[Cites 26, Cited by 0]
Karnataka High Court
Rudresh @ Rudraiah vs State Of Karnataka on 23 January, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2026 R
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.69/2018
BETWEEN:
1. RUDRESH @ RUDRAIAH
AGED ABOUT 21 YEARS
S/O SANGAIAH HIREMUTT
R/AT MOOLEGADDE MUTT
VILLAGE HOSAMANE
HOSANAGARA TALUK
SHIVAMOGGA DISTRICT.
PERMANENT RESIDENT OF
RAVALGUNDAVADI, JATHRA
SANGLI, MAHARASTRA. ... APPELLANT
(BY SRI. SUNIL KUMAR S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY HOSANAGARA POLICE,
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560009. ... RESPONDENT
(BY SRI. RAJATH SUBRAMANYA, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 27.11.2017 AND SENTENCE DATED
30.11.2017 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR IN
S.C.NO.10018/2017 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.01.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
1. This appeal is filed challenging the judgment of
conviction and sentence dated 27.11.2017 passed in
S.C.No.10018/2017 on the file of the V Additional District and
Session Judge, Shivamogga, sitting at Sagar for the offences
punishable Sections 364 and 302 of IPC.
2. The factual matrix of case of prosecution is that the
complainant is the resident of Alavalli of Sirsi, Siddapura. It is
the case of prosecution that in the year 2011, the complainant
got married to one Kumarswamy of Basaveshwara Nagar of
Haveri district and her husband is working as a mechanical
engineer in one company at Pune. They had a son by name
Srujaya aged about 3½ years. They are following Moolegadde
Mutt and she is visiting there whenever she comes to her native
place. The complainant had come to her native for the marriage
of her sister. On 08.04.2017 she had been to the said Mutt with
her mother-Renuka and son-Srujaya in order to attend the
coronation ceremony of new Swamiji. It is also the case of
persecution that other relatives of the complainant were also
there in the Mutt. This accused was serving in the said Mutt and
assisting the Swamiji and there was an ill-will between the
complainant and accused since the complainant and her mother
used to advise him with regard to the affairs of the said Mutt.
3. That on 10.04.2017, during the night, they took food
and slept in the Mutt by locking the doors. The son was sleeping
with her. On 11.04.2017, at about 05.30 a.m., one Rajaiah woke
her up and said that child was not found and hence, they
immediately searched for the child and found that doors of Mutt
were opened. Herself and her grandmother-Gowramma and
relatives i.e., Mahadevamma, Ashwini and others have searched
for the child but not found. The complainant learnt that someone
had kidnapped her son when they were sleeping. It is also the
case of prosecution that accused came from outside when they
were searching and on enquiry, he has not given any answer
thus, the complainant suspected the role of the accused that he
might have kidnapped her son. It is also the case of the
prosecution that there was some change in the health of the
complainant and others on the next day who took food last
night. Hence, lodged the complaint against the accused.
4. Based on the complaint, the police have conducted
investigation and apprehended the accused and body of the child
was recovered at the instance of the accused and recorded the
statement of the witnesses and filed the charge sheet against
the accused. The copies of the charge sheet papers were
supplied to the accused in compliance of Section 207 of Cr.P.C.
and the Judge who received the charge sheet, committed the
case to the Sessions Court. The accused was secured and
cognizance was taken and the accused did not plead guilty and
claims for trial.
5. The prosecution, in order to prove the case, examined
PW1 to PW21 and got marked the documents at Ex.P1 to P57
and MO1 to MO4 were also got marked. The accused was
subjected to 313 statement and he denied the incriminating
evidence and he did not choose to give any defence evidence.
6. The Trial Court having considered both oral and
documentary evidence comes to the conclusion that prosecution
has proved the case against the accused in respect of the
charges levelled against him under Section 364 as well as
Section 302 of IPC and sentenced to undergo imprisonment for
life i.e., he has to remain in prison until his natural death and he
shall pay fine of Rs.15,000/-. In default to pay the fine, he shall
further undergo simple imprisonment for 6 months. Out of the
fine of amount, Rs.10,000/- shall be paid to PW1. MO1 to MO3
are ordered to be destroyed as worthless after the appeal period
is over.
7. Being aggrieved by the judgment of conviction and
sentence, the present an appeal is filed before this Court.
8. The main contention of the counsel appearing to the
appellant before this Court is that the Trial Court committed an
error in convicting and sentencing the appellant/accused even
though, the prosecution utterly fails to prove the case beyond all
reasonable doubt. The counsel also would vehemently contend
that there is no eye-witness to the incident and the entire case is
based upon the circumstantial evidence and the prosecution has
utterly failed to prove the guilt of the appellant. The counsel
contend that when the case is rested upon the circumstantial
evidence, there must be a chain link to prove the guilt. The
counsel also would vehemently contend that the witnesses are
interested witnesses and official witnesses and no corroboration
in testimony of the prosecution witnesses. The answer elicited
from the mouth of PW1 i.e., the mother of the victim that she
had not seen that accused had killed her son but she came to
know that PW3 had seen that the accused had administered the
sleeping tablets into the sambar. But PW3 has deposed that she
came to know that the accused had administered sleeping tablet
to the child and killed him by drowning in the water.
9. The counsel further contends that PW9 is the owner of
Karthik Medical Store and he deposed that the accused had
purchased the sleeping tablets from his medical shop. But in the
cross examination, he deposed that he does not know the
contents of Ex.P33 and accused came to his shop once and he
does not remember when accused again came to his shop. The
counsel also would vehemently contend that PW14 - Dr.
Lingaraju in his cross-examination admits that he does not
remember whether accused has taken sleeping tablets from him
and on verification of hospital records also there is no any
document to show that accused has taken treatment from him
on 01.10.2016 to 31.12.2016 and 01.01.2017 to 10.04.2017
and he also deposed that he does not remember whether
accused has taken sleeping tablets from him or not. The
evidence of the prosecution witnesses i.e., PW1, PW4, PW9 and
PW14 not inspires the confidence of the Court and no chain link
circumstances are proved. The counsel also would vehemently
contend that the ingredients of Section 364 of IPC are not
proved and even in respect of offence of Section 302 also, no
material before the Court.
10. The learned counsel during the course of his
arguments would vehemently contend that PW15 is the Head of
the Mutt and this accused was serving with him. PW1 and PW2
are the devotees of the said Mutt. The counsel would vehemently
contend that the case of the prosecution is that accused had
administered the tablet to the child but no material is available
on record in this regard. It is also the case of the prosecution
that accused had used 17 tablets putting the same in the sambar
which was prepared in the Mutt. In this regard, the counsel
brought to notice of this Court that the case is rest upon
circumstantial evidence. The first circumstance is with regard to
the motive of committing murder. The second circumstance is
preparation for committing the murder. The third circumstance is
recovery of body and tablets. The other circumstances relied
upon is medical evidence and finally the scientific evidence. The
counsel would vehemently contend that in order to prove the
motive, the prosecution examined the main witnesses i.e., PW1
and PW2 who are the mother and grandmother of the child. The
PW4 is also none other than the relative of PW1 and PW2. The
other witnesses are PW5, PW11 and PW15 and their evidence is
not sufficient to prove the motive.
11. The counsel would vehemently contend that the
prosecution mainly relies upon the evidence of witnesses with
regard to the preparation to commit the murder wherein
particularly, relied upon document at Ex.P31 i.e., sleeping
tablets of 0.5 mg which was used to commit the murder. The
prosecution mainly relies upon evidence of PW3 and PW21 for
recovery of the body at the instance of the accused and their
evidence also not inspires the confidence of the Court since
according to the prosecution, accused was arrested at 03.15
p.m., but evidence of these witnesses was taken even prior to
the said time. The counsel would vehemently contend that the
prosecution also relies upon medical evidence to prove of the
case examining the doctor as PW14. The doctor's evidence is
with regard to the consumption of tablet and drowning. For
scientific evidence, the prosecution relies upon the evidence of
PW18 and PW19 and the counsel would vehemently contend that
according to the scientific evidence, found the tablet contents in
sambar and also in the child. But in respect of others who have
consumed the sambar, not found the contents of the tablet and
report is negative. The counsel also would vehemently contend
that in respect of the first charge, there is no evidence except
PW1 and no material for administration of the tablet.
12. The counsel would vehemently contend that with
regard to the motive is concerned there was a double edged
sword and mainly relies upon the evidence of PW5 and PW12.
The counsel would vehemently contend that MO1 is child's T-
shirt and MO2 is child's pant. The counsel would vehemently
contend that PW1 though supported the case of prosecution, in
the cross-examination admitted that she used to visit the Mutt
frequently before and after marriage. PW1 categorically admitted
that she had sound sleep after the dinner and denied personally
witnessing the accused killing her child and confirmed that
others have witnessed the mixing of the medicine to the sambar.
13. PW2 who is the mother of PW1 and she speaks with
regard to Ex.P2 to P5 photographs of the deceased child and also
the seizure of MO1 and MO2. She only speaks that she came to
know that sleeping pills were mixed in food and accused took the
child to kill. In the cross examination, she admitted that she
studied upto 10th Standard and also admitted that accused was
taking care of PW15 and denied that accused behaved rudely
and misused the funds.
14. PW3 is a panch witness to Ex.P18. He is also a
devotee of the said Mutt. He says that he was called to the police
station on 11.04.2017 at 03.00 p.m., with regard to drowning of
a child. In police station, the accused was present and confessed
mixing of sleeping tablets and also confessed for giving sleeping
tablets to the child and later drowning him. The confession was
video recorded and photo was taken and he accompanied the
police and accused to the river pit near the Mutt and identified
the location and photos. He saw there that the child's body was
floated and lifted the child's body to the bank and identified the
child's photographs i.e., Ex.P14 and P15 and the child's body
was floating in water and Ex.P16 and P17 are the photos of
water sample collected and Ex.P18 is the spot mahazar. In the
cross-examination, he admits that he was visiting the Mutt from
last 10 years and knows everyone. He admits that he was at
Subash Nagar before being called to the police station and went
to the police station around 3.10 p.m., and thereafter started to
go to the incident spot from the police station at 03.30 p.m., and
he confirmed that he had signed the document after it was
written in his presence.
