Karnataka High Court

Durgasetty @ Durgi vs The State on 25 October, 2023

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CRL.A No. 5 of 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF OCTOBER, 2023

PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T.
CRIMINAL APPEAL NO.5 OF 2017

BETWEEN:

DURGASETTY @ DURGI
S/O SHIVARANGASETTY
AGED ABOUT 20 YEARS
COOLIE
R/O KADUSHIVANAHALLI VILLAGE
KODIHALLI HOBLI
KANAKAPURA TALUK
RAMNAGARA DISTRICT-562 119.

...APPELLANT

(BY SRI A. N. RADHA KRISHNA, ADVOCATE)
Digitally
signed by AND:
VINUTHA M
Location: THE STATE
HIGH REPRESENTED BY KODIHALLI POLICE
COURT OF THE STATE PUBLIC PROSECUTOR
KARNATAKA HIGH COURT OF KARNATAKA
BENGALURU-560 001.

...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, S.P.P-II)

***
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CRL.A No. 5 of 2017

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER ON SENTENCE DATED 12.01.2016 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, TO
SIT AT KANAKAPURA, IN S.C. NO.89/2010 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302 AND 398 OF
IPC
.

THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:

JUDGMENT

The accused has preferred this appeal challenging the

judgment and order of conviction and sentence passed

against him in S.C. No.89/2010 on the file of II Additional

District and Sessions Judge, Ramanagara District, sitting

at Kanakapura. By the impugned judgment and order, the

trial Court has convicted the appellant for the offences

under
Sections 302
and
of the Indian Penal Code,

1860 and sentenced him to rigorous imprisonment for life

and fine of Rs.50,000/- and in default of payment of fine,

to undergo rigorous imprisonment for a period of one year

for the offence punishable under
Section 302
of IPC and

further, the appellant sentenced to rigorous imprisonment

for seven years for the offence punishable under
Section
of IPC.

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2. The brief facts of the prosecution case are that, on

5.12.2009 at 2.00 p.m. near Neelagiri plantation Forest

area, besides Banagiridoddi Village, accused in order to

rob the gold ornaments of victim Smt. Chikkakempamma

(hereinafter referred to as the deceased) who was grazing

cattle, assaulted on her head and also on forehead with

iron chopper, committed murder and thereafter took away

the gold ornaments i.e., 14 gold gundus, 4 gold lakshmi

kasu, 1 pair of gold earrings and one pair of gold ear

studs.

3. Based on the complaint, F.I.R. in Crime

No.137/2009 was registered against unknown person

under
Section 302
of IPC. A spot mahazar was conducted

and blue colour chappal, wooden club, sample mud and

blood stained mud were seized from the spot. The dead

body was sent for post-mortem examination. During

inquest mahazar, injuries viz, from middle of the forehead

to left eye, injury on left ear and injury on head were

noticed. The Doctor conducted post-mortem examination

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and it was opined that, the deceased died due to cardio

respiratory arrest as a result of severe head injury.

4. On 01.04.2010, the accused surrendered before

the Investigating Officer and gave his voluntary statement

as per Ex.P.10 and at his instance, the Investigating

Officer seized two lakshmi kasu, two gundu and a pair of

earring from Pawn Shop of Shivaraju (PW-19) and his

sister Girija under mahazars-Exs.P.11 & P.12. Based on

this material, a charge-sheet was laid against the accused

under
Sections 302
and
of IPC before the

Jurisdictional Magistrate. The matter was committed to the

Court of Sessions and the learned Sessions Judge framed

charge against the accused for the offence punishable

under
Sections 302
and
of IPC, the accused pleaded

not guilty and claimed to be tried.

5. In order to prove its case, the prosecution

examined in all 26 witnesses as P.Ws.1 to 26, got marked

documents as per Exs.P1 to P.14 and material objects as

per M.Os.1 to 12. After completion of the evidence, the

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statement of the accused under
Section 313
of the Code of

Criminal Procedure, 1973, was recorded. The case of the

accused was of total denial and the accused did not

adduce any defence evidence.

6. Based on the above evidence, the trial Court

framed the following points for consideration:

1. Has prosecution proved beyond all
reasonable doubt that accused being the person
with an intention to rob the gold ornaments
worn by Smt. Chikkakempamma murdered her
and thereby committed an offence punishable
u/s 302 of
I.P.C
?

