Supreme Court of India
SUBRAMANYAversusSTATE OF KARNATAKA
- Citation
- 2022 INSC 1083
- Decided
- 13 October 2022
- Disposal
- Appeal(s) allowed
- Bench
- UDAY UMESH LALIT
Holding
The High Court erred in convicting the appellant as the extra‑judicial confession and discovery statements were unreliable and the circumstantial evidence did not meet the legal threshold for conviction.
Summary
The appellant Subramanya was charged with murdering Kamalamma along with co‑accused Gowri and Seetharam Bhat. The trial court acquitted all three, but the Karnataka High Court convicted Subramanya under IPC s.302 and sentenced him to life imprisonment, relying on an extra‑judicial confession by Seetharam, motive, and discovery statements under Evidence Act s.27. On appeal, the Supreme Court examined the admissibility and credibility of the extra‑judicial confession (Evidence Act s.30), the procedural requirements for discovery statements (s.27), and the relevance of motive (s.8). It found the confession unreliable, the discovery statements procedurally infirm, and the circumstantial chain incomplete, rendering the High Court's conviction unsustainable. Consequently, the Supreme Court set aside the conviction and ordered the appellant's release.
Issues considered
- The admissibility and evidentiary value of an extra‑judicial confession under Evidence Act s.30.
- The compliance with procedural requirements for discovery statements under Evidence Act s.27.
- Whether motive under Evidence Act s.8 can substitute for proof beyond reasonable doubt.
- The sufficiency of the circumstantial evidence to sustain a conviction for murder.
- Whether the High Court erred in overturning the trial court's acquittal.
Legislation cited
- Code of Criminal Procedure, 1973s. 209, s. 378
- Indian Evidence Act, 1872s. 27, s. 30, s. 8
- Indian Penal Code, 1860s. 120-B, s. 201, s. 302, s. 34, s. 379
Subjects
murderextra‑judicial confessiondiscovery statementcircumstantial evidencemotiveappeal against acquittalpresumption of innocenceEvidence Act s.27Evidence Act s.30
Judgment
828 [2022]
SUPREME COURT 14 S.C.R. 828
REPORTS [2022] 14 S.C.R.
A SUBRAMANYA
v.
STATE OF KARNATAKA
(Criminal Appeal No. 242 of 2022)
B OCTOBER 13, 2022
[UDAY UMESH LALIT, CJI AND J.B. PARDIWALA, J.]
Penal Code, 1860 – s.302 – Evidence Act – ss. 8, 27 & 30 –
Motive – Discovery Statement – Extra Judicial Confession – Appellant
(A-1) and A-2 conspired to do away with the victim-deceased – Both
C
are alleged to have entered her house and somewhere near the cattle
shed, the deceased was hit on her head and neck with a hard object
like a club – Later, they alleged to have removed the gold chain, a
pair of ear studs and one gold ring from the body of the deceased
– Later, A-3 is alleged to have helped the appellant and A-2 in
D wrapping the dead body of the deceased in a sari and thereafter
dumping it on the land of one ‘D’ – All three Accused were tried
together – Prosecution relied upon the facts of motive as appellant
had illicit relation with original A-2 and deceased was coming in
their way, the extra judicial confession alleged to have been made
by A-3 before PW- 7 (son-in-law of the deceased), discovery of the
E
dead body, recovery of the ornaments and discovery of the weapon
of offence – Trial Court acquitted the appellant and the other two
co-accused of all the charges – Appeal filed before High Court
against acquittal order – High Court dismissed the appeal so far as
A-2 is concerned and convicted A-1 u/s 302 of the IPC and A-3 u/s
F 201 r/w s.34 of the IPC – Appeal filed by A-1 before Supreme Court
– Held: The High Court should not have disturbed the acquittal
recorded by the trial court – The Court doesn’t find any satisfaction
recorded by High Court for treating the findings of the trial court
palpably wrong,manifestly errorneous or demonstrably
unsustainable – The circumstances relating to the making of an
G
extra judicial confession and the discovery of the weapon of offence
etc. have not been established , the chain of circumstantial evidence
snaps so badly that to consider any other circumstance, even like
motive, would not be necessary – It is concluded that the evidence
of discovery of the weapon, clothes and dead body of the deceased
H at the instance of the appellant convict herein can hardly be treated
828
SUBRAMANYA v. STATE OF KARNATAKA 829
as legal evidence, more particularly, considering the various legal A
infirmities in the same – Therefore, the High Court committed error
in holding the appellant convict herein guilty of murder – The
appellant convict is set at liberty.
Extra Judicial Confession – s.30 – Evidentiary value of –
Extra judicial confession is a weak piece of evidence and the court B
must ensure that the same inspires confidence and is corroborated
by other prosecution evidence – After subjecting the evidence of
the witness to a rigorous test on the touchstone of credibility, the
extra judicial confession can be accepted and can be the basis of a
conviction if it passes the test of credibility – Where an extra judicial
confession is surrounded by suspicious circumstances, its credibility C
becomes doubtful and it loses its importance like in the present case.
Discovery Statement – s.27 – Mere discovery cannot be
interpreted as sufficient to infer authorship of concealment by the
person who discovered the weapon – He could have derived
knowledge of the existence of that weapon at the place through D
some other source also – Therefore, it cannot be presumed or inferred
that because a person discovered the weapon, he was the person
who had concealed it, least it can be presumed that he used it.
Motive – s.8 – Evidentiary value – The presence of motive in
the facts and circumstances of the case creates a strong suspicion E
against the accused appellant but suspicion, howsoever strong,
cannot be a substitute for proof of the guilt of the accused beyond
reasonable doubt.
Circumstantial Evidence – The Court has to draw an inference
with respect to whether the chain of circumstances is complete, and F
when the circumstances therein are collectively considered, the same
must lead only to the irresistible conclusion that the accused alone
is perpetrator of crime.
Allowing the appeal, the Court
G
Held: 1. The Court in Chandrappa and Others v. State of
Karnataka highlighted that there is one significant difference in
exercising power while hearing an appeal against acquittal by the
appellate court. The appellate court would not interfere where
H
830 SUPREME COURT REPORTS [2022] 14 S.C.R.
A the judgment impugned is based on evidence and the view taken
was reasonable and plausible. This is because the appellate court
will determine the fact that there is presumption in favour of the
accused and the accused is entitled to get the benefit of doubt
but if it decides to interfere it should assign reasons for differing
with the decision of acquittal. [Para 43][855-H; 856-A-B]
B
2. The date of the alleged crime is 23.08.2010. The so called
extra judicial confession, said to have been made by Seetharam
Bhat (accused No. 3) is dated 09.12.2010. The Court fail to
understand why all of a sudden Seetharam (accused No. 3) after a
period of almost four months, thought fit to make an extra judicial
C confession before the PW 7 H.T. Yogesh involving himself and
the appellant herein in the alleged crime. An extra judicial
confession, if voluntary and true and made in a fit state of mind,
can be relied upon by the Court. The confession will have to be
proved like any other fact. The value of the evidence as to
D confession, like any other evidence, depends upon the veracity
of the witness to whom it has been made. The value of the
evidence as to the confession depends on the reliability of the
witness who gives the evidence. It is not open to any court to
start with a presumption that extra judicial confession is a weak
type of evidence. It would depend on the nature of the
E circumstances, the time when the confession was made and the
credibility of the witnesses who speak to such a confession. Such
a confession can be relied upon and conviction can be founded
thereon if the evidence about the confession comes from the
mouth of witnesses who appear to be unbiased, not even remotely
F inimical to the accused, and in respect of whom nothing is brought
out which may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused, the words
spoken to by the witness are clear, unambiguous and unmistakably
convey that the accused is the perpetrator of the crime and
nothing is omitted by the witness which may militate against it.
G After subjecting the evidence of the witness to a rigorous test on
the touchstone of credibility, the extra judicial confession can be
accepted and can be the basis of a conviction if it passes the test
of credibility. Extra judicial confession is a weak piece of evidence
H
SUBRAMANYA v. STATE OF KARNATAKA 831
and the court must ensure that the same inspires confidence and A
is corroborated by other prosecution evidence. [Paras 52, 53 &
54][864-G-H; 865-A-E]
3. It is well settled that conviction can be based on a
voluntarily confession but the rule of prudence requires that
wherever possible it should be corroborated by independent B
evidence. Extra judicial confession of accused need not in all cases
be corroborated. In Madan Gopal Kakkad v. Naval Dubey and
Another, the Court after referring to Piara Singh and Others v.
State of Punjab, held that the law does not require that the evidence
of an extra judicial confession should in all cases be corroborated.
The rule of prudence does not require that each and every C
circumstance mentioned in the confession must be separately
and independently corroborated. [Para 56][867-C-D]
Madan Gopal Kakkad v. Naval Dubey and Another
(1992) 3 SCC 204 : [1992] 2 SCR 921; Piara Singh
and Others v. State of Punjab (1977) 4 SCC 452 : [1978] D
1 SCR 597 - referred to.
4. In the case on hand, the High Court committed a serious
error in making the confessional statement as the basis and
thereafter going in search for corroboration. The High Court
concluded that the confessional statement is corroborated in E
material particulars without first considering and marshalling the
evidence against the appellant convict herein excluding the
conviction altogether from consideration. As held in the decision,
cited, only if on such consideration on the evidence available,
other than the confession a conviction can safely be based then F
only the confession could be used to support that belief or
conclusion. [Para 59][868-B-C]
5. 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 G
appellant herein which ultimately led to the discovery of a fact
relevant under Section 27 of the Evidence Act. [Para 77][879-E-
F]
6. If, it is say of the investigating officer that the accused
appellant while in custody on his own free will and volition made
H
832 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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
B
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
C 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
D
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
E 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
F
panchnama as contemplated under Section 27 of the Evidence
Act. If the entire oral evidence of the investigating officer is
read then it is clear that the same is deficient in all the aforesaid
relevant aspects of the matter. [Para 78][879-F-H; 880-A-D]
7. In Dudh Nath Pandey v. State of U.P., the Court observed
G that the evidence of discovery of pistol at the instance of the
appellant cannot, by itself, prove that he who pointed out the
weapon wielded it in the offence. The statement accompanying
the discovery was found to be vague to identify the authorship of
concealment and it was held that pointing out of the weapon may,
H at the best, prove the appellant’s knowledge as to where the
SUBRAMANYA v. STATE OF KARNATAKA 833
weapon was kept. Thus, in the absence of exact words, attributed A
to an accused person, as statement made by him being deposed
by the investigating officer in his evidence, and also without
proving the contents of the panchnama, the High Court was not
justified in placing reliance upon the circumstance of discovery
of weapon. [Paras 85 & 86][883-A-C]
B
Dudh Nath Pandey v. State of U.P. AIR (1981) SC 911
- relied on.
8. In the context of judgments, the Court took a note of
caution. Although the conduct of an accused may be a relevant
fact under Section 8 of the Evidence Act, yet the same, by itself, C
cannot be a ground to convict him or hold him guilty and that too,
for a serious offence like murder. Like any other piece of evidence,
the conduct of an accused is also one of the circumstances which
the court may take into consideration along with the other evidence
on record, direct or indirect. What is being tried to convey is that
the conduct of the accused alone, though may be relevant under D
Section 8 of the Evidence Act, cannot form the basis of conviction.
[Para 89][885-E-G]
9. Thus, even if it is believed that the accused appellant
had a motive to commit the crime, the same may be an important
circumstance in a case based on circumstantial evidence but E
cannot take the place as a conclusive proof that the person
concerned was the author of the crime. One could even say that
the presence of motive in the facts and circumstances of the case
creates a strong suspicion against the accused appellant but
suspicion, howsoever strong, cannot be a substitute for proof of F
the guilt of the accused beyond reasonable doubt. The trial court
rightly disbelieved motive to commit the crime as the evidence
in this regard is absolutely hearsay in nature.[Para 92][887-D-E]
10. The fact that Court has ruled out the circumstances
relating to the making of an extra judicial confession and the G
discovery of the weapon of offence etc. as not having been
established, the chain of circumstantial evidence snaps so badly
that to consider any other circumstance, even like motive, would
not be necessary. [Para 93][887-F]
H
834 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 11. Thus, in view of the discussion, The Court has reached
to the conclusion that the evidence of discovery of the weapon,
clothes and dead body of the deceased at the instance of the
appellant convict herein can hardly be treated as legal evidence,
more particularly, considering the various legal infirmities in the
same. Therefore, It is concluded that the High Court committed
B
error in holding the appellant convict herein guilty of the offence
of murder. The appeal succeeds and allowed. The impugned
judgment and order of conviction passed by the High Court is
set aside. [Paras 94, 95 & 96][887-G-H; 888-A]
Sharad Birdhichand Sarda v. State of Maharashtra
C (1984) 4 SCC 116 : [1985] 1 SCR 88 - relied on.
Sheo Swarup v. King Emperor (1934) SCC OnLine PC
42 : AIR 1934 PC 227; Chandrappaand Others v. State
of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630;
Atley v. State of UttarPradesh AIR 1955 SC 807; Sanwat
D Singh and Others v. State of Rajasthan AIR 1961 SC
715 : [1961] 3 SCR 120; Aher Raja Khima v. State of
Saurashtra, AIR 1956 SC 217 : [1955] 2 SCR 1285;
M.G. Agarwal v. State of Maharashtra AIR 1963 SC
200 : [1963] 2 SCR 405; Shivaji Sahabrao Bobade
E and Another v. State of Maharashtra (1973) 2 SCC 793
: [1974] 1 SCR 489; Ramesh Babulal Doshi v. State of
Gujarat (1996) 9SCC225 : [1996] 2 Suppl. SCR 265;
Ajit Savant Majagvai v. State of Karnataka (1997) 7
SCC 110 : [1997] 3 Suppl. SCR 444; Nepal Singh v.
State of Haryana (2009) 12 SCC 351 : [2009] 6
F SCR 982; State of Haryana v. Nepal Singh CRA-D No.
