Dismissed

State of Karnataka, v. Devaraj Narayan Naik

Karnataka HC17 Aug 2020CRL.A/100327/2016

Case brief

AI extract

What is this about?

State appeal against acquittal of the accused under Section 302 IPC in a case resting entirely on circumstantial evidence, including seizure of a cap with hair, DNA and FSL reports, recovery pursuant to a voluntary statement and an extra-judicial confession. Reappreciating the evidence, the High Court found no legal infirmity or perversity in the acquittal and dismissed the appeal.

What the court decided

AI extract

State of Karnataka, Vs Devaraj Narayan Naik — Murder and Culpable Homicide | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF AUGUST, 2020

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PRESENT

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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CRL.APPEAL NO.100327/2016

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BETWEEN:

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STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB-INSPECTOR, SIDDAPUR POLICE STATION, UTTAR KANNADA THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA DHARWAD BENCH.

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…..APPELLANT

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(BY SRI.V.M. BANAKAR, ADDL.SPP.)

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AND:

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DEVARAJ NARAYAN NAIK AGE: 29 YEARS, OCC: AGRICULTURIST, R/O: HUSUR, HALAGERI VILLAGE, SIDDAPUR.

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…..RESPONDENT (BY SRI.LAXMAN T. MANTAGANI, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C. PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 21.05.2016 PASSED BY THE LEARNED DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN SESSIONS CASE NO.14/2012, TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL

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DATED 21.05.2016 PASSED BY THE LEARNED DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN SESSIONS CASE NO.14/2012 AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS APPEAL IS COMING ON FOR HEARING THIS DAY, V. SRISHANANDA, J, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the State being aggrieved by the judgment dated 21.05.2016 passed by District and Sessions Jugde, Uttara Kannada, Karwar (for short Sessions Court) in S.C. No.14/2012, wherein the accused is acquitted from the charges leveled against him under Section 302 of IPC.

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The brief facts which are necessary for the disposal of the appeal are as under :

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2.1 The accused is a resident of Husur of Halageri village and living in the adjacent house of the deceased Smt. Devamma aged lady about 70 years and the accused was often troubling her unnecessarily thinking that her son had made black magic and Devamma some how wanted to finish him and thus the accused had

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developed ill will against Devamma. On 27/9/2011, at about 6.15 a.m. the accused, with an intention to cause her death assaulted on her neck by means of a sharp edged knife and the murderous assault resulted in her death.

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2.2 The son of the deceased namely Janardhan Naik when learnt about the incident immediately rushed to the house where the deceased was staying and saw her lying in the courtyard of the house in a pool of blood and immediately informed the police and later lodged a complaint as per Ex.P1.

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2.3 The FIR registered in Crime No.0155 on 27.09.2011 and the FIR was filed with the learned Jurisdictional Magistrate on 27.09.2011.

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The Jurisdictional Police after completing the investigation filed charge sheet against the accused on 18.10.2013.

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4 The learned Jurisdictional Magistrate upon

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charge sheet being filed by the Police against the accused, and on securing the presence of the

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accused/respondent has committed the case for trail to the District and Sessions Judge, Uttara Kannada, Karwar, after complying with the provisions of Section 207 of Criminal Code of Procedure.

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The Sessions Court after hearing the prosecution and the accused has framed charge against the accused-respondent for the offences punishable under Section 302 of IPC. The respondent-accused, when the charge was read over, pleaded not guilty and claimed to be tried.

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The prosecution to prove the case against the respondent examined 19 witnesses as PW1 to 19.

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PW1 : Janardhan S/o Rama Naik is the complainant, who registered the complaint before the Police as Ex.P1. He is residing in Kondli Maribail with his wife and children.

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PW2 : Bhaskar Krishna Naik is the mahazar witness to Ex.P2.

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PW3 : Ramachandra M. Naik is the mahazar witness to Ex.P7.

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PW4 : Umesh Mohan Naik is the mahazar witness to Ex.P8 to 11.