2. Has prosecution further proved that in
furtherance of the same accused armed with
deadly weapon, robbed gold ornaments and
thereby committed the offence punishable
u/s
of I.P.C.?

3. What order?

7. Considering both oral and documentary evidence

on record, the trial Court convicted the accused and held

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that, the prosecution proved beyond all reasonable doubt

that, on 5.12.2009 at 2.00 p.m., near Neelagiri plantation,

the accused committed murder of deceased and robbed

her gold ornaments. Hence, the trial Court convicted the

accused for the aforesaid offences. Aggrieved by the

judgment of conviction and order of sentence, the accused

has preferred this appeal.

8. We have heard Sri A.N. Radha Krishna, learned

counsel appearing for the appellant/accused,

Sri Vijayakumar Majage, learned State Public Prosecutor-

II, for the respondent-State and have examined the

records.

9. Learned counsel for the appellant/accused

contends that the prosecution has utterly failed to prove

its case. The solitary circumstances relied on the

prosecution is the recovery of the gold ornaments, but the

recovery is not proved. The material objects are not

produced before the Court and the same are not identified

by any of the relatives of the deceased. As a result, no

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material whatsoever was available to connect the accused

to the alleged offences. It is contended that, the extra

judicial confession attributed to the accused is also not

proved. The evidence of PW-8 suggests that himself and

accused were not in a fiduciary relationship. Therefore,

such a confession would not have been made by the

accused before him. Barring the above evidence, no other

material is available on record to establish the guilt of the

accused. Thus, he seeks to allow the appeal by acquitting

the appellant of the above charges.

10. Learned State Public Prosecutor-II has argued in

support of the impugned conviction contending that the

prosecution has proved its case beyond reasonable doubt.

The circumstance of recovery of gold ornaments is proved

by the evidence of PW-22 and these ornaments are duly

identified by husband and son of the deceased. This

recovery directly connects the accused to the alleged

offence and establishes that the deceased was murdered.

Further, the extra judicial confession made by accused to

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PW-8 clearly makes out the ingredients of the offence of

murder. Therefore, there is no reason to interfere with the

well reasoned judgment.

11. We have bestowed our careful attention on the

submissions made at the Bar and have carefully examined

the records. After hearing the learned counsel appearing

for the parties and on examining the material on record,

we find serious flaws in the case of the prosecution.

12. The prosecution has rested its case entirely on

two circumstances. The first circumstance relied on by the

prosecution is the recovery of gold ornaments said to be

belonging to the deceased-Chikkakempamma. The second

circumstance relied was extra-judicial confession.

13. In the background of above circumstances, let

us examine the prosecution evidence:

a. PW-1 Basavaraju is the complainant and son of

the deceased. He has deposed that on 5.12.2009 between

1.30 and 2.30 p.m., when his mother had been to

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Bannagiri Forest for grazing the cattles, he came to know

that, his mother was murdered in the forest and on

information, he reached to the spot, where he noticed

injuries on forehead and neck of his mother, caused by

deadly weapon. He noticed that gold ornaments which

were worn by the deceased were missing. Further, he

deposed that he has seen the blood stained clothes and

thereafter, lodged the complaint as per Ex.P.1. He further

deposed that on 30.4.2010, he saw the accused in the

custody of the Police and came to know that accused

committed murder of his mother for robbing her gold

ornaments and he has identified the accused before the

Court. He identified the ornaments shown to him in the

photo-Ex.P.3, to be his mother's jewelry.

b. PW-2 Ramakrishna is an inquest mahazar witness

and a friend of PW-1. He has deposed that on 6.12.2009,

he had seen the dead body of the deceased at

Government Hospital, Kanakapura, where inquest mahazar

was conducted and he noticed visible injuries on the dead

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body. The Police also seized clothes of the deceased in his

presence as per M.Os.1 to 4.

c. PW-3 Basavegouda is the husband of the

deceased. His evidence is similar to that of PW-1. He also

deposed that he had been to spot, where the Police

conducted mahazar and later, dead body of the deceased

was shifted to the Government Hospital, Kanakapura. He

further deposed that after four months of the incident, the

Police summoned him to the Police Station, where he

identified the gold ornaments depicted in photo-Ex.P.3, as

that of his wife and he came to know that, accused

committed murder of his wife.

d. PW-4 Rudrappa is the brother of the deceased.

