[Cites 13, Cited by 0]
Karnataka High Court
Shri Gudeppa Gadigeppa Hittalamani vs The State Of Karnataka on 24 March, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 100629 of 2023
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IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 24TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
CRIMINAL APPEAL NO.100629 OF 2023 (C)
BETWEEN:
SHRI GUDEPPA GADIGEPPA HITTALAMANI
AGED ABOUT 36 YEARS,
OCC. DRIVER CUM CONDUCTOR (KSRTC),
R/O. CHIKKUMBI, TQ. SAUNDATTI, DIST. BELAGAVI.
- APPELLANT
(BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA
VINAYAKA THROUGH SAUNDATTI P.S.,
BV R/BY. ITS STATE PUBLIC PROSECUTOR,
ADVOCATE GENERALS OFFICE,
Digitally signed
by VINAYAKA B V HIGH COURT BUILDING, DHARWAD.
Date: 2026.03.26
12:13:33 +0530
- RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDITIONAL SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO ACQUIT THE APPELLANT OF THE CHARGE
PUNISHABLE UNDER SECTION 302 OF IPC BY SETTING ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
17.10.2023 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BELAGAVI IN S.C. NO.338/2017 IN THE INTEREST OF JUSTICE
AND EQUITY & ETC.
THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 100629 of 2023
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
This Criminal Appeal is filed against the judgment of
conviction and sentence for the offences punishable under
Section 302 of IPC and sentence of life imprisonment with fine of
₹50,000/-.
2. The factual matrix of case of prosecution is that the
deceased often used to visit her parents' house and hence
accused suspected her chastity. That on 19.07.2017 when the
deceased around 01.30 p.m. was about to leave the matrimonial
house to go to her parents' house this accused picked up quarrel
with the deceased, abused and assaulted her with an intention to
take away her life and he pushed her down in the storeroom at
his house wherein both of them were residing and pressed her
neck with his leg due to which the victim died as a result of
asphyxia due to throttling. Thereby the accused committed the
offence of murder and subjected her for cruelty. Hence case is
registered for both the offences u/S 498-A and 302 of IPC based
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on the complaint given by the father, who came to know through
somebody else, he went to Police Station, lodged complaint and
law was set in motion. The I.O. investigated the matter and filed
the charge sheet before the trial Court.
3. Having received the papers, matter was sent to the
Sessions Court for trial. The trial Judge taken the cognizance of
the case and secured the presence of accused before the Court.
The accused is in custody throughout. He did not plead guilty
and claims the trial. Hence prosecution examined PW1 to PW20
and also to substantiate the charges relies upon the documents
at Exhibit P1 to P42 and MO1 to MO5 were also marked. On
closure of the evidence, the accused was also subjected to
statement u/S 313 Cr.P.C. The trial judge convicted the accused
for the offences alleged against him, which was challenged
before this court earlier in Criminal Appeal No. 100007/2019.
This Court set aside the judgment vide order dated 03.02.2022
and remanded the matter on the ground that statement of
accused was not properly recorded under Section 313 Cr.P.C.
and accused has also not given any explanation, in paragraphs
No. 25, 26, 27, 28, 29 of the judgment and also taken note in
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paragraphs No.31 that accused is in judicial custody remitting
the matter to hear the reply of the accused to the incriminating
statement that accused being in company of the deceased at the
time of the alleged incident, would contribute to further delay,
and taking note of the same also made it clear that from the
stage of recording of the statement of the accused under Section
313 of CrPC, the Sessions Judge dispose of the same, and also
date is fixed for appearance on 25.02.2022 at 11 a.m. and
directed the accused to participate in the further proceedings in
the matter.
4. The learned Sessions Judge having considered the
directions of this Court recorded the statement of accused u/S
313 Cr.P.C. afresh wherein the accused offered an explanation.
Considering the material once again learned Sessions Judge
disposed of the appeal on 17.05.2023. The trial judge once again
convicted the accused for the offence of Section 302 IPC and
acquitted the accused for 498-A of IPC and imposed the
sentence, particularly taking into note of the explanation given
by the accused is not proper and apart from that Section 106 of
The Indian Evidence Act could be pressed into that the accused
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has not explained the same since the death was taken place in
his house and convicted the accused and sentenced. Being
aggrieved by the conviction and sentence, the present appeal is
filed before this Court.