15. The PW4 also says that she frequently visiting the
Mutt and devotee of the said Mutt and deposed that she used to
advise the accused not to steal money and mobile phones and
deposed that due to the said advice, the accused developed
hatredness against the visitors. It is her evidence that on
10.04.2017, at 7.00 p.m., she saw that the accused stirring
something into the sambar and when she questioned, he said
that he was heating the same. In the said night when all were
slept under the stairs, her son and the accused were sleeping in
the first floor. On the next day morning, she was drowsy and
was taken to the hospital along with others. Later, she learnt
that sleeping pills were put in the food and in the child's water
and then drowned the child. In the cross-examination, she
admits that accused served the elders for some days, but later,
started to steal some items. It is her evidence that they went to
the hospital between 08.00 to 09.00 a.m., but admitted that she
did not see the accused adding pills but realised it, after eating.
16. The other witness is PW5 who is also another devotee
of the said Mutt. She also attended the coronation ceremony
along with the family members and also identifies the accused
before the Court stating that he was serving at the Mutt. That on
10.04.2017 at about 10.00 p.m., herself and her grandmother
and others had dinner served by the accused and that night,
they slept near the steps and the child slept between them. On
the next day morning, the child was missing and they were
admitted to hospital and came to know that tablets were mixed
in the sambar and everyone in the previous night were drowsy
and came to know about the incident of killing of the child. In
the cross-examination, she admits that it was her second visit to
the Mutt. The accused had a broken shoulder. But she says that
7 to 8 people were admitted to the hospital and she does not
know about others and she cannot tell whether police have
visited the hospital or not. But she confirms that dinner was at
about 10.00 p.m. and deposed that she came to know through
Madevamma that accused added sleeping pills to the sambar.
But she did not give any statement at police station but gave at
the hospital. It is elicited that she did not witness the killing of
the child but heard the same from others.
17. The other witness is PW6 who deposed that accused
was serving at Mutt and came to know that accused had put
sleeping pills in the sambar and powder in the milk of the child,
fed it to the child and later took the child and killed him. He was
called by police. He saw that the accused explaining how he took
the child and he identified the photograph at Ex.P18. The
accused took them from the police station to the Mutt and
accused identified the child and also even pointed out the spot
where the child was slept and Mahazar was drawn in terms of
Ex.P18 to P20. This witness is a mahazar witness. In a cross
examination, he admits that he was called for the mahazar but
not received any prior notice. He described the topography of
the river, road, trees and the vacant land in the cross-
examination and he admitted that he went along with police but
did not know the number of the vehicle.
18. PW7 is also a Panch witness to Ex.P22-Mahazar and
Ex.P23 to P28 photographs. He deposed that he was called to
the police station and found other panch witnesses and accused
narrated with regard to his Act and police took them to the attic
where the accused showed a suitcase containing 3 sheets of
tablets out of that one was empty and another was with 2
tablets and another sheet was with full tablets. The police seized
the tablets and conducted the mahazar in terms of Ex.P22. He
identifies the seized medicine sheets as MO3. He was subjected
to cross-examination wherein he admitted that he arrived the
police station around 09.45 a.m., but did not personally
interrogate the accused. They left for the Mutt at 10.00 a.m.,
and took about half an hour to collect the medicines and he
cannot clearly explain the contents of the mahazar and did not
mark to the medicine to identify the same.
19. PW8 is also a Panch witness to Ex.P29 and P30. He
found that the police and accused were present in the medical
shop. The accused told to the police that he had purchased the
sleeping tablets from the said medical store and shopkeeper also
confirmed the same. The police conducted the mahazar in terms
of Ex.P30 and photograph also taken as per Ex.P29. In the
cross-examination, he admits that he did not know the name of
the medical store and the person who took the photographs. But
he deposed that police were questioning the accused and both
the accused and the shopkeeper stated that the sleeping pills
were purchased and he admits that he did not know anything
further apart from signing the mahazar.
20. PW9 is owner of the Karthik medical store and he
deposed that the accused was frequently purchasing medicine
and accused also residing at Moolegadde Mutt. He deposed that
police visited to his shop on 13.04.2017 along with accused and
he confirmed that he gave the Clonazepam 0.5 mg tablets based
on a doctor's prescription. 30 tablets were given to the accused
on 20.03.2017 and copy of the receipt of the same was marked
as Ex.P31. Those tablets were sleeping tablets and police have
conducted the mahazar and took the photographs in terms of
Ex.P30 and Ex.P32 is the photograph of receipt register and
document of ownership of the medical store was marked as
Ex.P33 and P34 and MO3 medicine sheet of Clonazepam tablets
was identified. In the cross-examination, he admits that he did
not instruct the police how to write the mahazar. The medicines
were given only with a doctor's prescription specifically, from
Dr.Lingaraju, a Government Doctor. He did not know the name
of the photographer who took the photo as per Ex.P29 and could
not recall names in the bill book.
21. The PW10 is a Panch witness to the inquest at Ex.P35.
22. PW11 is a relative of Priest of Moolegadde Mutt and
the accused is the grandson of Siddalingaswami's sister. He also
deposed that accused served the Guru at the Mutt but his nature
was bad and used to stealing devotees' belongings and money
and he was also advised many times, but he continued the
misconduct. During preparations for the ceremony, in April 2017,
the accused broken his hand in a bike accident and he asked for
money and got angry when he was scolded. On the night of
10.04.2017, food was cooked separately for Swamijis and others
and given details with regard to the incident. He was subjected
to cross examination. In the cross examination, he deposed that
he slept between 09.00 p.m., or 09.30 p.m. He explained that
leftover food from Swamiji's portion was consumed by him and
Rajanna. He denies the suggestion that someone else committed
the crime.
23. PW12 is the another witness of the prosecution
wherein he deposed that he works as a cook for gatherings and
events. He was called to the said Mutt in the month of April
during the coronation ceremony. He knew the accused who
served the Swamijis at the Mutt. Rajanna cooked for the
Swamijis and he cooked for the devotees. He cooked rice and
sambar at the Mutt and the accused was moving around in the
kitchen. After finishing cooking, he returned to his home without
knowing that who served the food. On the next day morning, he
came to know about the incident of missing of a child and mixing
of sleeping tablets into the sambar. This witness was subjected
to cross-examination. In the cross-examination, he admits not
knowing which hand of the accused was injured. He explained
that preparation of food for Swamiji and devotees were
separate. The sambar vessel was about 10 litres and reduced to
4-5 litres by evening and stirring it with two hands was
unnecessary. The next morning, the vessel still contained
leftover sambar.
24. P.W.13, is a devotee of the Mutt and visits regularly.
On 11.04.2017, he learnt that a child was missing. He went to
the Mutt and helped to search, but could not find the child. It is
his evidence that child's mother had lodged the complaint, which
he wrote as dictated by her and he identifies his signature as
Ex.P.1(b). It is also his evidence that C.W.1 and C.W.5 to C.W.8
felt dizzy after eating rice and sambar the previous night. He
brought the leftover rice and sambar from the Mutt and gave it
to doctor and identified his signature as Ex.P.36(a). It is his
evidence that the accused has mixed sleeping pills in the food in
the previous night and also gave sleeping pills to the child and
drowned in the river. He was subjected to cross-examination. In
the cross-examination, a suggestion was made that C.W.1 did
not sign the complaint and the same was denied. He says that
people were admitted to the hospital due to drowsiness and a
suggestion was made that he is falsely deposing and the same
was denied.
25. P.W.14 Medical Officer says that several patients were
admitted with dizziness and nausea. The patient Shankaraiah
informed him that sleeping pills were added to rice and sambar.
He also speaks about Ex.P.36 and says food was sent for
chemical analysis through the police in terms of Ex.P.37. He
conducted the post mortem on the child Sujay and sent internal
organs for chemical analysis. The final report received confirmed
Clonozepam in multiple organs, concluding that the child died
due to Clonozepam poisoning and asphyxia from drowning. He
examined the tablets, used for insomnia and anxiety and
confirmed their contents. He was subjected to cross-
examination. In the cross-examination, he admits that poison
suspicion led to chemical testing. Food was brought by relatives
and confirmed details of post mortem including absence of
blood, presence of froth and indigested food. He denied that a
single 0.5 mg tablet could kill a child, but affirmed that death
was due to drowning after poisoning.
26. P.W.15 head of the Mutt says that the accused is his
sister's daughter's son and he was serving at the Mutt. The
accused had a bad reputation for stealing money and belongings
from devotees and the Mutt. Despite being advised, he
continued his misdeeds and harbored hatred towards some
devotees, especially C.W.1 and C.W.4, after being reprimanded.
On 10.04.2017, separate food was prepared and the same was
eaten by devotees, since separate arrangement was made for
the devotees as well as him. The next morning C.W.1's son was
missing and several devotees were dizzy. The child's body was
later found in the stream and he was informed that the accused
had poisoned and thrown the child. He identifies the dead body
photos, stream photos and other related photos, identifying the
accused's involvement out of hatred. He was subjected to cross-
examination. In the cross-examination, he admitted that he
treated the accused affectionately and gave him money. Others
were afraid to report the accused's theft. He admitted hearing
about the accused's wrongdoing from others, but denied making
false claims. He clarified that the accused was advised not to
work after breaking his hand, but continued serving. He admits
that he came to know about the bad habits of the accused from
others.
27. P.W.16 PDO says that Mutt comes within her Gram
Panchayath jurisdiction and she issued the demand extract of
the Mutt Ex.P.39.
28. P.W.17 Assistant Engineer says that he inspected the
site behind Moola Gadde Mutt in Hosamane, which was showed
by the police and he prepared the sketch as per Ex.P.40.