He reiterates the evidence of PW-3.

e. PW-5 B.P.Lingesh is a witness to inquest mahazar.

He has deposed that around five years ago, PW1-

Basavaraju had telephoned him, intimating the death of

his mother, dead body was found in and around 2km.

away from Kadushivanahalli forest area, body was brought

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to Kanakapura Hospital, where inquest was conducted, he

saw the visible injuries over the head and her left ear was

partly cut and came to know that someone has killed her

with chopper.

f. PW-6 Desigouda is a witness to inquest mahazar.

He reiterates the evidence of PW-5. He further deposed

that the Police along with accused and his sister Girija

came and took him to Pawn Broker shop situated at

Bannergatta Road, where Girija had pledged gold

ornaments and Police seized those articles under seizure

panchanama-Exs.P.5 and P.6.

g. PW-7 Lokesha is an inquest mahazar witness. He

has deposed that on 5.12.2009, he has seen the dead

body of the deceased at Banagiridoddi Neelagiri Plantation,

there was grievous injury on her head and forehead, so

also on ear with chopper and the Police conducted

panchanama as per Ex.P.4 and recovered Hawai Slippers.

He also deposed that accused produced chopper and waist

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thread and Police seized the same and he has identified

the same as M.Os.2 and 3.

h. PW-8 K.C. Shivaramegowda is an extra judicial

confession witness. In his evidence, he has deposed that

he is running one Photo Studio in the name and style of

Spandana at Kodihalli. Accused is from Kadushivanahalli.

Chikkakempamma is murdered by accused. He has

deposed that he had gone to Majestic, Bengaluru, to

purchase material around two months after the death of

deceased, there he met accused and the accused told him

that he is going to surrender before the Police as he has

murdered deceased, so that villagers need not give trouble

to his parents and learnt that for the sake of amount, he

has murdered deceased with chopper and took away gold

beads, gold lakshmi kasu and earring. He also deposed

that accused told him that he has hidden macchu in his

house and has pledged the gold ornaments with Pawn

Broker. Further, he has brought the said fact to the notice

of the Police and thereafter, the Police took him to

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Bannergatta road, where they conducted mahazar as per

Exs.P.5 and P.6 by seizing gundus and kasu along with

nose stud. His evidence corroborates the evidence of

PW-6 with regard to conducting seizure panchanama.

j. PW-9 Nagesha is also an inquest witness. He has

deposed regarding conducting of inquest panchanama on

the dead body of deceased.

k. PW-10 Muttaramegowda has deposed that on

5.12.2009 between 12.00 noon and 1.00 p.m., when he

had slept, one lady woke him up and told that wife of

Basavegowda is murdered, he reached Neelagiri grove

Forest area, where he noticed that someone had murdered

her and later came to know that Durga was the person,

who killed her. He has deposed regarding conducting of

mahazar by the Police and accused himself stating that he

murdered deceased for robbing the articles which are

shown in Ex.P.3-photo.

l. PW-11 Puttamadegowda is a witness to spot

panchanama conducted by the Police as per Ex.P.4, where

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Police seized slippers, club along with blood stained mud,

sample mud and green saree.

m. PW-12 Shivamadegowda is also an inquest

mahazar witness. He has deposed that about 5-6 years

ago, when deceased had been to forest area for grazing

cattles, someone murdered her. Hence, Police conducted

mahazar and he learnt that accused has murdered

deceased for gain. He has further deposed that later

Police arrested the accused and on inquiry, accused

himself confessed to the crime.

n. PW-13-Devamma, PW-14-Lakshmamma, PW-15-

Basamma, PW-16-Siddaraju and PW-17-Shivaraju are the

hearsay witnesses to the incident.

o. PW-18 Chikkeeregowda is another mahazar

witness to Ex.P.4. He has deposed regarding conducting of

mahazar by the Police.