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PW5 : Keshav Hucharaya Naik is the mahazar witness to Ex.P14.

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PW6 : Laxmi Veerabhadrappa Naik is the mahazar witness to Ex.P6

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PW7 : Lokesh Ganapati Naik is a neighbour of deceased Devamma

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PW8 : Mainavati w/o Lokesh Naik is another neighbour of deceased Devamma

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PW9 : Ganapati Keriya Naik is also a neighbour of deceased Devamma

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PW10 : Mohan Rama Naik is another son of deceased Devamma and younger brother of complainant PW1.

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PW11 : Ramachand Bomma Naik is known person to deceased Devamma and was working in Forest Department

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PW12 : Bhagirati D/o. Ramachandra Naik, is the person who was engaged to marry the accused, and their engagement was fixed.

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PW13 : Raghavendra Jattya Gouda is circumstantial witness, who deposed about the purchase of a battery by the accused.

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PW14 : Anees Ahammad Muzavar is working as Police Sub Inspector in Siddapur Police Station

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PW15 : Dr.Laxmikanth Narayan Naik is working as Medical Officer on deputation

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PW16 : Dr.Rajesh Ravalu Naik is the Doctor working as Medical Officer at Taluk Hospital, Siddapur.

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PW17 : Mahabaleshwar Timma Naik is also another circumstantial witness. According to prosecution, accused called him on his is mobile handset from the mobile telephone of accused. He has turned hostile.

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PW18 : V.S. Halamurthy Rao is the Circle Inspector, of Siddapur Urban Police Station.

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PW19 : Dr. L. Purushottam. Medical Officer, D.N.A. Centre.

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The prosecution has relied upon Exs.P1 to P42 which include the complaint (Ex.P1) lodged by the son of the deceased, Spot panchanama, Photos (Ex.P3 to 5), Rough Sketch (Ex.P6), cloth seizure panchanama (Ex.P7), Panchanamas (Ex.P8 to 11), Photos(Ex.P12 and 13), Copy of panchanamas (Ex.P14 and 15), Inquest panchanama (Ex.P16), Portion of statement of PW7 (Ex.P17), Further statement of PW7 (Ex.P18), Portion of statement of PW8(Ex.P19), Portion of statements of PW11 (Ex.P20 and 21), Portion of statements of PW12 (Ex.P22 and 22a) Portion of statements of PW13 (Ex.P23), FIR (Ex.P24), P.M. Report ((Ex.P25), Copy of letter of Medical Officer (Ex.P26), Blood group report copy (Ex.P27), Letter of Investigating Officer (Ex.P28), Opinion report (Ex.P29), Letter dated 24/10/2011 to MO Siddapur (Ex.P30), Blood sample collection form (Ex.P31), Copy of Statement of PW.17(Ex.32), Sketch (Ex.P33), Call details statement (Ex.P34), Call details statement (Ex.P35), House tax assessment abstract (Ex.P36), Voluntary statement of accused (Ex.P37),

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Forwarding letter (Ex.P38), Letter of PW16 (Ex.P39), FSL Report (Ex.P40), Letter to JMFC for blood sample collection (Ex.P41), DNA report (Ex.P42),

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The respondent has got marked certain portions of the statement made in the complaint as Exs.D.1 and D.2. The respondent, in his statement under Section 313 of Cr.P.C, has denied the evidence against him, but has not led any evidence.

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The Sessions Court, on appreciation of the evidence on record, has acquitted the accused holding that the evidence on record are not sufficient to bring home the guilt of the accused.

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It is that judgment which is under challenge in this appeal.

