT JAMAKHANDI IN
SC   NO.112/2017   FOR   THE    OFFENCES   PUNISHABLE   UNDER
SECTIONS 302, 201, 120(B), 109 R/W SECTION 34 OF IPC AND
ACQUIT THE APPELLANT FOR CHARGES LEVELLED AGAINST HIM, IN
THE INTEREST OF JUSTICE AND EQUITY.


IN CRL.A NO. 100156/2020
BETWEEN:

SHRISHAIL S/O. MUTTAPPA MALI,
AGE: 22 YEARS, OCC. AGRICULTURE,
R/O. NANDGAO, TQ. ATHANI,
DIST. BELAGAVI-423106.
                                                      ...APPELLANT
(BY SRI.K.L. PATIL, ADVOCATE)


AND:

THE STATE OF KARNATAKA
THROUGH BANAHATTI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                                    ...RESPONDENT
(BY SRI.JAIRAM SIDDI, HCGP)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO CALL FOR THE RECORDS IN S.C.NO.112/2017 ON
THE FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOTE,
SITTING AT JAMKHANDI AND ALLOW THIS CRIMINAL APPEAL AND SET
ASIDE THE JUDGMENT OF CONVICTION DATED 03/01/2020 AND ORDER
OF SENTENCE DATED 04/01/2020 PASSED BY I ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOTE, SITTING AT JAMKHANDI, IN
SC.NO.112/2017 CONVICTING THE APPELLANT FOR OFFENCES
PUNISHABLE UNDER SECTIONS 302, 201, 120B R/W. SECTION 34 OF
IPC, AND ACQUIT THE APPELLANT / ACCUSED NO.2 OF THE OFFENCES
PUNISHABLE SECTIONS 302, 201, 120-B, R/W. 34 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY.
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                                        NC: 2026:KHC-D:2670-DB
                                     CRL.A No. 100085 of 2020
                                 C/W CRL.A No. 100156 of 2020
                                     CRL.A No. 100232 of 2020
HC-KAR




IN CRL.A NO. 100232/2020
BETWEEN:

SRI.SHIVANANDHA @ SHIVAGONDA
S/O. NANASAB SOLAKHAN,
AGE: 25 YEARS, OCC. AGRICULTURE,
R/O. NANDGOAN, TQ. ATHANI,
DIST. BELAGAVI.
                                                      ...APPELLANT
(BY SRI.K.L. PATIL, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY ITS C.P.I. BANAHATTI,
NOW REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                                    ...RESPONDENT
(BY SRI.JAIRAM SIDDI, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCING DATED
03/01/2020 & 04/01/2020 PASSED BY THE LEARNED I ADDL. DISTRICT
AND    SESSIONS,   BAGALKOTE     SITTING   AT   JAMKHANDI   IN   SC
NO.112/2017 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302,
201, 120(B) R/W. SECTION 34 IPC IN RESPECT OF THE APPELLANT AND
ACQUIT THE APPELLANT FOR CHARGES LEVELLED AGAINST HIM, IN THE
INTEREST OF JUSTICE AND EQUITY.


       THESE CRIMINAL APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:             HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                    AND
                     HON'BLE MRS JUSTICE GEETHA K.B.
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                                     CRL.A No. 100085 of 2020
                                 C/W CRL.A No. 100156 of 2020
                                     CRL.A No. 100232 of 2020
HC-KAR




                       ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

The Court of I Additional District and Sessions Judge,

Bagalkot, sitting at Jamkhandi, by its judgment and order

dated 03.01.2020 and 04.01.2020 has convicted and

sentenced accused Nos.1 to 3 for the offence punishable

under Sections 120B, 302 and 201 read with Section 34 of

the Indian Penal Code (Hereinafter referred to as 'the IPC',

for short).

2. Assailing the judgment and order of conviction

and sentence, accused No.1 has preferred Crl.A.

No.100232/2020, accused No.2 has preferred Crl.A.

No.100156/2020 and accused No.3 has preferred Crl.A.

No.100085/2020.

3. We have heard the learned counsel for the

appellants and the learned High Court Government Pleader

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for the respondent/State and perused the evidence and

material on record.

4. Brief facts of the prosecution case: the

deceased Sunil is the son of the first informant Bhagavant

Savadhi (PW.8). His marriage with Arpitha took place

about a year and half prior to the date of the incident.

