Babu Sahebagouda Rudragoudar vs The State Of Karnataka

2024 INSC 320 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 985 OF 2010

BABU SAHEBAGOUDA RUDRAGOUDAR AND OTHERS ...APPELLANT(S)

VERSUS

STATE OF KARNATAKA ...RESPONDENT(S)

JUDGMENT

Mehta, J.

1. The appellants herein, namely, Babu Sahebagouda

Rudragoudar(A-1), Alagond Sahebagouda Rudragoudar(A-2) and

Mudakappa @ Gadegappa Rudragoudar(A-3) along with

Sahebagouda Gadageppa Rudragoudar(A-4), Basappa Avvanna @

Huvanna Giradi @ Chigari (A-5) and Basappa Dundappa @

Dondiba Hanjagi (A-6) were subjected to trial in Sessions Case No.

28 of 2002 in the Court of the learned Fast Track Court I, Bijapur

for charges pertaining to offences punishable under Sections 143,

147, 148, 506(2) and Section 302 read with Section 149 of the Signature Not Verified Indian Penal Code, 1860 (hereinafter being referred to as ‘IPC’). Digitally signed by Narendra Prasad Date: 2024.04.19 14:43:10 IST Reason: 1

2. For the sake of convenience, the appellants shall hereinafter

be referred to as A-1, A-2 and A-3.

3. The learned trial Court proceeded to discard the prosecution

story and acquitted the accused appellants(A-1, A-2 and A-3) along

with A-4, A-5 and A-6 vide judgment dated 23rd July, 2005.

4. The State of Karnataka challenged the said judgment

recording acquittal of A-1 to A-6 by filing Criminal Appeal No.

2215/2005 before the High Court of Karnataka. The Division

Bench of High Court vide its judgment dated 14th September, 2009

proceeded to allow the appeal; reversed the acquittal of A-1, A-2

and A-3 and convicted these accused for the offence punishable

under Section 302 read with Section 34 IPC and sentenced them

to undergo imprisonment for life and to pay a fine of Rs. 50,000/-

each within a period of six months and in default, to further

undergo imprisonment for two years. The appeal as against A-5

and A-6 was dismissed, while appeal qua A-4 stood abated on

account of his death. Out of the fine amount to be realised, a sum

of Rs. 10,000/- was ordered to be paid to the State Government

and the balance amount of Rs. 1,40,000/- was ordered to be paid

to the complainant(PW-1).

2

5. The judgment dated 14th September, 2009 rendered by the

learned Division Bench of the High Court reversing the acquittal of

the accused appellants and convicting and sentencing them as

above is assailed in the present appeal.

Brief facts: -

6. The complainant, Chanagouda(PW-1) owns agricultural

lands and a house in village Babanagar, Bijapur, Karnataka. It is

alleged by the prosecution that in the morning of 19th September,

2001, the deceased Malagounda, son of complainant, along with

labourers/servants Revappa(PW-2), Siddappa(PW-3),

Hiragappa(PW-4) and Suresh(PW-5) had gone to put up a bund

(check dam) in their land. At about 12 o’ clock in the afternoon,

the complainant(PW-1) packed lunch for these five persons and

proceeded to the field where the farming operations were being

undertaken. The work continued till 3.30 p.m. and thereafter, the

four servants(PW-2, PW-3, PW-4 and PW-5), along with the

deceased Malagounda and the complainant(PW-1) proceeded to

the village. They had reached near the land of one Ummakka

Kulkarni at about 4.00 pm, where A-1, A-2, A-3 and A-4 suddenly

came around and exhorted that the way the complainant party had

murdered Sangound, they would take revenge upon the members

3 of the complainant party in the same manner. A-1 holding a

jambai, A-2 holding an axe, A-3 holding a sickle and A-4 holding

an axe, belaboured Malagounda, as a result of which he fell down.

The assailants thereafter threatened the complainant(PW-1) that if

he tried to intervene, he too would meet the same fate as his son.

Fearing for his own life, the complainant(PW-1) ran away and hid

behind the bushes in order to avoid being beaten by the accused.