5. The main contention of the counsel appearing for the
appellant before this Court is that PW1 who is the complainant
and also the father of the victim has not supported the case of
the prosecution; and even PW16 who has been examined before
the trial court, who is the scribe also not supported the case of
the prosecution. The counsel also would submit that PW7, who is
the mother of the victim also not supported the case of
prosecution. However counsel would submit that PW15, who is
the mother of the accused has been examined and she also not
supported the case of the prosecution, and it is the specific
defence that it was an accidental fall and she has sustained the
injuries and she lost her life. But trial Court even in the absence
of any supporting evidence of prosecution witness, committed an
error mainly in coming to the conclusion that Section 106 of the
Evidence Act is very clear that accused must explain the same
and the same is not explained, and apart from that the trial
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judge relies upon the evidence of PW7-I.O. and he only took the
charge from CW24, who registered the FIR, but he has not been
examined before the trial court.
6. The counsel also would submit that the Tahsildar was
examined as PW19 and he also did not conduct the inquest but
his subordinate has conducted the inquest, that too not at the
spot, that is in the hospital. The counsel also would submit that
the evidence of PW1, PW7, PW15 and PW16 not supports the
case of the prosecution. Even time since death is also not proved
so also the motive is not proved, and parents have not
supported. The PSI who registered the case is also not
examined, and when the complaint was given in terms of Exhibit
P1 the very scribe denied the same and both PW1 and also the
16 has not supported the case, he only say that his signature
was taken on the Exhibit P1 and when the very crime genesis is
not proved, question of convicting the accused does not arise.
7. The counsel also would submit that the very presence
of the accused at the spot is not proved and also he has given
the explanation in the statement u/S 313 Cr.P.C. when the
second time it was recorded after the remand that he was not in
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the house at the time of the incident and having received the
information he went to the house and found that she has
sustained injuries. When all these materials were not supporting
the case of prosecution, the trial judge committed an error.
8. Per contra, the counsel appearing for the State, that
is Additional S.P.P in his argument would vehemently contend
that the Court has to take note of the evidence of PW15, who is
none other than the mother of the accused, she categorically
deposes before the Court that when she left the house in order
to graze the cattle at 10 o'clock, both accused and victim were
there in the house; and when she came back at around 01.30
p.m. at that time also she noticed both the victim and the
accused in the house, the same is not rebutted or not
contraverted during the course of her cross-examination and no
suggestion was made to PW15. Though PW15 has turned
hostile, but to the extent of very presence of the accused along
with the victim was narrated by PW15. Hence the evidence of
PW15 could be relied upon for the last scene theory.
9. The counsel also brought to notice of this court that
PW1 and PW7, i.e. father and mother, though have turned
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hostile, categorically deposed that accused no. 1 only informed
about the injuries sustained by the victim. The same amounts to
additional chain link for the case of the prosecution, and giving of
false information that she accidentally fell down and sustained
injuries also one of the factor for convicting the accused.
10. The counsel would also submit that when the accused
gives an explanation in the statement u/S 313 Cr.P.C. stating
that he went along with one Gurunatha Nilappanavar to his land,
and he said his friend has received the call from somebody else
about the incident, and the accused came to the house on
information. But the same is not spoken by PW13, Gurunatha
Nilappanavar, who deposes before the court, not stated anything
about that he was along with the accused when the information
was received by the accused. Hence the explanation given by the
accused under Section 313 Cr.P.C. cannot be accepted.
11. The counsel also brought to notice of this Court that
PW9 also says that he came to know about this incident through
PW1. All these materials were taken note of that the accused
gave false information to each and every one even though he
committed the offence of murder of his wife. The counsel would
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submit that though trial judge not convicted for the offence
under Section 498-A IPC, but in order to come to a conclusion
that accused only done away the life of the victim, there are
sufficient materials and the same has taken note of and would
contend that the trial judge has not committed any error.
12. The counsel in support of his argument also relies
upon the judgment of Apex Court reported in (2006) 12
Supreme Court cases 254 in the case of State of Rajasthan
vs Kashi Ram, wherein discussion was made with regard to
Section 106 of the Indian Evidence Act, failure of accused to
explain incriminating circumstances against him, which provides
an additional circumstances in the chain of circumstantial
evidence against him and this itself provides an additional link in
the chain of circumstances proved against him. The counsel
referring this judgment would contend that when the injured had
sustained the injury in her house, where she was residing along
with accused, the accused must have explained the same but he
has not explained the same.