After the marriage, Arpitha was residing along with her

husband and in-laws in the house situated in their land

bearing Sy.No.214/4/2 at Terdal village. Arpitha had an

illicit relationship with accused No.1 since two years prior

to her marriage. However, due to the pressure of her

parents, she had married Sunil. Even after the marriage,

she was constantly in touch with accused No.1 through

phone. Both of them hatched a plan to commit the

murder of Sunil and in this connection, they conspired with

accused Nos.2 and 3, close friends of accused No.1. At

the instigation of Arpitha and in furtherance of the

conspiracy hatched, on 16.05.2017, accused No.1 secured

accused Nos.2 and 3 and came near the house of the

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deceased on a motorcycle bearing registration

No.KA.23/EB-4259, handed over a mobile and told Arpitha

to inform about the movements of the deceased. When

the deceased proceeded to the land on his motorcycle

bearing No.KA.48/Q-2620, Arpitha informed accused No.1.

All the three accused came near the land of one Padmaraj

Heerachand Aalagur (PW.11) waiting for the deceased. At

about 7:30 pm, when the deceased arrived on his

motorcycle, the accused in the guise of enquiring the

location of some land, stopped him and all of a sudden

pushed him down and held his hands and legs. Accused

Nos.1 and 3 strangulated him with kerchief and committed

his murder. Thereafter, they shifted the dead body as well

as the motorcycle and dumped near the land of one

Mahaveer (CW-19) and to make it appear as if it is a case

of accident.

5. On the basis of the complaint of PW.8, father of

deceased, as per Ex.P-22, initially FIR was registered for

the offence punishable under Section 279 and 304A of

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IPC. Later, PW.8, suspected the conduct of his daughter-

in-law Arpitha, as she had left the matrimonial home and

gone to her parental home within a short period of her

husband's death. He along with PW.7-Sheetal Jinnappa

Gulannavar and CW-14-Dhanapal went to Nandagaon

village i.e., to the parental home of Arpitha. They were

informed by the villagers about the prior illicit intimacy

between Arpitha and accused No.1, which was not within

their knowledge. Thereafter, they returned to the village

and informed the matter to the police, suspecting the role

of Arpitha and accused No.1. On the basis of the further

statement of PW.8 given to the police on 29.05.2017, as

per Ex.P-23, the investigation continued.

6. P.W.20-the Investigation Officer collected the

call detail records regarding the calls made between

Arpitha and accused No. 1. He instructed PW19 to arrest

the accused. Accordingly PW.19, arrested accused No. 1, 2

and Arpitha on 04.06.2017 and accused No.3 on

07.06.2017. On their voluntary statements, incriminating

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articles were recovered. On completion of the

investigation, charge sheet was filed against accused

Nos.1 to 3 and Arpitha, arraying her as accused No.4.

7. In the course of trial, after examination of some

of the witnesses, as it was found that Arpitha was minor at

the time of incident, the trial Court issued necessary

direction to the Investigation Officer to produce her before

the Juvenile Court, Bagalkot. The trial continued against

accused Nos.1 to 3.

8. The prosecution got examined PW.1 to PW.21

and got marked Exs.P1 to P67, M.O.s 1 to 14 to establish

charges leveled against the accused. The defence got

marked Exs.D.1 and Ex. D.2, portion of the statements of

the witnesses.

9. Learned Sessions Judge vide impugned

judgment convicted and sentenced the accused for the

charged offences punishable under Section 120B, 302 R/W

Section 34 of IPC.

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10. Assailing by the impugned judgment, learned

counsel for the appellants contended that there are no eye

witnesses to the incident; the entire case is based on

circumstantial evidence. The circumstances relied on by

the prosecution has not been proved beyond reasonable

doubts. There are several missing links in the chain of

circumstances. The prosecution has not established that

the deceased died a homicidal death, since the FIR itself is

registered stating that the deceased died on account of

accident. There are several omissions and improvements

in the evidence of the prosecution witnesses. The material

witnesses who according to the prosecution informed the

first informant about the illicit relationship between

accused No.1 and Arpitha have denied the prosecution

case in toto. There is no material to show that Arpitha was

using any mobile phone and even otherwise no certificate

under Section 65B of the Evidence Act has been obtained

to substantiate the call detail records and the calls made

between the accused persons. There is no material or

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evidence to show that the deceased was in the company of

the accused prior to the incident and the evidence of PW6,

PW9 and PW10 is not sufficient to hold that the accused

have committed the murder or attempted to destroy the

evidence so as to screen themselves. The conspiracy

theory of the prosecution is also not proved by any

convincing evidence. The learned counsel therefore

contended that the reasons assigned by the learned

Sessions Judge to convict the accused are not in

accordance with law and accordingly sought to allow the

appeals and acquit the accused of the charged offences.