7. After sunset, the complainant(PW-1) returned to the village

and narrated about the incident to his family members. A written

complaint of this incident came to be submitted by the

complainant(PW-1) at Tikota Police Station on 20th September,

2001 at 4.00 am in the morning whereupon FIR(Exhibit P-10) was

registered and investigation commenced. After conclusion of

investigation, a charge sheet came to be filed against the

appellants(A-1, A-2, A-3) and other accused(A-4, A-5 and A-6) for

the offences punishable under Sections 143, 147, 148, 506(2) and

Section 302 read with Section 149 IPC in the Court of jurisdictional

Magistrate. The case being exclusively sessions triable was

committed to the Court of Sessions Judge, Bijapur where charges

were framed against the accused for the above offences. The

accused persons pleaded not guilty and claimed trial. The

4 prosecution examined as many as 27 witnesses, exhibited 24

documents and 17 material objects to prove its case. The accused,

upon being questioned under Section 313 of Code of Criminal

Procedure, 1973(hereinafter being referred to as ‘CrPC’) claimed

that they were innocent and had been falsely implicated in the

case. However, no evidence was led in defence. For the sake of

convenience, the details of the prosecution witnesses are enlisted

below: -

PW-1 Chanagouda (complainant)(eye witness) PW-2 Revappa (eye witness) PW-3 Siddappa (eye witness) (hostile) PW-4 Hiragappa (eye witness) PW-5 Suresh (eye witness) (hostile) PW-6 Basagonda (eye witness) PW-7 Appasaheb (last seen witness) PW-8 Sabu (panch witness) PW-9 Basu (panch witness) PW-10 Ramu (panch witness) PW-11 Bhimanna (panch witness) PW-12 Sangond (panch witness) PW-13 Shantinath (panch witness) PW-14 Sakrubai (mother of the deceased) (hearsay witness) PW-15 Shankargouda (eye witness) PW-16 Siddappa (hearsay witness) PW-17 Dr. Anilkumar (Medical Jurist) PW-18 Shetteppa (Retd. ASI) (registered the FIR) (Poujadar) PW-19 Veerbhadrayya (Carrier Constable) PW-20 Dayanand (Photographer) PW-21 Raju (Scribe of Sketch Map) PW-22 Shrishail (Carrier Constable) PW-23 Ratansing (Assistant Sub-Inspector) PW-24 Chandrashekhar (Investigating Officer) PW-25 Jaganath (PSI) PW-26 Mohammadsharif (Assistant Sub-Inspector)

5 PW-27 Basanagouda (Police Inspector, State Intelligence, Bangalore) (2nd Investigating Officer)

8. Upon hearing the arguments advanced by the prosecution

and the defence counsel and after thoroughly appreciating the

evidence available on record, the trial Court proceeded to hold that

the prosecution could not prove the charges levelled against the

accused beyond all manner of doubt and acquitted all the six

accused vide judgment dated 23rd July, 2005 with the following

pertinent findings: -

(i) That in the charge sheet, the prosecution had involved

A-5 and A-6. However, none of the witnesses examined by the

prosecution spoke a single word incriminating A-5 and A-6

either individually or vicariously and this circumstance casted

serious doubts in the mind of the Court with regard to the

conduct of the witnesses to implicate A-1 to A-4 while

exonerating A-5 and A-6.

(ii) That PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6 gave

contradictory versions regarding exact identities/names of the

assailants.

(iii) PW-4 who was a coolie and had worked along with the

deceased Malagounda did not implicate A-4 in the crime.

6 (iv) Basagonda(PW-6), projected to be an eye witness gave

evidence contradicting the evidence of PW-2 and PW-4.

(v) Rudrappa, son of PW-6 was one of the accused in the

murder of Sangound, son of A-4 and thus, the said witness

had a motive to speak against A-1 to A-4.

(vi) Likewise, another projected eyewitness, namely,

Shankargouda(PW-15), did not state about the presence of A-

4 at the time of incident.

(vii) The trial Court further found that it was admitted by the

eye witnesses(PW-6 and PW-15) that it had rained in the

village continuously for three days prior to the incident and

thus, the theory put forth by the complainant that the

deceased and the four labourers(PW-2 to PW-5) had gone to

the field for raising a bund was improbable as during the spell

of incessant rainfall, it would not have been possible to carry

out such an operation and for that matter, any other farming

activity.

9. At para 15 of the judgment, the trial Court concluded as

below: -

“…In view of conflicting nature of evidence of these eye witnesses, it is clear that their evidence is not consistent with the prosecution case and it has a different version with reference to each witness.

7 Hence a serious doubt arises as to the truthfulness of the prosecution.”

10. The trial Court discussed evidence of ASI, Tikota Police

Station(PW-18), wherein he admitted that police visited the place

of incident in the night only. It was also noted that

complainant(PW-1) admitted that the complaint was made after

the police had visited the place of incident.

11. PW-2 stated in his cross examination that the police came to

the village at about 10 or 11 am and recorded his statement at the

police station at that time only i.e. at 12 o’ clock. Taking this into

consideration, the trial Court recorded a categoric finding that

complaint(Exhibit P-1) was a post-investigation document and as

such, it was hit by Section 162 CrPC and did not have any

evidentiary worth. This conclusion was recorded in Para 17 of the

judgment which is extracted hereinbelow for the sake of ready

reference: -

“According to the cross – examination of P.W.2, the police came to the village at about 10 or 11 a.m. He called by the police and they went to the place and the police inspected the dead body. P.W.2 is very much specific that they went to the place along with the police at 11p.m. and thereafter went to the police station at 12 O’ clock in the night. According to P.W.2, the police have recorded his statement in the police station at that time only i.e., at 12 O clock. This goes to show that the police were aware of the offence at 11.00 p.m. on 19.09.2001. P.W.6., who claims to be an eye witness, returned to the house at about 5-00 or 6-00 p.m. and informed the incident to the children of his uncle viz., he informed Pargouda, Shankargouda and Chanagouda. But, however, P.W.1