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The learned Additional State Public Prosecutor in support of the appeal argued that the Sessions Court has not properly considered the oral testimony of PW1 and 10 who have specifically deposed about the ill will between the deceased and the accused in respect of a

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landed property. He also argued that the oral testimony of PW9 is totally ignored by the Sessions Court, wherein he has stated that the accused has confessed the act on 28.09.2011 at about 10.30 a.m., by calling him on his mobile No.8861649691 from his mobile telephone No.8105102018. The Sessions Court has also not considered the DNA report in proper perspective, wherein his hair found on the woolen cap is tallied with that of hairs of the accused. The woolen cap is seized from the place of incident. Absolutely, no explanation is forthcoming as to why MO1-cap found in the place of incident.

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Learned Additional State Public Prosecutor also drew the attention of this court at Ex.P40 which is FSL report, wherein there is a finding that there was blood stains on clothes worn by the accused and the blood stained weapon and the said blood stains tallied with the sample blood of the deceased. No explanation is forthcoming in this regard and as such, the Sessions

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court ought to have convicted the accused and therefore, prayed for allowing the appeal.

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Per contra, learned counsel for the respondent-accused contended that the entire case of the prosecution rests on the circumstantial evidence, but, there is no cogent evidence on record to establish the circumstances narrated by the prosecution. He further pointed out that mere recovery of MO1-cap, FSL report vide Ex.P40 and DNA report vide Ex.P42 would not ifso facto establish the case of the prosecution. He further pointed out that at the time of accused’s statement is recorded under Section 313 of Cr.P.C., the accused has furnished his written submission, and Sessions Court while considering the case in toto, has given its anxious consideration to the accused’s statement as well and acquitted the accused. Therefore, the appeal needs to be dismissed.

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In view of rival contentions urged by the parties, the points that would arise for our consideration are :

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1. Whether the prosecution has proved that on 27.09.2011 at about 6.15 a.m. accused assaulted Smt. Devamma on her neck with MO11 and thus committed the act punishable under Section 302 of IPC?

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2. If so, whether the impugned judgment needs interference?

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Answer to the above points are in the negative for the following :

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REASONS

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PW1 is the complainant. He deposed that he received a call around 6.30 a.m. from PW7-Lokesh Ganapati Naik-PW9 of Husur village stating that around 6.15 a.m. Devamma screamed as “mane halagali” and then came to the courtyard and died when he and his wife reached Husur village around 8.00 a.m., they noticed his mother in supine position and there was blood injury on the neck and injury appeared to be pierced blood injury on the neck. Immediately they informed Siddapur

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Police Station and his relatives. The Police visited the place around 10.00 a.m. and PW1 gave the complaint. In the complaint he has also stated that his mother living in the family home at Husur village alone and looking after the family properties and somebody used a sharp edged weapon to cause injury on her neck. He further deposed that the Police conducted investigation, shifted the dead body and also conducted spot mahazar and collected sample mud and blood stained mud from the spot. They sent dead body for post mortem examination. The Police while investigating the case of the death, have seen a cap the electric pole, on the way to their garden land and they also found few hairs in the cap and Police seized the same. He identified the cap and the hairs as MO1 and 2 and the mahazar as Ex.P2 and photographs as Ex.P3 to 5. It is his further case that on 28.09.2011, he came to know from one Ganapati that he received a call from a certain Devaraju who confessed that he has committed the murder of Devamma. He further deposed that said Devaraju referred to by Ganapati is none other than his

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cousin (his junior uncle’s son). He has identified Devaraju (the accused) before the Court. He has also stated in his evidence that there is dispute as to a landed property and accused used to repeatedly demand share in the landed property; about 8 days earlier to the incident he demanded a share in such landed property from the deceased.

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This witness (PW1) has further stated that on 06.10.2011, he came to know that the Police had arrested the accused, and accordingly he visited Siddapur Police Station and came to know that it is the accused who has committed the murder of his mother, Devamma.

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In his cross examination, he answered that Husur is situated 11 k.m. from Kondli village and the deceased used to stay in Husur alone. It is further elicited that house of the accused is 1 km away from the house of deceased and house of Lokesh-PW7 is situated close by to the house of deceased. He has answered that his junior uncle Gopal Naik’s house is situated about 1½ km from the house of deceased. The second son of Gopal

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Naik was working as Police Inspector in Shivamogga in the year 2011.