p. PW-19 Shivaraju is a Pawn Broker. He has

deposed that in December 2009, one Girijamma, sister of

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accused, came to his shop and pledged ornaments. Hence,

he issued receipt for the same. After one year, Police

came to his shop and seized the ornaments mentioned in

the photo and conducted mahazar as per Ex.P.5.

q. PW-20 Dr. Vivek Dorai conducted post-mortem

examination on the dead body of deceased as per Ex.P.7

and opined that the death was due to cardio respiratory

arrest as a result of severe head injury.

r. PW-21 - Girija is the sister of accused. She is also

a witness to seizure mahazar as per Ex.P.5. She has

turned hostile to the case of the prosecution.

s. PW-22 - Manjunatha, Investigating Officer. He

deposed that he visited the spot, conducted mahazar,

seized material objects and got conducted inquest

mahazar. He also deposed with respect to recording

statement of witnesses, referring the dead body for

conducting post-mortem examination and also sending of

articles to F.S.L. He further deposed that on 1.4.2010, on

receiving the information of whereabouts of accused, he

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arrested the accused, recorded his voluntary statement,

accused took him to his house and produced the objects

used in commission of offence and he seized the same.

He further deposed with regard to recovery of gold

ornaments pledged with Pawn Broker. After completion

of the investigation, he filed charge-sheet.

t. PW-23 - Premakumara, Engineer, who prepared

the sketch of the crime spot as per Ex.P.9.

u. PW-24 - Gopala, Police Constable, speaks about

tracing of accused, apprehending him and producing him

before his higher Officer.

v. PW-25 - Muthegowda, Sub-Inspector of Police,

received the complaint and forwarded the same to the

Police Station through Venkatesha, Police Constable.

w. PW-26 - Shivanna, Assistant Sub-Inspector of

Police, registered the First Information Report.

14. From the perusal of the evidence led by the

prosecution, the prosecution has rested its case entirely on

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two circumstances. The first circumstance relied on by the

prosecution is recovery of gold ornaments said to be

belonging to the deceased. In this regard, the case of the

prosecution is that the accused committed the murder of

the deceased with an intention to rob the gold ornaments

worn by the deceased.

15. A perusal of the complaint lodged by the son of

the deceased creates a serious doubt as to whether the

deceased was wearing such ornaments on her person at

the time of the alleged incident. In the complaint-Ex-P1,

the son of the deceased has stated that at the time of

incident, he was in Bengaluru and he came to know about

the incident through his father. In the complaint, PW-1

has not described about any jewelleries. Further, the

jewelleries in question were not produced before the Court

for identification. All the prosecution witnesses merely

identified the jewelleries appearing in photo-Ex.P.3. This

omission, in our considered opinion, leads to doubt the

very substratum of the case of the prosecution that the

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deceased was murdered for gain. If such large items of

gold were missing from the person of the deceased, it

ought to have been mentioned in Ex.P1-complaint, but

PW-1 has not described about any missing jewelleries.

This evidence is inconsistent to the contents of Ex.P1-

complaint.

16. The evidence adduced by the prosecution

regarding recovery of jewellery is far from satisfactory. In

this regard, the prosecution has relied on the evidence of

PW-8 and PW-19. According to PW-19, Girija sister of the

accused, had pledged ornaments with him and on

06.04.2010, the Police brought the accused to his shop

and at the instance of the accused, he returned the said

ornaments to the Police and the same were seized under

mahazar-Ex.P5. He stated that ornaments depicted on

photo-EX.P3 were the one seized under the mahazar-

Ex.P5. If this evidence is to be believed, the said

ornaments were pledged by one Girija and not by the

accused. Therefore, the accused leading the Police party to

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the shop of PW-19 and he returning those ornaments at

the instance of the accused does not arise at all. The

manner in which PW-19 has deposed before the trial Court

gives a clear indication that PW-19 is a propped up witness

and that he has given his evidence only to suit the case of

the prosecution. It is not the case of PW-19 that the

accused had anytime come to his shop and had pledged

the said ornaments with him. If accused had not come to

his shop at any time, there was absolutely no occasion for

him to see the accused. Therefore, the very evidence of

PW-19 shows that he is the witness set up by the

Investigating Officer. Furthermore, PW-19 has not

described the names of ornaments in his evidence.