8 was hiding near the bushes at his land and if what P.W.6 says is true, then in that case, P.W.1 was in the house at 5-00 or 6-00 pm only. Nothing prevented P.W.1 to rush immediately to the police station which was 10 Kms away and to file the complaint. Even P.W.6 further admits that he told the incident to these persons and they had told him that they will go to the police station and it was 6-00 or 7-00 p.m., at the time. Even if that is the case, P.W.1 has to offer explanation as to why he filed the complaint at 4.00 a.m. When the admissions of this witness are taken into account, the police were aware of the murder at about 11 p.m. in the night and they had even visited the place of offence.

Nothing prevented the police who visited the place of offence to record the statement of P.W.1 at his house and the delay for six hours as per the evidence of P.W.1 or as to the evidence of P.W.6, the delay of eight hours is not explained by the prosecution. If already the statements of the witnesses were recorded at the village only after seeing the dead body, then in that case Ex.P1 which is the complaint, is hit by Section 162 of CrPC and cannot have evidentiary value.”

12. The trial Court also concluded that the opinion of the Medical

Officer regarding time of death of the deceased totally contradicted

the case set up by the prosecution witnesses in their evidence

regarding the time of incident.

13. Regarding the seizure of weapons/articles, the trial Court

noted at para 19 that the complainant(PW-1) admitted in his cross-

examination that the police had shown him the weapons of offence

on the date of incident itself. However, as per the Investigating

Officer(PW-27), the weapons were shown to have been recovered

on 1st October, 2001 and, therefore, evidence of complainant(PW-

1) totally contradicted the claim of the Investigating Officer(PW-27)

9 that he had seized the weapons in furtherance of the disclosure

statements of the accused.

14. Taking note of these inherent lacunae, infirmities and

contradictions in the prosecution evidence, the trial Court

proceeded to hold that the prosecution case was full of

inconsistencies and infirmities and that it had failed to prove the

charges against the accused beyond all manner of doubt.

Accordingly, the accused appellants(A-1, A-2 and A-3) and other

three accused(A-4, A-5 and A-6) were acquitted of the charges.

15. The State preferred an appeal under Section 378(1) read with

378(3) CrPC challenging the acquittal of the accused. The learned

Division Bench of High Court of Karnataka partly allowed the said

appeal vide judgment dated 14th September, 2009 and while

reversing the acquittal of the accused A-1, A-2 and A-3 as recorded

by the trial Court, convicted and sentenced them as above. The

appeal against A-4 stood abated on account of his death. The

appeal against A-5 and A-6 was dismissed upholding their

acquittal.

16. The instant appeal has been instituted at the instance of the

accused appellants(A-1, A-2 and A-3) for assailing the judgment

dated 14th September, 2009 rendered by the learned Division 10 Bench of the High Court of Karnataka, Circuit Bench, Gulbarga

whereby the acquittal of the appellants has been reversed and they

have been convicted and sentenced to suffer life imprisonment.

Submissions on behalf of the appellants: -

17. Learned counsel representing the appellants urged that the

view taken by the High Court in reversing the acquittal of the

appellants recorded by the trial Court by a well-reasoned judgment

is totally contrary to the settled principles laid down by this Court

regarding scope of interference in an appeal against acquittal.

18. Learned counsel urged that the appellate Court should be

very slow to intervene with the acquittal of an accused as recorded

by the trial Court. Acquittal can be reversed only if the findings

recorded by the trial Court are found to be patently illegal or

perverse or if the only view possible on the basis of the evidence

available on record points towards the guilt of the accused. If two

views are possible, the acquittal recorded by the trial Court should

not be interfered with unless perversity or misreading of evidence

is reflected from the judgment recording acquittal.

19. Learned counsel further urged that the learned Division

Bench of the High Court, while rendering the judgment reversing

11 acquittal of the appellant barely referred to the findings on the

basis of which the trial Court had acquitted the accused by

extending them the benefit of doubt. Rather, the High Court went

on to record its own fresh conclusions after re-appreciation of the

evidence. Such an approach is de hors the well-settled principles

governing consideration of an appeal against acquittal and hence,

the impugned judgment deserves to be set aside.

20. They advanced pertinent submissions assailing the judgment

of the High Court seeking acquittal of the accused appellants.

21. It was urged that the complainant(PW-1), father of the

deceased Malagounda and the four labourers(PW-2, PW-3, PW-4

and PW-5) abandoned the deceased victim whom they claimed to

have seen being belaboured with their own eyes. They neither

made any efforts to take stock of the victim’s condition nor was the

matter reported to the police promptly which makes it clear that

the so called eye witnesses actually never saw the incident

happening with their own eyes and a case of blind murder has

been foisted upon the appellants on account of prior enmity.