13. In reply to this argument, counsel appearing for the
appellant would vehemently contend that PW16 informed PW1
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and PW7 and not the accused and the same is evident in the
complaint which is marked as Exhibit P1. Hence the very
contention that accused gave false information to PW1 and PW7
cannot be accepted and so also PW1 and PW7 have not
supported the case of the prosecution. The counsel also
vehemently contend that if it is within the special knowledge of
the accused then only the accused has to give an explanation
under Section 106 of Evidence Act or otherwise question of
giving any explanation does not arise. It is the specific case that
accused was not in the house and he came to house only on
receiving the information. When such being the case, very
ingredients of Section 103, 104, 105 and 106 is very clear that it
is not within the special knowledge of the accused. Hence
question of invoking Sec. 106 of the Indian Evidence Act does
not arise.
14. The counsel in support of his argument, relies upon
the judgment in the case of Vikramjit Singh @ Vicky Vs. State
of Punjab, reported in 2006 (12) SCC 306. The counsel
referring this judgment brought to notice of this Court that
Section 106 of the Indian Evidence Act does not relieve the
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prosecution to prove its case beyond all reasonable doubt. Only
when the prosecution case has been proved the burden in regard
to such facts, which was within the special knowledge of the
accused, may be shifted to the accused for explaining the same
subject to certain statutory exceptions and the prosecution
having not been able to prove its case beyond all reasonable
doubt, the appellant is entitled for acquittal. Learned counsel
also brought to notice of this Court the discussion made in
respect of Section 313 of Cr.P.C., wherein it is held that
circumstances, which according to the prosecution lead to proof
of the guilt against the accused, must be put to him in his
examination under Section 313 of Cr.P.C., and even though the
matter was remanded by this Court having observed that the
Trial Court has not properly recorded the statement of the
accused under Section 313 of Cr.P.C., during the second time,
the accused has given an explanation in the statement recorded
under Section 313 of Cr.P.C., that he was not in the house.
15. The learned counsel would submit that it is the first
and foremost duty of the prosecution to prove that the accused
was in the house of the deceased and the same has not been
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proved and therefore, the question of shifting the burden on the
accused doesn't arise. The learned counsel also relies upon the
judgment of the Hon'ble Apex Court in the case of Shambu
Nath Mehra Vs The State of Ajmer reported in 1956 SCC
199, wherein also discussion was made with regard to Section
106 of the Indian Evidence Act and held that Section 106 is
certainly not intended to relieve it of that duty. The burden of
proof is on the prosecution. On the contrary, it is designed to
meet certain exceptional cases in which it would be impossible,
or at any rate disproportionately difficult, for the prosecution to
establish facts, which are especially within the knowledge of the
accused and which he could prove without difficulty or
inconvenience.
16. Having heard the counsel appearing for the appellant
and also the counsel appearing for the respondent/State and also
considering the grounds, which have been urged in the appeal as
well as during the course of arguments, the points that would
arise for consideration of this Court are as under:
(i) Whether the trial Court committed an error in
convicting the accused for the offence punishable
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under Section 302 of IPC and imposing the life
imprisonment as well as fine of ₹50,000/- and
whether it requires interference of this Court?
(ii) What order?
17. Having heard the counsel appearing for the appellant
as well as the respondent/State and also on perusal of both oral
and documentary evidence available on record, there is no
dispute with regard to the fact that the parents of the deceased,
who have been examined as PW1 and PW7, have not supported
the case of the prosecution and they have completely turned
hostile.
18. The prosecution also mainly relies upon the evidence
of PW15 and PW16. PW16 is the scribe of the complaint marked
at Ex.P.1, but during the evidence, he says that the police have
taken his signature to Ex.P.1 and the same is not in his
handwriting and also he does not know, who wrote the said
complaint. It is important to note that CW24, the PSI, who has
received the complaint and registered the FIR has not been
examined before the Trial Court and it is rightly pointed out by
the counsel appearing for the appellant/accused that he has not
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been examined. It is also important to note that the scribe/PW16
has also not supported the case of the prosecution but only he
admits his signature and says that the police have taken his
signature on Ex.P1-complaint. PW1, who is the complainant and
father of the victim has also not supported the case of
prosecution and hence, the prosecution has failed to prove the
crime genesis before the Court.
