Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE H.P.SANDESH AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.671 OF 2018 (A) C/W CRIMINAL APPEAL NO.428 OF 2018 (C) IN CRL.A No.671/2018 BETWEEN: THE STATE BY CIRCLE INSPECTOR OF POLICE SULLIA CIRCLE, D.K. REPRESENTED BY STATE PUBLIC PROSECUTOR BENGALURU - 01 …APPELLANT (BY SMT. RASHMI PATEL, H.C.G.P.) AND: Digitally signed by MOUNESHWARAPPA NAGARATHNA VASANTHA SERIGARA Location: High Court of Karnataka AGED ABOUT 60 YEARS SON OF LATE VENKATRAMANA SERIGARA COOLIE BY PROFESSION RESIDING AT ANNAPOORNA NILAYA GANESHNAGAR MULLYA AJJAVARA VILLAGE SULLIA TALUK - 574 239. …RESPONDENT (BY SMT. ARCHANA K.M., AMICUS CURIAE) -2- THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 18-11-2017 PASSED IN SESSIONS CASE NO.55 OF
2013 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K. IN SO FAR AS ACQUITTING THE ACCUSED/RESPONDENT FOR THE CHARGED OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. IN CRL.A NO.428/2018 BETWEEN: SRI VASANTHA SERIGARA AGED ABOUT 58 YEARS SON OF LATE VENKATRAMANA SERIGARA COOLIE BY PROFESSION RESIDING AT ANNAPOORNA NILAYA GANESHANAGAR MULLYA AJJAVARA VILLAGE SULLIA TALUK - 574 201. ...APPELLANT (BY SMT. ARCHANA K.M., AMICUS CURIAE) AND: STATE OF KARNATAKA REPRESENTED BY CIRCLE INSPECTOR OF POLICE SULLIA CIRCLE, D.K REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001 ...RESPONDENT (BY SMT. RASHMI PATEL, H.C.G.P.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) -3-
OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 18-11-2017 AND ORDER OF SENTENCE DATED 20-11-2017 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K. IN SESSIONS CASE NO.55 OF 2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 304-II OF IPC.
THESE CRIMINAL APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH) Crl.A.No.671/2018 is filed by the State and Crl.A.No.428/2018 is filed by the accused challenging the
judgment and order dated 18.11.2017 passed in
S.C.No.55/2013 by learned V Addl. District and Sessions Judge, Dakshina Kannada, Mangalore, sitting at Puttur, Dakshina Kannada, whereby the accused was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.20,000/- for the offence punishable under Section 304-II IPC. -4-
2. The factual matrix of case of the prosecution before the trial Court is that: PW.1-complainant had lodged the complaint and the
criminal law was set in motion that PW.2, Harish Naik, with an intention to construct a new house had hired a Hitachi on 29.12.2013 to level the land and as per the say of PW.2, the accused, who is familiar to him, came to his house to help him and brought a tractor to transport the mud, in which, Hitesh was the driver and after finishing the day's work, both the accused and the tractor driver Hitesh with an intention to have sexual act with Padmavathi, on that night, slept in the house of PW.2, however, the accused could not get the opportunity and the driver Hitesh in order to escape from the embarrassment of the accused, at about 5.00 a.m., took Padmavathi to a nearby hilly area to have sex and while having sexual intercourse, the accused came there with a sexual desire and on seeing them, the accused sought for a chance to have sex and when he did not get the chance, he came back to the house of PW.2 with an intention to kill them, took an axe and returned to the place where Hitesh and Padmavathi(both deceased) were having sex
-5- and cut their head portion with the axe, which resulted in the death of both Padmavathi as well as Hitesh at the hands of the accused.
3. The prosecution in order to prove its case examined 25
witnesses as PW.1 to PW.25 and got marked documents Exs.P1 to P15 and MO.1 to MO.14. On closure of the evidence of the prosecution, the accused was subjected to 313 statement in respect of incriminating evidence and he denied the same. However, he did not choose to lead any evidence. The trial Court having considered the material on record comes to the
conclusion that the prosecution has proved that death of both
Padmavathi and Hitesh as homicidal one and with regard to as to whether the prosecution is able to prove the motive against the accused, the trial Court answered point No.2 in the negative. However, answered point No.3 in the affirmative that the accused only committed the murder of the two persons and the trial Court convicted the accused under Section 304-II of IPC and sentenced him to undergo imprisonment for a period of 10 years with a fine of ₹20,000/-, out of which, an amount of ₹9,500/- each was directed to be paid to PW.5, who is the
-6- mother of deceased Hitesh and Mahesh, the second son of deceased Padmavathi.