22. The attention of this Court was drawn to the following

excerpts from the evidence of complainant, Chanagouda(PW-1):-

12

“….Again I returned back and went near my land and entered the bushes to hide myself. I sat at that place up to 6 or 7 PM in the evening. After the sun-set I returned to my village. I told the incident to my family members. In the night myself and my brothers and relatives went to the place and saw the dead body. Thereafter we informed to the police. The cousins informed about the incident to the police. At that time the police came to our house and took me to the police station. The police enquired me and I informed them about the incident and they made a writing. It was about 2 or 3 AM in the morning. In the morning hours the police came to the place. I now see the complaint at ex.P.1, and it bears my signature at Ex.p.1(a)….

….The police recorded what I have stated to them in the police station. Thereafter I signed to that writing. On the next day the police have taken my statement. The Poujadar recorded my statement. The inspector also questioned me. It is not correct to suggest that the inspector has not recorded my statement….. ….My relatives did not made a telephone call and personally went to the police station and brought the police. At that time initially the police came and thereafter the Poujadar came. They came to our house. The poujadar questioned me what has happened. I told the Poujadar what I was knowing. The poujadar made a writing about it. The writing was made after the police visited the place of incident….. …..Myself and my relatives went to see the dead body in the night and at that time it was 10 to 11 PM. When we returned to house it was 10 or 11 PM. Phone facilities are available in our village. I did not made any telephone call to the police. I also did not tell-to my relatives to make a telephone call to the police station. Shivanagouda and Banagouda are my other two sons. Both of them are educated. They were present in the house when I returned from the land. When I told my son about the incident, they went on motor-cycle to the police station but did not made any telephone call to the police station. My son Shivanagouda and Sangond went on the motor-cycle to the police station. They went to the police station at about 12 o’clock in the night. The distance between Tikota Police Station and my village is 10 KMS….. ….On the day of incident only the police showed the weapon of offence..” (emphasis supplied)

23. In this very context, the attention of the Court was drawn to

the evidence of ASI Tikota Police Station(PW-18), who recorded the

13 FIR(Exhibit P-10) wherein he admitted that he did not know

whether prior to 4.00 am on that day, the information of the

murder was already provided at the police station.

24. Learned counsel thus urged that the police had already been

informed about the incident by none other than the sons of the

complainant(PW-1) around 12 o’ clock in the night and hence,

there was no reason as to why the FIR was not registered

immediately on receiving such information.

25. Learned counsel contended that the complainant(PW-1)

admitted in cross examination that the Poujadar scribed a

complaint and he was made to append his signatures thereupon.

It was submitted that the said complaint was not produced on

record. Hence, there is a genuine doubt regarding the FIR(Exhibit

P-10) being a subsequently created post investigation document.

26. He then referred to the statement of Revappa(PW-2) who

admitted in cross-examination that the police came to the village

at about 10 or 11 pm and he was sleeping in his house when the

call came from the police. A police officer from Tikota Police

Station came to call him. He along with the police officer went to

the place of incident where the dead body was lying. The time was

14 about 11.00 pm. They went to the police station at 12 o’ clock in

the night where his statement was recorded.

27. The Court was taken through the statement of

Hiragappa(PW-4) who also stated that police came to their village

at 8.00 or 9.00 pm in the night. They inquired from him and he

divulged as to how the incident had happened. He and the other

witnesses were questioned and their statements were noted

whereafter they proceeded to the crime scene. They all went to the

police station at about 11.00 pm in the night. He travelled in the

police jeep. His statement was again recorded at the Police Station

around 12’o clock or 1.00 am.

28. Learned counsel also referred to the statement of

Basagonda(PW-6) who claimed to be an eye witness of the incident

and urged that the witness stated about the presence of only two

servants with the deceased Malagounda while he was allegedly

being assaulted by the accused. Most significantly, he did not

state about the presence of the complainant(PW-1) at the crime

scene. PW-6 admitted in his cross-examination that he returned

to his house at about 5 to 6 pm and informed about the incident

to the children of his uncle and Paragouda, Shankargouda and

Chanagouda(PW-1). Many people had gathered when he spoke

15 about the incident. It was submitted that this version of PW-6

completely belies and eclipses the claim of the complainant(PW-1)

that he had seen the incident with his own eyes because, if the

complainant(PW-1) had himself witnessed the occurrence, there

was no occasion for PW-6 to collect all the family members

including the complainant(PW-1) and inform them about the

incident.

29. The evidence of PW-15, another alleged eye witnesses was

criticised and it was submitted that the conduct of this witness

who happens to be a cousin of PW-1, in casually going away to his

farmland despite witnessing the brutal assault and not taking any

steps to inform the police or the close relatives clearly shows that

he is a cooked up witness and was not present at the crime scene.