29. P.W.18 is the Scientific Officer, FSL. He says that he
examined 12 items sent by Hosanagara Police in connection with
Crime No.36/2017 for chemical analysis. Items included
stomach, lungs, liver, spleen, kidneys, heart of deceased Sujay,
blood samples, preservative solution, sambar and Clonozapam
tablets. He found traces of Clonazepam in item Nos.1, 3, 6 and
12. No traces in item Nos.2, 4, 5 and 7 to 11 due to
metabolism/time lapse. Explained persistence of Clonazepam in
deceased's body due to stopped excretion/blood circulation. He
was subjected to cross-examination. In the cross-examination,
he admits that item Nos.2, 4, 5 and 7 to 11, had no
Clonozepam. It is suggested that he is giving false evidence and
the same was denied.
30. P.W.19 doctor who is working as Deputy Director, FSL,
submits that she received the water bottle samples related to
Hosanagara P.S. on 17.04.2017. Samples from Toxicology
Department (stomach, lungs, liver, kidney, heart and blood)
were sent to Biology Department. It is also her evidence that she
examined them for diatoms. Found presence of diatoms in four
items. Explained diatoms enter body when a person falls in
water and drinks water; if unconscious before falling or water
lacks diatoms, none are found. This witness was cross-examined
and she says that diatoms were not present in the water sample
itself. It is stated that if diatoms are in water and visceral
organs, death can be attributed to drowning. She denied giving
false report at the police request.
31. The other witness is P.W.20 ASI. In his evidence he
says that he was in charge on 11.04.2017 at 10.00 a.m. and he
received a written complaint and registered the case and sent
the FIR to the Court and superiors and identified signature in
Exs.P.1 and 45 complaint and FIR. He was subjected to cross-
examination. He admits that he did not verbally order staff to
trace the accused.
32. P.W.21 is the CPI. He says that he received the case
file from ASI on 11.04.2017. He interrogated the accused, who
confessed to abducting Sujay, administering sleeping pills and
throwing him into the stream. It is also his evidence that the
accused led police and panchas to the stream, identified the
body, demonstrated where he threw the child. He also says that
he conducted panchanamas, collected evidence including water,
tablets, clothes, blood samples and prepared sketches and
reports. He obtained voluntary statement and recorded witness
statements and submitted the charge sheet. In the cross-
examination, when a suggestion was made that he is falsely
deposing and the same was denied. A suggestion was made that
he did not conduct panchanama or prepared any rough sketches
and recording of evidence and the same was denied. He re-
affirmed that all procedures were lawful and the accused's
involvement was properly documented.
33. The learned counsel for the appellant referring the
evidence of these witnesses would vehemently contend that the
material collected by the Investigating Officer not points out the
role of the accused and the evidence of the witnesses not
inspires the confidence of the Court that accused only committed
the murder. Though witnesses speak about motive and
preparation to commit offence by purchasing of tablets and
kidnapping by the accused, the recovery of the dead body of the
child, not inspires the confidence of the Court. The learned
counsel would vehemently contend that the timings of arrest of
the accused and the evidence of witnesses are very clear that
there are contra evidence. The evidence of FSL expert also not
inspires the confidence of the Court to come to a conclusion that
this accused had only committed the murder. Though relies upon
the prosecution witnesses, the evidence regarding motive,
preparation, recovery of body, medical evidence and scientific
evidence not points out the role of the accused.
34. Learned counsel for the appellant in support of his
argument relied upon the judgments. First and foremost
judgment he relied upon is the judgment of the Apex Court in
PUTAI v. STATE OF UTTAR PRADESH reported in 2025 SCC
ONLINE SC 1827. The counsel for the appellant relying upon
this judgment brought to notice of this Court paragraph No.69,
wherein discussion was made that fields where the material
objects allegedly belonging to the child victim and her dead body
were found is open and accessible to all and sundry and hence,
the prosecution would have to rule out the possibility of anyone
other than the accused-appellants having committed the ghastly
act for it to succeed and to bring home the charges against the
said accused persons. The counsel also referred paragraph
No.70, wherein also discussion was made that these facts may
give rise to a strong suspicion that the child victim might have
been assaulted in the field of accused No.1, but that by itself
would not be sufficient to establish that it was the accused No.1
and none else who committed the ghastly crime. The counsel
referring these two paragraphs would vehemently contend that
the place where the dead body was recovered is an open space
and anybody can visit and access the same. Hence, the version
of the prosecution cannot be believed.
35. The counsel also relied upon judgment of the Apex
Court in SUBRAMANYA v. STATE OF KARNATAKA reported in
(2023) 11 SCC 255. The counsel referring this judgment
brought to notice of this Court reversal of judgment passed by
this Court and would contend that the Apex Court in detail
discussed discovery of weapon of offence, clothes and dead body
in paragraph Nos.69 to 74, particularly the witnesses which have
been relied upon and also discussed Section 27 of the Evidence
Act in paragraph No.76 of the judgment. In paragraph No.77,
the Apex Court also held that first and the basic infirmity in the
evidence of all the aforesaid prosecution witnesses is that none
of them have deposed the exact statement said to have been
made by the appellant herein which ultimately led to the
discovery of a fact relevant under Section 27 of the Evidence
Act. In the absence of such evidence, there cannot be any
conviction. The counsel also would submit that none of the
witnesses speak about the exact statements said to have been
made by the accused, which ultimately led to discovery of a fact
under Section 27 of the Evidence Act. Hence, Section 27 of the
Evidence Act cannot be invoked.
36. The counsel also relied upon the judgment of the Apex
Court in VAIBHAV v. STATE OF MAHARASHTRA reported in
(2025) 8 SCC 315. The counsel referring this judgment brought
to notice of this Court discussion made by the Apex Court in
paragraph No.18 with regard to circumstantial evidence, wherein
the Apex Court held that in a case based on circumstantial
evidence, answers to such questions are not found on the face of
the record. Rather, the truth is found concealed in the layers of
incriminating and exonerating facts, and the Court is required to
arrive at a judicial finding on the basis of the best possible
inference which could be drawn from a comprehensive analysis
of the chain of circumstances in a case and also subsequent
conduct of the appellant in trying to show concern to the father
of the deceased despite knowing about the death. The counsel
would vehemently contend that it is the duty upon the Court to
make comprehensive analysis of the chain of circumstances in a
case of circumstantial evidence. The counsel also brought to
notice of this Court paragraph No.29, wherein discussion was
made that in criminal jurisprudence, it is a time-tested
proposition that the primary burden falls upon the shoulders of
the prosecution and it is only if the prosecution succeeds in
discharging its burden beyond reasonable doubt that the burden
shifts upon the accused to explain the evidence against him or to
present a defence. The counsel referring this judgment would
contend that prosecution was unable to prove its case beyond
reasonable doubt and if the same is proved, then only the
burden lies on the accused to disprove the same.
37. The counsel also relied upon the judgment of the Apex
Court in KIRAN v. STATE OF KARNATAKA reported in 2025
SCC ONLINE SC 2863 and brought to notice of this Court
paragraph No.8, wherein the Apex Court observed that question
remains as to whether the Sessions Court was competent to
award a sentence of imprisonment for life till the remainder of
life and prohibit the benefit of set-off as provided under Section
428 of Cr.P.C. The counsel also brought to notice of this Court
paragraph No.13, wherein it is clearly held that in appropriate
cases as a uniform policy, punishment of imprisonment for life
beyond any remission can be awarded, substituting the death
penalty; not only by the Supreme Court but also by the High
Courts. The power to impose punishment of imprisonment for life
without remission was conferred only on the Constitutional
Courts and not on the Sessions Courts. The counsel referring this
judgment would vehemently contend that Apex Court has taken
note of imposing of sentence is concerned and in the case on
hand, the Sessions Court awarded life imprisonment till the
natural death of appellant and the same is not permissible.
38. The counsel also relied upon the judgment of the Apex
Court in KATTAVELLAI @ DEVAKAR v. STATE OF
TAMILNADU reported in 2025 SCC ONLINE SC 1439. The
counsel referring this judgment brought to notice of this Court
paragraph No.25, wherein discussion was made with regard to
recovery based on confession statement giving information
regarding location of material objects and held that limited
portion of the confession becomes admissible according to
Section 27 of the Indian Evidence Act, 1872 and brought to
notice of this Court detailed discussion made in the said
paragraph referring the several judgments. The counsel also
brought to notice of this Court paragraph No.26, wherein the
Apex Court observed that let us now consider the circumstances
in which the recovery was made from the locations as disclosed.
It cannot be questioned that such recovery would be relevant
since the Appellant-convict could have affected the recovery only
if he had specific knowledge of the location. This, however, in
our view, is not sufficient to take the recovery of the objects as a
circumstance against the Appellant-convict. This we say for the
reason that the objects recovered also have to be verified and
tested and his statement is said to have led to the recovery of
weapons. The counsel referring this judgment would vehemently
contend that very recovery of the dead body and discovery is not
proved and the same cannot be believed.
39. The counsel also brought to notice of this Court
paragraph No.36, wherein discussion was made with regard to
motive is concerned that in a case of circumstantial evidence,
motive forms one of the chains of circumstances which can
collectively point to the guilt of the accused. The counsel also
brought to notice of this Court that in paragraph No.41, the Apex
Court discussed with regard to non-examination of
Bhagyalakshmi and essential happenings of a link. The counsel
referring this discussion would vehemently contend that in the
present case, all the witnesses have not been examined before
the Court as to who have consumed the food in the previous
night and only examined some of the witnesses. The counsel
also vehemently contend that FSL report is positive only in
respect of the food consumed by the deceased i.e., the sambar
and in respect of consumption of very same food by others, the
report is negative. The counsel also brought to notice of this
Court conclusion arrived in the judgment in paragraph No.45,
wherein the Apex Court observed that we have no hesitation in
holding that none of the circumstances posited by the
prosecution are found to be conclusively proved against the
Appellant-convict. The chain of circumstantial evidence in no way
points to a singular hypothesis, that is the guilt of the accused,
ruling out his innocence or involvement of none else in the
crime. Hence, acquitted the accused.