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He admits that accused’s father is a farmer and he is engaged in sericulture business. Since 1987, accused was supporting his father in the business and they had business at Bangalore also. He admits that since 1960, his father and his father’s brother are enjoying the property separately. He admits that there was no criminal case or civil cases between the accused and his mother. He admits that on 27.09.2011, his junior uncle-Gopal Naik has not visited the place of incident but about 8 to 10 people were present. He admits that CW15 Ganapati (PW9) Naik was also present at the spot. He further admits that on 27.09.2011 at about 3.00 p.m., a dog squad also visited the spot and Deputy Superintendent of Police and Circle Inspector were present. He has answered that Narayan Khanna Naik is the scribe of Ex.P1. He admits that on 26.09.2011 at about 10.30 p.m. there was a quarrel between his junior uncle Gopal Naik and the accused.

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He admits that on 03.10.2011 few trees were fell in the garden land. In that regard, Gopal Naik had complained to the Police on 04.10.2011 against the accused and he saw the accused on 05.10.2011 in Siddapur Police Station. He admits that usually in Dasara festival there will be harvesting of areca nut, to peel the skin of the areca nut a sharp edged implement is used. He has denied the suggestion that Devamma accidentally fell on the said implement and sustained injuries on the neck and died. He denied that they have foisted false case against the accused.

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PW2 is the one of mahazar witness to Ex.P2. Under which MO3 and 4 were seized. He supported the prosecution’s case in respect of Ex.P2, but did not support the case of prosecution for Ex.P7 wherein the clothes and the hair of accused were seized. As such, he was treated hostile in respect of Ex.P7 and suggested that he was present at the time of Ex.P7 and witnessed seized of MO1 and hair MO2. He has further denied that he witnessed seizure of MO5 to 9 in Ex.P7. In cross

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examination by defence, he admits that he did not go inside the house of Devamma and he had seen the raw areca nut peels and dust in the court yard of Devamma’s house.

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Another mahazar witness to Ex.P2 and P7 is Ramachandra, who is examined as PW3. He has not support the case of the prosecution. He is treated as a hostile witness and the contents of Ex.P2 and P7 are suggested him, and he has denied that he has witnessed seizure of articles-MO5 to 9 as per Ex.P2 and P7.

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Mahazar witness to Ex.P8 to 11 is one Umesh, who is examined as PW4. He has deposed that he participated in drawing mahazar, Ex.P8 to 11, at the request of Police. He has supported the case of prosecution and stated that when mahazar as Ex.P8 to 11 were drawn, accused was in the custody of the Police. The accused said he would produce the cycle, knife and the liquor bottle and as such, Police took all of them and accused showed the place where he kept knife and cycle and also blood stained clothes. The Police seized all of

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them and drafted Ex.P8 to 11. The witness has also deposed about the seizure of the accused’s shirt, banyan and pant which belong. There were blood stains on them and empty liquor bottle was also seized by the Police and drafted Ex.P11-mahazar. In cross examination he identified before court the knife as MO11 and clothes worn by the accused as MO11 to 14, and he also identified the liquor bottle as MO15.

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In cross examination, he admits that he is born at Kondli village so also the complainant. He admits that house of the complainant is situated at ½ km from his house and Police Station situated around 3 kms. The suggestion made to him that he is having a close acquaintance with complainant and with Police, but he has denied such suggestion. He admits that except himself and Mahathma no other persons have signed on the panchanama drafted by the Police.

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PW5 is one Keshava. He deposed that he participated in panchanama proceedings as per request of the Police. Thereafter they have proceeded to house of

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one Jattu gouda and there he has enquired Jattu Gouda and one person came from inside the house and brought one battery and that was seized by the Police. Thereafter they have searched for the mobile telephone but they could not get the mobile phone and the Police have drafted mahazar and he has signed on the said mahazar. He has further deposed that he has signed Ex.P14 and 15.