30. The statement of Dr. Anil Kumar(PW-17) was referred to and

it was submitted that the Medical Jurist conducted autopsy upon

the dead body at about 9.00 am on 20th September, 2001 and gave

pertinent opinion that the time of death of the victim was 18 to 24

hours before the autopsy being carried out. In cross-examination,

he admitted that decomposition had set in the dead body and that

the time of death was more than 24 hours prior to the examination.

Thus, it was submitted that the time of incident as portrayed in

16 the evidence given by the so called eye witnesses is totally

contradicted by the opinion of the Medical Jurist.

31. It was also contended that the Investigating Officer(PW-27)

has given false evidence regarding the disclosure statements made

by the accused and the recoveries of the weapons effected in

furtherance thereof, because the complainant(PW-1) clearly

admitted in his evidence that the police had showed him the

weapons on the very day of the incident.

32. It was also contended that neither the disclosure statements

nor the recovery memos bear the signatures/thumb impressions

of the accused and hence, the recoveries cannot be read in

evidence or attributed to the accused appellants.

33. Learned counsel for the appellants vehemently urged that the

learned Division Bench of the High Court was not justified in

causing interference into the well-reasoned judgment of acquittal

rendered by the learned trial Court and reversing the acquittal of

the accused appellants and that too, without recording any finding

that the trial Court’s judgment was perverse or that no view except

the one warranting conviction of the accused was possible upon

appreciation of evidence as available on record. On these grounds,

17 he implored the court to set aside the impugned judgment and

restore the acquittal of the appellants.

Submissions on behalf of Respondent-State: -

34. Per contra, learned counsel appearing for the respondent

State vehemently and fervently opposed the submissions advanced

by learned counsel for the appellants. He urged that learned

Division Bench of the High Court, while considering the appeal

against acquittal, thoroughly reappreciated the evidence available

on record and arrived at an independent and well considered

conclusion that the depositions of the eye witnesses PW-1, PW-2,

PW-4, PW-6 and PW-15 were convincing and did not suffer from

any significant contradictions or infirmities so as to justify the

decision of the trial Court in discarding their evidence and

acquitting the accused of the charges. The FIR(Exhibit P-10) was

promptly lodged at 4.00 am in the morning of 20th September,

2001. There was no such delay in lodging the report which could

cast a doubt on the truthfulness of the prosecution story. The so

called contradictions and discrepancies highlighted by the trial

Court in the evidence of the eyewitnesses for doubting their

evidentiary worth are trivial and insignificant and acquittal of

accused as recorded by the learned trial Court disregarding the

18 testimony of the eyewitnesses is based on perverse and

unacceptable reasoning. Learned counsel thus urged that the

High Court was perfectly justified in reversing the acquittal of the

accused appellants by the impugned judgment which does not

require interference in this appeal.

35. We have given our thoughtful consideration to the

submissions made at bar and have gone through the judgments of

the trial Court and High Court as well as the evidence available on

record.

Discussion and Conclusion: -

36. First of all, we would like to reiterate the principles laid down

by this Court governing the scope of interference by the High Court

in an appeal filed by the State for challenging acquittal of the

accused recorded by the trial Court.

37. This Court in the case of Rajesh Prasad v. State of Bihar

and Another1 encapsulated the legal position covering the field

after considering various earlier judgments and held as below: -

“29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of

1 (2022) 3 SCC 471

19 acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415]

“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the

20 appellate court should not disturb the finding of acquittal recorded by the trial court.”

38. Further, in the case of H.D. Sundara & Ors. v. State of

Karnataka2 this Court summarized the principles governing the

exercise of appellate jurisdiction while dealing with an appeal

against acquittal under Section 378 of CrPC as follows: -

“8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

39. Thus, it is beyond the pale of doubt that the scope of

interference by an appellate Court for reversing the judgment of

acquittal recorded by the trial Court in favour of the accused has

to be exercised within the four corners of the following principles:-

2 (2023) 9 SCC 581

21

(a) That the judgment of acquittal suffers from patent

perversity;

(b) That the same is based on a misreading/omission

to consider material evidence on record;

(c) That no two reasonable views are possible and

only the view consistent with the guilt of the accused is

possible from the evidence available on record.

40. The appellate Court, in order to interfere with the judgment

of acquittal would have to record pertinent findings on the above

factors if it is inclined to reverse the judgment of acquittal rendered

by the trial Court.

41. In light of the above legal principles, if we go through the

impugned judgment, we find that none of these essential mandates

governing an appeal against acquittal were adverted to by learned

Division Bench of the High Court which proceeded to virtually

decide the appeal as a first Court on independent appreciation of

evidence and recorded its own findings to hold the accused

appellants(A-1, A-2 and A-3) guilty of the charge under Section 302

read with Section 34 IPC and sentenced them to imprisonment for

life.