19. Now the question before the court is that whether
based on the evidence of PW17 and PW19, i.e. Investigating
Officer and Tahsildar, the Court can convict the accused. No
doubt, the counsel appearing for the State brought to notice of
this Court the evidence of PW15, who is none other than the
mother of the accused and she deposed that while leaving the
house in order to graze the cattle, she found the accused and
victim in the house and when she came back at around 01.30
p.m., she again found the accused and the victim in the house
and she noticed that the victim had sustained the accidental
injuries. No doubt it is the defence of the accused also that it
was an accidental fall on account of which the victim sustained
the injuries. It is pointed out by the counsel appearing for the
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respondent/State that PW15 in her evidence has deposed that
while leaving the house and when she came back to the house,
she saw the accused and the victim were there in the house, but
Court has to take note of the fact that according to the
prosecution, the incident took place in between 01.30 p.m. to
02.30 p.m. and at that time whether the accused was in the
house or not, none of the witnesses speaks about the same.
Merely because PW15 has stated in her evidence that while
leaving the house and when she came back, the accused and
victim were there, the said evidence is not sufficient to convict
the accused. It is important to note that the case of the
prosecution is that the accused only has committed the murder
of his wife. The charges leveled against the accused must be
proved beyond reasonable doubt in a criminal case. It is also
important to note that the evidence of PW15 is not disputed and
we have already pointed out that defence also not cross-
examined this PW15, but the same cannot be a ground to come
to a conclusion that there is a role of the accused in the alleged
incident.
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20. We would like to rely upon the judgment of the
Hon'ble Apex Court in the case of Sharad Birdichandra Sarda
Vs. State of Maharashtra reported in 1984 Cr.L.J., 1738, as
well as in the recent judgment of the Apex Court in State of
Subramanya v. State of Karnataka reported in (2023) 11
SCC 255, wherein five circumstances point out with regard to
the coming to the conclusion on circumstantial evidence, the
principles of Panchaseela have to be kept in mind while
considering the case on circumstantial evidence. Considering the
material available on record, this Court has to take note of
whether the prosecution has proved the guilt of the accused and
that each and every circumstance points towards the role of the
accused.
21. In the case on hand, though PW1 and PW7, as
pointed out by the counsel appearing for the respondent/State,
have deposed that the accused only informed the same, but
having perused the Ex.P.1/Complaint the contents of the same
disclose that the PW16 only informed that the accused assaulted
the victim, come and see her and hence, it is clear that the PW1
came to know about the same through the PW16 and not
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through the accused and the contention of the counsel appearing
for the respondent/State that PW1 and PW7 have deposed the
same cannot be accepted. The very genesis of the crime came to
the knowledge of PW1 through PW16. No doubt, the other
circumstances pointed out by the counsel appearing for the
respondent/State is that the explanation given by the accused is
not in consonance with the evidence of PW13. No doubt, the
PW13 not spoken anything about the same and he also turned
hostile. He has not supported the case of the prosecution and
explanation was given in the statement of the accused recorded
under Section 313 of Cr.P.C., and that too second time when the
matter was remanded to the Trial Court, the said explanation
was given by the accused.
22. No doubt counsel appearing for the respondent/State
brought to the notice of this Court that PW13 has not spoken
anything that he was along with the accused when PW1 came to
know about the incident over the phone of PW13 and when such
deposition is not given by the PW13, whether it amounts to hold
the accused guilty of the offence is a question before this Court.
It is also important to note that the Trial Court has taken note of
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Section 106 of the Indian Evidence Act. While considering
Section 106 of the Indian Evidence Act, it is very clear that the
injured had sustained the injury in the house of the accused, but
the defence of the accused is that it was an accidental fall on
account of which she sustained injury. Section 106 of the Indian
Evidence Act could be invoked when it is in the special
knowledge of the accused, and he must explain.