Therefore, his testimony does not inspire the confidence,

as he has been dealing with jewelleries business and he is

unable to describe about the ornaments pledged with him

by the sister of the accused.

17. Another serious lapse which dents the case of

the prosecution is that PW-19 has not identified the gold

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ornaments said to have been pledged with him. He has

merely stated in his evidence that the ornaments which

were pledged by the sister of the accused are seen in

Ex.P3-photo, but he has not specifically identified the

ornaments appearing in Ex.P3-photo.

18. The sister of the accused is examined as PW-21

and she has turned hostile to the case of the prosecution.

The prosecution has not bothered to prove her statement

through the Investigating Officer. The statement of this

witness is not marked. Thereby the recovery said to have

been effected through PW-19 has rendered baseless and

therefore, no reliance could be placed on the said recovery

evidence relied on by the prosecution.

19. The Hon'ble Apex Court in a case of
BOBY v.

STATE OF KERALA
reported in 2023 LiveLaw (SC) 50,

held that, there is not only grammatical but a legal

distinction between 'may be proved' and 'must be or

should be proved', and it has been held that, the facts so

established should be consistent only with the guilt of the

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accused, that is to say, they should not be explainable on

any other hypothesis except that the accused is guilty and

chain of evidence must be 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

probabilities the act must have been done by the accused.

In the light of these guiding principles, we have to

examine the present case.

20. None of the prosecution witnesses have

identified the seized properties. The property itself is not

produced before the Court. Except marking of Ex.P3-

photo, the gold jewellery said to have been robbed from

the person of the deceased, said to have been recovered

at the instance of the accused is not produced before the

trial Court. This is fatal to the case of the prosecution.

Even though the learned State Public Prosecutor-II has

taken up a plea that the property was released to the

custody of PW-3, husband of the deceased, his evidence in

this regard is too bald and general in nature.

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21. Learned State Public Prosecutor-II has placed

reliance on the decision of the Hon'ble Apex Court in the

case of
SUNDERBHAI AMBALAL DESAI v. STATE OF

GUJARAT
reported in (2002) 10 SCC 283 with reference

to paragraph Nos.11 and 12 to buttress the point that in

view of marking of the photo-Ex.P3, the non-production of

properties does not vitiate the identification.

22. We have gone through
the said judgment
.

Wherein, the Hon'ble Apex Court has laid down the

guidelines in the matter of release of articles seized during

the course of the investigation. The Hon'ble Apex Court

has laid down the procedure to be followed while releasing

the properties to the persons from whose possession the

said properties were seized during investigation. The said

judgment does not dispense with the production of the

released articles at the time of trial. On the other hand, in

paragraph No.12 of the judgment, the Hon'ble Apex Court

has delineated the procedure and has specifically observed

that while releasing the articles, a bond should be taken

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from the complainant that said articles would be produced

if required at the time of trial. Further,
Section 457
of

Cr.P.C. requires the Magistrate to prepare a detailed

panchanama and also to get the photographs attested or

countersigned by the complainant, accused as well as the

person to whom the properties are handed over. These

directions are blissfully ignored by the trial Court. The

photo-Ex.P3 was neither attested nor was it captured at

the time of release of the articles to the complainant. This

document, on the face of it, indicates that the said

photograph was a part of the charge-sheet. Therefore, the

argument of the learned State Public Prosecutor-II that

the photo-Ex.P3 could replace the production of the

original articles before the trial Court cannot be accepted.

That apart, PW-3 has not given his evidence with

reference to Ex.P3. He has nowhere stated in his

deposition that the articles depicted in Ex.P3 were either

worn by the deceased at the time of the incident or that

the said articles were returned to him by the trial Court.

Such factual aspects cannot be inferred or assumed by the

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Court. In the absence of identification of the seized jewels,

the same cannot be correlated to the accused or deceased.

Therefore, the non-production of the alleged robbed jewels

and the failure of the prosecution to get the said articles

identified through the prosecution witnesses to connect

them to the accused renders the case of the prosecution

highly vulnerable.

23. The other judgment relied on by the learned

State Public Prosecutor-II is
K.W. GANAPATHY v. STATE

OF KARNATAKA
reported in 2002 Crl.L.J. 3867, also

does not enure to the benefit of the prosecution to bring

home the guilt of the accused. In the said case, it is

observed that, "the production of property which has

evidentiary value during evidence is a part of a fair trial.