22

42. Thus, on the face of record, the judgment of the High Court

causing interference with the acquittal of the accused appellants

as recorded by the trial Court is contrary to the principles

established by law.

43. Keeping the above scenario in mind, we now proceed to

analyse the evidence and shall assign our reasons regarding the

impugned judgment being flawed, with reference to the material

infirmities and lacunae in the prosecution case.

44. The place of occurrence is admittedly at a distance of 10 kms

from Police Station Tikota. The complainant(PW-1), father of the

deceased Malagounda claiming to be an eye witness of the incident

deposed that he lodged a complaint(Exhibit P-1) at the police

station at 4 am, which resulted into registration of FIR(Exhibit P-

10). It was alleged in the report that the complainant along with

PW-2, PW-3, PW-4 and PW-5(servants, who had accompanied the

deceased Malagounda to erect a bund in their land) witnessed the

incident wherein, the assailants including the appellants herein,

assaulted and killed the deceased by inflicting injuries with sharp

weapons. It may be noted that even though the complainant(PW-

1), the deceased and the labourers were all going together and the

23 assailants were six in number, none other than the deceased

Malagounda received a single injury in the incident.

45. Relevant portions from the evidence of complainant(PW-1)

have been extracted and highlighted above and on going through

the same, we find that his testimony suffers from patent

infirmities, contradictions and inherent loopholes which brings

him within the category of wholly unreliable witness.

46. The complainant(PW-1) stated in his evidence that he saw the

brutal assault launched by the appellants and A-4(Sahebagouda)

on his son Malagounda which took place at 4.00 pm or 5.00 pm in

the evening of 19th September, 2001. While the incident was going

on, he hid amongst the bushes so as to avoid being harmed by the

assailants. The complainant did not state anything about the

accused going away from the crime scene after the incident.

However, he claimed that he returned back to his house just after

sunset. The incident took place in the month of September and

thus, it can be presumed that sunset must have occurred around

6:15 to 6.30 pm. The complainant stated that on reaching home,

he divulged about the incident to his family members and soon

thereafter, he and his cousins (as per his version in examination-

in-chief) and his sons Shivanagouda and Banagouda(as per cross-

24 examination) went to the Police Station Tikota and informed the

police about the incident.

47. Apparently, thus, the close relatives of the deceased had gone

to the police station in the late hours of 19th September itself. If

this version was true then, in natural course, these persons were

bound to divulge about the incident to the police and their

statement/s which would presumably be about an incident of the

homicidal death would have mandatorily been entered in the Daily

Dairy of the police station if not treated to be the FIR. However,

the Daily Diary or the Roznamcha entry of the police station

corresponding to the so called visit by the relatives of the deceased

to the police station was not brought on record which creates a

grave doubt on the genuineness of the FIR(Exhibit P-10). The

complainant(PW-1) admitted in cross examination that the

Poujadar came to his house and he narrated the incident to the

officer who scribed the same and thereafter, the complainant

appended his signatures on the writing made by the Poujadar.

However, ASI Tikota Police Station(PW-18) testified on oath that

complainant(PW-1) came to the police station and submitted a

written report which was taken as the complaint of the incident.

He did not state anything about any complaint being recorded at

25 the house of the complainant prior to lodging of the report. Thus,

there is a grave contradiction on this important aspect as to

whether the report was submitted by the complainant(PW-1) in the

form of a written complaint or whether the oral statement of

complainant(PW-1) was recorded by the police officials at his home

leading to the registration of FIR(Exhibit P-10). The non-

production of the Daily Dairy maintained at the police station

assumes great significance in the backdrop of these facts.

Apparently thus, the FIR(Exhibit P-10) is a post investigation

document and does not inspire confidence.

48. Shivanagouda and Banagouda, the educated sons of the

complainant(PW-1), who were the first persons to approach the

police station(as stated by PW-1 in cross-examination) were not

examined by the prosecution. The complainant(PW-1) also stated

that his relatives personally went to the police station and brought

the police to the village. The factum of the police having arrived at

the village at about 10.00 pm or 11.00 pm was also stated by PW-

2 and PW-4.

49. A very important fact which is evident from the evidence of

Basagonda(PW-6) who claimed to be an eye witness of the incident

is that he did not state about the presence of the complainant(PW-

26

1) at the place of incident while the victim was being assaulted.

PW-6 stated that he returned to his house at about 5.00 pm or

6.00 pm and then he informed the family members, i.e.,

Paragouda, Shankargouda and Chanagouda(PW-1). Thus, the case

set up by prosecution that complainant, Chanagouda(PW-1) was

an eye-witness to the incident, is totally contradicted by evidence

of PW-6 who categorically stated that it was he who had informed

the family members, the informant Chanagouda (PW-1) being one

of them, about the incident at 6.00 or 7.00 pm and that they

responded saying that they would be going to the police station for

filing a report.