99 DBA of 1993 order dated 21-7-1997 (P&H); State
of Uttar Pradesh v. Sahai and Others (1982) 1 SCC
352; Arunachalam v. P.S.R. Sadhanantham and Another,
(1979) 2 SCC 297 : [1979] 3 SCR 482; State of
G Haryana v. Lakhbir Singh and Another (1991) Supp
(1) SCC 35; State of Rajasthan v. Sukhpal Singh and
Others (1983) 1 SCC 393 : [1983] 2 SCR 53; State of
U.P. v. Shanker, (1980) Supp SCC 489; State of U.P. v.
Hakim Singh and Others (1980) 3 SCC 55; Arunachalam
v. P.S.R. Sadhanantham and Another (1979) 2 SCC 297
H
SUBRAMANYA v. STATE OF KARNATAKA 835
: [1979] 3 SCR 482; State of Uttar Pradesh v. Ranjha A
Ram and Others (1986) 4 SCC 99; State of Maharashtra
v. Champalal Punjaji Shah (1981) 3 SCC 610 : [1982]
1 SCR 299; Gurbachan Singh v. Satpal Singh and
Others (1990) 1 SCC 445 : [1989] 1 Suppl. SCR 292;
State of Andhra Pradesh v. Bogam Chandraiah and
B
Another (1986) 3 SCC 637; State of U.P. v. Pheru Singh
and Others,1989 Supp(1) SCC 288; State of Uttar
Pradesh v. Pussu alias Ram Kishore (1983) 3 SCC 502
: [1983] 3 SCR 294; Sahadevan and Another v. State
of Tamil Nadu (2012) 6 SCC 403 : [2012] 4 SCR 366;
Kashmira Singh v. The State of Madhya Pradesh AIR C
1952 SC 159 : [1952] SCR 526; Haricharan Kurmi &
Jogia Hajam v. State of Bihar, AIR 1964 SC 1184 :
[1964] 6 SCR 623; RamChandra and Another v. State
of Uttar Pradesh AIR 1957 SC381; Bhuboni Sahu v.
The King AIR 1949 PC 257; Murli and Another v. State
D
of Rajasthan (2009) 9 SCC 417 : [2009] 13 SCR 378 ;
Mohmed Inayatullah v. The State of Maharashtra AIR
(1976) SC 483 : [1976] 1 SCR 715; Earabhadrappa v.
State of Karnataka AIR (1983) SC 446 : [1983] 2 SCR
552 ; State of Uttar Pradesh v. Deoman Upadhyaya AIR
(1960) SC 1125; Pulukuri Kottaya and Others v. E
Emperor AIR 1947 PC 67; Dudh Nath Pandey v. State
of U.P. AIR (1981) SC 911 : [1981] 2 SCR 771;
Bodhraj alias Bodha and Others v. State of Jammu and
Kashmir (2002) 8 SCC 45 : [2002] 2 Suppl. SCR 67;
A. N. Venkatesh and Another v. State of Karnataka
F
(2005) 7 SCC 714; Sampath Kumar v. Inspector of
Police, Krishnagiri (2012) 4 SCC 124 : [2012]
2 SCR 289 – referred to.
Case Law Reference
[2007] 2 SCR 630 referred to Para 36 G
AIR 1955 SC 807 referred to Para 37
[1961] 3 SCR 120 referred to Para 37
[1955] 2 SCR 1285 referred to Para 38
H
836 SUPREME COURT REPORTS [2022] 14 S.C.R.
A [1963] 2 SCR 405 referred to Para 39
[1974] 1 SCR 489 referred to Para 40
[1996] 2 Suppl. SCR 265 referred to Para 41
[1997] 3 Suppl. SCR 444 referred to Para 42
B [2009] 6 SCR 982 referred to Para 44
(1982) 1 SCC 352 referred to Para 45.1
[1979] 3 SCR 482 referred to Para 45.1
(1991) Suppl. 1 SCC 35 referred to Para 45.1
C
[1983] 2 SCR 53 referred to Para 45.2.1
(1980) Suppl. SCC 489 referred to Para 45.2.1
(1980) 3 SCC 55 referred to Para 45.2.1
(1986) 4 SCC 99 referred to Para 45.2.1
D
[1982] 1 SCR 299 referred to Para 45.2.1
[1989] 1 Suppl. SCR 292 referred to Para 45.2.1
(1986) 3 SCC 637 referred to Para 45.2.1
(1989) Suppl. 1 SCC 288 referred to Para 45.2.2
E
[1983] 3 SCR 294 referred to Para 45.2.2
[1985] 1 SCR 88 relied on Para 47
[2012] 4 SCR 366 referred to Para 55
F [1992] 2 SCR 921 referred to Para 56
[1978] 1 SCR 597 referred to Para 56
[1952] SCR 526 referred to Para 58
[1964] 6 SCR 623 referred to Para 63
G AIR 1957 SC381 referred to Para 63
[2009] 13 SCR 378 referred to Para 79
[1976] 1 SCR 715 referred to Para 81
[1983] 2 SCR 552 referred to Para 81
H
SUBRAMANYA v. STATE OF KARNATAKA 837
AIR (1960) SC 1125 referred to Para 82 A
[1981] 2 SCR 771 relied on Para 85
[2002] 2 Suppl. SCR 67 referred to Para 87
(2005) 7 SCC 714 referred to Para 88
[2012] 2 SCR 289 referred to Para 91 B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.242 of 2022.
From the Judgment and Orders dated 02.07.2019 of the High
Court of Karnataka at Bengaluru in Criminal Appeal No.473 of 2013.
C
Krishna Pal Singh, Seemab Qayyum, Mrs. Anvita Aparjita,
Madhavendra Singh, Mohan Singh Bais, Advs. for the Appellant.
V. N. Raghupathy, Adv. for the Respondent.
The Judgment of the Court was delivered by
D
J. B. PARDIWALA, J.
1. This statutory criminal appeal is at the instance of a convict
accused charged with the offence of murder of one Kamalamma
(deceased) and is directed against the judgment and order of conviction
passed by the High Court of Karnataka dated 02.07.2019 in the Criminal E
Appeal No. 473 of 2013 by which the High Court allowed the acquittal
appeal filed by the State of Karnataka against the judgment and order of
acquittal passed by the Principal Sessions Judge, Chikmagalur dated
20.12.2012 in the Sessions Case No. 59 of 2011 and held the appellant
herein guilty of the offence of murder punishable under Section 302 of
the Indian Penal Code, 1860 (for short, ‘the IPC’). The High Court F
sentenced the appellant herein to undergo life imprisonment with fine of
Rs. 25,000/- and in the event of default of payment of fine to undergo
further simple imprisonment for a period of six months.
CASE OF PROSECUTION
G
2. The appellant herein along with two other co-accused, namely,
Gowri alias Gowramma wife of late Nagaraj and Seetharam Bhat son
of late Nagabhatt were put to trial in the Sessions Case No. 59 of 2011
for the offences punishable under Sections 120-B, 302, 379 and 201
read with Section 34 of the IPC. All the three accused were put to trial
in the court of Principal Sessions Judge, Chikmagalur. The original H
838 SUPREME COURT REPORTS [2022] 14 S.C.R.
A accused No. 2, namely, Gowri (acquitted) was born in the wedlock of
one Manjappanaika and his first wife. The deceased, namely,
Kamalamma was the second wife of the Manjappanaika. Gowri (original
accused No. 2) happens to be the step daughter of the deceased
Kamalamma. After the demise of Manjappanaika his immovable
properties were divided between the deceased Kamalamma and Gowri
B
(A-2). In the wedlock of Manjappanaika and the deceased two daughters
were born, namely, Sugandha (PW 1) and Sujatha. The deceased
Kamalamma used to reside all alone at the village Horabylu adjacent to
the house of the original accused No. 2 Gowri. Gowri is a widow and at
the relevant point of time was staying along with her two children. It is
C the case of the prosecution that Gowri (A-2) had an illicit relationship
with the appellant herein. The deceased Kamalamma was highly opposed
to such illicit relationship and used to reprimand both, the appellant and
Gowri.
3. According to the case of the prosecution, the appellant herein
D and Gowri conspired on 23.08.2010 to do away with the deceased
Kamalamma. Both are alleged to have entered her house and somewhere
near the cattle shed, the deceased was hit on her head and neck with a
hard object like a club. Later, the appellant and Gowri are alleged to
have removed the gold chain, a pair of ear studs and one gold ring from
the body of the deceased Kamalamma. They took away her mobile
E also.
4. It is the case of the prosecution that after the deceased
Kamalamma was done to death, the original accused No. 3, namely,
Seetharam Bhat came into picture. Seetharam Bhat (A-3) is alleged to
have helped the appellant and Gowri in wrapping the dead body of the
F deceased in a sari and thereafter dumping it on the land of one Dinamani.
The land of Dinamani is situated besides a water channel. It is alleged
that with the aid of a crowbar, a pit was dug and the dead body of the
deceased was buried with the intention to destroy the evidence.
5. According to the case of the prosecution, the appellant sold the
G gold ornaments to a jeweller, namely, Somashekhara Shetty (PW 9).
PW 9 Somashekhara Shetty at the relevant point of time was running a
jewellery shop at Rippanpet. So far as the mobile is concerned, the same
is said to have been sold by the appellant herein to one Ashok alias
Meeranath (PW 16). Ashok alias Meeranath (PW 16) is a resident of a
H place called Surathkal.
SUBRAMANYA v. STATE OF KARNATAKA 839
[J. B. PARDIWALA, J.]
6. On 24.08.2010, Alok (son of Gowri) informed the son-in-law of A
the deceased, namely, H.T. Yogesh (PW 7) that his mother-in-law
(deceased) had been missing since 23.08.2010. In such circumstances,
H.T. Yogesh went (PW 7) to the Koppa, Police Station (P.S.) and filed a
missing complaint.
7. On 09.12.2010 at 21:30 hours, Seetharam Bhat (A-3) is said to B
have met H.T. Yogesh (PW7) and made an extra judicial confession
before him stating that about four months back the appellant herein and
Gowri had lured him with a bottle of brandy and saying so had asked him
to accompany them as they had some work. Thereafter, the appellant
and Gowri are said to have revealed or rather made an extra judicial
confession before Seetharam Bhat (A-3) that they had committed murder C
of the deceased Kamalamma and had kept the body in a cattle shed.
8. The appellant and Gowri asked Seetharam Bhat (A-3) to help
them in disposing of the dead body. When Seetharam (A-3) declined to
help them, he was threatened by the appellant and Gowri. Accordingly,
Seetharam Bhat (A-3) accompanied them and helped in removing the D
gold ornaments from the body of the deceased and burying the body at
the field of one Dinamani.
9. On 10.12.2010, H.T. Yogesh (PW 7) went to the Police Station
and lodged a First Information Report for the offence of murder.
E
10. Upon registration of the First Information Report, the
investigation had commenced. All the three accused persons came to be
arrested. While the appellant herein and Gowri (A-2) were in custody of
the Police they are said to have made statements that they would show
the place where the dead body had been buried and also the place where
the weapon of offence (club) had been concealed. The appellant is also F
said to have made a statement that he would also show the place where
he had sold of the ornaments of the deceased.
11. Accordingly, a discovery panchnama Ex. P.3 was drawn under
Section 27 of the Indian Evidence Act, 1872. The photographs of the
exhumation of the body were also taken and admitted as Ex. P.4. The G
Inquest panchnama of the body of the deceased, Ex. P.14 was also
drawn.
12. The ornaments said to have been sold by the appellant herein
to a jeweller, Somashekhara Shetty (PW 9), were collected from his
shop by drawing a panchnama Ex. P.1. H
840 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 13. The clothes of the appellant herein are said to have been
discovered at his instance from the place nearby the house of the deceased
by drawing a panchnama Ex. P.6. The weapon of offence (club) was
also discovered at the instance of the appellant herein by drawing a
panchnama Ex. P.8. It appears that one more weapon in the form of a
spade was discovered at the instance of the original accused No. 3
B
Seetharam by drawing a panchnama Ex. P.8.
14. The dead body of the deceased was sent for post-mortem at
the General Hospital, Koppa.
15. The post-mortem report Ex. P.17 reveals that the cause of
C death was due to head injuries in the form of fractures.
16. At the end of the investigation, the Investigating Officer filed
chargesheet against the appellant and the two co-accused for the offences
enumerated above. Upon filing of the chargesheet, the case was
committed by the Magistrate under Section 209 of the Cr.P.C. to the
D Sessions Court which came to be registered as the Sessions Case No.
59 of 2011 in the court of Principal Sessions Judge, Chikmagalur.
17. The trial court framed charge against all the accused persons
vide order dated 20.12.2012. Appellant herein and the other two co-
accused pleaded not guilty to the charge.
E 18. The prosecution adduced the following oral evidence in support
of its case:
(1) PW 1 Sugandha, CW 7, daughter of the deceased.
(2) PW 2 Vishwa K. K., CW 9, panch-witness to the discovery
of the ornaments from the shop of the jewellery and also
F
the discovery of the dead body.
(3) PW 3 Nandi Purela, CW 11, panch-witness.
(4) PW 4 H.S. Sathyamurthi, CW 13, panch-witness.
(5) PW 5 T. Somaiah, CW18, panch-witness.
G
(6) PW 6 Sridhar Shetty, CW 20, panch-witness.
(7) PW 7 H. T. Yogesh, CW 1, son-in-law of the deceased
before whom original accused No. 3 is said to have been
made extra judicial confession.
H (8) PW 8 H. M. Ravikanth, CW 4, panch-witness.
SUBRAMANYA v. STATE OF KARNATAKA 841
[J. B. PARDIWALA, J.]
(9) PW 9 I. Somashekhara Shetty, CW 14, jeweler to whom A
the ornaments were sold.
(10) PW 10 Ravi Shetty, CW 22, panch-witness to the discovery
of the mobile.
(11) PW 11 Dr. J. Neelakantappa Gowda, CW 29, panch-
witness. B
(12) PW 12 C.V. Harish, CW 26 panch-witness.
(13) PW 13 Thousif Ahmed, CW 32, panch-witness to the place
of incident.
(14) PW 14 J.K. Shivakumar, CW 37, Revenue Officer. C
(15) PW15 Dayanand Gowda, CW 28, Assistant Commissioner.
(16) PW 16 Meeranath Gowda, CW 24, Cook at Sharath Bar
and Restaurant. The appellant used to assist the PW 16 at
the restaurant.
D
(17) PW 17 Mahesh E.S., CW 41, Police Officer.