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In his cross examination the suggestion made to him that he has acquaintance with Gopal Naik and as such deposed falsely denied by him.

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Inquest mahazar is Ex.P16. Laxmi is the mahazar witness to Ex.P16, who is examined as PW6. She has not supported the case of the prosecution. In her cross examination she admits that she does not know the reason for death of Devamma.

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PW7 is one Lokesh, and is a neighbour of Devamma. He has deposed that he acquainted with complainant and the accused. It is his case that about 1 year 4 months earlier to the date of deposition, he had

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been to attend nature call, he heard a loud scream and accordingly, he went to his home and he himself and his wife visited the house of Devamma. He saw Devamma lying in prone position with blood injuries, and other visitors and B.G. Naik stayed back in the place of incident.

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Mainavati is the wife of PW7. She is examined as PW8. She has also deposed at length in examination chief. She has not supported the case of prosecution in entirety. No useful materials are elicited in the cross examination by the prosecution. In her cross examination by the defence, she admits that her house is situated about 2 km away from the house of accused.

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One Ganapati Naik is examined as PW9. He deposed that his wife possess mobile telephone bearing No.8861649691 and he is using the same.

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He further deposed that he is acquainted with complainant and his brother and also with the accused and their brothers as well as the deceased Devamma. It is his case that on 27.09.2011 in the morning hours, his

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neighbors intimated that Devamma is murdered and accordingly, he also visited and saw the dead body on 28.09.2011. At about 10.30 a.m. accused had telephoned him and confessed that he has killed Devamma and he was calling from Bangalore. It is his case that the said information was passed over to the other children of Devamma in the afternoon.

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In the cross examination by the defence, he admits that he is a mason by profession. The complainant and another son of Devamma by name Mohan are also masons. He admits that Mohan is his close friend. He admits that apart from agricultural work he and accused and his father are engaged in Sericulture business. He also admits that he does not know the accused’s mobile number. He denies the suggestions that the accused had not called him and on his wife’s mobile telephone. He has denied having given false evidence to complainant.

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Mohan is examined as PW10. He is a brother of the complainant and CW17 Sadashiva. He has

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deposed that the accused is his cousin. On receipt of information about the death of his mother, he visited the place of incident and saw the dead body. He also deposed about extra judicial confession made by the accused to Ganapati. He deposed that there was enmity nurtured by the accused from the beginning against their family.

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In cross examination, he has deposed that the Police enquired him about the incident and also about the possible suspects about the incident when his statement was recorded on 27.09.2011 and 28.09.2011. He has deposed that he was not present when his elder brother lodged the complaint, and he has denied having given false evidence.

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Ramachandra is examined as PW11. He did not support the case of prosecution. One Bhagirati daughter of Ramachandra is examined as PW12. She has also not supported the case of the prosecution. One Raghavendra another witness, is examined as PW13. It is

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stated that he had negotiated for purchase of battery, but he has not supported the case of prosecution.

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The Police Sub Inspector is examined as PW14. He has received the complaint and registered the case, visited the spot and conducted the investigation and spot mahazar and handed over further investigation. In his cross examination, he has answered that he has received complaint over telephone but he has not entered the same in the station diary. He admits that in the statement of Padmavati and Lokesh, there is no mention about Devamma having enmity against anybody. He further admits that in Ex.P1 also there is no mention about Devamma having enmity against anybody.

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Autopsy Surgeon –Laxmikant is examined as PW15. He deposed that on 27.09.2011 at the request of Siddapur Police, he conducted post mortem examination of dead body of Devamma in Siddapur hospital. In his cross examination, he admits that the injury noted by him is an incised injury. He admits that by using a sharp edged object such injury would be caused. He

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admits that he has seen “Metagatti” which is an implement having a sharp edged knife fixed to a wooden piece and used for peeling of the skin of areca nuts. He admits that if somebody falls on the said object, injury noted by him in post mortem report under Ex.P5 could be caused. He admits that till 26.11.2011 he had not seen MO11 knife. He also admits that there is no mention in Ex.P25 that death of Devamma is a homicidal death.