40. The counsel also relied upon the judgment of the Apex
Court in BALJINDER KUMAR ALIAS KALA v. STATE OF
PUNJAB reported in 2025 SCC ONLINE SC 1459. The counsel
referring this judgment would vehemently contend that the Apex
Court in detail discussed the evidence, particularly the evidence
of P.Ws.1 and 2 with regard to scene of occurrence and even
with regard to weapon wielded by the accused is concerned,
discussion was made that it goes without saying that the murder
weapon becomes a relevant piece of evidence in such cases and
analyzed the testimony of P.W.7. The counsel also brought to
notice of this Court paragraph Nos.36 and 37 regarding recovery
of blood-stained clothes and weapon and discussion was made
that only forensic evidence in this case is the report of the
chemical analysis which merely states that the blood found on
the exhibits is opined to be of human origin. The same is
evidently not sufficient to link the articles to the deceased or the
specific offence. In the absence of any evidence of prosecution
for recovery while the recovery may not be wholly discarded due
to the lack of a supporting witness, however, it undoubtedly
becomes highly questionable, especially with the factum of long
delay of two months in the discovery being effected.
41. The counsel referring these judgments would
vehemently contend that having considered the material
available on record both oral and documentary evidence, the
same not supports the case of prosecution. Hence, the counsel
would contend that the Trial Court has not properly appreciated
both oral and documentary evidence available on record.
42. The learned counsel appearing for the respondent-
State would submit that the evidence of P.W.4 and P.W.3 is very
clear and these two witnesses withstood the cross-examination
of the defence counsel. P.W.4 is the relative of P.W.15 and P.W.5
is also the relative of P.W.15 and P.W.15 is the Swamiji of the
said Mutt. The evidence of P.W.1 and P.W.2 is very clear that the
accused was having hatredness on both of them on account of
advice made by them. The learned counsel also vehemently
contend that medical evidence of P.W.14, scientific evidence of
P.W.18 and P.W.19, the evidence of P.W.20 and P.W.21
corroborates each other with regard to guilt of the accused. The
panch witnesses P.W.2, P.W.6, P.W.7, P.W.8 and P.W.9 also
supports the case of the prosecution. There are material
evidence before the Court that the accused was having ill-will
against P.W.1 and P.W.2 and due to the said hatredness only he
committed the murder and with regard to the motive is
concerned, the evidence of P.W.1, P.W.2, P.W.4, P.W.5, P.W.11
and P.W.15 is very clear. The learned counsel would contend
that P.W.15 is the relative and spoken that the accused is his
sister's daughter's son and his evidence is also very clear that he
was having bad reputation. The evidence of P.W.9
Virupakshappa, who is the owner of the medical shop,
categorically deposes for having purchased the medicine and he
is a signatory to Ex.P.30. P.W.8 is the panch witness for
preparation to commit offence by purchasing of tablets. With
regard to recovery of tablets, panch witness P.W.7 clearly
deposes that he is a witness to Ex.P.22. But no evidence with
regard to kidnapping of the deceased by the accused, since none
of the witnesses have witnessed the same. But the body was
recovered at the instance of the accused and mahazar witness
P.W.3 supports Ex.P.18. P.W.21 speaks about the arrest of the
accused and recovery of the body at the instance of the accused.
The medical evidence of P.W.14 and post mortem report Ex.P.38
is very clear with regard to the cause of death and viscera which
was sent to the lab. FSL witness P.W.18 and P.W.19 also
supports the case of the prosecution and hence, it is not a case
for acquitting the accused and the very contention of the learned
counsel for the appellant that the prosecution fails to prove the
case beyond reasonable doubt cannot be accepted. Hence, it is a
case for confirmation of conviction and sentence also
commensurate considering the conduct of the accused and
rightly sentenced to life imprisonment and he has to remain in
prison until his natural death or otherwise the accused, who is
having hatredness may also bring trouble to this society.
43. The counsel referring the evidence of these witnesses
would vehemently contend that the prosecution, in order to
prove the case, particularly with regard to motive is concerned
contend that the evidence of all these witnesses i.e., P.Ws.1, 4,
11 and 15 is very clear that the accused was having hatreadness
towards P.Ws.1 and 4, since they were bringing out the bad
character and version of the accused, particularly to P.W.15. The
counsel also would submit that even the evidence of P.W.15,
who is the close relative of the accused and also Swamiji of the
said Mutt also goes against the accused with regard to his bad
antecedents that he was indulging in misusing the Mutt and
there were complaints against him and he also scolded him
about his conduct. The counsel also would vehemently contend
that preparation of the accused to commit the offence was also
proved. The owner of medical shop i.e., P.W.9. categorically
deposed that he himself supplied the tablets to the accused and
to that effect, bill is also marked as Ex.P31. The counsel also
would submit that P.W.4 categorically deposed that he was
pounding something and putting the same to sambar and the
same was witnessed and later, came to know that the same is
the tablet. Hence, it is clear that he was making preparation with
an intention to take away the life and mixed the tablet in the
sambar to take away the life of a child, who is aged about 3½
years.
44. Learned HCGP appearing for the respondent-State in
support of his other circumstantial evidence would vehemently
contend that dead body was found in an isolation place and the
same is not an open space as contented by the learned counsel
for the appellant. With regard to recovery of the dead body,
P.Ws.3 and 6 have spoken about the same and the body was
recovered at the instance of the accused and prior to that, none
were aware of the same and the same was within the special
knowledge of the accused. The accused himself pointed out
where he drowned the body of a boy and the evidence of P.Ws.3
and 6 is very clear that when they were called to the police
station, the accused himself told that if he is taken, he would
show the place where he committed the murder and thrown the
body. He would counsel vehemently contend that PM report is
very clear that death is an account of consumption of tablet and
also drowning. The very case of the prosecution is also that the
accused had administered the tablet and committed the murder
by drowning and medical evidence of the Doctor is also very
clear.
45. He would further contend that FSL report is also very
clear that in article Nos.1, 3 and 6, Clonazepam was found i.e.,
in the body of the deceased and also sambar which was seized.
The Trial Court also in detail discussed the evidence of P.W.19-
Doctor and so also in paragraph No.63 comes to the conclusion
that as a result of Clonazepam which was found in the body of
the child, child was unconscious and as a result, content of
diatom will not be there in the body. He also relies upon medical
evidence and in reply to the article which was relied upon by the
counsel appearing for the appellant, it is clear that blood sample
was received and sent on 17th and there was delay in sending
the same. Hence, in respect of other persons, who have
consumed the sambar, the FSL report is negative. But, the child
viscera was seized on the very same day when the body was
found. Hence, the report is positive and Exs.P36 to P38 were
taken note of by the Trial Court while coming to the conclusion
that accused alone committed the murder.
46. In reply to this argument, learned counsel appearing
for the appellant would vehemently contend that this Court
cannot invoke Section 27 of the Evidence Act and also it is very
clear that except examining P.Ws.1, 4 and 5, the prosecution
has suppressed the evidence of material witnesses and material
witnesses are not examined before the Trial Court. The very
evidence of P.W.18 is very clear that it was a false evidence
before the Court. But, P.W.5 says that blood was drawn on the
very same day. But, no material to that effect and though, it was
received by the Forensic Science Laboratory on 17th in a proper
manner with seal, the delay in sending the same to the FSL
cannot be a reason for negative report. The counsel referring
Ex.P38-PM report would contend that time since the death is also
silent and the same is not mentioned. Learned counsel also
would vehemently contend by producing the order sheet of the
Trial Court that case was committed on 18.07.2017 and trial had
commenced on 21.08.2017 and the same was completed on
15.11.2017 within a span of three months. The judgment was
delivered on 27.11.2017. Hence, it is clear that the Trial Court
hurriedly conducted the case and delivered the judgment. The
counsel also vehemently contend that this appellant is in custody
from last 9 years and the Court has to take note of said fact into
consideration.
47. Having heard learned counsel appearing for the
appellant in detail and also the principles laid down in the
judgments referred by learned counsel for the appellant and also
having considered the submissions of learned HCGP appearing
for the respondent-State, the points that would arise for
consideration of this Court are:
(1) Whether the Trial Court committed an error in
convicting the accused for the offence
punishable under Section 302 of IPC?
(2) Whether the Trial Court committed an error in
sentencing the accused to undergo
imprisonment for life i.e., to remain in prison
until his natural death and whether the same
requires modification?
(3) What order?
Point No.(1):
Law set in motion
48. This Court while considering the charges levelled
against the accused, considered both oral and documentary
evidence available on record to re-appreciate whether the trial
judge committed an error as contended by the appellant's
counsel during the course of his argument, in keeping the
principles laid down in the judgments referred supra and hence
analysis of evidence available on record, the complainant who
has been examined as P.W.1 set the law in motion by lodging
the complaint in terms of Ex.P.1. This Court has to look into the
contents of the complaint wherein she has stated that her son is
aged about 3½ years and also says that herself and her relatives
came to Mutt and stayed in the Mutt. That on 10.04.2017,
herself and others took the food and had the deep sleep. It is
also stated that while going to bed, locked all the doors and her
son Sujay was also sleeping by the side of her. On the next day
11.04.2017 at about 05.30 a.m., one Rajaiah made her to wake
up, stating that child is not there. Having woke up, searched the
child, but not found and door of the Mutt was opened and
immediately herself, her grandmother Gowramma, relative
Mahadevamma, Ashwini and all have searched, but not found
the child. It is alleged in the complaint that someone else
kidnapped the child. At that time, this accused came from
outside and he was enquired about the child, but he did not give
any answer and hence, suspected the role of the accused in the
complaint. It is also stated that her health as well as the others
health were not in order and when the child was not found, gave
the complaint. Based on the complaint at 10 a.m., Police have
registered the case in Crime No.36/2017 for the offence
punishable under Section 363 of IPC at the first instance. This
complaint was received by P.W.20 and law is set in motion by
issuing FIR.