(18) PW 18 Manjeshwara Kalappa, CW 40, Police Officer.
(19) PW 19 T. Sanjeeva Naik, CW 42, Police Officer.
19. The prosecution also adduced documentary evidence in the E
form of FIR, Inquest panchnama, discovery panchnamas etc.
20. The trial court framed the following points of determination in
its judgment:
“1) Whether the prosecution proves that Kamalamma, w/o late
Manjappanaika died a homicidal death? F
2) Whether the prosecution proves that on or about 23.8.2010,
in Hirekudige village in Koppa Taluk, accused Nos. 1 and 2,
in furtherance of their common intention or otherwise, agreed
and conspired with each other to murder Kamalamma, w/o
late Manjappanaika, and thereby committed an offence of G
criminal conspiracy, punishable under Section 120-B read
with Section 34 of I.P.C?
3) Whether the prosecution proves that on the aforesaid date
at about 9.00 PM, in the house of Kamalamma at Hirekudige
village in Koppa Taluk, accused Nos.1 and 2, in furtherance H
842 SUPREME COURT REPORTS [2022] 14 S.C.R.
A of common intention, did commit murder by intentionally and
knowingly causing the death of Kamalamma, by assaulting
on her head and neck by means of club, and thereby committed
an offence punishable under Section 302 read with Section
34 of I.P.C?
B 4) Whether the prosecution proves that on the aforesaid date,
time and place, accused No.1, committed theft of a gold chain,
a pair of earstuds, one gold ring and a mobile handset
belonging to deceased Kamalamma and thereby committed
an offence punishable under Section 379 of I.P.C?
C 5) Whether the prosecution proves that on or about the
aforesaid date, in furtherance of common intention, accused
Nos.1 and 3, knowing that the offence of murder, punishable
with death or imprisonment for life, has been committed by
accused Nos. 1 and 2, caused certain evidence to disappear,
to wit, buried the dead body of Kamalamma, by the side of
D the Government channel at Horabylu, with an intention to
screen the offenders (accused Nos.1 and 2) from legal
punishment, and thereby committed an offence punishable
under Section 201 read with Section 34 of I.P.C?
6) What order?”
E
21. The aforesaid points of determination came to be answered
by the trial court as under:
“POINT No. 1: - In the affirmative;
POINT No.2: - In the negative;
F
POINT No.3: - In the negative;
POINT No.4: - In the negative;
POINT No.5: - In the negative;
POINT No.6: - As per final order, for the following:”
G
22. The prosecution in the course of the trial relied upon the
following circumstances to prove its case against the accused persons:
(1) Motive to commit the crime. According to the prosecution, the
appellant herein had illicit relationship with original accused No.
2, namely, Gowri and the deceased was coming in their way. In
H
SUBRAMANYA v. STATE OF KARNATAKA 843
[J. B. PARDIWALA, J.]
such circumstances, the appellant herein and the original accused A
No. 2 had the motive to commit the crime.
(2) Extra judicial confession alleged to have been made by the
accused No. 3 Seetharam Bhat before the PW 7 Yogesh (son-in-
law of the deceased) after four months of the date of incident.
(3) Discovery of the dead body at the instance of the appellant B
herein by drawing a panchnama under Section 27 of the Evidence
Act.
(4) Recovery of the ornaments from the shop of the Jeweller
(PW 9) at the instance of the appellant herein by drawing a
panchnama. C
(5) The discovery of the weapon of offence, mobile of the
deceased and the clothes of the appellant accused at the instance
of the appellant herein under Section 27 of the Evidence Act.
23. We shall now look into the reasonings assigned by the trial D
court while not accepting any of the aforesaid circumstances, as
incriminating circumstances, establishing the guilt of the accused persons.
We quote as under:
“34. The first circumstance which the prosecution is intending
to rely upon is motive that A-1 was having illicit relation with
E
A-2 and in that context, deceased Kamalamma used to abuse
them and she was also making propaganda about the same
and the accused persons were enraged by that and thinking
that she is an obstacle for their relation, they conspired to get
rid of her and murdered the deceased. In circumstantial
evidence, motive plays important role and it must be strong F
and reliable. If prosecution fails to prove the motive, it will be
beneficial to the accused. Even though P.Ws.1, 2 and 7 have
deposed that the mother of P.W.1, the deceased used to tell
her that A-1 and A-2 are having illicit relation and she used
to scold them for having such illicit relation, but if we see the
G
cross-examination of P.W. 1, it discloses that A-1 is distant
brother to A-2 and that there was a panchayath before the
division of the properties between the deceased and A-2. Even
in the case of the prosecution, the prosecution has not proved
by examining any witness to substantiate the said fact of illicit
relation between A-1 and A-2, who have either seen them H
844 SUPREME COURT REPORTS [2022] 14 S.C.R.
A together or that they have advised them to give up the same.
Even though P.W.1, the daughter and P.W.7, the son-in-law
of the deceased have deposed about the illicit relation between
A-1 and A-2, but they have deposed that the deceased used
to tell about the illicit relations and they are not the direct
witnesses to substantiate the said fact. Their evidence is only
B
hearsay in nature. As such, the evidence regarding the illicit
relation is not acceptable and reliable in law.
35. The second circumstance which the prosecution is
intending to rely upon is the confession made by A-3 before
P.W.7, the son-in-law of the deceased. It is the specific case
C of the prosecution that on 9.12.2010 he had been to Gadikallu
and at about 9.30 PM, near the Circle, A-3 met him and there
he told that about 3 or 3 1/2 months back he had been called
by A-1 and told that he had murdered Kamalamma and in
order to bury the dead body, asked his help by providing two
D bottles of brandy and he also told that if he is not going to
obey, he will also kill him as done to his brother-in-law
Srinivase Gowda. He also told that he helped him in carrying
the dead body to the mound near the land of Dinamani and
buried it. During the course of crossexamination, he has
admitted that he is not going to ask any personal matters of
E A-3 nor he will tell his personal matters to him. He has further
admitted that he is not having any confidence in him and vice
versa, A-3 is also not having any confidence in him. A-3 is
also not a friend or relative of P.W.7. In order to establish
that A-3 made a confession before P.W.7, A-3 must have
F reposed confidence in him and he must have some faith with
the person to whom he is making such a confession. When
P.W.7 is neither a relative nor a friend, why A-3 is going to
make such a confession before P.W.7 who is a close relative
of the deceased, is a mystery. Under the facts and
circumstances of the present case on hand, it is very difficult
G to believe that A-3 would make such a confession before P.W.7
about the crime committed by them. While considering the
evidence of extra judicial confession, the Court must also
verify whether the accused could repose confidence in such
a person so as to disclose a secret aspect of his life. For this
H proposition of law, I want to rely upon the decision reported
SUBRAMANYA v. STATE OF KARNATAKA 845
[J. B. PARDIWALA, J.]
in AIR 1975 SUPREME COURT 258, [THE STATE OF A
PUNJAB v/s BHAJAN SINGH & OTHERS] wherein it is held
as under: -
“(C) Evidence Act (1872), S.24 - Extra judicial confession –
Value of the evidence of extra judicial confession in the very
nature of things is a weak piece of evidence. (The evidence B
adduced in this respect in the instant case, held, lacked
plausibility and did not inspire confidence.) Para 15”
36. In another decision reported in [2011] ACR 704 in the
case of SK. YUSUF v/s STATE OF WEST BENGAL, the
Hon’ble Supreme Court of India has again held as under: - C
“C. Evidence Act, 1872 - S.25 - Extra judicial confession –
Extra judicial confession must be established to be true and
made voluntarily and in a fit state of mind - Extra judicial
confession can be accepted and can be the basis of a
conviction if it passes the test of credibility. Para 22” D
37. Leave apart this, as per the evidence of P.W.7, A-3 met
him 3 1/2 months or 4 months after the incident. Usually, if at
all, a confession is going to be made by the offenders in
respect of the commission of the offence, it will be made
immediately after the incident which they have committed and E
not after a long gap and the confession is going to be made
immediately before the person who come across with him and
with whom he is having full faith. In this behalf also the
evidence which has been produced before the court is not
cogent and reliable and the prosecution has utterly failed to
prove the said circumstance which it is intending to rely upon. F
38. The third circumstance which the prosecution is intending
to rely upon is that of accused showing the place of
commission of offence and the place of burial of the dead
body. As per the evidence of P.W.19, the Investigating Officer,
on 10.12.2010, C.Ws.36 and 37 produced accused No.1 at G
about 9.00 PM; C.Ws.34 and 35 produced accused No.2 at
the same time; and P.Ws.17 and C.W.38 produced accused
No.3 at the same time. He has further deposed that thereafter
he recorded their voluntary statements and on the basis of
that, he traced the place of burial. If we see the voluntary
H
846 SUPREME COURT REPORTS [2022] 14 S.C.R.
A statement of A-1 as per Ex.P.28, he has stated that he will
show the place of burial. He has also volunteered that he has
committed the murder of deceased Kamalamma and he will
produce the club, mobile, spade and another club which has
been used for the purpose of transportation of the dead body
and he will also produce the ornaments which he has taken
B
from the body and the same has been marked as Ex.P.28.
Accused nos.2 and 3 have volunteered to show the place where
they have buried the dead body. If we see the evidence of this
witness with the evidence of the other witnesses, it is not
accused nos.2 and 3 who took the IO and the panch witnesses
C and showed the place of burial. P.Ws.2 and 8 have deposed
that about one year back, he saw the dead body of deceased
near a halla situated at Dinamani land at a mound and there,
the Dy.S.P. and the A.C., were also present. A-1 and A-3
showed the place of burial of the dead body. But, nowhere
these witnesses have spoken that A-1 and A-3 led them and
D
showed the place of burial. If already the said burial spot
was known to the Dy.S.P, and the A.C., then under such
circumstances, it cannot be held that it is at the instance of
the accused that the said place has been discovered. If we
see the evidence of P.W.8, he has deposed that the said body
E was fully decomposed and one blouse and one petticoat were
found on the dead body and if we see the evidence of P. W.15,
he has deposed that accused nos.1 and 3 led them to a mound
in survey No.121 and showed the place where they had buried
the dead body of deceased Kamalamma and he got it exhumed
through A-1, A-3 and P.W.3. The said body was highly
F
decomposed and an old type blouse and a petticoat were there
over the said body. But if we see the cross-examination of this
witness, he received the requisition on 10.12.2010 and
thereafter on 11.12.2010 he fixed the timing to exhume the
body and he went there at about 10.30 AM and when he was
G about to enter the village, police were also there along with
A-1 and A-3 and other witnesses, Doctor and Videographer
were also present. Then, under such circumstances, the
evidence of P.W.15 that A-1 and A-3 led them and showed the
place where they had buried the dead body is also not
believable and reliable. It is not for the first time that he came
H
SUBRAMANYA v. STATE OF KARNATAKA 847
[J. B. PARDIWALA, J.]
to know about the dead body in that place. He has A
categorically deposed that the body was highly decomposed.
But if we see the evidence of P.W.11, the Doctor, he found a
semi decomposed, legs little semi flexed in position, head was
covered with black and gray hairs measuring 12 inches in
length, 2/3rd of the body was decomposed and breast was
B
also semi-decomposed. If the alleged murder has taken place
on 23.8.2010, with the above condition of the body, the
exhumation of the body must have been done earlier to
11.12.2010 and not on 11.12.2010, 3 1/2 months later as
contended by the prosecution, or else, the death must have
taken place at a later date which is closer to the date of C
exhumation and examination. According to P.W.19, accused
nos.2 and 3 volunteered to show the place where they have
buried the dead body, but as per the case of the prosecution,
accused nos.1 and 3 have showed the place. That also creates
a doubt. In that behalf, there is no consistency in the evidence
D
to show that it is at the instance of A-1 and A-3 by their
voluntary statement, the fact about the place of burial has
been discovered. Under such circumstances, this circumstance
which the prosecution is intending to rely upon, cannot be
said to be proved beyond reasonable doubt.
39. The next circumstance which the prosecution is intending E
to rely upon is that of recovery of the ornaments at the
instance of accused No. 1. In this behalf, the prosecution is
intending to rely upon the evidence of P.W.2 and P.W.9. P.W.2
in his evidence has deposed that after 2 or 3 days again police
called him and along with C.W.13, A-1 was also present and F
that himself, C.W.13 and the PI were led by A-1 to Rippanpet.
There, A-1 took them to Someshwara Jewellers shop and there
A-1 asked to give the gold ornaments given by him and C.W.14
returned the said gold ornaments and the same were seized
by drawing a Mahazar as per Ex.P.1. Admittedly, this witness
is the nephew of the deceased and even though by the side of G
the Police Station and the jewellery shop there are so many
shops and other persons were available, but why this
particular person has been chosen as a witness is also not
forthcoming.
H
848 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 40. P.W.9 is the owner of the jewellery shop. He has deposed
that A-1 came and sold the gold articles prior to 3 1/2 months
back by coming to his shop and he returned the said articles
and they were seized by drawing a Mahazar as per Ex.P.1.
During the course of cross-examination, he has deposed that
they will not maintain any receipt book for having purchased
B
the gold and he has also further deposed that when he
purchased the gold articles, they were just like new and there
will be wear and tear found on the gold articles even though
they have been renewed with new coatings. When the said
articles appear to be new one and even after 3 1/2 months of
C their purchase by P.W.9 who is a jeweller, they were in the
same condition in which they have been recovered at the
instance of A-1 is hard to believe and in this behalf also, the
case of the prosecution is not worthy of acceptance.
41. The next circumstance which the prosecution is intending
D to rely upon is the recovery of the club, umbrella, mobile and
spade and the seizure of the clothes of A-1 and A-3. Even
though the recovery evidence has been given by P.Ws.8, 10,16
and P.Ws.4 and 5, but if we closely scrutinise their evidence,
the club which has been recovered is also not having stains
and it is a new one. Even it is not believable that the said
E clubs which have been thrown by the accused persons in that
particular area will be available in the condition in which
they have been thrown even after 3 1/2 months. By bare
looking by this court, M.Os. 9 and 14 are just like new clubs.
If they are exposed to rain, water and sun, definitely they
F would have changed their colour and shape. So also, the
recovery of the clothes of the accused persons. In this behalf
also, the recovery evidence of all these articles has not been
proved by the prosecution beyond all reasonable doubt.