With the advanced technology, it is not necessary that the

original of the property inevitably has to be preserved for

the purpose of evidence in the changed context of times.

The reception of secondary evidence is permitted in law."

The said judgment was rendered under
Section 457
of

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Cr.P.C
. It has been held therein that when there is a

possibility of having a secondary evidence of said

property, it is no longer necessary in law to insist that the

property shall be kept intact without alteration and non-

alienation. The said judgment is not applicable to the

facts of the instant case. As already discussed above,

Ex.P3-photo cannot be considered as secondary evidence.

No mahazar is produced by the prosecution in proof of

return of the valuable to the complainant. As a result, the

prosecution has failed to produce either the primary

evidence or the secondary evidence in proof of the alleged

recovery of the gold ornaments so as to connect the said

evidence to the accused.

24. There cannot be any dispute regarding the

principle that the photograph could be marked in evidence,

when it is established that the seized properties were

returned to the complainant under such photograph. But

what we see from the evidence of PW-3 is that, though he

has stated that Ex.P3 depicts the photo of the ornaments,

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he has nowhere stated in his evidence that they were worn

by the deceased at the time of the incident. He does not

say that on taking photo-Ex.P3, they were returned to

him etc.

25. The charge against the accused is that he robbed

the gold ornaments from the person of the deceased. As

already discussed above, the prosecution has utterly failed

to prove that the deceased was found wearing any of

those ornaments at the time of her death. At the earliest

instance, while lodging the complaint, PW-1, son of the

deceased, has nowhere stated that the deceased was

wearing the ornaments when she was found dead. PW-3,

husband of the deceased, has only stated that on the date

of the incident, the earrings of the victim were missing.

That apart, the prosecution has also failed to prove that

the said gold ornaments were recovered at the instance of

the accused. As already stated above, PW-19 the jeweller,

does not state that the said ornaments were handed over

to him by the accused. Therefore, viewed from any angle,

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we find that this evidence produced by the prosecution in

support of the alleged recovery is not sufficient to connect

the accused to the crime.

26. In view of the discrepancies noted above, in our

view, the benefit of doubt is required to be extended to

the accused. Moreover, the gold ornaments which were

allegedly robbed are not produced before the trial Court.

None of the witnesses have stated that the said ornaments

belonged to the deceased and therefore, the charge

framed against the accused that the alleged murder had

taken place for gain and the accused had committed the

robbery of the gold ornaments found on the person of the

deceased has not been proved, as a result, the conviction

of the accused for the offence punishable under
Section
of IPC cannot be sustained.

27. So far as the charge of murder, there are no

eyewitnesses to the incident. The only circumstance relied

on by the prosecution in support of this charge is the

evidence of PW-8, who is a photographer by profession,

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aged 65 years as on the date of recording his evidence.

According to him, after two months of the incident, he had

met the accused at Majestic and at that time, the accused

confessed before him that he had murdered the deceased.

Though the trial Court has relied on this piece of evidence

as extra judicial confession, in our view, the evidence of

PW-8 does not satisfy the requirement of extra judicial

confession so as to render the accused guilty for the

murder of the deceased.

28. Regarding the appreciation of evidence in Extra-

Judicial confession, the Hon'ble Apex Court in the case of

SAHADEVAN AND ANOTHER v. STATE OF TAMIL

NADU
reported in (2012) 6 SCC 403 at paragraph No.16

has held as follows:

"16. Upon a proper analysis of the abovereferred
judgments of this Court, it will be appropriate to
state the principles which would make an extra-
judicial confession an admissible piece of evidence
capable of forming the basis of conviction of an
accused. These precepts would guide the judicial

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mind while dealing with the veracity of cases where
the prosecution heavily relies upon an extra-judicial
confession alleged to have been made by the
accused:

(i) The extra-judicial confession is a
weak evidence by itself. It has to be
examined by the court with greater
care and caution.

(ii) It should be made voluntarily and
should be truthful.

(iii) It should inspire confidence.

(iv) 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.

(v) For an extra-judicial confession to
be the basis of conviction, it should not
suffer from any material discrepancies
and inherent improbabilities.