4. Being aggrieved by the inadequate sentence and also
bringing the case of the accused under Section 304-II of IPC instead of Section 302 IPC, the State has filed appeal in Crl.A.No.671/2018, wherein it is contended that the trial Judge committed an error in bringing the case within the purview of 304-II of IPC, it ought to have invoked Section 302 IPC, when the trial Court had come to the conclusion that it is the accused only, who committed the murder of the deceased and the same would not come within the exception provided under Section 300 of IPC and hence, the judgment of the trial Court
convicting the accused under Section 304-II of IPC is erroneous; that the trial Court failed to take note of Ex.P13- post mortem report of deceased Hitesh, which is sufficient to establish the manner in which the offence was committed and the evidence of the Doctor, who conducted the post-mortem examination is also very clear that it is a case of homicidal death and not on account of any sudden provocation; that the trial Court committed an error in relying upon the voluntary
-7- statement, which is not admissible except for recovery and hence it requires interference of this Court to modify the
judgment of the trial Court and impose appropriate sentence.
5. The accused also filed an appeal in Crl.A.No.428/2018
before this Court challenging his conviction and bringing the guilt under Section 304-II of IPC, wherein it is contended that the trial Court committed an error in convicting him, though no chain link was established before the Court. Learned Amicus Curiae Smt. Archana K.M., appearing on behalf of the accused in her arguments vehemently contend that the very evidence of PW.18 with regard to the recovery of weapon as well as clothes are not proved and that the very recovery is doubtful; that the husband of deceased Padmavathi did not lodge the complaint immediately after the incident, even though he had knew about the incident prior to PW.1 and that PW.1 was not in the place at all and he came to the spot only on information and he has lodged the complaint; that even PW.2-the husband of deceased Padmavathi and his son PW.6, who is also the son of deceased Padmavathi, have not supported the case of prosecution and when no chain link is established with regard to the case of
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circumstantial evidence, there are no witnesses for last scene circumstance; except the persons, who were in the house on the previous night of the incident, no other witnesses had seen both the deceased(Hitesh and Padmavathi) had left the house in the early morning at 5.00 a.m. and according to the case of the prosecution both of them had left the house at 5.00 a.m. to have sexual intercourse and in the absence of last seen witnesses and also the connecting witnesses, the recovery is not proved and hence, learned Amicus Curiae contends that the present case is for acquittal, however, the trial Court has committed an error in bringing the case under 304 Part II IPC, which requires interference of this Court.
6. Having heard Smt. Rashmi Patel, learned H.C.G.P
appearing for the State and Smt. Archana K.M., learned Amicus Curiae appearing for the accused and after re-analysing the materials available on record, the points that would arise for the consideration of this Court are:
1. Whether the trial Court committed an error in bringing the case of the accused under Section -9- 304-II of IPC instead of Section 302 IPC, as contended by the State?
2. Whether the trial Court committed an error in convicting the accused instead of acquitting the accused as contended by the counsel appearing for the accused?
3. What order? Reg: Point Nos.1 to 3
7. Having taken note of the case of the prosecution,
which has been narrated before this Court, at the first instance, in order to prove the case of the prosecution, the prosecution relied upon the evidence of PW.1 to PW.25. Admittedly, the case is based upon circumstantial evidence and there are no witnesses to last seen theory; the witnesses who have been examined before the Court have stated that they had seen both the deceased on the previous night of the incident and none of the witnesses have witnessed the accused and deceased leaving the house of PW.2 to have sex on the early morning of the day of the incident and hence there are no last seen
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witnesses; the other circumstance relied upon by the prosecution is the recovery of weapon and recovery of clothes at the instance of the accused. In order to prove the same, the prosecution mainly relies upon the evidence of PW.18 and PW.18 in his evidence says that in view of the voluntary statement of the accused made before the police, he was secured and the police informed him and CW.30 to be the panch witnesses for recovery.
8. The Hon'ble Apex Court in the judgment rendered in the case of Subramanya v. State of Karnataka reported in
(2023) 11 SCC 255, having taken note of Section 27 of the
Evidence Act has extracted the same in paragraph No.76 and in paragraph No.77, with regard to the basic infirmity in the evidence of the prosecution witnesses also discussed with regard to Section 27 of the Evidence Act. Paragraph 78 of the said judgment reads as under:-
"78. If, it is say of the investigating officer that the appellant-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 weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station - 11 -
itself. 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 in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act 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. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter." (emphasis supplied)
9. Having taken note of the discussion made in the
judgment with regard to the recovery is concerned, either the
weapons or the clothes, it is held that the accused before leading the panch witnesses and also the Investigating Officer - 12 -
must reveal that what he is going to do and the same should be the first part of panchanama to be drawn in the presence of panch witnesses and IO in the police station itself. Then the second part of panchanama is after the recovery and if from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part. It is further held in the said judgment as to how the law expects the Investigating Officer to draw the discovery panchanama as contemplated under Section 27 of the Evidence Act and on reading of the entire oral evidence of the Investigating Officer, then it is clear that the same is deficient in all the aforesaid relevant aspects of this matter.