49. The P.W.20 in his evidence, he says that he had
received the complaint from P.W.1 and immediately registered
the case for the offence punishable under Section 363 of IPC,
issued the FIR and sent the same to the Court and also to the
higher authority. The complaint is marked as Ex.P.1 and
signature is marked as Ex.P.1(a) and FIR is marked as Ex.P.45
and his signature is marked as Ex.P.45(a). Thereafter, entrusted
the case file to C.P.I for further investigation. In the cross-
examination, it is elicited that on receipt of the complaint, he
appointed his staff for searching of the child and accused and
sent HC-648 to the crime spot. But, he has not received any
information from the Hospital i.e., HMR and while lodging the
complaint, her relatives are also accompanied. But, he cannot
tell the names. The lodging of complaint process was completed
within 10 minutes, at that time, P.W.1 was all right. She
categorically says that she brought the written complaint.
50. The other witness is P.W.13. In his evidence, he says
that having come to know that child was missing, he went to
Mutt and he also searched. The P.W.1 is the mother of the child
and he wrote the complaint Ex.P.1 as P.W.1 is narrated and he
identifies his signature in Ex.P.1. In the cross-examination,
suggestion was made that he wrote the complaint and Chaithra
had signed and the same was denied. But, he says that P.W.1
only narrated, as per her instructions, he wrote the complaint.
Having considered the contents of the complaint is concerned,
the evidence of P.W.13 is very clear that he wrote the complaint
as per the instructions of the complainant and this Court has to
look into the evidence of P.W.1 with regard to the lodging of
complaint is concerned and in her evidence, she categorically
deposes with regard to the conduct of the accused in terms of
the contents of the complaint and categorically deposes that she
had suspected the role of the accused and also identifies her
signature in the complaint. Hence, in the complaint itself
suspected the role of the accused at the first instance while
lodging the complaint at 10 'o' clock. The evidence of P.W.13 is
very clear that he wrote the complaint and P.W.20 had
registered the case and set the law in motion and the evidence
of these witnesses corroborates each other to set the law into
motion.
Analysis of evidence for homicidal
51. It is the case of the prosecution that accused
kidnapped the child and committed the murder. It is their case
that Clonazepam was administered to the child and also to the
sambar which was seized.
52. The prosecution mainly relies upon the evidence of
P.W.14-Doctor. In his evidence, he says that he is working in the
Hosanagara Public Hospital from last 9 years and that on
11.04.2017, Gowramma, Mahadevamma, Ashwini, Shankaraiah
and Chaitra came to hospital and admitted and they took the
treatment and one Shankaraiah given the letter in terms of
Ex.P.36 and seized the sambar when the same is produced and
sent the same to the Police for chemical examination and
Ex.P.37 is the document to that effect. The other evidence is
that on 12.04.2017 he conducted post mortem in the early
morning 7:30 a.m., to 8:30 a.m., and also collected the viscera
and the same was sent to chemical examination and reserved
the opinion and having received the opinion from the FSL, found
Article 1, 2, 3, 6 and 12 Clonazepam and hence, gave the report
that child died due to consumption of Clonazepam medicine
tablet and also drowning. He gave the P.M report in terms of
Ex.P.38 and also identifies his signature as Ex.P.38(a). He also
identifies MO.3-tablets and in that tablets Clonazepam is there
and the same is given for insomnia and anxiety and in case of
Fits, the same will be given. This witness was subjected to cross-
examination. In the cross-examination, he admits that relatives
of the patients only brought the sambar, but he did not instruct
the same and relatives of the patients only brought them to the
Hospital and also admits that if there was a seriousness of health
used to advise to go to higher hospital. It is elicited that blood
was not found in the mouth of the deceased, but there was a
froth in the mouth of the deceased and also there was a swelling
in the stomach. He admits that he did not mention the timings of
death. In order to digest the food, it requires 4 hours. It is
suggested that MO.3 is effective tablets and the same was
denied, but says that by giving 0.5 mg dose, child will not die,
but it is suggested that child was not died on account of
drowning and the same was denied. He categorically says that
the child was not died while drowning him and when the child
was alive, by that time only thrown into the water. However, he
admits that he has not mentioned the same in the report. It is
suggested that whether accused had purchased sleeping tablets
from him, but, he says he does not remember the same. It is
suggested that he has not given the report and the same is
denied.
53. The counsel appearing for the appellant would
vehemently contend that time since death is not mentioned in
the report and hence, the same cannot be believed. The said
contention cannot be accepted and there was no delay and child
was found on the very next day afternoon and the same will not
go to the very root of the case of the prosecution as contended
by the counsel appearing for the appellant and nothing is elicited
from the mouth of P.W.14 that child is not died on account of
Clonazepam was found and drowning and not disputed the same
and only suggestion was made that he did not conduct post
mortem and also not given any opinion and the same is denied.
54. Having considered the evidence of the Doctor- P.W.14
who conducted the post mortem and he has not given the
opinion immediately but, he kept pending the opinion and gave
the opinion only on the basis of the chemical examination report
and his report is also based on scientific examination and
Ex.P.38 P.M report is very clear that cause of death is on account
of the same and hence, it is a case of homicidal.
55. The case is rest upon circumstantial evidence and
Court has to examine whether the chain of events and also
whether there is a each link is established by the prosecution to
prove the case of prosecution and if no chain link is established,
then entitled for acquittal and if chain link is established, case for
conviction. The Trial Court accepted the case of prosecution and
convicted and now this Court has to re-examine the material
available on record by analyzing the evidence.
Motive for committing the murder.
56. The main contention of the prosecution is that the
accused was not having good reputation and though he was
working with Swamiji-P.W.15, but he had developed habit of
snatching the mobile and money and hence, the same was
noticed by P.W.1, P.W.2, P.W.4 and others including P.W.11 and
P.W.14 and hence, this Court has to take note of the evidence of
witnesses. The P.W.1, P.W.2, P.W.4, P.W.5, P.W.11 and P.W.15
speaks about the very conduct of the accused.
57. The evidence of P.W.1 is very clear that the accused
was loitering in the Mutt and spending money and used to
snatch the mobile and even committing the theft of the money
of the Swamiji and the disciples of the Mutt were also noticed
the said conduct of the accused and the P.W.1 and P.W.2 used
to scold him and hence, he was having hatreadness against
P.W.1 and P.W.2 and even he got sustained injury to his hand in
the accident and also P.W.2 scolded him why he got injured at
the time of coronation, but he used to demand money to go to
hospital frequently and abused him to leave the Mutt and hence,
he was having hatreadness against her and also her mother and
mother returned to her village, but herself, P.W.3, P.W.4 and
P.W.5 were there. The P.W.2 also re-iterated the same and
categorically says that he used to snatch mobile as well as
money of Swamiji and people are also making complaint against
him and he has advised.
58. P.W.4 also deposes the relationship between the
Swamiji of Mutt and also the accused. She categorically says
that when they advised him, he used to quarrel with them and
even Swamiji also advising him including P.W.1 and P.W.2. He
used to quarrel with them also and hence, he was having
hatreadness against them.
59. P.W.11 also in his evidence, he says that accused was
not having good reputation and he used to snatch the belongings
of the devotees and the Swamiji. Swamiji used to advise him on
several occasions. The P.W.11 also re-iterates that when he had
sustained the injury, he used to demand money from the
Swamiji and hence, both Swamiji, P.W.1 and mother of P.W.1
i.e., P.W.2 have scolded him and hence he was having
hatreadness.
60. The other witness is P.W.15, who is the head of the
Mutt and Swamiji in his evidence, he says that P.W.1 and their
family members are devotees of the Mutt and accused is also the
son of his sister's daughter. The P.W.4 Mahadevamma is also
wife of his brother. The P.W.12 is the son of P.W.4 and also he
re-iterates that he used to snatch the belongings of the devotees
and also says that his money was also stolen by him on several
occasions and he advised him and also even instructed him to
leave the Mutt, but he has continued in the Mutt stating that he
would not repeat the same. It is also his evidence that P.W.1
and P.W.2 have also scolded him not to do like that and hence,
he was having enmity against P.W.1 and her mother-P.W.2.
61. Having taken note of the evidence of these witnesses,
during the course of cross-examination, nothing is elicited with
regard to the accused had developed the hatreadness against
P.W.1 and P.W.2 and with regard to the advice is concerned by
all of them, nothing is elicited. In the cross-examination of
P.W.1, a suggestion was made that P.W.1 and her family
members were misusing the funds of the Mutt and the said
suggestion was denied. It is elicited that on that day accused
was sleeping along with Vijaykumar on the first floor and except
eliciting this answer, nothing is elicited from the mouth of P.W.1.
The P.W.1 denies the suggestion that Swamiji was looking after
the accused with love and affection and the same was denied. It
is elicited that P.W.1 and her mother looking into the financial
affairs of the Mutt. It is suggested that with regard to the
financial aspect, there was a Galata between the P.W.1 and her
mother and Swamiji and the same was denied. It is the
suggestion that accused was instructing them not to misuse the
funds of Swamiji and hence, both of them were abusing him and
these suggestions are denied.
62. In the cross examination of P.W.2, it is elicited that
when the mother of the accused passed away, accused was aged
about 14 years and he used to call P.W.2 as Aunt and also
answer is elicited that she used to give money to the accused
and these are the admissions elicited from P.W.2, but nothing is
elicited with regard to developing of hatreadness. It is suggested
that they were misusing the funds of the Mutt and the same
came to know the knowledge of the accused and hence,
deposing falsely and the said suggestion is denied and nothing is
elicited with regard to accused was questioning the financial acts
of P.W.1 and P.W.2.
63. The P.W.4 was also subjected to cross examination. In
the cross examination, nothing is elicited with regard to the
evidence of P.W.4 that he was quarreling with P.W.1, P.W.2 and
P.W.4 when they advised him and even not disputed the
evidence of P.W.4.
64. The other witness is P.W.11. The P.W.11 was also
subjected to cross examination. In the cross-examination of
P.W.11 also, did not dispute the evidence with regard to his bad
reputation and Swamiji as well as P.W.1, P.W.2 and P.W.4 used
to scold him and no cross-examination at all to this effect.