11. Per contra, learned HCGP contended that the

prosecution by adducing legal and convincing evidence has

established the charges leveled against the accused

beyond reasonable doubts. The chain of circumstances has

been proved by examining the material witnesses. The

prosecution has established that the deceased Sunil died a

homicidal death by examining the doctor and from the

Postmortem report. Further, the illicit relationship between

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accused No.1 and Arpitha is also established and the

witnesses have spoken about the presence of accused

Nos.1 to 3 near the scene of occurrence prior to the

incident. He contended that by assigning valid reasons,

the learned trial Judge has convicted the appellants and

the judgment does not suffer from any infirmities.

Accordingly, sought to dismiss the appeals.

12. In order to establish the charges leveled against

the appellants/accused Nos. 1 to 3, the prosecution has

relied on the following circumstances, as there are no

eyewitnesses to the incident.

       i)     Homicidal death of Sunil.

       ii)    Motive

iii) Illicit relationship between accused No.1 and

Arpitha w/o deceased.

iv) Conspiracy between the accused.

v) The presence of accused Nos.1 to 3 near the

house of the deceased as well as near the place

of incident.

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vi) The recovery of mobile phones as well as the

ligature material-Kerchief

vii) The mobile call details.

13. FIR is registered on the complaint of the father

of deceased-PW.8, for the offence punishable under

Sections 379, 304A IPC. In the complaint-Ex.P.22, PW.8

has stated that on 16.05.2017 at about 7.30 p.m., his son

Sunil went on his motorcycle bearing No.KA.48/Q-2620 so

as to go to the land situated at Shegunashi, but he did not

return. Hence, his another son Sheetal (PW4) went in

search of Sunil and later informed him over phone that

Sunil has sustained head injury and is lying dead near the

land. Immediately, he went to the spot and noticed his son

Sunil with bleeding injuries on his head. With the help of

relatives, they brought him to Danigonda Hospital.

14. PW.19 on getting the information, went to

Danigonda Hospital and received written complaint given

by PW.8, on the basis of which registered the FIR.

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15. The postmortem examination was conducted by

PW17- medical officer, Government Hospital, Banahatti on

17.05.2017 between 08.45 a.m. to 10.45 a.m. He issued

the post mortem report as per Ex.P31 opining that the

death was due to asphyxia secondary to strangulation. He

noticed the following injuries on the dead body:-

1) Two strangulation marks on the anterior aspect of

the neck measuring 16X 1cm and other one 11 X1 cm.

2) 4 X 3 cm dark coloured contusion swelling on the

left side of neck.

3) ½ X ½ cm cut lacerated wound on middle of

forehead.

4) 1 X ½ cm abrasion on the right great toe.

5) 1 X 1 cm contusion marks on the left shoulder.

6) 2 X 2 cm abrasion on the right side of back.

7) 3 X 2 cm abrasion on left side of back.

16. Injury No.1 is on the anterior aspect of the

neck measuring 16X 1cm and other one 11 X1 cm.

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17. The counsel for the appellant contended that

the prosecution has not established that Sunil died

homicidal death, as FIR has registered stating that it is a

case of accident. However, we find from the evidence of

PW17 that the injury No.1 are two strangulation marks

over the neck. He has stated that the death is due to

asphyxia secondary to strangulation. He has also furnished

his opinion with regard to the kerchief, the ligature

material, which was sent for his examination and opined

that the strangulation mark at injury No.1 could be caused

with the said kerchief.

18. It is the contention of the learned counsel that

in the postmortem report, it is not shown that the mark is

encircling the neck or it is horizontal or vertical to find out

whether it is accidental, suicidal or homicidal. However,

PW17 has unequivocally stated that injury No.1 are

strangulation marks could be caused by the kerchief. His

opinion is marked as Ex.P32. Insofar as other injuries are

concerned, he has stated that those injuries could be

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caused if a person falls from a motorcycle. In the cross-

examination, to the suggestion put by the defence,

regarding the injuries over the neck, he has stated that if

a person falls from the motorcycle violently and comes

in contact with the dome of motorcycle or surrounding

object, the first injury cannot be caused because the injury

on its neck is a circular injury.