42. Even though the learned Public Prosecutor vehemently
G argued and contended that at the instance of the accused,
the body has been exhumed and the recovery has been done
and A-3 has also confessed before P.W.7 and the prosecution
has also proved the motive that A-1 and A-2 were having illicit
relation, the same is not acceptable under the above said
circumstances.
H
SUBRAMANYA v. STATE OF KARNATAKA 849
[J. B. PARDIWALA, J.]
43. The material witnesses in this case have not been examined A
by the prosecution for the reasons best known to it. It is the
specific case of the prosecution that one Alok, son of accused
No.2 informed P.W.7 about the missing of the deceased. But
the said Alok has not been examined. The body of deceased
is found buried in Survey No.121 of Dinamani and
B
Narayanaswamy, and when the said body was found there in
the said land belonging to them, then, under such
circumstances, they are considered to be material witnesses.
Non-examination of these material witnesses will also not fill
up the gap which the prosecution has to fill up to prove its
case beyond all reasonable doubt. From what date that the C
deceased was missing and how nobody noticed about the
missing of the deceased is also not brought on record by the
prosecution, for the reasons best known to it. This particular
doubt also goes to the benefit of the accused. Even though
P.W. 1 was knowing that the deceased, her mother, was having
D
a mobile and after coming to know about the missing of her
mother on 24.8.2010, she will not make any efforts to make a
call to the mobile of her mother which is an unnatural conduct
on her part. No daughter, after coming to know that the mother
is missing, will keep quiet, that too when she knows that her
mother is having a mobile. Definitely she could have made a E
call. For what reasons P.W. 1 did not make any call to her
mother’s mobile is also a doubtful circumstance.
44. It is settled principle of law that when two views are
possible from the prosecution evidence, the one which is
favourable to the accused shall have to be taken and the F
benefit of doubt shall have to be given to the accused. Taking
into consideration the above said facts and circumstances of
the case, I answer point Nos.2 to 5 in the negative.”
24. Thus, the trial court, upon appreciation of the oral as well as
documentary evidence, came to the conclusion that the prosecution had
failed to prove its case against the accused persons beyond reasonable G
doubt and accordingly, vide the judgment and order dated 20.12.2012,
acquitted the appellant herein and the other two co-accused of all the
charges.
25. The State of Karnataka being dissatisfied with the judgment
and order of acquittal passed by the trial court challenged the same by H
850 SUPREME COURT REPORTS [2022] 14 S.C.R.
A filing the Criminal Appeal No. 473 of 2013 in the High Court of Karnataka.
The High Court upon reappreciation of the entire oral as well as the
documentary evidence on record dismissed the acquittal appeal so far
as the original accused No. 2 Gowri alias Gowramma is concerned
thereby affirming her acquittal. However, the appellant herein came to
be convicted for the offence of murder punishable under Section 302 of
B
the IPC and was sentenced to undergo life imprisonment with fine of
Rs. 25,000/-. Appellant was also convicted for the offence punishable
under Section 201 read with Section 34 of the IPC and was sentenced
to undergo simple imprisonment for five years with fine of Rs. 5,000/-.
The original accused No. 3 Seetharam Bhat came to be convicted for
C the offence punishable under Section 201 read with Section 34 of the
IPC and was sentenced to undergo simple imprisonment for a period of
three years with fine of Rs. 5,000/- and in case of default to undergo
further simple imprisonment for a period of two months.
26. We are informed that the original accused No. 3 Seetharam
D Bhat accepted the conviction and has undergone the sentence. The
original accused No. 3 thought fit not to file any appeal before this Court.
27. It is the appellant herein (original accused No. 1), who is here
before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT
E CONVICT
28. Mr. Krishna Pal Singh, the learned counsel appearing for the
appellant convict vehemently submitted that the High Court committed
a serious error in passing the impugned judgment and order of conviction
by reversing the well-reasoned judgment and order of acquittal passed
F by the trial court. According to the learned counsel, while sitting in
judgment over an acquittal, the appellate court is first required to seek
an answer to the question whether the findings of the trial court are
palpably wrong, manifestly erroneous or demonstrably unsustainable. If
the appellate court answers the above question in the negative, the order
of acquittal is not to be disturbed. Conversely, if the appellate court holds,
G
for reasons to be recorded, that the order of acquittal cannot at all be
sustained, in view of any of the above infirmities, it can then – and then
only – reappraise the evidence to arrive at its own conclusions. The
principal argument of the learned counsel appearing for the appellant
convict is that in the case on hand, there is no finding recorded by the
H
SUBRAMANYA v. STATE OF KARNATAKA 851
[J. B. PARDIWALA, J.]
High Court that the judgment of the trial court is palpably wrong, A
manifestly erroneous or demonstrably unsustainable.
29. The learned counsel would further submit that the High Court
committed a serious error in making the extra judicial confession alleged
to have been made by the original accused No. 3 Seetharam Bhat before
the PW 7 almost after four months from the date of the incident is the B
basis and thereafter, trying to search for corroboration. It was argued
that even otherwise, an extra judicial confession is a weak piece of
evidence. He would argue that in the case on hand, the High Court
should not have relied upon the extra judicial confession alleged to have
been made by the accused No. 3 Seetharam before the PW 7 Yogesh
for the purpose of convicting the appellant herein. C
30. The learned counsel also submitted that the High Court
committed a serious error in relying upon the various discoveries like the
weapon of offence, jewellery, mobile, clothes etc. under Section 27 of
the Evidence Act.
31. In such circumstances referred to above, the learned counsel D
prays that there being merit in his appeal, the same may be allowed and
the impugned judgment and order passed by the High Court may be set
aside.
SUBMISSIONS ON BEHALF OF THE STATE
32. Mr. V.N. Raghupathy, the learned counsel appearing for the E
State of Karnataka, on the other hand, has vehemently opposed this
appeal submitting that no error not to speak of any error of law could be
said to have been committed by the High Court in passing the impugned
order. He would submit that the circumstances are fully established
pointing only towards the guilt of the appellant convict. In such
F
circumstances referred to above, the learned counsel appearing for the
State prayed that there being no merit in the present appeal, the same
may be dismissed.
ANALYSIS
33. Having heard the learned counsel appearing for the parties
G
and having gone through the material on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment and order of conviction.
34. The High Court should have been mindful of the fact that it
was dealing with an acquittal appeal filed by the State under Section 378
H
852 SUPREME COURT REPORTS [2022] 14 S.C.R.
A of the Cr.PC. It would be useful to review the approach to be adopted
while deciding an appeal against the acquittal by the trial court.
35. In one of the earliest cases on the powers of the High Court,
in dealing with an appeal against an order of acquittal the Judicial
Committee of the Privy Council, in Sheo Swarup v. King- Emperor,
B 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2),
considered the provisions relating to the power of an appellate court in
dealing with an appeal against an order of acquittal and observed as
under:
“…..But in exercising the power conferred by the Code and
C before reaching its conclusions upon fact, the High Court
should and will always give proper weight and consideration
to such matters as: (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption of innocence
in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at his trial;
D (3) the right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate court in disturbing a finding
of fact arrived at by a Judge who had the advantage of seeing
the witnesses. To state this, however, is only to say that the
High Court in its conduct of the appeal should and will act in
E accordance with rules and principles well known and
recognised in the administration of justice.”
It was stated that the appellate court has full powers to review
and to reverse the acquittal.
36. Following the Sheo Swarup (supra) this Court in Chandrappa
F and Others v. State of Karnataka reported in (2007) 4 SCC 415 held
as under:
“16. It cannot, however, be forgotten that in case of acquittal,
there is a double presumption in favour of the accused. Firstly,
the presumption of innocence is available to him under the
G fundamental principle of criminal jurisprudence that every
person should be presumed to be innocent unless he is proved
to be guilty by a competent court of law. Secondly, the accused
having secured an acquittal, the presumption of his innocence
is certainly not weakened but reinforced, reaffirmed and
strengthened by the trial court.”
H
SUBRAMANYA v. STATE OF KARNATAKA 853
[J. B. PARDIWALA, J.]
37. In Atley v. State of Uttar Pradesh, AIR 1955 SC 807, the A
approach of the appellate court while considering a judgment of acquittal
was discussed and it was observed that unless the appellate court comes
to the conclusion that the judgment of the acquittal was perverse, it
could not set aside the same. To a similar effect are the following
observations of this Court speaking through Subba Rao, J. (as his Lordship
B
then was) in Sanwat Singh and Others v. State of Rajasthan, AIR
1961 SC 715 in para 9 held as under:
“9. The foregoing discussion yields the following results: (1)
an appellate court has full power to review the evidence upon
which the order of acquittal is founded; (2) the principles
laid down in Sheo Swarup’s case, 61 Ind App 398 : (AIR 1934 C
PC 227 (2)) afford a correct guide for the appellate court’s
approach to a case in disposing of such an appeal; and (3)
the different phraseology used in the judgments of this Court,
such as, (i) “substantial and compelling reasons”, (ii) “good
and sufficiently cogent reasons”, and (iii) “strong reasons” D
are not intended to curtail the undoubted power of an
appellate court in an appeal against acquittal to review the
entire evidence and to come to its own conclusion; but in
doing so it should not only consider every matter on record
having a bearing on the questions of fact and the reasons
given by the court below in support of its order of acquittal E
in its arriving at a conclusion on those facts, but should also
express those reasons in its judgment, which lead it to hold
that the acquittal was not justified.”
38. The need for the aforesaid observations arose on account of
the observations of the majority in Aher Raja Khima v. State of F
Saurashtra, AIR 1956 SC 217 : 1956 Cri LJ 426, which stated that for
the High Court to take a different view on the evidence “there must also
be substantial and compelling reasons for holding that the trial court was
wrong”.
39. M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 G
: (1963) 1 Cri LJ 235, is the judgment of the Constitution Bench of this
Court, speaking through Gajendragadkar, J. (as his Lordship then was).
This Court observed that the approach of the High Court (appellate
court) in dealing with an appeal against acquittal ought to be cautious
because the presumption of innocence in favour of the accused “is not H
854 SUPREME COURT REPORTS [2022] 14 S.C.R.
A certainly weakened by the fact that he has been acquitted at his
trial”.
40. In Shivaji Sahabrao Bobade and Another v. State of
Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, in para 6,
Krishna Iyer, J., observed as follows:
B “6. …..In short, our jurisprudential enthusiasm for presumed
innocence must be moderated by the pragmatic need to make
criminal justice potent and realistic. A balance has to be struck
between chasing chance possibilities as good enough to set
the delinquent free and chopping the logic of preponderant
C probability to punish marginal innocents…..”
41. This Court in Ramesh Babulal Doshi v. State of Gujarat,
(1996) 9 SCC 225 : 1996 SCC (Cri) 972, in para 7 spoke about the
approach of the appellate court while considering an appeal against an
order acquitting the accused and stated as follows:
D “7. …..While sitting in judgment over an acquittal the
appellate court is first required to seek an answer to the
question whether the findings of the trial court are palpably
wrong, manifestly erroneous or demonstrably unsustainable.
If the appellate court answers the above question in the
E negative the order of acquittal is not to be disturbed.
Conversely, if the appellate court holds, for reasons to be
recorded, that the order of acquittal cannot at all be sustained
in view of any of the above infirmities it can then — and then
only — reappraise the evidence to arrive at its own
conclusions…..”
F
The object and the purpose of the aforesaid approach is to ensure
that there is no miscarriage of justice. In other words, there should not
be an acquittal of the guilty or a conviction of an innocent person.
42. In Ajit Savant Majagvai v. State of Karnataka, (1997) 7
SCC 110 : 1997 SCC (Cri) 992, in para 16, this Court set out the following
G
principles that would regulate and govern the hearing of an appeal by
the High Court against an order of acquittal passed by the trial court:
“16. This Court has thus explicitly and clearly laid down the
principles which would govern and regulate the hearing of
appeal by the High Court against an order of acquittal passed
H
SUBRAMANYA v. STATE OF KARNATAKA 855
[J. B. PARDIWALA, J.]
by the trial court. These principles have been set out in A
innumerable cases and may be reiterated as under:
(1) In an appeal against an order of acquittal, the High Court
possesses all the powers, and nothing less than the powers it
possesses while hearing an appeal against an order of
conviction. B
(2) The High Court has the power to reconsider the whole
issue, reappraise the evidence and come to its own conclusion
and findings in place of the findings recorded by the trial
court, if the said findings are against the weight of the evidence
on record, or in other words, perverse. C
(3) Before reversing the finding of acquittal, the High Court
has to consider each ground on which the order of acquittal
was based and to record its own reasons for not accepting
those grounds and not subscribing to the view expressed by
the trial court that the accused is entitled to acquittal. D
(4) In reversing the finding of acquittal, the High Court has
to keep in view the fact that the presumption of innocence is
still available in favour of the accused and the same stands
fortified and strengthened by the order of acquittal passed in
his favour by the trial court. E
(5) If the High Court, on a fresh scrutiny and reappraisal of
the evidence and other material on record, is of the opinion
that there is another view which can be reasonably taken,
then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial F
court had the advantage of looking at the demeanour of
witnesses and observing their conduct in the Court especially
in the witness-box.
(7) The High Court has also to keep in mind that even at that
stage, the accused was entitled to benefit of doubt. The doubt G
should be such as a reasonable person would honestly and
conscientiously entertain as to the guilt of the accused.”
43. This Court in Chandrappa (supra) highlighted that there is
one significant difference in exercising power while hearing an appeal
against acquittal by the appellate court. The appellate court would not H
856 SUPREME COURT REPORTS [2022] 14 S.C.R.
A interfere where the judgment impugned is based on evidence and the
view taken was reasonable and plausible. This is because the appellate
court will determine the fact that there is presumption in favour of the
accused and the accused is entitled to get the benefit of doubt but if it
decides to interfere it should assign reasons for differing with the decision
of acquittal. After referring to a catena of judgments, this Court culled
B
out the following general principles regarding the powers of the Appellate
Court while dealing with an appeal against an order of acquittal in the
following words:
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate
C 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.
D
(2) The Code of Criminal Procedure, 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
E 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
F 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
G
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
H and strengthened by the trial court.