65. It is also important to note that P.W.15 is none other
than the relative of the accused that is accused is the sister's
grandson. In the cross-examination of P.W.15, except eliciting
the answer that when the accused was snatching money, but
devotees were not making complaint since they were having
afraid of him and even with regard to the bad reputation and
antecedents, even in the evidence of P.W.15 also, not disputed.
66. Having considered the evidence of P.W.1, P.W.2,
P.W.4, P.W.11 and P.W.15, it is very clear that accused was
having hatreadness against the P.W.1 and P.W.2. The
prosecution has proved the motive for committing the murder.
67. The judgment which is relied upon by the counsel
appearing for the appellant reported in (2023) 11 Supreme
Court Cases 255 also discussed with regard to the
circumstantial evidence. Prosecution must fulfill that it is a
primary principle that the accused must be and not merely may
be guilty before a Court can convict and the mental distance
between may be and must be is long and divides vague
conjectures from sure conclusions and also facts so established
should be consistent only with the hypothesis of the guilt of the
accused, that is to say they should not be explainable on any
other hypothesis except that the accused is guilty and
circumstances should be of a conclusive nature and tendency
and they should exclude every possible hypothesis except the
one to be proved. There must be a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with innocence of the accused and must
show that in all human probability the act must have been done
by the accused. The motive is one of the significant factors for
consideration of circumstantial evidence and in view of the
principles laid down by the judgment of the Apex Court with
regard to the circumstantial evidence, this Court has to analyze
the material since five golden principles constitute the
panchasheela of the proof of a case based on circumstantial
evidence. The Court has to draw an inference with respect to
whether the chain of circumstances is complete and when the
circumstances therein are collectively considered, the same must
lead only to the irresistible conclusion. The accused alone is the
perpetrator of the crime in question.
68. In the case on hand, when the motive is alleged and
though disputed the evidence of P.W.1, P.W.2 and P.W.5, only
making the suggestions that they were having ill-will against the
accused, but the evidence of P.W.11 and P.W.15 is not disputed
regarding hatreadness. Even the witness P.W.15, who happens
to be the close relative of the accused, categorically deposed
with regard to the accused was having hatreadness. Having
considered the evidence available on record, the motive is
proved by the prosecution.
Preparation to commit murder
69. The second limb of argument of the counsel appearing
for the appellant that even preparation is not proved and though
prosecution relies upon the evidence of the preparation and the
same is not proved and even relies upon the evidence of P.W.9
and his evidence is not consistent with regard to the preparation
is concerned. In keeping this argument is concerned, this Court
has to consider the evidence of the Investigating Officer.
According to him, the accused led him to Mutt and produced the
tablets which were used and mahazar was drawn and empty
tablets slips and also the tablets were seized, to that effect, the
prosecution relies upon the evidence of independent witness
P.W.7 and he categorically says that on 13.04.2017 he was
called to the Police Station wherein found CPI, staff and pancha
and accused were there. When the accused was enquired, he
revealed that he kept the tablets in the bag and hence, all of
them went to Mutt and accused took him to Mutt and showed
suitcase and removed 3 tablets sheet and one was empty, in
another sheet only 2 tablets were there and in another sheet
entire tablets were there and hence, mahazar was drawn and
seized the same and photo was taken. He identifies his signature
in the mahazar Ex.P.22 and photos also, he identifies Ex.P.23 to
Ex.P.26 which were taken at the time of process of mahazar and
seizure and he also identifies photos Ex.P.27, Ex.P.28 and MO.3.
He was subjected to cross-examination and in the cross-
examination, he says that he went to Police station around 9:45
a.m., but he did not enquire the accused and they went to Mutt
at around 10 a.m., and this process taken half an hour, but he
cannot tell specifically about the contents of the mahazar and he
also not put any specific mark to those tablets. It is suggested
that MO.3 is nowhere connected to this incident and the same is
denied. Having perused this cross-examination, no question was
put to him that he was not called to Police Station and accused
not led him to Mutt and produced the tablet. The evidence of
P.W.7 is very clear with regard to the seizure of tablets is
concerned.
70. The P.W.8 also speaks about that when he had been
to the medical shop in order to purchase the medicines, Police
came and accused also brought and accused told that he had
purchased the tablets from the said shop and Police have drawn
the mahazar and photos were taken and he identifies the photo
Ex.P.29 and also the mahazar as Ex.P.30 and signature. In the
cross-examination, except eliciting the answer that he does not
know the medical shop name and also the photographer, nothing
is elicited, but he categorically admits that he cannot tell what
has written in the mahazar.
71. The other witness is P.W.9 who is the owner of the
medical shop. He categorically says that accused used to come
and purchase the medicine from him. It is his evidence that on
13.04.2017, Police came along with the accused and accused
showed his shop and on enquiry of the Police, he revealed that
he gave the tablets based on the prescription i.e., Clonazepam
0.5 mg that was purchased on 20.03.2017 and he is having a
receipt and given the zerox copy and the same is marked as
Ex.P.31 and also identifies the signature and Police also drawn
the mahazar in terms of Ex.P.30. He identifies his signature and
identifies photo Ex.P.29 and other receipt register photo as
Ex.P.32. He gave the ownership document which is marked as
Ex.P.33 and Ex.P.34 and identifies his signature in Ex.P.33 and
Ex.P.34 and also identifies MO.3. This witness was subjected to
cross-examination. In the cross-examination, he admits that
C.P.I instructed to produce the document and on the very same
day, he went and gave the same, but he cannot tell contents of
Ex.P.33 and he has not given instructions to prepare the
mahazar and accused came to his shop once and again he
cannot say the particular date, but the accused disclosed that he
is in Moolegadde Mutt and hence, he was having acquaintance
with him. He categorically says that he will not give any tablet
without the prescription and categorically says that he gave the
prescription of Dr.Lingaraju. In the cross-examination also, no
suggestion was made to the witness P.W.9 that accused did not
purchase the said tablets and material of documentary evidence
as well as the evidence of P.W.7, P.W.8 and P.W.9 is very clear
that there was a seizure of tablets and also mahazar was drawn.
P.W.9 evidence is very clear that accused only had purchased
the Clonazepam 0.5 mg. These evidences are very clear with
regard to the preparation is concerned that he had purchased
the sleeping tablet 0.5 mg and prosecution having considered
the evidence of P.W.7, P.W.8 and P.W.9, proved the preparation
made by the accused.
Recovery of body
72. The prosecution mainly relies upon the evidence of
P.W.3 and I.O -P.W.21 that body was recovered at the instance
of the accused. It is the case of the prosecution that prior to
disclosure by the accused, none of them were aware of death of
the boy, only on revealing of the same in his voluntary
statement, prosecution came to know about the same. The
counsel appearing for the appellant would vehemently contend
that prosecution not proved the recovery and the evidence of
P.W.3 and P.W.21 is not trustworthy.
73. The counsel in support of his argument relied upon the
judgment of the Apex Court reported in (2023) 11 Supreme
Court Cases 255 in case of Subramanya V/s State of
Karnataka and the judgment of this Court was reversed by the
Apex Court and brought to notice of this court paragraph No.69
i.e., discovery of dead body and mainly contended by referring
paragraph No.76 and 77 whether the prosecution has been able
to prove and establish the discoveries in accordance with law.
The Apex Court also extracted Section 27 of the Evidence Act in
paragraph No.76. In paragraph No.76, the Apex Court held that
the first and the basic infirmity in the evidence of all the
aforesaid prosecution witnesses is that none of them have
deposed the exact statement said to have been made by the
appellant herein which ultimately led to the discovery of a fact
relevant under Section 27 of the Evidence Act.
74. The Apex Court in paragraph 78 of the said judgment
also discussed with regard to that whether the accused while in
custody on his own free will and volition made a statement that
he would lead to the place where he had hidden the site of burial
of the dead body and other incriminating articles and the IO has
to call two independent panch witnesses. Once the two
independent witnesses would arrive at the police station,
thereafter in their presence the accused should be asked to
make an appropriate statement as he may desire with regard to
pointing out the place where he is said to have hidden the
weapon of offence etc. When the accused makes such
statement, the same should be incorporated in the first part of
the panchanama for the purpose of Section 27 of the Evidence
Act which is always drawn at the police station in the presence of
the independent witnesses so as to lend credence that a
particular statement was made by the accused expressing his
willingness on his own free will and volition to point out the place
where the weapon of offence or any other article used in the
commission of the offence had been hidden, then on the
recovery of the same should be in the second part of
panchanama.
75. Having considered the principles laid down in the
judgment referred supra, this Court has to examine whether
there is such compliance in the case on hand. This Court would
like to rely upon the evidence of PW21, who is the IO, who
recorded voluntary statement of the accused. PW21 categorically
deposes that accused in his voluntary statement has stated that
he killed the child-Sujay using the sleeping tablet and thereafter
thrown him in the stream and he also made the statement that if
accompanies him, he would show the place and hence, that
portion of the voluntary statement is marked as Ex.P46(a). It is
also his evidence that immediately he called two panch
witnesses i.e., CW2 and CW3 and both of them agreed to
become the panchas and accused led the panch witnesses to the
spot and showed the spot where he thrown the dead body and
body was also discovered at the instance of the accused and
panchas removed the dead body from the stream and kept the
same on the bund of the stream and mahazar was drawn in
terms of Ex.P18. Now, this Court has to examine the contents of
Ex.P18 regarding recovery of dead body is concerned. The first
part of the mahazar Ex.P18 discloses that having secured the
panch witnesses, accused was asked in their presence regarding
what he is going to do and hence, accused made the statement
that he kidnapped the child in the midnight at around 12.30 p.m.
and he had thrown him on the stream and he also made the
statement that if they comes along with him, he would also point
out the same and the same is found in the first part of the
mahazar in paragraph 2. Thereafter, he led the IO as well as
panch witnesses and taken them near the stream and showed
the place where he had thrown the child in the stream. This
second part of panchanama discloses that one of the pancha
removed the dead body and kept the same on the bund of the
stream. Even it discloses that there are trees surrounding the
said stream and the same is not visible from the Mutt. The
mahazar also discloses that they collected one liter of water for
chemical examination.