19. We have perused the inquest report marked as

Ex.P1; Inquest conducted on 17.05.2017, wherein the

injuries marked over the neck have been described as

measuring 16cms and 11 cms.

20. The learned counsel tried to contend that PW.17

in his cross-examination has stated that the death could

have been caused more than 24 hours prior to his

examination and less than 36 hours and therefore, the

case of prosecution that the incident occurred on

16.05.2017 between 7.30 to 8.45 pm., itself is doubtful.

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21. We have perused the P.M. report as Ex.P31,

wherein the time of death is mentioned as within 24 hours

and the rigor mortis was present all over the body.

Further, PW.17 in the chief examination itself has stated

that the death has been caused within 24 hours of

autopsy. He has clearly denied the suggestion that even

the injury on the neck, i.e., the strangulation mark, also

can be caused due to fall from the motorcycle. From his

evidence, it is established that Sunil died a homicidal

death and it is not an accidental death.

22. According to the prosecution, about two years

prior to the marriage of Sunil with Arpitha, the said

Arpitha had developed illicit relationship with accused No.1

but due to the pressure of her parents, she married Sunil.

After the marriage, she was constantly in touch with

accused No.1 and conspired with him to commit the

murder of Sunil and with the help of accused Nos.2 and 3,

the murder was committed.

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23. In order to establish that there was an illicit

relationship between Arpitha and accused No.1, the

prosecution relies on the call detail records, wherein the

prosecution wants to show that Arpitha was in constant

touch with accused No.1 and she was making calls.

Further, according to the prosecution, PW.8, father of the

deceased suspected the conduct of Arpitha after the

incident and he went to Nandagaon village, wherein the

villagers informed him about the prior intimacy between

accused No.1 and Arpitha.

24. Firstly, it is not the case of prosecution that

there was any mobile SIM in the name of Arpitha.

According to prosecution, Arpitha was using mobile of her

husband Sunil. Neither, PW.8, father of the deceased nor

PW.4, brother of the deceased has stated that Arpitha was

using mobile phone of her husband. Further, the

prosecution has relied on the call detail records to contend

that there were frequent calls made between accused No.1

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and Arpitha prior to the incident and on the date of

incident.

25. The learned Sessions Judge, while appreciating

the evidence with regard to the call detail records, has

held that the accused has never contended that Sunil is

either known to accused No.1 or he is his friend and

therefore, relying on the calls made from the mobile SIM

of Sunil to the mobile number of accused No.1, held that

the prosecution is successful in proving the contact of

Arpitha with accused No.1 even after her marriage.

Further, held relying on the decision in the case of Shafhi

Mohammad V/s. The State of Himachal Pradesh,

decided on 30.01.2018 that even in the absence of

certificate under Section 65(B) of the Indian Evidence Act,

the said call detail records is admissible in evidence.

26. Firstly, the trial Court was not justified in

holding that the calls made from the mobile SIM

Nos.9108799878 to 9845973015 was between accused

No.1 and Arpitha, when there is no mobile SIM in the

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name of Arpitha and merely because the defence never

contended that deceased Sunil is a friend of accused No.1,

such a conclusion cannot be arrived at. As we have

already observed, there is no convincing material to show

that Arpitha was using the mobile phone of her husband

Sunil. Merely, because calls were made from the mobile

phone of deceased to the mobile phone of accused No.1, it

cannot be held that the said calls were made by Arpitha.

Insofar as the certificate under Section 65B of the

Evidence Act is concerned, the learned counsel for the

appellants has relied on a decision of the Hon'ble Apex

Court in the case of Arjun Panditrao Khotkar V/s.

Kailash Kushanrao Gorantyal and others1, wherein, it

is held that the certificate required under Section 65B(4) is

a condition precedent to the admissibility of evidence by

way of electronic record. In the said judgment, it is held

that the judgment in the case of Shafhi Mohammad

referred (supra) reported in 2018(5) SCC 311 does not

AIR 2020 SC 4908

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lay down the law correctly and therefore, overruled. It is

also held that the requisite certificate is unnecessary if the

original document is produced. However, in the case on

hand, the original document is not produced and the

certificate as required under Section 65B(4) is also not

produced and marked in evidence. Hence, the reasons

assigned by the learned Session Judge, based on the call

detail records that there was a illicit relationship between

accused Nos.1 and 4 as they were talking frequently prior

to the incident and they held a conspiracy etc., is

erroneous.