SUBRAMANYA v. STATE OF KARNATAKA 857
[J. B. PARDIWALA, J.]
(5) If two reasonable conclusions are possible on the basis of A
the evidence on record, the appellate court should not disturb
the finding of acquittal recorded by the trial court.”
44. In Nepal Singh v. State of Haryana, (2009) 12 SCC 351,
this Court reversed the judgment in the State of Haryana v. Nepal
Singh, CRA-D No. 99-DBA of 1993, order dated 21-7-1997 (P&H), of B
the High Court which had set aside the judgment of acquittal pronounced
by the trial court and restored the judgment of the trial court acquitting
the accused on reappreciation of the evidence.
45. The circumstances under which an appeal would be entertained
by this Court from an order of acquittal passed by a High Court may be C
summarised as follows:
45.1. Ordinarily, this Court is cautious in interfering with an order
of acquittal, especially when the order of acquittal has been confirmed
up to the High Court. It is only in rarest of rare cases, where the High
Court, on an absolutely wrong process of reasoning and a legally D
erroneous and perverse approach to the facts of the case, ignoring some
of the most vital facts, has acquitted the accused, that the same may be
reversed by this Court, exercising jurisdiction under Article 136 of the
Constitution. [State of Uttar Pradesh v. Sahai and Others, (1982) 1
SCC 352]. Such fetters on the right to entertain an appeal are prompted
by the reluctance to expose a person, who has been acquitted by a E
competent court of a criminal charge, to the anxiety and tension of a
further examination of the case, even though it is held by a superior
court. [Arunachalam v. P.S.R. Sadhanantham and Another, (1979)
2 SCC 297]. An appeal cannot be entertained against an order of acquittal
which has, after recording valid and weighty reasons, has arrived at an F
unassailable, logical conclusion which justifies acquittal. [State of
Haryana v. Lakhbir Singh and Another, 1991 Supp (1) SCC 35 : 1990
Cri LJ 2274].
45.2. However, this Court has on certain occasions, set aside the
order of acquittal passed by a High Court. The circumstances under G
which this Court may entertain an appeal against an order of acquittal
and pass an order of conviction, may be summarised as follows:
45.2.1. Where the approach or reasoning of the High Court is
perverse:
H
858 SUPREME COURT REPORTS [2022] 14 S.C.R.
A (a) Where incontrovertible evidence has been rejected by the
High Court based on suspicion and surmises, which are rather
unrealistic. [State of Rajasthan v. Sukhpal Singh and Others,
(1983) 1 SCC 393]. For example, where direct, unanimous
accounts of the eyewitnesses, were discounted without cogent
reasoning. [State of U.P. v. Shanker, 1980 Supp SCC 489 : 1981
B
SCC (Cri) 428].
(b) Where the intrinsic merits of the testimony of relatives, living
in the same house as the victim, were discounted on the ground
that they were “interested” witnesses. [State of U.P. v. Hakim
Singh and Others, (1980) 3 SCC 55].
C
(c) Where testimony of witnesses had been disbelieved by the
High Court, on an unrealistic conjecture of personal motive on the
part of witnesses to implicate the accused, when in fact, the
witnesses had no axe to grind in the said matter. [State of
Rajasthan v. Sukhpal Singh and Others, (1983) 1 SCC 393].
D
(d) Where dying declaration of the deceased victim was rejected
by the High Court on an irrelevant ground that they did not explain
the injury found on one of the persons present at the site of
occurrence of the crime. [Arunachalam v. P.S.R.
Sadhanantham and Another, (1979) 2 SCC 297].
E
(e) Where the High Court applied an unrealistic standard of
“implicit proof” rather than that of “proof beyond reasonable doubt”
and therefore evaluated the evidence in a flawed manner. [State
of Uttar Pradesh v. Ranjha Ram and Others, (1986) 4 SCC
99].
F
(f) Where the High Court rejected circumstantial evidence, based
on an exaggerated and capricious theory, which were beyond the
plea of the accused; [State of Maharashtra v. Champalal
Punjaji Shah, (1981) 3 SCC 610] or where acquittal rests merely
in exaggerated devotion to the rule of benefit of doubt in favour of
G the accused. [Gurbachan Singh v. Satpal Singh and Others,
(1990) 1 SCC 445].
(g) Where the High Court acquitted the accused on the ground
that he had no adequate motive to commit the offence, although,
in the said case, there was strong direct evidence establishing the
H guilt of the accused, thereby making it unnecessary on the part of
SUBRAMANYA v. STATE OF KARNATAKA 859
[J. B. PARDIWALA, J.]
the prosecution to establish “motive”. [State of Andhra A
Pradesh v. Bogam Chandraiah and Another, (1986) 3 SCC
637].
45.2.2. Where acquittal would result in gross miscarriage of justice:
(a) Where the findings of the High Court, disconnecting the
accused persons with the crime, were based on a perfunctory B
consideration of evidence, [State of U.P. v. Pheru Singh and
Others, 1989 Supp (1) SCC 288] or based on extenuating
circumstances which were purely based in imagination and fantasy
[State of Uttar Pradesh v. Pussu alias Ram Kishore, (1983) 3
SCC 502]. C
(b) Where the accused had been acquitted on ground of delay in
conducting trial, which delay was attributable not to the tardiness
or indifference of the prosecuting agencies, but to the conduct of
the accused himself; or where accused had been acquitted on
ground of delay in conducting trial relating to an offence which is D
not of a trivial nature. [State of Maharashtra v. Champalal
Punjaji Shah, (1981) 3 SCC 610].
46. Having gone through the entire impugned judgment passed by
the High Court, we do not find any satisfaction recorded therein that the
findings of the trial court are palpably wrong, manifestly erroneous or E
demonstrably unsustainable. In the absence of such satisfaction, the High
Court, in our opinion, should not have disturbed a well-reasoned judgment
of acquittal, passed by the trial court. We shall assign reasons hereafter
why the High Court should not have disturbed the acquittal recorded by
the trial court.
F
PRINCIPLES GOVERNING APPRECIATION OF
CIRCUMSTANTIAL EVIDENCE
47. A three-Judge Bench of this Court in Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:
“152. Before discussing the cases relied upon by the High G
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. State of
Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953
H
860 SUPREME COURT REPORTS [2022] 14 S.C.R.
A Cri LJ 129] . This case has been uniformly followed and
applied by this Court in a large number of later decisions up-
to-date, for instance, the cases of Tufail (Alias) Simmi v. State
of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]
and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 :
AIR 1972 SC 656] . It may be useful to extract what Mahajan,
B
J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952
SCR 1091 : 1953 Cri LJ 129] :
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
C 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
D proved. In other words, there must be a chain of evidence
so far complete as not to leave any reasonable ground for
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.
E 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.
F 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
G Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following
observations were made : [SCC para 19, p. 807 : SCC (Cri)
p. 1047]
Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict
H
SUBRAMANYA v. STATE OF KARNATAKA 861
[J. B. PARDIWALA, J.]
and the mental distance between ‘may be’ and ‘must be’ is A
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, B
(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
C
(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.
D
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
48. In an Essay on the Principles of Circumstantial Evidence by
William Wills by T. and J.W. Johnson and Co. 1872, it has been
E
explained as under:
“In matters of direct testimony, if credence be given to the
relators, the act of hearing and the act of belief, though really
not so, seem to be contemporaneous. But the case is very
different when we have to determine upon circumstantial
F
evidence, the judgment in respect of which is essentially
inferential. There is no apparent necessary connection between
the facts and the inference; the facts may be true, and the
inference erroneous, and it is only by comparison with the
results of observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of our G
conclusions. ?·
The term PRESUMPTIVE is frequently used as synonymous
with CIRCUMSTANTIAL EVIDENCE; but it is not so used with
strict accuracy, The word” presumption,” ex vi termini, imports
an inference from facts; and the adjunct “presumptive,” as H
862 SUPREME COURT REPORTS [2022] 14 S.C.R.
A applied to evidentiary facts, implies the certainty of some
relation between the facts and the inference. Circumstances
generally, but not necessarily, lead to particular inferences;
for the facts may be indisputable, and yet their relation to the
principal fact may be only apparent, and not real; and even
when the connection is real, the deduction may be erroneous.
B
Circumstantial and presumptive evidence differ, therefore, as
genus and species.
The force and effect of circumstantial evidence depend upon
its incompatibility with, and incapability of, explanation or
solution upon any other supposition than that of the truth of
C the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad
absurdum.”
49. Thus, in view of the above, the Court must consider a case of
circumstantial evidence in light of the aforesaid settled legal propositions.
D In a case of circumstantial evidence, the judgment remains essentially
inferential. The inference is drawn from the established facts as the
circumstances lead to particular inferences. The Court has to draw an
inference with respect to whether the chain of circumstances is complete,
and when the circumstances therein are collectively considered, the same
E must lead only to the irresistible conclusion that the accused alone is the
perpetrator of the crime in question. All the circumstances so established
must be of a conclusive nature, and consistent only with the hypothesis
of the guilt of the accused.
ANALYSIS OF THE CIRCUMSTANCES RELIED UPON
F BY THE HIGH COURT
50. It is the case of the prosecution that the original accused No.
3 Seetharam Bhat had made an extra judicial confession before the PW
7, H.T. Yogesh (son-in-law of the deceased). PW 7 in his examination-
in-chief, recorded by the trial court on 21.01.2012 has stated as under:
G “1. I know the accused persons who are present before the
court. Deceased Kamalamma is my mother-in-law. C.W.8 is
my wife. P.W.1 is my wife’s sister. C.W.12 is the husband of
P.W.1. C.W.5 and 6 are the brothers of the deceased. I know
other witnesses. My mother-in-law died on 23.08.2010 due
to murder. The son of A2 Gowramma by name Alok on
H
SUBRAMANYA v. STATE OF KARNATAKA 863
[J. B. PARDIWALA, J.]
24.08.2010 came at about 6.30 a.m. and told that my mother- A
in-law Kamalamma is not found since yesterday night. A2 is
the daughter of first wife of the husband of deceased
Kamalamma. Deceased used to reside Hosamane, Hirekudige
village. By the side of the house of deceased A2 used to reside.
Deceased alone used to stay there and A2 and their children
B
used to stay by the side of the house of the deceased. Husband
of A2 is no more. We also came. By telling to all we searched
for my mother-in-law Kamalamma. As we could not trace at
about 1 p.m. I went to Police Station and filed a missing
complaint. I did not get any information about my mother-in-
law even after giving the missing complaint. C
2. On 09.12.2010 I had been to Gadikallu. At about 9.30
p.m. at Gadikallu circle A3 Seetharam Bhat met me and there
he told that about 3 or 3 1/2 months back he had been called
by A1 and told that he had murdered Kamalamma and in order
to bury the dead body asked his help by providing two bottles D
of brandy and he also told that if he would not obey he will
also kill him as done to his brother-in-law Srinivase Gowda.
He also told that he helped him in carrying the dead body to
Dhare near the land of Dinamani and there they have buried
the body.
E
3. Deceased Kamalamma used to tell that A2 is having illicit
relation and they are not liking her as she is telling to
everybody.
4. Thereafter I went to Police Station on 10.12.2010 and filed
the complaint. Now I see the said complaint. The same is now F
marked as Ex.P-11. Ex.P-11(a) is my signature.
5. Next day when police and Assistant Commissioner came to
the spot I was also called there. C.W.2 to 4 were also called.
There A1 and A3 showed the place where they had buried the
body of Kamalamma to us and also to the police and Assistant G
Commissioner. Thereafter with the help of P.W.3 the dead body
of Kamalamma was exhumed. The dead body was buried in
survey No.121, the Govt. land by the side of a channel at
Horabylu. When the body was exhumed it was fully
decomposed. Over the body one petticoat, one blouse were
there. There the Assistant Commissioner draw the body H
864 SUPREME COURT REPORTS [2022] 14 S.C.R.
A exhumed mahazar. Now I see the same. The same is already
marked as Ex.P-3. Ex.P-3(b) is my signature. At that time
photographs were also taken. Now the three photos have been
marked as Ex P-4. Apart from me C.Ws. 2 to 4 and P.W.3 also
signed.
B 6. On 14.12.2010 again police called me at about 2 p.m. to
the Police Station. In the said police station A1 was also
present. Police brought C.W.24 Meeranath and he produced
a mobile. The said mobile was of the deceased Kamalamma.
The same was seized in the presence of C.W.22 and 23 by
drawing a mahazar. Now I see the same. The same is now
C marked as Ex.P-12. Ex.P-12(a) is my signature. At that time
photo was also taken. Now the said photo is marked as Ex.P-
13. I can identify the mobile if shown to me. The same is already
marked as M.O.4. I do not remember the cell number of my
mother-in law. She has studied upto 4th standard.
D 7. My mother-in-law used to wear a chain with Ganapathi
pendant which is already marked as M.O.1, one pair of ole
with blue stone in the middle surrounded by white stones which
is already marked as M.O.2, one gold ring with red stone
which is already marked as M.O.3. I can identify the blouse
E and petticoat which were found on the body of the deceased.
(Now one sealed cover is shown to the learned counsel for
the accused. The seals are found intact. He has no objection
to open the same. The same is now opened). It contains one
blouse and one petticoat. Witness identifies the same. The same
are now marked as M.O.11 and 12.”
F
51. We need not refer to the cross-examination of the PW 7, as
we are of the view that the plain reading of the examination-in-chief
itself is sufficient to arrive at the conclusion that the extra judicial
confession could not have been relied upon as an incriminating
circumstance.
G
52. The date of the alleged crime is 23.08.2010. The so called
extra judicial confession, said to have been made by Seetharam Bhat
(accused No. 3) is dated 09.12.2010. We fail to understand why all of a
sudden Seetharam (accused No. 3) after a period of almost four months,
thought fit to make an extra judicial confession before the PW 7 H.T.
H Yogesh involving himself and the appellant herein in the alleged crime.
SUBRAMANYA v. STATE OF KARNATAKA 865
[J. B. PARDIWALA, J.]