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Another doctor by name Rajesh, who collected the blood samples of the accused as per order of the court is examined as PW16. He deposed the about collection of blood sample. In his cross examination he denied the suggestion that he has not properly prepared Ex.P31. Mahabaleshwar is examined as PW17, who is a circumstantial witness. He did not support the case of prosecution.

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Halamurthirao is examined as PW18. He deposed that he took over further investigation on 27.09.2011 from PW14 and conducted spot mahazar vide Ex.P2 and collected the

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sample mud, sample blood stained mud with gross, cap with a hair and spot sketch vide Ex.P6. Thereafter he seized clothes worn by the deceased under Ex.P7 mahazar. On record statement of the charge witnesses, he arrested the accused on 05.10.2011, and recorded accused’s voluntary statement and pursuance of the voluntary statement he conducted the proceedings for seizure of knife, battery, cycle, clothes knife under Ex.P37. Thereafter got blood sample drawn from the body of the accused and sent it for DNA examination to compare with the seized hair which was found in the cap and thereafter filed charge sheet. In his cross examination, he admits that he did not notice the blood group of the accused. He denied having filed false charge sheet.

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The Scientific Officer who conducted the DNA

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profiling and issued report vide Ex.P42 is examined as PW19. In his cross examination, he admits that he has not given any documents about his expertise in DNA profile.

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As could be seen from the above, the entire case is based on the circumstantial evidence. According to the prosecution, there was previous enmity between Janardhan’s family and accused family. In order to take revenge against the complainant’s family, the accused has murdered Devamma.

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The important circumstances which were relied on by the prosecution are that Devamma stayed alone in the house at Husur village and on 27.09.2011 one Lokesh (PW7), a neighbor of Devamma, had gone to attend the nature call. At that time he heard a loud scream and thereafter visited Devamma’s house and found Devamma in a supine position and there was injury on the neck, blood stains found near her legs. His wife had also accompanied him and thereafter Devamma breathed her last. He intimated the same to the complainant(PW1). Thereafter the complainant came to the place of incident and intimated the same to the Police. The Police have visited the place of incident and

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other brothers of the complainant also visited the place and Ex.P1- complaint came to be lodged.

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The prosecution has relied on circumstances of seizure of a cap with hair, and such hair according to the prosecution is the accused’s and the same confirmed by the DNA examination vide Ex.P42. The prosecution has further relied on recovery of a knife pursuant to the voluntary statement vide Ex.P37 given by the accused and has also relied on Ex.P8 to P11 mahazars. The arrest of the accused is on 05.10.2011 in some other case pertaining to Siddapur Police Station and thereafter the accused furnishing voluntary statement. Yet another circumstance on which the prosecution relies is extra judicial confession made by the accused

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Learned Sessions Court while appreciating the entire material on record found that prosecution has failed to establish the circumstances by placing cogent and convincing evidence on record. On reappreciation of the evidence, it is seen that the prosecution was unable to establish the seizure of the cap with the hair of the

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accused under Ex.P2. Witnesses to Mahazar says that cap was found 15 feet away from near a electric pole on the way of garden land of Devamma. The seizure of cap, which is important link in the case, is not proved by placing convincing evidence on record. The Investigating agency has not taken photographs of the place where the cap MO11 was found, especially when they have taken photographs of the spot. Admittedly, the place where the cap was found is at a distance of 15 feet away from the house of Devamma, which is on the way of to her garden land.

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The mahazar witness to seizure panchanama of Ex.P8 to 11 PW14 has supported the case of prosecution. However, PW11 to 13 have turned hostile, and PW5, witness to Ex.P14, and PW7 have partly supported the case of prosecution. Thus, a material link, viz., seizure of a cap with the accused’s hair is not established. The seizure of other material objects, because they have not been linked to the accused, also would not help the prosecution. The prosecution case

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has also not established last seen circumstances in the case on hand because the material witness in this regard have turned hostile. Further according to the evidence of Lokesh, Devamma was alive and she died only after he went to the house of Devamma.