27. Secondly, according to the prosecution, PW.8,

i.e., the father of the deceased along with PW.7 and one

Dhanapal went to Nandagaon village, wherein they were

informed by the villagers that even prior to the marriage

of Arpitha, she was having an illicit relationship with

accused No.1. PW.8 is said to have gone to Nandagaon

village after the incident, along with PW.7- Sheetal

Jinnappa Gulannavar and CW.14-Dhanaraj. Though PW.7

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and PW.8 have stated that they have gone to Nandagaon

village, wherein the villagers have informed about the illicit

relationship between accused No.1 and Arpitha, even prior

to the marriage, the villagers who are examined as PW.13

and PW.14 have completely given a go by to the

prosecution case denying the same. Both PW.13 and

PW.14 have denied that they have informed either PW.8 or

PW.7 about the illicit relationship. Hence, it cannot be held

that the prosecution has established beyond doubt that

there was illicit relationship between Arpitha and accused

No.1 even prior to her marriage with the deceased and

they continued with the said illicit relationship even after

the marriage and also conspired to commit the murder of

Sunil.

28. The prosecution has relied on the evidence of

PWs.6, 9 and 10 to establish that prior to the incident,

they saw accused Nos.1 to 3 near the scene of occurrence

and PW6 saw the deceased going towards Shegunasi at

the same time. It is the contention of the learned HCGP

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that the presence of accused Nos.1 to 3 near the scene of

offence is a strong link in the chain of circumstances as

they were waiting for the deceased who was going towards

Shegunasi to his land. He contended that PWs.6, 9 and 10

have seen accused Nos.1 to 3 and a black coloured

motorcycle and PW.9 and PW.10 have also spoken about

the accused near the house of the deceased and one of

the accused entering the house to hand over the mobile

phone to Arpitha, for the purpose of collecting information

about the movements of the deceased. He contended that

PW.9 has identified accused Nos.1 to 3 in the police

station.

29. We have perused the evidence of PWs.6, 9

and 10.

30. PW.6 has deposed that at about 06.30 p.m. he

had been to his land for watering the plants and at about

07.10 p.m. while he was returning, he saw three strangers

with a two wheeler standing near the land of Padmaraja.

Thereafter, he went half a kilometre further and on the

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way, he met deceased Sunil, who was also going on his

two wheeler towards Shegunasi. Thereafter, at about

10.00 p.m., CW1(PW8) informed that his son has met with

an accident. Subsequently, he identified the said three

accused shown by the police in the police station.

31. PW9 and 10 are said to be the shopkeepers who

have their shops near the house of the deceased. PW9 has

stated that about 06.00 to 06.30 p.m. when he was in the

shop, he saw the strangers on a motorcycle coming from

Teradal and they stopped near Hanumanthana Gudi. One

of them went to the house of PW8 and returned in 5

minutes. Thereafter, they went towards Shegunasi. He

went to the house of the deceased to meet him and at that

time, Arpitha prepared tea and took the mobile phone and

went upstairs. At about 09.00 p.m., he came to know that

Sunil met with an accident and admitted to the hospital.

32. PW10 has stated that at about 06.30 to 07.00

p.m. he saw three strangers coming from Teradal on a

motorcycle and they stopped near Hanumanthanagudi and

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one of them went to the house of PW.8 and returned in 5

minutes and thereafter, all the three went towards

Shegunasi road. He identified accused Nos.1 to 3 in the

police station.

33. According to PW.9 and PW.10, they saw the

three accused coming on a motorcycle from Teradal while

they were in the shop. Further, they have stated that one

of the accused went inside the house of PW8 and returned

in 5 minutes. PW9 has stated that his shop is situated at

about 500 feets from Shegunasi road, one of the accused

went to the house of PW8, but did not notice as to whom

he met in the house. Though, according to the said

witnesses, they informed about the same to PW8, after the

incident, but admitted in the cross-examination that they

have not given statement to the Police that they have told

PW.8 about seeing the accused near shop.