50. Thus, the claim of complainant(PW-1) that he was an eye

witness to the incident is totally contradicted by the statement of

PW-6. The conduct of the family members of the deceased and the

other villagers in not taking any steps to protect the dead body for

the whole night and instead, casually going back to their houses

without giving a second thought as to what may happen to the

mortal remains of the deceased, lying exposed to the elements is

another circumstance which creates a grave doubt in the mind of

the Court that no one had actually seen the incident and it was a

case of blind murder which came to light much later. As a matter

27 of fact, if at all the sequence of events as emanating from the

evidence of the prosecution witnesses was having even a grain of

truth, then it cannot be believed that the dead body would be

abandoned in this manner or that even the police officials would

not put a guard at the crime scene.

51. Added to that, the version of Medical Jurist(PW-17) who

stated in his cross-examination that the dead body of the deceased

Malagounda was in a stage of decomposition and that the time of

death was more than 24 hours prior to the autopsy done at 9.00

a.m. on 20th September, 2001 creates further doubt in the mind of

the Court on the theory of the so called eye witnesses that the

incident happened at 4.00 pm on 19th September, 2001.

52. The witnesses Revappa(PW-2), Basagonda(PW-6) and

Shankargouda(PW-15) admitted that it had been raining

incessantly in the village for almost three days. In such

circumstances, the reason assigned by the complainant(PW-1) for

the deceased Malagounda and the four servants(PW-2, PW-3, PW-

4 and PW-5) to have gone to the agricultural land, i.e., for putting

up a bund is totally unacceptable. Since it was raining

incessantly, there could not be any possibility for these people to

have made an attempt to put up a bund on the land.

28

53. Thus, there is no logical explanation for the presence of the

deceased and the servants in their field on the date and time of the

incident. It seems that not only did the complainant party create

eye witnesses of the incident but has also suppressed the true

genesis of the occurrence.

54. PW-1 and PW-6 admitted that Sangound, son of the accused

A-4 had been murdered in front of their house and that the

accused party was carrying a grudge that deceased Malagounda

had murdered the boy. PW-6 also admitted that deceased

Malagounda, his father[(complainant)(PW-1)] and two

brothers(Shivanagouda and Banagouda) were arraigned as

accused for the murder of Sangound(son of A-4). The incident of

murder of Sangound happened two years prior which is far too

remote in point of time so as to impute motive to the appellants

that in order to seek revenge, they had murdered the deceased

Malagounda.

55. It has been laid down by this Court in a catena of decisions

that motive acts as a double-edged sword. Hence, the very fact

that members of the prosecution party were arraigned as accused

in the murder of Sangound, son of A-4, this could also have been

29 the motive for the prosecution witness to rope in the accused

appellants for the murder of Malagounda.

56. The High Court heavily relied upon the circumstance of

recoveries of weapons made at the instance of the accused as

incriminating evidence. However, as was rightly pointed out by

learned counsel representing the accused appellants, the

complainant(PW-1) admitted in his cross-examination that he was

shown the weapons of the offence by the police on the date of

incident itself.

57. At this stage, we would like to note that the Investigating

Officer(PW-27) who investigated the matter, claims to have effected

the recoveries in furtherance of the disclosure statements of the

accused and testified as below to prove the procedure of disclosure

and the discoveries: -

“On 1.10.2001 PSI Tikota produced accused Babusaheb Sahebgouda Biradar and Alagond Sahebgouda Biradar who were interrogated and recorded vol. statement of both accused persons. I now see the vol. statement or Alagond which is at Ex.P.15. It bears my signature and the LTM of Alagond. I now see the vol. statement of Babu and it is marked as Ex.P.16 and it bears my signature and the LTM of Babu Biradar. I recorded vol. statement of Babu Sahebgouda Pudragoudar and Alagond Sahebgouda Biradar. And accordingly conducted seizure panchanama and seized two axes and one koyta produced by Pudragoudar i.e. Babu Sahebgouda Pudragoudar, in the field of Anasari. And accordingly also seized one Jambiya produced by Alagond Biradar. I recorded the statements of Krishnaji Govindappa Kulkarni. On 2.10.2001 produced both the accused before the Hon’ble Court. On 3.10.01 I arrested accused Mudakappa Gadigoppa@Sahebgouda

30 Pudragoudar and the interrogated to him and also recorded his voluntary statement. As per the vol. st. conducted seizure panchanama and seized two sickles, 0 pen shirt which was blood stained, bush-shirt which was blood stained which were belonging to accd. Gradi and one plastic carry bag.Which articles are kept in land of Basappa Gradi.”

58. We would now discuss about the requirement under law so

as to prove a disclosure statement recorded under Section 27 of

the Indian Evidence Act, 1872(hereinafter being referred to as

‘Evidence Act’) and the discoveries made in furtherance thereof.