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Learned Sessions Court, thus has come to the conclusion that the evidence available on record would not be sufficient to bring home the guilt of the accused.

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It is settled proposition of law that accused is presumed to be innocent unless charges leveled against him stands proved beyond all reasonable doubt. Further, recording of an order of acquittal by a competent court strengthens such innocence of the accused as is enunciated in the recent decision of the Hon’ble Apex Court in the case of Sampat Babso Kale and another V/s. State of Maharashtra, reported in 2019 (4) SCC 739 wherein the Hon’ble Apex Court has referred the case of Chandrappa & Ors. v. State of Karnataka, reported in 2007(4) SCC 415 . The relevant portion of the said judgment is culled out hereunder:

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“8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka1, laid down the following principles: (2007) 4 SCC 415

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

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

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(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.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and

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

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

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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We have reappreciated the material on record and analysed the case of the prosecution in the backdrop of legal principles enunciated in the above decisions. On such analysis, we do not find any serious infirmity in trial court recording the order of acquittal against the accused.

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No doubt, PW1, 2, 4, 6, 9 and 10 have supported the case of prosecution, at best, if the said evidence is reappreciated for the sake of argument, it would lead to the conclusion that there was enmity between the accused and Devamma’s family, which may lead to establish the motive. But, that itself is the facts and circumstances of the case, is not sufficient to infer culpability of the accused in the incident.

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The extra judicial confession said to have been made by the accused to Ganapati – PW9 is also not proved in the absence of cogent evidence on record. The finding recorded by the Sessions Court in this regard does not offer any serious infirmity or perversity.

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It is well settled legal principle that extra judicial confession is a weak piece of evidence and same needs a strong corroboration in order to record an order of conviction based on extra judicial confession. In this regard, it is worth to rely upon the judgment of the hon’ble Apex Court in the case of Shailendra Rajdev Pasvan V/s. State of Gujarat, reported in 2019 SCC

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Online SC 1616 , wherein the Hon’ble Apex Court after referring to various authorities on the subject has held as under :

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“ 19. In Sahadevan v. State of T.N.5 referring to the aspect of evidentiary value of extra-judicial confession, it was observed:

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“14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to

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base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”

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20. Elaborating on the jurisprudence that has evolved with regard to extra-judicial confessions, this Court in Sahadevan (supra) had stipulated the principles that are required to be kept in mind while relying on extra-judicial confession as evidence. These principles have been succinctly mentioned in Jagroop Singh v. State of Punjab as:

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“30. Recently, in Sahadevan v. State of T.N., after referring to the rulings in Sk. Yusuf v. State of W.B. and Pancho v. State of Haryana, a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be State of Haryana, a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law."

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Applying the above principles to the present case on hand, prosecution is unable to place cogent evidence on record to show that accused did call Ganapati on his wife’s mobile telephone and informed that he had killed Devamma. The mobile telephone details and call records are not placed on record. Under such circumstances, Sessions Court has rightly concluded that extra judicial confession is not proved by prosecution.

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Hence, we do not find any legal infirmity or perversity whatsoever in the impugned judgment. The arguments canvassed on behalf of appellant would not persuade to take any other view in the facts and circumstances of the case other than the view taken by the Sessions Court even after reappreciation of the entire material on record.

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Thus, viewed from any angle, we are of the considered opinion that the appellant has not made out any grounds whatsoever much less good grounds to interfere with the judgment of the Sessions Court.

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In view of the foregoing discussion, the point is answered in the negative and we pass the following :

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ORDER

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The appeal is merit less and hereby dismissed. Bail bond, if any, stands discharged.

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Sd/JUDGE

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Sd/JUDGE

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