34. PW10 has stated that his shop is situated in

front of the house of PW.8. In the cross-examination, he

has stated that Hanumanthadevara gudi is situated at

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about 50 to 60 feet from his shop. According to him, the

three accused remained at that place for about half an

hour, but, whereas, PW9 has stated that after one of the

accused entered the house, he returned within 5 minutes

and all the three went towards Shegunasi.

35. Admittedly, both PW8 and PW4 were very much

present in the house before the deceased went to the land

on his motorcycle. In the complaint itself, it is stated that

the deceased Sunil left the house at around 07.30 p.m. so

as to go to the land and since he did not come back, PW4

i.e., his brother went in search of him. Thereafter, PW4

informed PW8 that Sunil has met with an accident and

then even PW8 went to the spot. If, PW9 has seen one of

the accused entering the house of the deceased, then

certainly, PW8 and PW4 who were very much present in

the house could have seen the said accused in the house.

However, they have not stated about anyone coming near

the house or giving the mobile phone to Arpitha. In the

cross-examination, PW8 has admitted that from his house,

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the shops are not visible and if a person sits inside the

shop his house will not be visible.

36. The learned HCGP contended that one of the

accused met Arpitha in the backyard of the house and

therefore, PW4 and PW8 were not aware of the said

accused coming to their house. When it is the specific case

of PW9 that he went to the house of the deceased after

one of the accused went near the house and returned in 5

minutes, he would have certainly informed the same to

PW8 or PW4. However, they have not stated about PW.9

informing them about seeing one of the accused coming

near their house. PW.8 in the cross examination has said

that if a person sits in the shop situated near his house, he

cannot see his house from the said shop. PW.10 also

admitted in the cross examination that from his shop the

house of PW.8 is not visible. Hence, the case of

prosecution that PWs.9 and 10 having their shops near the

house of deceased saw the three accused near the house

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of deceased and one of the accused went to the house is

not proved beyond all reasonable doubt.

37. It is not the case of prosecution that the

deceased was seen in the company of the accused prior to

the incident. According to prosecution, Accused Nos.1 to 3

were seen together coming from Teradal on a motorcycle

and then going towards Shegunasi. Even accepting that

PW6, PW9 and PW10 have seen accused Nos.1 to 3

together prior to the incident, that itself will not lead to a

conclusion that the said accused have then followed the

deceased to the land of Padmaraj and committed his

murder and thereafter shifted the dead body on the

motorcycle and dumped in the land of CW19-Mahaveera.

None of the witnesses have stated that the accused have

followed the deceased or the deceased was seen in the

company of the accused, prior to the incident.

38. After the arrest, the clothes of the accused, the

alleged ligature material i.e., kerchief were seized under

separate panchnamas. The clothes were sent to RFSL.

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However, none of the clothes were found blood stained.

The ligature material i.e. the kerchief was recovered from

one of the accused i.e. accused No.3 However, the seizure

of the said kerchief will not lead to a conclusion that these

accused have committed the murder by strangulating the

deceased.

39. It is well settled principle of criminal

jurisprudence that a conviction may be based purely on

circumstantial evidence, provided that such evidence is

deemed credible and trustworthy. In cases purely based

on circumstantial evidence, it is imperative to ensure that

the facts leading to the conclusion of guilt are fully

established and that all the established facts point

irrefutably to the accused person's guilt. The chain of

incriminating circumstances must be conclusive and should

exclude any hypothesis other than the guilt of the

accused. In other words, from the chain of incriminating

circumstances, no reasonable doubt can be entertained

about the accused person's innocence.

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40. The Hon'ble Apex Court in the case of Sharad

Birdichandra Sarda Vs. State of Maharastra reported

in 1984 Crl.L.J. 1738 has laid down the following golden

principles governing cases based on circumstantial

evidence.

1) The Circumstances from which the conclusion of guilt is to be drawn should be fully established.

2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that accused is guilty.

3) The circumstances should be of a conclusive nature and tendency.

4) They should exclude every possible hypothesis except the one to be proved, and

5) There must be a chain of evidence so complete as not to leave reasonable ground for the conclusion consistent with the innocence of the accused and must show

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that in all human probability the act must have been done by the accused.

41. Having re-appreciated the entire evidence and

material on record, we are of the view that the chain of

circumstances relied on by the prosecution are not

conclusive. The chain of evidence is not complete to hold

that in all probability the act must have been done by the

accused. It is equally well established that the suspicion

however grave will not take the place of proof. The

charges leveled against the accused are not proved