10. In the cases on hand, PW.18 has not stated that the
accused revealed before him that he would produce the weapon or clothes, if he is taken to the place where he has kept the weapon and the clothes, but instead he says that the police only requested him to accompany them along with accused for recovery and the same is not in accordance with law as discussed by the Hon'ble Apex Court in the judgment referred
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supra. In the cross examination of PW.18 also, he categorically deposes that the police only showed him MOs,7, 8 and 14 and the same is elicited in the cross examination, but he says that he has signed Ex.P8-seizure mahazar in the police station. When such being the case, the evidence of PW.18 is not credible to the extent of recovery of weapon as the same is not shown by the accused.
11. The other contention of the learned Amicus Curiae is
that though the blood stains were found on the clothes of both the deceased(Hitesh and padmavathi) as 'A' and 'AB' group blood, however, the blood of both the deceased were not drawn and also the blood of the accused was also not drawn and there is no matching of the blood and hence, there is force in the contention of the learned Amicus Curiae to that effect also. It is further submitted by learned Amicus Curiae that though blood stains found on the clothes of both the deceased was 'A' and 'AB' group blood, but, in the weapon which was seized, that is axe, it contains only 'AB' group blood and hence with regard to chemical examination report and serology report Exs.P10 and
- 14 - Ex-P11 also cannot be relied upon in the cases on hand, when there is no blood matching of the accused.
12. The other circumstance relied upon by learned
Amicus Curiae is that the accused had also sustained injuries and the wound certificate-Ex-P14 is also produced before the Court. However, it is to be noted that though Doctor-PW23 has deposed before the Court that the accused has sustained the injury and no doubt, wound certificate is produced before the court, but in the cross examination, the Doctor opines that the accused has sustained a simple injury. The accused was examined on 01.01.2013 i.e., within 2 days of the alleged incident, which had taken place on 30.12.2012. However, the doctor says the same is an old injury and in order to connect the accused for the offence punishable under Section 302 IPC, in a case of circumstantial evidence, the Hon'ble Apex Court in
the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 had held five golden principles, which constitute the panchsheel of the proof of a case based on circumstantial evidence and at para 152 and 153, it is held as follows:- - 15 -
152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. Stat of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case (supra): "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a
conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made: - 16 -
"Certainly, 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."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
13. Having taken note of the above principles of the
Hon'ble Apex Court that in a case based on circumstantial evidence, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and the accused must show that in all human probability, the act must have been done by the accused only and the above five golden principles constitute the panchasheel of the proof of a case based on circumstantial
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evidence, when the same is absent in the cases on hand, we do not find any force in the contention of learned H.C.G.P that the trial Court ought to have invoked Section 302 IPC against the accused. As the prosecution has failed to prove the case and establish the chain link of each circumstances except relying upon only the recovery, which is also not in accordance with law, when such being the case, we find that the trial Court committed an error in convicting the accused and hence the appeal filed by the accused is liable to be allowed and the appeal filed by the State requires to be dismissed and consequently, the judgment and order of the trial Court requires to be set aside.
14. However, it is noticed that the accused is in custody
from 01.01.2013 to 20.12.2014 during the time of trial and subsequently he was released on bail by the order passed by this Court on 20.12.2014 and subsequent to the judgment,
from 18.11.2017 he was taken to custody when the judgment
was pronounced by the trial Court and still, the accused is in jail and even considering 10 years of punishment, which the accused has completed. - 18 -
15. Learned H.C.G.P appearing for the State submits that
the accused is still in jail, even after completion of the jail term of 10 years, which was imposed by the trial Court and the Jail authorities ought to have released the accused considering the period during which, the accused was in jail i.e., during trial, and invoking Section 428 Cr.P.C., the benefit of set-off could have been given to the accused, but the same is not given and continuing him in prison even after completion of 10 years amounts to illegal detention and in view of acquittal, the accused shall be set at liberty forthwith. She further submits that there are lapses on the part of Jail Superintendent in keeping the accused in illegal detention even after completion of 10 years of sentence.
Hence, we pass the following:-
ORDER
1. Crl.A.No.671/2018 filed by the appellant/State is dismissed.
2. Crl.A.No.428/2018 filed by the appellant/accused is allowed. The judgment and order dated 18.11.2017 - 19 -
passed in S.C.No.55/2013 by learned V Addl. District and Sessions Judge, Dakshina Kannada, Mangalore, sitting at Puttur, Dakshina Kannada against the accused for the offence punishable under Section 304-II of IPC is set aside and the accused is acquitted of the offence alleged against him.
3. The appellant/accused is set at liberty, if his detention is not required in any other case/s.
4. Bail bond, if any, executed by accused stand cancelled.
5. This Court places on record the able services
rendered by Smt. Archana K.M., learned Amicus Curiae, appearing on behalf of accused. The Registry is directed to pay a honorarium of Rs.10,000/- to the learned Amicus Curiae Smt. Archana K.M. - 20 -
6. The Registry is directed to communicate this order
to the concerned Prison forthwith. Sd/- (H.P.SANDESH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 13