76. In the cross examination of PW21 with regard to this
procedure is concerned, nothing is elicited from PW21-IO except
eliciting that both panchas came together and also answer
elicited that he did not sign the voluntary statement as Rudresh,
but he had signed the same as Heeremat R. S. and also not
seized any articles at the instance of accused. It is only
suggested that someone killed the child and kept the same on
the bund of the said stream and the same was denied. Even
there is no any effective cross-examination that he did not
record voluntary statement and accused did not give any
information and also no suggestion is made that accused did not
get the panch witnesses and asked the accused to reveal and
even no suggestion is made that accused did not lead the panch
witnesses and also PW1 for discovery of the dead body.
77. Now, this Court has to examine the evidence of PW3
who is one of the panch witness regarding discovery of the dead
body at the instance of the accused. The witness says that he
was asked to come to the police station at around 3.00 p.m., in
connection with committing the murder of a boy and he found
the police, accused and also CW3 in the police station. The
evidence of PW3 is very clear that police asked the accused in
his presence and accused revealed that he put sleeping tablet
and then took the boy and committed the murder. The accused
also deposed that he would show the place and the police also
made the video recording and taken the photographs of making
such statement as per Ex.P8. It is also his evidence that all of
them went in the jeep and accused had shown the stream and
the same was not flowing but there was a pond and 5 photos
were taken in terms of Ex.P9 to P13 in that place and accused
had showed the pond and body was floating and he also
identified the photographs at Ex.P14 and P15 and he is also
there in Ex.P8 to P15. He categorically says that he only
removed the dead body from the pond and kept the same on the
bund of the pond. He also identifies the dead body as per Ex.P2
to P5 and police also collected the water in the bottle. He himself
filled the water in the said bottle and also identifies the photos at
Ex.P15 to 17.
78. This witness was subjected to cross-examination. In
the cross-examination, it is elicited that he had been to the
police station at around 3.00 p.m., and found CPI, his staff and
CW3. He was called upon to come to police station at around
2.50 p.m., and they left the police station at around 3.10 p.m.,
and in total 5 persons went in the jeep and reached the spot at
3.30 p.m., and also given the location of the place and also he
gives details of boundaries of the spot and panchanama was
drawn at the spot and the same was written by the constable
and he did not give details how to write the mahazar and then
only he had signed the same. In the cross examination of PW3,
it is suggested that he did not go to spot and mahazar was not
drawn in the spot and accused did not take him to spot and
showed and nothing is elicited and the same is denied. The
evidence of PW3 is consistent with the evidence of PW21-IO.
Hence, it is very clear that on disclosure of information by the
accused himself, two panch witnesses were secured to the police
station. It is also clear that enquired the accused in the police
station itself and he stated that he will take them to the spot
where he had thrown the dead body. Accordingly, took the
panch witnesses and police staff and showed the dead body.
Hence, it is very clear that the observations made by the Apex
Court in paragraph 78 is fulfilled by the IO by securing the
accused person and enquired the accused in the presence of
panch witnesses and panch witnesses were part of the
information received from the accused and recovery of dead
body. Thus, there is a clear compliance. The principles laid down
in the judgment with regard to the recovery is concerned will not
comes to the aid of the accused but it comes to the aid of the
prosecution as the same is complied.
79. The conditions necessary for the applicability of
Section 27 of the Act include the discovery of fact in
consequence of an information received from the accused and
discovery of such fact is deposed by both PW1 and PW3 and at
that time, accused is in police custody when he gave the
information and so much of information relates distinctly to the
fact thereby discovered is admissible as held in the judgment of
MOHD. INAYATULLAH vs STATE OF MAHARASHTRA
reported in (1976) 1 SCC 828 and so also the information must
be such as has caused discovery of the fact and information
must relate distinctly to the fact discovered as held by the Apex
Court in the judgment of EARABHADRAPPA vs STATE OF
KARNATAKA reported in (1983) 2 SCC 330 and the same is
complied and the contents of panchanama no doubt, it is not
substantive evidence as held in the case of MURLI vs STATE
OF RAJASTHAN reported in (2009) 9 SCC 417, but law is
settled that substantive evidence is that what has been stated by
the panchas or the persons concerned in the witness box.
80. But PW21-IO categorically deposed with regard to the
recording of voluntary statement in terms of Ex.P46 and portion
of voluntary statement is marked as per Ex.46(a) regarding
recovery and the same is substantiated by examining the
witness PW3 who is the panch witness and he categorically
deposes with regard to the first part of panchanama and second
part of panchanama disclosure by the accused as well as
recovery of the dead body and the same has been proved.
Hence, the principles laid down in the judgments referred supra
were complied regarding information from the accused as well as
recovery at the instance of the accused.
81. Though counsel appearing to the appellant would
vehemently contend that the recovery is not proved and the
same not inspires the confidence of the Court but fairly admits
before the Court that there is no any evidence before the Court
that before the information from the accused as well as recovery
at the instance of the accused, no one had any information with
regard to that what had happened. The Court has to take note of
the fact that at the first instance, missing complaint was given
and subsequently, Section 302 of IPC was invoked. It is
important to note that in the complaint itself suspected the role
of the accused who not only taken the dead body in the midnight
but also thrown the same on the stream but he was not present
in the early morning and the Mutt door was unlocked and he
came when the people are searching the child. But on an
enquiry, he was very silent when he was asked about the child
and the conduct of the accused was also a material with regard
to the recovery is concerned.
82. This Court also would like to rely upon judgment of
the Apex Court reported in (2023) 16 SCC 510 in a case of
RAMANAND ALIAS NANDLAL BHARTI VS STATE OF UTTAR
PRADESH with regard to discovery of evidence and discovery of
weapon and blood stained clothes, non-recording of disclosure of
accused by the IO before two independent witnesses and
absence of proof as to contents of panchanama and accepting
the evidence of discovery, the contents of the panchanama must
be proved and therefore, IO in his deposition has to prove the
contents of the panchanama and further held that even if the
independent witnesses to the discovery panchanama are not
examined or if no witness was present at the time of discovery
or if no person had agreed to affix his signature on the
document, it is difficult to lay down, as a proposition of law, that
the document so prepared by the police officer must be treated
as tainted and the discovery evidence unreliable. In this
judgment, it is very clear that recovery must be proved by
examining independent witnesses and also the proposition has to
prove the contents of the panchanama. This Court in detail
discussed the panchanama which is marked as Ex.P18. It is very
clear that the accused disclosed the fact in the presence of
panch witnesses. In the case on hand, PW3 is the panch witness
who is an independent witness and he has spoken about the
disclosure statement as well as recovery of the dead body in his
presence and his evidence is also credible and nothing is elicited
from the mouth of PW21-IO as well as in the evidence of PW3 to
discredit the same. Hence, the principle laid down in the
judgment with regard to Section 27 of the Evidence Act with
regard to recovery is concerned is proved in the case on hand
and even as observed by the Apex Court with regard to its
scope.
83. The counsel also relied upon the judgment of the Apex
Court reported in 2025 SCC ONLINE SC 1439 in the case of
KATTAVELLAI @ DEVAKAR vs STATE OF TAMILNADU and
brought to notice of this Court with regard to the recovery is
concerned. In paragraph 25, the Apex Court with regard to the
recovery is concerned held that in the confession given by the
convict, certain information regarding the location of material
objects was divulged, that limited portion of the confession
become admissible according to Section 27 of the Indian
Evidence Act. That is the correct proposition in law. While
considering the said proposition of law also taken a note of
judgment in the case of BIJENDER vs STATE OF HARYANA
reported in (2022) 1 SCC 92. No dispute with regard to the
admissibility of Section 27 of the Indian Evidence Act that
portion of the confession become admissible.
84. In the case on hand also, voluntary statement is
marked as Ex.P46 and portion of the voluntary statement is
marked as Ex.P46(a) regarding recovery. The Apex Court also
discussed in the said judgment in paragraph 26 that the
circumstances in which recovery was made from the location as
disclosed and comes to the conclusion that the same is not
sufficient to take the recovery of the objects as a circumstance
against the appellant/convict that the objects recovered also
have to be verified and tested and the same was not done. But
in the case on hand, it has to be noted that the recovery of the
dead body is from an isolated place i.e., no one can visible the
same and PW3 also categorically says that the same cannot be
visible and even mahazar statement also clearly discloses that
the said stream was surrounded with trees. Though counsel
would vehemently contend that the same is open to all but the
same is also not substantiated. It is very clear that the said
stream was behind the mutt and general public cannot access
the same and the same is within the part of the Mutt and the
same is located behind the Mutt and topography of the place is
also could be identifiable with the photographs which are marked
before the Court. Even witness PW3 also categorically deposes
that the place in which body was thrown is an isolated area and
hence, the same is a open space cannot be accepted as
contented by the counsel appearing for the appellant.
85. The counsel appearing for the appellant also would
vehemently contend by relying upon paragraph 41 of the
judgment that non-examination of the other witnesses. The said
submission also cannot be accepted since, it is not the question
of quantity of the evidence and the Court has to look into the
quality of the evidence. The witnesses have already been
examined with regard to prove the fact that motive for
committing a offence by examining PW1, PW2, PW4, PW5, PW11
and PW15 and also the other witnesses with regard to the
preparation is concerned i.e., PW7 to PW9. Though there were
two panchas, the information of the accused is concerned was
proved by examining PW3 and not examined other pancha since
no need to examine both the witnesses when the evidence of
PW3 is credible with regard to information given by the accused
and led the panch witness as well as other officials to the spot
where the body was thrown and recovery was made at the
instance of the accused only. Hence, this judgment will also not
comes to the aid of the counsel appearing for the appellant with
regard to the recovery is concerned.
86. Now, the question before this Court is with regard to
the medical evidence to which this Court already comes to the
conclusion by relying upon the evidence of the doctor PW14 that
it is a case of homicidal.