23. It has to be taken note that if an incident had taken
place in the night when the accused and victim both of them
were alone there in the house, then the special knowledge can
be taken note of, but according to the prosecution, this incident
had taken place in between 01.30 p.m., to 02.30 p.m., during
the day time and even any person can intervene during the day
time to the house of the accused. When such being the material
on record and when there is no positive and cogent evidence
before the Court to prove each and every circumstances that the
accused only has committed the murder and the Panchaseela
referred in the judgments cited supra is not established, only on
suspicion, the Court cannot convict the accused.
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24. It is also important to note that there is no any
recovery at the instance of the accused. No doubt the medical
evidence clearly discloses that it is a case of homicide and the
appellant's counsel also not seriously disputes the same but only
taking note of medical evidence that it is a case of homicide, it
cannot be held that the accused only committed the murder.
25. There is no such evidence of linking circumstance
before the Court. When the case of the prosecution rests upon
the circumstantial evidence, each circumstance must be
established by linking the circumstances and then only the Court
can convict the accused. When such being the case, we are of
the opinion that the Trial Court has committed an error in
invoking Section 106 of the Evidence Act in coming to the
conclusion that accused has not explained.
26. The counsel appearing for the appellant also relies
upon the judgments referred supra wherein categorically the
Hon'ble Apex Court held that first the prosecution must establish
that the accused was very much present at the time of the
incident at between 01.30 p.m. to 02.30 p.m. and merely
because the evidence of PW15 found both of them while leaving
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the house and when she came back, that itself cannot be a
ground to hold the accused guilty of the offence. PW15 has also
not supported the case of prosecution and even the relatives of
the accused have not supported the case of prosecution,
particularly PW1 and PW7, so also the scribe of the document of
Ex.P.1/complaint i.e. PW16. Only on the basis of the evidence of
the Investigating Officer as well as Tahsildar, the Court cannot
convict the accused.
27. It is pointed out by the counsel appearing for the
appellant that even PW19/Tahsildar has not conducted the
inquest personally and instead he got it done through his
subordinate and that too, the inquest was conducted in the
hospital. The fact is that, the victim had sustained injury and lost
her breath in the house itself but no such inquest was conducted
in the house. All these glaring errors are found and even the PSI,
who received the complaint from PW1 also was not examined
and Ex.P.1-complaint is also not corroborated by any of the
prosecution witnesses and very genesis of the crime is also not
proved and when such being the case, the benefit of doubt needs
to be extended in favour of the accused but the same is not
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extended to the accused by the Trial Court. Hence, we are of the
opinion that the Trial Court has committed an error in convicting
the accused and sentencing him for life imprisonment.
Accordingly, we answered the points in favour of the accused.
28. The deceased has two children, one was aged about
3 years and another one was aged about 2½ months at the time
of the incident and now they are aged about 11 years and 8
years, respectively and hence, District Legal Services Authority,
Belagavi is directed to consider the case under Section 357-A of
Cr.P.C., for awarding appropriate compensation to the minor
children of the deceased under the victim compensation scheme.
29. In view of the discussion made above, we pass the
following:
ORDER
The present appeal filed by the accused is
allowed. Consequently, the judgment of conviction
and sentence passed by the learned V-Additional
Sessions Judge, Belagavi dated 17.10.2023 in
Sessions Case No.338/2017 against the accused-
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Gudeppa Gadigeppa Hittalamani for the offences
punishable under Section 302 of IPC is set aside.
The accused, who is in custody, is set at
liberty forthwith in view of his acquittal.
Fine amount deposited by the accused, if any,
shall be refunded to the appellant-accused on
proper identification.
The deceased has two children, one was aged
about 3 years and another one was aged about 2½
months at the time of the incident and now they are
aged about 11 years and 8 years, respectively and
hence, District Legal Services Authority, Belagavi is
directed to consider the case under Section 357-A of
Cr.P.C., for awarding appropriate compensation to
the minor children of the deceased under the victim
compensation scheme and the said compensation
amount shall be kept in fixed deposit in any
nationalized bank till the minor children of the
deceased attains the age of majority.
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Registry is directed to communicate this order
to the District Legal Services Authority, Belagavi,
forthwith.
Registry is also directed to communicate the
operative portion of the order to the concerned Jail
Authorities through email, forthwith to set the
accused at liberty, if he is not required in any other
case.
SD/-
(H.P.SANDESH)
JUDGE
SD/-
(B. MURALIDHARA PAI)
JUDGE
BVV & YAN
CT: PA
LIST NO.: 1 SL NO.: 14