59. The statement of an accused recorded by a police officer

under Section 27 of the Evidence Act is basically a memorandum

of confession of the accused recorded by the Investigating Officer

during interrogation which has been taken down in writing. The

confessional part of such statement is inadmissible and only the

part which distinctly leads to discovery of fact is admissible in

evidence as laid down by this Court in the case of State of Uttar

Pradesh v. Deoman Upadhyaya3.

60. Thus, when the Investigating Officer steps into the witness

box for proving such disclosure statement, he would be required

to narrate what the accused stated to him. The Investigating

Officer essentially testifies about the conversation held between

3 AIR 1960 SC 1125 31 himself and the accused which has been taken down into writing

leading to the discovery of incriminating fact(s).

61. As per Section 60 of the Evidence Act, oral evidence in all

cases must be direct. The section leaves no ambiguity and

mandates that no secondary/hearsay evidence can be given in

case of oral evidence, except for the circumstances enumerated in

the section. In case of a person who asserts to have heard a fact,

only his evidence must be given in respect of the same.

62. The manner of proving the disclosure statement under

Section 27 of the Evidence Act has been the subject matter of

consideration by this Court in various judgments, some of which

are being referred to below.

63. In the case of Mohd. Abdul Hafeez v. State of Andhra

Pradesh4, it was held by this Court as follows: -

“5. ….If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person.”

4 (1983) 1 SCC 143 32

64. Further, in the case of Subramanya v. State of

Karnataka5, it was held as under: -

“82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:

“27. How much of information received from accused may be proved. —

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

83. 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.

84. If, it is say of the investigating officer that the accused appellant 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 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

5 2022 SCC Online SC 1400 33 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 blood stained 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)

65. Similar view was taken by this Court in the case of

Ramanand @ Nandlal Bharti v. State of Uttar Pradesh6,

wherein this Court held that mere exhibiting of memorandum

prepared by the Investigating Officer during investigation cannot

tantamount to proof of its contents. While testifying on oath, the

Investigating Officer would be required to narrate the sequence of

events which transpired leading to the recording of the disclosure

statement.

66. If we peruse the extracted part of the evidence of the

Investigating Officer(PW-27)(reproduced supra), in the backdrop of

the above exposition of law laid down by this Court, the

interrogation memos of the accused A-2(Exhibit P-15) and A-1

(Exhibit P-16), it is clear that the Investigating Officer(PW-27) gave

6 2022 SCC OnLine SC 1396 34 no description at all of the conversation which had transpired

between himself and the accused which was recorded in the

disclosure statements. Thus, these disclosure statements cannot

be read in evidence and the recoveries made in furtherance thereof

are non est in the eyes of law.

67. The Investigating Officer(PW-27) also stated that in

furtherance of the voluntary statements of accused(A-1 and A-2),

he recovered and seized two axes and one koyta produced by A-1

in the field of Ansari and one jambiya produced by A-2. The

Investigating Officer(PW-27) nowhere stated in his deposition that

the disclosure statement of the accused resulted into the discovery

of these weapons pursuant to being pointed out by the accused.

68. The Investigating Officer(PW-27) further stated that he

arrested accused A-3, recorded his voluntary statement and seized

two sickles. However, neither the so called voluntary statement

nor the seizure memo were proved by the Investigating Officer(PW-

27) in his evidence.

69. Thus, we are of the firm opinion that neither the disclosure

memos were proved in accordance with law nor the recovery of the

weapons from open spaces inspire confidence and were wrongly

35 relied upon by the High Court as incriminating material so as to

reverse the finding of the acquittal recorded by the trial Court.

70. The evidence of seizure of weapons of the offence is not

trustworthy and was rightly discarded by the trial Court.

71. In addition thereto, we may note that admittedly, the

prosecution did not procure any serological opinion to establish

blood group, if any, on the weapons so recovered. Thus, the

recoveries are otherwise also meaningless and an exercise in

futility.

72. Thus, neither the evidence of the eye witness is trustworthy

nor did the prosecution provide any corroboration to the vacillating

evidence of the so called eye witnesses. We have already held that

the FIR(Exhibit P-10) was a post investigation document. Thus,

the entire prosecution case comes under the shadow of doubt.

73. Resultantly, we are of the firm opinion that the view taken by

the trial Court in the judgment dated 23rd July, 2005 recording

acquittal of accused is a plausible and justifiable view emanating

from the discussion of the evidence available on record. The trial

Court’s judgment does not suffer from any infirmity or perversity.

Hence, the High Court was not justified in reversing the well-

36 reasoned judgment of the trial Court thereby turning the acquittal

of the accused appellants into conviction.

74. The impugned judgment dated 14th September, 2009

rendered by the High Court cannot be sustained and is hereby

reversed. The accused appellants are acquitted of all the charges.

They are on bail and need not surrender. Their bail bonds are

discharged.

75. The appeal stands allowed accordingly.

76. Pending application(s), if any, shall stand disposed of.

…………………………J. (B.R. GAVAI)

…...……………………J. (SANDEEP MEHTA) New Delhi;

April 19, 2024

37