53. An extra judicial confession, if voluntary and true and made in A
a fit state of mind, can be relied upon by the Court. The confession will
have to be proved like any other fact. The value of the evidence as to
confession, like any other evidence, depends upon the veracity of the
witness to whom it has been made. The value of the evidence as to the
confession depends on the reliability of the witness who gives the
B
evidence. It is not open to any court to start with a presumption that
extra judicial confession is a weak type of evidence. It would depend on
the nature of the circumstances, the time when the confession was made
and the credibility of the witnesses who speak to such a confession.
Such a confession can be relied upon and conviction can be founded
thereon if the evidence about the confession comes from the mouth of C
witnesses who appear to be unbiased, not even remotely inimical to the
accused, and in respect of whom nothing is brought out which may tend
to indicate that he may have a motive for attributing an untruthful
statement to the accused, the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused is the perpetrator
D
of the crime and nothing is omitted by the witness which may militate
against it. After subjecting the evidence of the witness to a rigorous test
on the touchstone of credibility, the extra judicial confession can be
accepted and can be the basis of a conviction if it passes the test of
credibility.
54. Extra judicial confession is a weak piece of evidence and the E
court must ensure that the same inspires confidence and is corroborated
by other prosecution evidence. It is considered to be a weak piece of
evidence as it can be easily procured whenever direct evidence is not
available. In order to accept extra judicial confession, it must be voluntary
and must inspire confidence. If the court is satisfied that the extra judicial F
confession is voluntary, it can be acted upon to base the conviction.
55. Considering the admissibility and evidentiary value of extra
judicial confession, after referring to various judgments, in Sahadevan
and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court
held as under:- G
“15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4)
SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle
that: (SCC p. 265, para 10)
“10. An extra-judicial confession by its very nature is
rather a weak type of evidence and requires appreciation H
866 SUPREME COURT REPORTS [2022] 14 S.C.R.
A with a great deal of care and caution. Where an extra-
judicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses
its importance.”
x x x x
B 15.4. While explaining the dimensions of the principles
governing the admissibility and evidentiary value of an extra-
judicial confession, this Court in State of Rajasthan v. Raja
Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the
principle that: (SCC p. 192, para 19)
C “19. An extra-judicial confession, if voluntary and true
and made in a fit state of mind, can be relied upon by the
court. The confession will have to be proved like any other
fact. The value of the evidence as to confession, like any
other evidence, depends upon the veracity of the witness
D to whom it has been made.”
The Court further expressed the view that: (SCC p. 192, para
19)
“19. … Such a confession can be relied upon and conviction
can be founded thereon if the evidence about the confession
E comes from the mouth of witnesses who appear to be
unbiased, not even remotely inimical to the accused, and
in respect of whom nothing is brought out which may tend
to indicate that he may have a motive of attributing an
untruthful statement to the accused.…”
F x x x x
15.6. Accepting the admissibility of the extra-judicial
confession, the Court in Sansar Chand v. State of
Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held
that: (SCC p. 611, paras 29-30)
G “29. There is no absolute rule that an extra-judicial confession
can never be the basis of a conviction, although ordinarily
an extra-judicial confession should be corroborated by some
other material. [Vide Thimma and Thimma Raju v. State of
Mysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk
H Raj v. State of U.P. [AIR 1959 SC 902 : 1959 Cri LJ
SUBRAMANYA v. STATE OF KARNATAKA 867
[J. B. PARDIWALA, J.]
1219], Sivakumar v. State [(2006) 1 SCC 714 : (2006) 1 SCC A
(Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and
42), Shiva Karam Payaswami Tewari v. State of
Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320]
and Mohd. Azad v. State of W.B.[(2008) 15 SCC 449 : (2009)
3 SCC (Cri) 1082] ]””
B
[Emphasis supplied]
56. It is well settled that conviction can be based on a voluntarily
confession but the rule of prudence requires that wherever possible it
should be corroborated by independent evidence. Extra judicial confession
of accused need not in all cases be corroborated. In Madan Gopal C
Kakkad v. Naval Dubey and Another, (1992) 3 SCC 204, this Court
after referring to Piara Singh and Others v. State of Punjab, (1977) 4
SCC 452, held that the law does not require that the evidence of an
extra judicial confession should in all cases be corroborated. The rule of
prudence does not require that each and every circumstance mentioned
in the confession must be separately and independently corroborated. D
57. The sum and substance of the aforesaid is that an extra
judicial confession by its very nature is rather a weak type of evidence
and requires appreciation with great deal of care and caution. Where an
extra judicial confession is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its importance like the case in E
hand. The Courts generally look for an independent reliable corroboration
before placing any reliance upon an extra judicial confession.
58. This Court in Kashmira Singh v. The State of Madhya
Pradesh reported in AIR 1952 SC 159, had observed as under:
F
“The confession of an accused person is not evidence in the
ordinary sense of the term as defined in Section 3. It cannot
be made the foundation of a conviction and can only be used
in support of other evidence. The proper way is, first, to
marshal the evidence against the accused excluding the
confession altogether from consideration and see whether, if G
it is believed a conviction could safely be based on it. If it is
capable of belief independently of the confession, then of
course it is not necessary to call the confession in aid. But
cases may arise where the Judge is not prepared to act on the
other evidence as it stands even though, if believed, it would
H
868 SUPREME COURT REPORTS [2022] 14 S.C.R.
A be sufficient to sustain a conviction. In such an event the
Judge may call in aid the confession and use it to lend
assurance to the other evidence and thus fortify himself in
believing what without the aid of the confession he would not
be prepared to accept. [para 8, 10]”
B 59. In the case on hand, the High Court committed a serious error
in making the confessional statement as the basis and thereafter going in
search for corroboration. The High Court concluded that the confessional
statement is corroborated in material particulars without first considering
and marshalling the evidence against the appellant convict herein excluding
the conviction altogether from consideration. As held in the decision,
C cited above, only if on such consideration on the evidence available,
other than the confession a conviction can safely be based then only the
confession could be used to support that belief or conclusion.
60. The trial court has assigned cogent reasons for not accepting
the evidence of the PW 7, before whom the confession is alleged to
D have been made, and rightly so, the High Court has not given any
convincing reasons as to why the PW 7 who was discarded by the trial
court should be relied on.
61. The learned counsel appearing for the State, relied on Section
30 of the Evidence Act to make good his submission that, the extra
E judicial confession alleged to have been made by the original accused
No. 3 Seetharam Bhat is admissible against the appellant convict herein.
No doubt, the statement would be admissible but the question is not of
mere admissibility or mere absence of bar under Section 25 of the
Evidence Act, the real question relates to a proper interpretation of Section
F 30 of the Evidence Act.
62. Section 30 of the Evidence Act is quoted below in toto:
“30. Consideration of proved confession affecting person
making it and others jointly under trial for the same offence.—
When more persons than one are being tried jointly for the
G
same offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved,
the Court may take into consideration such confession as
against such other person as well as against the person who
makes such confession.
H
SUBRAMANYA v. STATE OF KARNATAKA 869
[J. B. PARDIWALA, J.]
[Explanation:—”Offence”, as used in this section includes A
the abatement of, or attempt to commit the offence.]”
63. It was argued that this confession of a co-accused, even if
proved, cannot be the basis of a conviction and although it is evidence in
the generic sense, yet it is not evidence in the specific sense and it could
afford corroboration to other evidence and cannot be the supporting B
point or the sole basis of the conviction. In this respect, reference could
be made to a decision of this Court in the case of Haricharan Kurmi
& Jogia Hajam v. State of Bihar, as reported in AIR 1964 SC 1184, as
also to another decision of this Court reported in Ram Chandra and
Another v. State of Uttar Pradesh, AIR 1957 SC 381 wherein it was
held that confession of a co-accused can only be taken into consideration C
but it was not in itself a substantive evidence. The Privy Council also
held that a confession of a co-accused was obviously evidence of a very
weak type and it did not come within the definition of evidence contained
in Section 3.
64. It is necessary to have the facts behind these decisions of the D
Supreme Court and the Privy Council. We may proceed chronologically.
65. In the case of Bhuboni Sahu v. The King reported in AIR
1949 PC 257, the Patna High Court had dismissed an appeal against a
judgment and order of the Sessions Judge convicting the appellant for an
offence of murder. The Privy Council, however, advised His Majesty E
that the appeal be allowed and the judgment was recorded giving the
reasons for such advice. The evidence against the appellant consisted
of, (a) the evidence of Kholli Behera who had taken part in the murder
and had become an approver, (b) the confession of Trinath recorded
under Section 164 Cr. P.C. which implicated both himself and the appellant F
in the murder, and (c) the recovery of a loin cloth identified as the one
which the deceased was wearing when he was assaulted and an
instrument for cutting grass. For the purpose of the instant case, the
evidence in point (b) is relevant. The Privy Council quoted Section 30 of
the Evidence Act and held in paragraph 9 of the judgment (as reported)
that Section 30 was introduced for the first time in the Indian Evidence G
Act of 1872 and it was the departure from the common law of England.
It was observed that this Section 30 applied to confessions and not to
statements which do not admit the guilt of the confessing party. It was
held that statement of Trinath was a confession. Their lordships further
observed that Section 30 seemed to be based on the view that an admission H
870 SUPREME COURT REPORTS [2022] 14 S.C.R.
A of an accused person of his own guilt affords some sort of sanction in
support of the truth of his confession against others as well as himself.
But a confession of a co-accused, their lordships continued to observe,
was obviously evidence of a weaker type. It did not indeed come within
the definition of ‘evidence’ contained in Section 3 of the Evidence Act.
Such statement was not required to be given on oath nor in the presence
B
of the accused and it could not be tested by cross-examination. It was a
much weaker type of evidence than the evidence of an approver which
was not subject to any of those infirmities. Section 30, however, provided
that the Court might take into consideration the confession and thereby
no doubt made it evidence on which the Court could act, but the section
C did not say that the confession was to amount to proof. Clearly, there
must be other evidence and confession was only one element in the
consideration of all the facts proved in the case, which can be put into
the scale and weighed with other evidence. Their lordships confirmed
the view that the confession of a co-accused could be used only in support
of the evidence and could not be made a foundation of a conviction.
D
66. The case of Ram Chandra (supra) before this Court, as
reported in AIR 1957 SC 381 was also of murder. It was a case in which
corpus delecti was not traceable and proof of murder solely depended
on a retracted confession of an accused. The Court was of the view
that although corpus delecti was not found, yet there could be a conviction
E if reliable evidence, direct or circumstantial, of the commission of murder
was available. However, a confession of a co-accused was not in itself
a substantive evidence. The courts below had relied on a confession of
accused Ram Chandra against a co-accused, Ram Bharosey, for holding
him guilty of the offences charged against him. This Court held, “It is
F rightly urged that under Section 30, Evidence Act confession of a
co-accused can only be taken into consideration but is not in itself
substantive evidence.” This Court, however, was satisfied that even
excluding the confession as substantive evidence there was enough
material against the appellant Ram Bharosey to find him guilty of offence
of criminal conspiracy to commit offences charged. To come to the
G ratio, we find that the view was affirmed that confession of a co-accused
could only be considered but could not be relied on as substantive evidence.
67. The case of Haricharan Kurmi (supra) was again from the
Patna High Court. Here also a question arose as to the probative value
of a confession of one accused against a co-accused. This Court dealt
H
SUBRAMANYA v. STATE OF KARNATAKA 871
[J. B. PARDIWALA, J.]
with the definition clause in Section 3 in the Evidence Act and Section A
30 thereof, as also some earlier decisions of this Court. It was observed,
in paragraph 15 of the judgment, as reported, “It is true that the
confession made by Ram Surat is a detailed statement and it attributes
to the two appellants a major part in the commission of the offence.
It is also true that the said confession has been found to be voluntary,
B
and true so far as the part played by Ram Surat himself is concerned,
and so, it is not unlikely that the confessional statement in regard to
the part played by the two appellants may also be true; and in that
sense, the rending of the said confession may raise a serious
suspicion against the accused. But it is precisely in such cases that
the true legal approach must be adopted and suspicion, however, C
grave, must not be allowed to take the place of proof. As we have
already indicated, it has been a recognised principle of
administration of criminal law in this country for over half a century
that the confession of a co-accused person cannot be treated as
substantive evidence and can be pressed into service only when the
D
Court is inclined to accept other evidence and feels the necessity of
seeking for an assurance in support of its conclusion deducible
from the said evidence. In criminal trial, there is no scope for applying
the principle of moral conviction or grave suspicion. In criminal
cases where the other evidence adduced against an accused person
is wholly unsatisfactory and the prosecution seeks to rely on the E
confession of a co-accused person, the presumption of innocence
which is the basis of criminal jurisprudence assists the accused
person and compels the Court to render the verdict that the charge
is not proved against him, and so, he is entitled to the benefit of
doubt. That is precisely what has happened in these appeals.”
F
68. The case in hand is not one of a confession recorded under
Section 15 of the TADA Act. On the language of sub-section (1) of
Section 15, a confession of an accused is made admissible evidence as
against all those tried jointly with him. So, it is implicit that the same can
be considered against all those, tried together. In this view of the matter
also, Section 30 of the Evidence Act need not be invoked for consideration G
of confession of an accused against the co-accused, abettor or conspirator
charged and tried in the same case along with the accused. The accepted
principle in law is that the confessional statement of an accused recorded
under Section 15 of the TADA Act is a substantive piece of evidence
against his co-accused, provided the accused concerned are tried together. H
872 SUPREME COURT REPORTS [2022] 14 S.C.R.
A This is the fine distinction between an extra judicial confession being a
corroborative piece of evidence and a confession recorded under Section
15 of the TADA Act being treated as a substantive piece of evidence.
DISCOVERY OF WEAPON OF OFFENCE, CLOTHES
AND DEAD BODY
B 69. For the purpose of proving the discovery of clothes of the
appellant herein at his instance by drawing a panchnama under Section
27 of the Evidence Act, the prosecution has relied upon the evidence of
the PW 5 T. Somaiah. PW 5 in his examination-in-chief has deposed as
under:
C “1. I know the accused persons who are present before the
court. I know C.W.19. About one year back myself and C.W.19
were called by the police, at that time A1 Subramanya was
also there. From there A1 led us near the house of Kamalamma.
By the side of house of Kamalamma there is a house of A2.