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(vi) Such statement essentially has to
be proved like any other fact and in
accordance with law."

(emphasis supplied)

29. The Hon'ble Apex Court in paragraph No.5 of the

judgment in the case of
PAWAN KUMAR CHOURASIA v.

STATE OF BIHAR
reported in 2023 SCC OnLine SC

259, wherein at paragraph No.5, it has held as follows:

"5. As far as extrajudicial confession is
concerned, the law is well settled. Generally,
it is a weak piece of evidence. However, a
conviction can be sustained on the basis of
extrajudicial confession provided that the
confession is proved to be voluntary and
truthful. It should be free of any inducement.
The evidentiary value of such confession
also depends on the person to whom it is
made. Going by the natural course of
human conduct, normally, a person would
confide about a crime committed by him
only with such a person in whom he has
implicit faith. Normally, a person would not
make a confession to someone who is totally a

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stranger to him. Moreover, the Court has to be
satisfied with the reliability of the confession
keeping in view the circumstances in which it is
made. As a matter of rule, corroboration is not
required. However, if an extrajudicial confession
is corroborated by other evidence on record, it
acquires more credibility."

(emphasis supplied)

30. The judgments cited supra and the evidence of

PW-8 indicate that the accused was not acquainted with

PW-8. Even if his evidence is believed, it would go to

show that he met the accused by chance. There is nothing

in the evidence to indicate that there was any transaction

between PW-8 and the accused. They were neither friends

nor relatives. There was a huge age difference between

them. Nothing was elicited to show that accused had

implicit faith in PW-8. He was not in a position to help the

accused. Therefore, it cannot be believed that the accused

would approach PW-8 and confess the alleged crime with

him. The statement of PW-8 does not inspire confidence to

hold that the accused had made such confession to PW-8.

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31. Even otherwise, when the case of the

prosecution is based on circumstantial evidence, it is not

safe to convict the accused based on a single

circumstance. The overall consideration of the facts and

circumstances of the case, we are of clear view that the

prosecution has failed to prove the guilt of the accused

beyond all reasonable doubt. The evidence produced by

the appellant/accused, at the most, may give rise to a

suspicion; but the suspicion cannot take the place of proof

so as to hold the accused guilty of the offences charged

against him.

32. Learned counsel for the appellant relied upon the

judgment of the Hon'ble Apex Court in the case of

CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH

reported in 2020 SCC OnLine SC 988, wherein it has

held as under:

"While deciding a criminal appeal on merits, the
High Court is required to apply its mind to the
entirety of the case including the evidence on

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the record before arriving at its conclusion, the
Supreme Court reiterated.

33. The Hon'ble Apex Court in the case of
STATE OF

GUJARAT v. BHALCHANDRA LAXMISHANKAR DAVE

reported in LL 2021 SC 58, has held as under:

"So far as the appeal against the order of
conviction is concerned, there are no such
restrictions and the Court of appeal has wide
powers of appreciation of evidence and the High
Court has to reappreciate the entire evidence on
record being a First Appellate Court."

34. On reconsideration of the entire evidence on

record, we are of the considered opinion that the evidence

adduced by the prosecution is not sufficient to convict the

accused for the offence of murder and robbery punishable

under
Sections 302
and
of IPC. The trial Court

without judicious appreciation of the evidence and

applicable law has erroneously convicted and sentenced

the accused. Therefore, the impugned judgment and order

are liable to be set aside.

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35. Hence, the following
ORDER
i. The Appeal is allowed.

ii. The impugned judgment of conviction and the order
of sentence dated 12.01.2016 in S.C.No.89 of 2010
on the file of II Additional District and Sessions
Judge, Ramanagara to sit at Kanakapura, for the
offences punishable under
Sections 302
and
of
Indian Penal Code is hereby set-aside.

iii. The appellant-accused, namely, Sri. Durgasetty @
Durgi, S/o Shivarangasetty is acquitted of the
charges for the offence punishable under
Sections
and
of Indian Penal Code. He shall be set at
liberty, forthwith, if his detention is not required in
any other case/s.

The Registry of this Court is directed to communicate
the operative portion of this order, to the trial Court and
concerned Jail Authorities, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE
KVK

List No.: 1 Sl No.: 16