87. Now, this Court has to examine the scientific officer
evidence who has been examined as PW18 and his evidence is
very clear that he had received the sealed packet from the IO for
examination and it contains 12 items. He found the Clonazepam
contents in Article 1, 3 and 6 and so also in Item No.12 but not
found the clonazepam contents in Item Nos.2, 4, 5, 7 to 11 and
he gave the report in terms of Ex.P41 and he identifies his
signature at Ex.P41(a). He also identifies MO3-tablets. It is his
evidence that the clonazepam was not found in the blood of
Gowramma, Mahadevamma, Ashwini, Shankaraiah and Chaitra.
But reason is given that they were taking medicine immediately.
But blood sample was collected on the next day. In view of
taking of treatment and delay in taking the blood sample, the
same was not found as deposed. It is also explained that the
blood sample should have been taken within 4 hours and then
clonazepam contents will be more. It is also clarified that in the
blood of the child, clonazepam was found as the body was not
working in view of blood circulation was stopped and hence the
same was found. But in the cross-examination, nothing is elicited
from the mouth of this witness except eliciting that in Article 2,
4, 5, 7 to 11 clonazepam contents were not found. Even the
same is also spoken by the witness in the chief evidence itself. It
is also elicited that if sambar was eaten, the same would found
or otherwise it will not found.
88. The other witness is PW19 who is the Deputy Director
of Biology Department, FSL who also conducted the examination
of the samples and she did not found diatom when she examined
the water and she gave the report in terms of Ex.P43 and she
identified signature as Ex.P43(a). She also categorically deposes
that if a person lies on the water, if he drinks the water and if
any diatom found in the water and the same will go to the body.
If a person lost his conscious prior to laying into the water and
no diatom in the water, the same will not found. It is also the
categorical evidence is that diatom was not found in the water.
This witness also subjected to cross-examination. In the cross-
examination, it is elicited that if diatom is found in the water, the
same will found in the viscera of the person who died, if diatom
found, the same is on account of drowning.
89. Having considered the evidence of PW18 and PW19, it
is very clear that the body of the boy found the clonazepam
contents but not found in the body of others. The reason also
assigned that the blood was collected on the next day but prior
to that, they took the treatment. The evidence is very clear that
on the very next day, when they found dizziness, they all went
to the hospital and they were under medication. Thus, the
evidence of PW18 and PW19 is very clear with regard to the
presence of clonazepam in the body of the child. The very
contention of the counsel appearing for the accused that the
same was not found in the witnesses who went and took the
treatment and only found in the body of the deceased is doubtful
and the said contention cannot be accepted since the same is
explained by the PW18 clearly and nothing is elicited in the cross
examination of PW18 with regard to the explanation offered by
the PW18 regarding non-presence of clonazepam in the body of
these witnesses. Hence, it is clear that the boy was died on
account of consumption of clonazepam contents as well as
drowning.
90. The counsel appearing for the appellant also relied
upon the judgment of Apex Court reported in 2025 SCC
ONLINE SC 1827 in the case of PUTAI vs STATE OF UTTAR
PRADESH and brought to notice of this Court paragraph 69 with
regard to the circumstantial evidence is concerned, wherein it is
held that in an incriminating circumstance so strong that even
taken in isolation, the same would prove the guilt of the
accused. May be proved or must be proved and the fields where
the material objects allegedly belonging to the child victim and
her dead body were found is open and accessible. This Court
already discussed in detail that the place where the dead body
was found is in the isolated place and surrounded with the trees
and the same is not visible. Hence, this judgment will not help
the counsel for the accused since the same is not the open
space.
91. No doubt, if any strong suspicion that the child victim
might have been assaulted in the field of accused that itself is
not sufficient. But in the case on hand, there is an information at
the hands of the accused and body was also recovered at the
instance of the accused and the same is disclosed in the
statement of the accused and hence, Section 27 of the Evidence
Act is aptly applicable to the case on hand.
92. The counsel for the appellant also relied upon the
judgment reported in (2025) 8 SCC 315 in the case of
VAIBHAV vs STATE OF MAHARASHTRA and brought to
notice of this Court paragraphs 18 and 19 wherein discussed
with regard to circumstantial evidence is concerned holding that
an incriminating evidence available on record and subsequent
conduct of the appellant in trying to show concern to the father
of the deceased despite knowing about the death. But in the
case on hand, on enquiry, the accused was very silent in the
early morning. Only on apprehending of the accused, he
revealed the same. In paragraph 29 of this judgment,
proposition was held that the burden is on the prosecution and
then shifts on the defence. But defence not made any attempt to
explain the circumstances. But prosecution proved the material
on record. Hence, this judgment also will not come to the aid of
the counsel for the appellant.
93. The Apex Court recently on 16.01.2026 in the case of
TULASAREDDI @ MUDAKAPPA AND ANOTHER vs STATE OF
KARNATAKA AND OTHERS reported in 2026 SCC ONLINE SC
89 held that mere recovery at the instance of the accused itself
is not enough to convict the accused and disclosure statements
alone not enough for conviction unless chain of evidence is
complete. No dispute with regard to this principle is concerned.
But in the case on hand, it has to be noted that all the
circumstances goes against the accused i.e., motive for
committing the murder and the same is spoken by PW1, PW2,
PW4, PW5, PW11 and PW15 and their evidence is consistent with
regard to the motive is concerned. The preparation to commit
the murder is also spoken by the witnesses for having purchased
the tablet and recovery of the tablet and also he had purchased
the tablet from the medical shop and these witnesses i.e., PW7
to PW9 have supported the case of prosecution for proving of
preparation. The recovery of the dead body at the instance of
the accused is also proved by examining PW21 as well as PW3
and their evidence is consistent. The medical evidence with
regard to the homicidal as well as the FSL report also consistent
and scientific evidence also clearly discloses that recovery is
made i.e., blood samples from the body of the deceased and the
same was positive and the remaining tablets were also
recovered at the instance of the accused by drawing the
mahazar and mahazar witness also supports the case of
prosecution.
94. Having taken note of both oral and documentary
evidence placed on record, it discloses that though case is rest
upon the circumstantial evidence, the circumstances against the
accused is proved with regard to the motive, preparation,
recovery of dead body and also the tablets at the instance of the
accused. Medical evidence and scientific evidence are also goes
against the accused. When each chain link is established, we do
not find any ground to interfere with finding of the Trial Court
with regard to invoking of Section 302 of IPC is concerned. But
the Trial Court not convicted the accused for kidnapping the child
is concerned since there was no material in this regard and we
confirm the same. Accordingly, we answer point No.(1) as
'negative'.
Point No.(2):
95. Having heard learned counsel appearing for the
appellant and also learned HCGP appearing for the respondent-
State, we have perused the material available on record. It is the
case of the prosecution that the accused had committed murder
of a boy, who is aged 3½ year old, since the accused was having
hatredness against P.Ws.1 and 2 as well as P.W.4, since all of
them were scolding him and advising him to mend his attitude
and conduct and he is bringing bad reputation to the Mutt. This
Court having analyzed the material available on the record
comes to the conclusion that the circumstantial evidence points
out the very role of the accused in committing the murder of a
boy who is aged 3½ years old.
96. Having considered the sentence imposed by the Trial
Court that the accused has to undergo imprisonment for life that
he has to remain in prison, until his natural death. The Court has
to take note of the fact that whether the said sentence
commensurate with the charges levelled against him. It is
settled law that while imposing sentence, the Court has to take
note of gravity of the offence, the charges levelled against the
accused and the manner in which the offence is committed. The
motive for committing the murder is only hatredness against
P.W.1, mother of the deceased, P.W.2, the grand-mother of the
deceased and P.W.4, the great grand-mother of the deceased.
97. The counsel appearing for the appellant also relied
upon the judgment of the Apex Court in KIRAN v. STATE OF
KARNATAKA reported in 2025 SCC ONLINE SC 2863, wherein
the Apex Court raises a question in paragraph No.8 that whether
the Sessions Court is competent to award a sentence of
imprisonment for life till the remainder of life and prohibit the
benefit of set-off as provided under Section 428 of the Cr.P.C.
The Apex Court discussing the material on record, in paragraph
No.13, comes to the conclusion that in appropriate cases as a
uniform policy, punishment of imprisonment for life beyond any
remission can be awarded, substituting the death penalty; not
only by the Supreme Court but also by the High Courts. The
power to impose punishment of imprisonment for life without
remission was conferred only on the Constitutional Courts and
not on the Sessions Courts. Having taken note of the principles
laid down in the judgment, wherein question was also raised in
paragraph No.8 and so also in paragraph No.13, a conclusion
was arrived by the Apex Court, wherein it is categorically held
that the Supreme Court as well as High Courts can impose life
sentence beyond any remission can be awarded substituting the
death penalty. But powers of the Sessions Court not conferred
and the same was only on the Constitutional Courts i.e.,
Supreme Court as well as High Court.
98. Having perused this principle laid down in this
judgment and also the judgment of the Trial Court, while
sentencing the accused, the Trial Court imposed life
imprisonment that he has to suffer sentence till his natural
death. Hence, it is very clear that Section 428 of Cr.P.C. cannot
be invoked in view of specific sentence and no right accrues to
the accused to seek for any remission when the imprisonment
for life is imposed, till the remainder of life. Hence, the Session
Court cannot prohibit the benefit of set off as provided under
Section 428 of Cr.P.C. Therefore, with regard to sentence is
concerned, it requires interference that, imprisonment for life till
natural death is converted to imprisonment for life. Accordingly,
we answer point No.(2) as 'affirmative' and it requires
modification.
99. In view of the discussions made above, we pass the
following:
ORDER
The Criminal Appeal is allowed in part.
The judgment of conviction dated 27.11.2017 passed in
S.C.No.10018/2017 for the offence Section 302 of IPC is
confirmed. However, the sentence is modified as life
imprisonment by setting aside the life imprisonment until his
natural death.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
SN/MD/ST/RHS