D Police told me that A1 is going to give the cloths, we have to
be there. By the side of house of Kamalamma from the place
where the firewood has been stored A1 removed one pant and
one shirt and produced before the police and thereafter the
same were seized by drawing a mahazar. Now I see the said
mahazar. The same is now marked as Ex.P-6. Ex.P-6(a) is my
E signature. The said mahazar was drawn between 9.30 a.m. to
10.30 a.m. (Now two covers are shown to the learned counsel
for the accused. He has no objection to open the same. The
same are now opened.) They contain red colour shirt and
cement colour pant. The same are now marked as M.O.7 and
F 8 respectively. At the time of seizing M.O.7 and 8 photograph
is also taken. Now I see the same. The same is now marked as
Ex.P-7.”
70. For the purpose of proving the discovery of the weapon of
offence, the prosecution has relied upon the examination-in-chief at the
G instance of the appellant convict herein. The prosecution has relied upon
the evidence of PW 6 Sridhar Shetty. Sridhar Shetty in his examination-
in-chief has deposed as under:
“1. I know the accused persons who are present before the
court. I know C.W.21. On 14.12.2010 myself and C.W.21 were
called by C.W.42. At that time A1 and A3 and the president of
H
SUBRAMANYA v. STATE OF KARNATAKA 873
[J. B. PARDIWALA, J.]
Panchayath and many other persons were also present. A1 A
and A3 led us to survey No.121 Government land by the side
of the estate of Dinamani and there they told that they are
going to produce the club which has been used for the purpose
of commission of offence and which has been kept in a bush.
Thereafter A1 took out a club from the bush and produced
B
before the police. Now I see the said club which is before the
court. The same is now marked as M.O.9. Thereafter A3 also
went by the side of the bush and from there he produced a
spade. Now I see the said spade. The same is now marked as
M.O.10. Thereafter M.O.9 and 10 were seized by drawing a
mahazar. Now I see the said mahazar. The same is now marked C
as Ex.P-8. Ex.P-8(a) is my signature. The said mahazar was
drawn in between 11 a.m to 11.30 a.m. At the time of drawing
the said proceedings photographs were also taken. Now the
said two photographs are marked as Ex.P-9 and P-10.”
71. For the purpose of proving the discovery of the dead body of D
the deceased at the instance of the appellant herein and the acquitted
co-accused (A-2), the prosecution has relied upon evidence of PW 7
H.T. Yogesh. PW 7 H.T. Yogesh in his examination-in-chief has deposed
as under:
“5. Next day when police and Assistant Commissioner came E
to the spot I was also called there. C.W.2 to 4 were also called.
There A1 and A3 showed the place where they had buried the
body of Kamalamma to us and also to the police and Assistant
Commissioner. Thereafter with the help of P.W.3 the dead body
of Kamalamma was exhumed. The dead body was buried in
survey No.121, the Govt. land by the side of a channel at F
Horabylu. When the body was exhumed it was fully
decomposed. Over the body one petticoat, one blouse were
there. There the Assistant Commissioner draw the body
exhumed mahazar. Now I see the same. The same is already
marked as Ex.P-3. Ex.P-3(b) is my signature. At that time G
photographs were also taken. Now the three photos have been
marked as Ex P-4. Apart from me C.Ws. 2 to 4 and P.W.3 also
signed.
6. On 14.12.2010 again police called me at about 2 p.m. to
the Police Station. In the said police station A1 was also
H
874 SUPREME COURT REPORTS [2022] 14 S.C.R.
A present. Police brought C.W.24 Meeranath and he produced
a mobile. The said mobile was of the deceased Kamalamma.
The same was seized in the presence of C.W.22 and 23 by
drawing a mahazar. Now I see the same. The same is now
marked as Ex.P-12. Ex.P-12(a) is my signature. At that time
photo was also taken. Now the said photo is marked as Ex.P-
B
13. I can identify the mobile if shown to me. The same is already
marked as M.O.4. I do not remember the cell number of my
mother-in law. She has studied upto 4th standard.
7. My mother-in-law used to wear a chain with Ganapathi
pendant which is already marked as M.O.1, one pair of ole
C with blue stone in the middle surrounded by white stones which
is already marked as M.O.2, one gold ring with red stone
which is already marked as M.O.3. I can identify the blouse
and petticoat which were found on the body of the deceased.
(Now one sealed cover is shown to the learned counsel for
D the accused. The seals are found intact. He has no objection
to open the same. The same is now opened). It contains one
blouse and one petticoat. Witness identifies the same. The same
are now marked as M.O.11 and 12.”
72. PW 8 H. M. Ravikanth also as one of the panch-witnesses
has deposed in his examination-in-chief as under:
E
“2. On 11.12.2010 at about 10 a.m. C.P.I. called me, C.W.2
and 3. At that time Assistant Commissioner was also present
and A1 Subramanya and A3 Seetharama Bhat were also
present. From Gadikallu police officials, A.C., A1 and A3
alongwith me and C.W. 2 and 3 we went to the place where
F the body has been buried. A1 took us to the said place where
they had buried the body. After showing the place where they
had buried the body of the deceased by A1 with the help of
P.W.3 and A1 and A3 the body was exhumed and there we
noticed that it is the dead body of Kamalamma. The said body
was fully decomposed and one blouse and one petticoat were
G
found on the dead body. For having exhumed the body a
mahazar was drawn as per Ex.P-3. Ex.P-3(c) is my signature.
There the photographs were also taken about the proceedings.
The said photographs have been already marked as Ex.P-4.
The proceedings was also videographed. Now the said C.D.
H is marked as M.O.13.
SUBRAMANYA v. STATE OF KARNATAKA 875
[J. B. PARDIWALA, J.]
3. Thereafter the inquest mahazar was also drawn over the A
body of the deceased. Now I see the said mahazar. The same
is now marked as Ex.P-14. Ex.P-14(a) is my signature. At the
time of drawing Ex.P-14 C.W.2 and 3 were also present.
4. Thereafter A1 led us to the house of deceased Kamalamma
and took us to the backside door and at a distance of 3 to 4 B
feet he showed the place where he has murdered the deceased
Kamalamma by assaulting. Thereafter A1 took us to a
cattleshed at a distance of 5 to 6 feet and from there he
produced a club. Now I see the said club. The club is marked
as M.O.14. Thereafter accused told that he has kept the
umbrella of deceased in Theerthahalli Kuppalli bus stand C
above the bus shelter. Thereafter A1 led us in a police jeep to
Kuppalli and there after going near the bus stop A1 asked to
stop the jeep. After alighting from the jeep A1 went and took
out the umbrella kept on the roof of the shelter and produced
the same. Now I see the said umbrella. The said umbrella is D
now marked as M.O.15. Now the spot cum seizure mahazar
of club and umbrella is confronted to the witness. He admits
his signature. The same is now marked as Ex.P-15. Ex.P-15(a)
is my signature. The said mahazar has been drawn from 2
p.m. to 4 p.m. At that time A3 was also present. A1 who is
present before the court is the same person who led us and E
produced M.O.14 and 15 and A1 and A3 showed the place
where the dead body has been buried. At the time of mahazar
photographs have been also taken. The said five photos are
marked as Ex.P-16.”
73. PW 9 Somashekhara (Jeweller) in his examination-in-chief F
has deposed as under:
“1. I know A1 when he came to my shop to sell the gold. I am
having a jewellery works at Rippanpet on the road which
leads to Theerthahalli. Police came alongwith A1 on
13.12.2010 at about 7 p.m. Alongwith police A1, C.W.15/ G
Gururaj were also there. I told the police that A1 had come
and sold the gold in my shop. I took the gold from A1 three
and 1/2 months prior to police coming to my shop alongwith
A1. A1 sold one gold chain with Ganapathi pendant, one pair
of ole having blue stone in the middle surrounded by white H
876 SUPREME COURT REPORTS [2022] 14 S.C.R.
A stones and one gold ring with red stone. A1 while selling told
that the said gold articles belong to him, as he is having
financial difficulties in the family and he is also constructing
a house, for that reason he is selling the same. I paid
Rs.27,500/- to the accused for having purchased. Police asked
me to return the said articles. Accordingly I returned and the
B
same were seized by the police. C.W.15 appraised the gold
articles and thereafter certified them. At the time when the
gold articles were seized it was valuing Rs.47,000/-. Now I
see the said mahazar. The same is already marked as Ex.P-1.
Ex.P-1(b) is my signature. Myself, C.W.l3, C.W.15 and P.W.2
C have signed Ex.P-1. The said mahazar has been drawn from
7 p.m. to 8.30 p.m. I can identify the said gold articles which
have been seized under Ex.P-1. They have been already
marked as M.Os. 1 to 3. At the time of seizing M.Os. 1 to 3
police also took photographs. The same are already marked
as Ex.P-2.”
D
74. PW 10 Ravi Shetty (one of the panch-witnesses) to the
recovery of mobile, in his examination-in-chief has deposed as under:
“2. On 14.12.2010 myself, C.W.23 and 24 were called to the
Police Station at about 1.30 p.m. P.W.7 was also present.
E C.W.24 produced the mobile which had been sold by A1 to
him. The said mobile has been seized by drawing a mahazar
as per Ex.P-12. Ex.P-12(b) is my signature. M.O.4 is the same
mobile which was produced on that day. When the said
proceedings took place photographs were also taken. Now I
see the said photographs. They have been already marked as
F Ex.P-13.”
75. PW 19 T. Sanjeeva Naik is the Investigating Officer. In his
examination-in-chief, he has deposed as under:
“2. On 10.12.2010 at about 1.30 p.m. I received the case file
G and took the further investigation of this case from P.W.17
and perused the investigation done by him. Immediately I
deployed P.S.I. and other staff to trace about the accused.
C.W. 36, 37 brought A1 and produced before me at about 9
p.m. with a report. Now I see the said report. The same is now
marked as Ex.P-26. Ex.P-26(a) is my signature, C.w.34 and
H 35 also informed that they have apprehended A2 and secured
SUBRAMANYA v. STATE OF KARNATAKA 877
[J. B. PARDIWALA, J.]
and produced before me with a report at about 9 p.m. Now I A
see the said report. The same is now marked as Ex.P-27. Ex.P-
27(a) is my signature. P.W.17 and C.W.38 apprehended A3
and produced before me at about 9 p.m. on the same day with
a report. The report has been already marked as Ex.P-23.
Ex.P-23(b) is my signature. Immediately I interrogated the
B
accused persons and recorded their voluntary statement. A1
volunteered that he had committed the murder of deceased
Kamalamma and to produce the club, mobile, spade, another
club which had been used for transportation of dead body
and the ornaments which were taken over from the dead body.
Now the relevant portion the voluntary statement of A1 is C
marked as Ex.P-28. Ex.P-28(a) is my signature. A2 and A3
also volunteered to show the place where they had buried the
dead body. The said voluntary statements have been recorded
in the presence of C.W.2, 3 and P.W.8. I also sent immediately
a requisition to P.w.15 to come as a Sub-Divisional Magistrate
D
to exhume the body of deceased Kamalamma.
3. On 11.12.2010 P.W. 15 in the presence of panch witnesses
as shown by A1 and A3 he exhumed the body of deceased in
the presence of P.W.7, P.W.8, P.W.3, C.W.2 and 3. For having
exhumed the body a mahazar was also drawn as per Ex.P-3.
Ex. P-3(e) is my signature. There the photographs were taken E
as per Ex.P-4. In the presence of above said panch witnesses
I also drew the inquest mahazar as per Ex.P-14. Ex.P- 14(b)
is my signature. At the time of inquest I recorded the statement
of C.W.5, 6, P.W.1, C.W.8, P.W.2, C.W.10, P.W.3 and C.W.12.
Thereafter through C.W.39 I sent the body to Govt. Hospital, F
Koppa for post-mortem with a requisition. I also requested to
collect the material to send for D.N.A. test from the body.
Subsequently A1 led us and showed the place where he has
committed the offence and there in the presence of C.W. 2, 3
and P.W.8 I drew the spot cum seizure mahazar as per Ex.P-
15. ExP-15(b) is my signature. At the time of drawing Ex.P- G
15 he also produced M.O.14. Thereafter he led us to Kuppalli
bus stop and there he produced the umbrella from the shelter
of the said bus stand. The umbrella is already marked as
M.O.15. I seized M.O.15 under Ex.P-15. I also took the
photographs of· the proceedings. The said five photographs H
878 SUPREME COURT REPORTS [2022] 14 S.C.R.
A have been marked as Ex.P-16. Thereafter I came back
alongwith accused and seized articles and subjected the
seized articles to P.F.No.73/2010. I also produced A1 and A3
before the court and took them to police custody. I produced
A2 before the court with remand application.
B 4. On 13.12.2010 I secured P.W.2, C.W.13 and C.W.15.
Thereafter A1 led us to Rippanpet to the Someshwara Jewellery
works shop i.e., the shop of P.W.9. A1 asked P.W.9 to produce
M.Os. 1 to 3. As per the request of the accused he produced
M.Os. 1 to 3 which has been pledged with him. He produced
M.Os. 1 to 3 and I seized them by drawing a mahazar as per
C Ex.P-1. Ex.P-1(c) is my signature. I also took the photographs
as per Ex.P-2. I have also videographed the said proceedings.
I came back to the Police Station with seized property and
subjected the seized articles to P.F.No.74/2010. I also recorded
the statement of P.W.9 and C.W.15. I also kept A1 in police
D custody.
5. On 14.12.2010 I secured P.W.4 and C.w.17 and thereafter
A3 led us to his house at Kiranakere and there he produced
the M.O. 5 and 6 and there I seized them by drawing a mahazar
as per Ex.P-5. Ex.P-5(b) is my signature. I also took the
E photographs. Now I see the said two photographs. The same
are now marked as Ex.P-29. There I secured P.W.5 and C.W.19
and thereafter A1 led us to the house of A2 and from the
firestag he produced M.O.7 and 8 and there I seized them by
drawing a mahazar as per Ex.P-6. Ex.P-6(b) is my signature.
I also took the photographs as per Ex.P-7. Thereafter A1 and
F A3 led us to the place where they have hidden M.O.9 and 10
and they went near the side of bush at Government land Survey
No.121 at Hirekodige village and by going inside the bush
A1 produced M.O.9 and A3 produced M.O.10. The same were
seized by drawing a mahazar as per Ex.P-8. Ex.P-8(b) is my
G signature. There I also took the photographs as per Ex.P-9
and P-10. Thereafter I came back to the Police Station
alongwith A1 and A3 and seized articles and subjected the
seized articles to P.F.No.75/2010 to 77/2010. On the same
day, as per my direction my constable C.W.36 secured P.W.16
to the Police Station. I secured P.W.10 and C.W.23 and P.W.16
H
SUBRAMANYA v. STATE OF KARNATAKA 879
[J. B. PARDIWALA, J.]
produced the mobile M.O.4 which is said to have been sold A
by A1 to him and the same was seized by drawing a mahazar
as per Ex.P-12. Ex.P-12(d) is my signature. PW.16 also
identified A1 by saying that he is the person who sold M.O.4
to him. At the time of proceedings P.W.7 was also present. I
also took the photographs as per Ex.P-13. Thereafter I
B
subjected M.O.4 to P.F.No.78/2010. I also recorded the
statement of P.W.16, further statement of C.W.5, C.W.6, P.W.1,
C.W.8 and C.W.25. I also produced A1 and A3 before the
court with remand application.”
76. Keeping in mind the aforesaid evidence, we proceed to consider
whether the prosecution has been able to prove and establish the C
discoveries in accordance with law. Section 27 of the Evidence Act
reads thus:
“27. How much of information received from accused may
be proved.—
D
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.” E
77. 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. F
78. 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 G
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 H
880 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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
B
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
C 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
D
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.
79. In the aforesaid context, we may refer to and rely upon the
E decision of this Court in the case of Murli and Another v. State of
Rajasthan reported in (2009) 9 SCC 417, held as under:
“34. The contents of the panchnama are not the substantive
evidence. The law is settled on that issue. What is substantive
evidence is what has been stated by the panchas or the person
F concerned in the witness box.……”
[Emphasis supplied]
80. One another serious infirmity which has surfaced is in regard
to the authorship of concealment by the person who is said to have
discovered the weapon.
G
81. The conditions necessary for the applicability of Section-
27 of the Act are broadly as under:--
(1) Discovery of fact in consequence of an information
received from accused;
H
SUBRAMANYA v. STATE OF KARNATAKA 881
[J. B. PARDIWALA, J.]
(2) Discovery of such fact to be deposed to; A
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctly to the fact
thereby discovered is admissible – Mohmed Inayatullah B
v. The State of Maharashtra: AIR (1976) SC 483
Two conditions for application: –
(1) information must be such as has caused discovery of
the fact; and
C
(2) information must relate distinctly to the fact discovered
- Earabhadrappa v. State of Karnataka: AIR (1983) SC
446.
82. We may refer to and rely upon a Constitution Bench decision
of this Court in the case of State of Uttar Pradesh v. Deoman D
Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph 71
explains the position of law as regards the Section 27 of the Evidence
Act:
“71. The law has thus made a classification of accused persons
E
into two: (1) those who have the danger brought home to
them by detention on a charge; and (2) those who are yet
free. In the former category are also those persons who
surrender to the custody by words or action. The protection
given to these two classes is different. In the case of persons
belonging to the first category the law has ruled that their F
statements are not admissible, and in the case of the second
category, only that portion, of the statement is admissible as
is guaranteed by the discovery of a relevant fact unknown
before the statement to the investigating authority. That
statement may even be confessional in nature, as when the
G
person in custody says: “I pushed him down such and such
mineshaft”, and the body of the victim is found as a result,
and it can be proved that his death was due to injuries received
by a fall down the mineshaft.”
[Emphasis supplied]
H
882 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 83. The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR
1947 PC 67, which have become locus classicus, in the following words:
“10. ….It is fallacious to treat the “fact discovered” within
the section as equivalent to the object produced; the fact
B discovered embraces the place from which the object is
produced and the knowledge of the accused as to this, and
the information given must relate distinctly to this fact.
Information as to past user, or the past history, of the object
produced is not related to its discovery in the setting in which
C it is discovered. Information supplied by a person in custody
that “I will produce a knife concealed in the roof of my house”
does not lead to the discovery of a knife; knives were
discovered many years ago. It leads to the discovery of the
fact that a knife is concealed in the house of the informant to
his knowledge, and if the knife is proved to have been used
D
in the commission of the offence, the fact discovered is very
relevant. But if to the statement the words be added “with
which I stabbed A” these words are inadmissible since they
do not relate to the discovery of the knife in the house of the
informant.”
E
84. What emerges from the evidence of the investigating officer
is that the accused appellant stated before him while he was in custody,
“I may get discovered the murder weapon used in the incident”.
This statement does not indicate or suggest that the accused appellant
indicated anything about his involvement in the concealment of the
F
weapon. It is a vague statement. Mere discovery cannot be interpreted
as sufficient to infer authorship of concealment by the person who
discovered the weapon. He could have derived knowledge of the
existence of that weapon at the place through some other source also.
He might have even seen somebody concealing the weapon, and,
G therefore, it cannot be presumed or inferred that because a person
discovered the weapon, he was the person who had concealed it, least it
can be presumed that he used it. Therefore, even if discovery by the
appellant is accepted, what emerges from the substantive evidence as
regards the discovery of weapon is that the appellant disclosed that he
H would show the weapon used in the commission of offence.
SUBRAMANYA v. STATE OF KARNATAKA 883
[J. B. PARDIWALA, J.]
85. In Dudh Nath Pandey v. State of U.P., AIR (1981) SC 911, A
this Court observed that the evidence of discovery of pistol at the instance
of the appellant cannot, by itself, prove that he who pointed out the
weapon wielded it in the offence. The statement accompanying the
discovery was found to be vague to identify the authorship of concealment
and it was held that pointing out of the weapon may, at the best, prove B
the appellant’s knowledge as to where the weapon was kept.
86. Thus, in the absence of exact words, attributed to an accused
person, as statement made by him being deposed by the investigating
officer in his evidence, and also without proving the contents of the
panchnama, the High Court was not justified in placing reliance upon the C
circumstance of discovery of weapon.
87. In the aforesaid context, we may also refer to a decision of
this Court in the case of Bodhraj alias Bodha and Others v. State of
Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
D
“18. …..It would appear that under Section 27 as it stands in
order to render the evidence leading to discovery of any fact
admissible, the information must come from any accused in
custody of the police. The requirement of police custody is
productive of extremely anomalous results and may lead to
E
the exclusion of much valuable evidence in cases where a
person, who is subsequently taken into custody and becomes
an accused, after committing a crime meets a police officer
or voluntarily goes to him or to the police station and states
the circumstances of the crime which lead to the discovery of
the dead body, weapon or any other material fact, in F
consequence of the information thus received from him. This
information which is otherwise admissible becomes
inadmissible under Section 27 if the information did not come
from a person in the custody of a police officer or did come
from a person not in the custody of a police officer. The G
statement which is admissible under Section 27 is the one
which is the information leading to discovery. Thus, what is
admissible being the information, the same has to be proved
and not the opinion formed on it by the police officer. In other
words, the exact information given by the accused while in
H
884 SUPREME COURT REPORTS [2022] 14 S.C.R.
A custody which led to recovery of the articles has to be proved.
It is, therefore, necessary for the benefit of both the accused
and the prosecution that information given should be recorded
and proved and if not so recorded, the exact information must
be adduced through evidence. The basic idea embedded in
B Section 27 of the Evidence Act is the doctrine of confirmation
by subsequent events. The doctrine is founded on the principle
that if any fact is discovered as a search made on the strength
of any information obtained from a prisoner, such a discovery
is a guarantee that the information supplied by the prisoner
is true. The information might be confessional or non-
C inculpatory in nature but if it results in discovery of a fact, it
becomes a reliable information. It is now well settled that
recovery of an object is not discovery of fact envisaged in
the section. Decision of the Privy Council in Pulukuri
Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA
D 65] is the most-quoted authority for supporting the
interpretation that the “fact discovered” envisaged in the
section embraces the place from which the object was
produced, the knowledge of the accused as to it, but the
information given must relate distinctly to that effect. (See State
E of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269
: 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the
information permitted to be admitted in evidence is confined
to that portion of the information which “distinctly relates to
the fact thereby discovered”. But the information to get
admissibility need not be so truncated as to make it insensible
F or incomprehensible. The extent of information admitted
should be consistent with understandability. Mere statement
that the accused led the police and the witnesses to the place
where he had concealed the articles is not indicative of the
information given.”
G
[Emphasis supplied]
88. Mr. V.N. Raghupathy, the learned counsel for the State would
submit that even while discarding the evidence in the form of various
discovery panchnamas the conduct of the appellant herein would be
H relevant under Section 8 of the Evidence Act. The evidence of discovery
SUBRAMANYA v. STATE OF KARNATAKA 885
[J. B. PARDIWALA, J.]
would be admissible as conduct under Section 8 of the Evidence Act A
quite apart from the admissibility of the disclosure statement under Section
27 of the said Act, as this Court observed in A.N. Venkatesh and Another
v. State of Karnataka, (2005) 7 SCC 714:
“9. By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct influences or B
is influenced by any fact in issue or relevant fact. The evidence
of the circumstance, simpliciter, that the accused pointed out
to the police officer, the place where the dead body of the
kidnapped boy was found and on their pointing out the body
was exhumed, would be admissible as conduct under Section C
8 irrespective of the fact whether the statement made by the
accused contemporaneously with or antecedent to such
conduct falls within the purview of Section 27 or not as held
by this Court in Prakash Chand v. State (Delhi Admn.) [(1979)
3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if
D
we hold that the disclosure statement made by the accused-
appellants (Exts. P-15 and P-16) is not admissible under
Section 27 of the Evidence Act, still it is relevant under Section
8…..”
[Emphasis supplied] E
89. In the aforesaid context, we would like to sound a note of
caution. Although the conduct of an accused may be a relevant fact
under Section 8 of the Evidence Act, yet the same, by itself, cannot be a
ground to convict him or hold him guilty and that too, for a serious offence
like murder. Like any other piece of evidence, the conduct of an accused F
is also one of the circumstances which the court may take into
consideration along with the other evidence on record, direct or indirect.
What we are trying to convey is that the conduct of the accused alone,
though may be relevant under Section 8 of the Evidence Act, cannot
form the basis of conviction. G
MOTIVE
90. The High Court has relied upon the strong motive for the
appellant convict to commit the crime as one of the incriminating
circumstances. H
886 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 91. In the case of Sampath Kumar v. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this Court held
as under:
“29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004 SCC
(Cri) Supp 85] the prosecution case was based entirely upon
B circumstantial evidence and a motive. Having discussed the
circumstances relied upon by the prosecution, this Court
rejected the motive which was the only remaining circumstance
relied upon by the prosecution stating that the presence of a
motive was not enough for supporting a conviction, for it is
C well settled that the chain of circumstances should be such as
to lead to an irresistible conclusion, that is incompatible with
the innocence of the accused.
30. To the same effect is the decision of this Court in Santosh
Kumar Singh v. State [(2010) 9 SCC 747 : (2010) 3 SCC (Cri)
D 1469] and Rukia Begum v. State of Karnataka [(2011) 4 SCC
779 : (2011) 2 SCC (Cri) 488 : AIR 2011 SC 1585] where this
Court held that motive alone in the absence of any other
circumstantial evidence would not be sufficient to convict the
appellant. Reference may also be made to the decision of this
E Court in Sunil Rai v. UT, Chandigarh [(2011) 12 SCC 258 :
(2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] . This Court
explained the legal position as follows: (Sunil Rai case [(2011)
12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] ,
SCC p. 266, paras 31-32)
F “31. … In any event, motive alone can hardly be a ground
for conviction.
32. On the materials on record, there may be some suspicion
against the accused, but as is often said, suspicion, howsoever
strong, cannot take the place of proof.”
G
31. Suffice it to say although, according to the appellants the
question of the appellant Velu having the motive to harm the
deceased Senthil for falling in love with his sister, Usha did
not survive once the family had decided to offer Usha in
H matrimony to the deceased Senthil. Yet even assuming that
SUBRAMANYA v. STATE OF KARNATAKA 887
[J. B. PARDIWALA, J.]
the appellant Velu had not reconciled to the idea of Usha A
getting married to the deceased Senthil, all that can be said
was that the appellant Velu had a motive for physically
harming the deceased. That may be an important circumstance
in a case based on circumstantial evidence but cannot take
the place of conclusive proof that the person concerned was B
the author of the crime. One could even say that the presence
of motive in the facts and circumstances of the case creates a
strong suspicion against the appellant but suspicion,
howsoever strong, also cannot be a substitute for proof of
the guilt of the accused beyond reasonable doubt.”
C
[Emphasis supplied]
92. Thus, even if it is believed that the accused appellant had a
motive to commit the crime, the same may be an important circumstance
in a case based on circumstantial evidence but cannot take the place as
a conclusive proof that the person concerned was the author of the D
crime. One could even say that the presence of motive in the facts and
circumstances of the case creates a strong suspicion against the accused
appellant but suspicion, howsoever strong, cannot be a substitute for
proof of the guilt of the accused beyond reasonable doubt. The trial
court rightly disbelieved motive to commit the crime as the evidence in E
this regard is absolutely hearsay in nature.
93. The fact that we have ruled out the circumstances relating to
the making of an extra judicial confession and the discovery of the weapon
of offence etc. as not having been established, the chain of circumstantial
evidence snaps so badly that to consider any other circumstance, even F
like motive, would not be necessary.
94. Thus, in view of the aforesaid discussion, we have reached to
the conclusion that the evidence of discovery of the weapon, clothes
and dead body of the deceased at the instance of the appellant convict
G
herein can hardly be treated as legal evidence, more particularly,
considering the various legal infirmities in the same.
95. For all the foregoing reasons, we have reached to the
conclusion that the High Court committed error in holding the appellant
convict herein guilty of the offence of murder. H
888 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 96. In the result, this appeal succeeds and is hereby allowed. The
impugned judgment and order of conviction passed by the High Court is
hereby set aside.
97. The appellant convict shall be set at liberty forthwith, if not
required in any other case.
B
98. Pending application, if any, also stands disposed of.
Ankit Gyan Appeal allowed.
(Assisted by : Rakhi, LCRA)
C
D
E
F
G
H
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