As per case facts, the complainant's mother, Bebakka, went missing and her charred skeletal remains were later found. The prosecution alleged that accused no. 1 (Bebakka's elder brother) conspired with ...
2026 INSC 417 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1864 OF 2024
[Arising out of SLP (Crl.) No. 3788 of 2022]
ANAND JAKKAPPA PUJARI @GADDADAR …APPELLANT
VERSUS
THE STATE OF KARNATAKA …RESPONDENT
WITH
CRIMINAL APPEAL NO. 2180 OF 2026
[Arising out of SLP (Crl.) No. 15426 of 2025]
MAHADEV SIDRAM HULLOLLI …APPELLANT
VERSUS
THE STATE OF KARNATAKA …RESPONDENT
J U D G M E N T
Page 1 of 60
J.B. PARDIWALA, J.
For the convenience of exposition, this judgment is divided into the
following parts:-
INDEX
I. CASE OF THE PROSECUTION ................................................... 2
II. IMPUGNED JUDGMENT .......................................................... 12
III. SUBMISSIONS ON BEHALF OF APPELLANTS ......................... 19
IV. SUBMISSIONS ON BEHALF OF THE RESPONDENT ................ 22
V. ISSUE FOR CONSIDERATION ................................................. 23
VI. ANALYSIS ............................................................................. 23
A. Last seen together with the deceased ................................................. 32
B. Discovery at the instance of the accused-appellants ........................... 37
VII. CONCLUSION ....................................................................... 60
Page 2 of 60
1. Leave granted in SLP (Crl.) No. 15426 of 2025.
2. Since the issues raised in both the captioned appeals are the
same, the appellants are co-convicts and the challenge is also to
the self-same judgment and order passed by the High Court,
those were taken up for hearing analogously and are being
disposed of by this common judgment and order.
3. These appeals arise from the common judgment and order
passed by the High Court of Karnataka at Dharwad dated
22.12.2021 in Criminal Appeal Nos. 100096 and 100109 of
2018, respectively (hereinafter, “the impugned judgment ”), by
which the High Court dismissed the appeals preferred by the
appellants herein and thereby affirmed the judgment and order
of conviction passed by the Trial Court in Sessions Case No. 59
of 2013 holding the appellants herein guilty of the offence
punishable under Sections 302, 364, 404, 201 read with Section
34 of the Indian Penal Code, 1860, respectively (for short, “the
IPC”).
I. CASE OF THE PROSECUTION
4. It appears from the materials on record that the complainant,
PW-1, Basanagowda @Milan, son of the deceased, filed a
complaint, Ex.P.1, on 25.03.2013 with the Mudhol Police
Station. In the complaint, Ex.P.1, he stated that on 23.03.2013,
at about 12 noon, the deceased left for the house of her daughter
viz. Shailashri Lendi, where she stayed till about 1:15 PM.
Thereafter, at about 1:25 PM, she left for the house of her
Page 3 of 60
younger brother viz. Suresh Kamakeri. He further stated that
from the younger brother’s house, the deceased’s elder brother
viz. Kalappa Hanamanth Kamakeri (Accused No.1) took her to
Arihant Gold Shop. From the gold shop, the deceased was
dropped at the Bhavani Steel Centre as she wanted to purchase
some utensils. At around 5 PM, the deceased left the utensil
shop informing the shopkeeper that she would collect the
utensils later. It has been further stated that when Suresh called
the deceased to take her home from the market, her phone was
found switched off. He informed Shailashri, and she in turn
informed the complainant. The complainant alongwith his
siblings, his brother-in-law, and brothers of the deceased
started searching for her. The complainant stated that he got to
know the whereabouts of the deceased from the owners of the
gold shop and the utensil shop respectively. It has been further
stated that the complainant came to know that the deceased’s
phone was switched off after 5:30 PM. The complaina nt
disclosed the list of items, including jewellery that the deceased
had in her possession when she left her home in the morning.
Thus, it was stated that the deceased went missing on
23.03.2013 between 5 and 5:30 PM.
5. In such circumstances, the complainant thought fit to lodge the
complaint referred to above at the police station. The said
complaint was reduced in the form of a First Information Report
and was numbered as Cr. No. 59/13 with the Mudhol Police
Station.
Page 4 of 60
6. The record reveals that in the evening of 27.03.2013, the Forest
Guard working at the Ramadurga Branch viz. Dayananda
Rudrappa Dyamanni, PW -2, filed a report, Ex.P.35, with the
Ramadurga Police Station. The report stated that while he
alongwith Forest Ranger viz. M.G. Mohammad Ali, were on duty
and patrolling on the road to Mulluru village of Doddamagadi
Village in the reserve forest, they noticed a spot where they
found burnt pieces of bones, a piece of burnt light green saree
about 4 finger width, small half burnt bone, red coloured broken
bangles etc. A burnt skull and two broken jaws were also found
about 2-3 ft. far from the ditch. In the report it was stated that
it appeared that a dead body of a woman was burnt. Thereafter,
they informed their superior officers and the police through the
said report.
7. In pursuance of the aforesaid report, the Ramadurga Police
Station lodged a First Information Report, Ex.P.36, against
unknown persons as Cr. No. 47/2013 for the offence under
Sections 302 and 201 of the IPC, respectively.
8. On the strength of the FIR, Ex.P.36, the investigation had
commenced. The scene of offence panchanama, Ex.P.5, was
drawn in the presence of the panch witnesses. The inquest
panchanama of the body of the deceased, Ex.P.4, was drawn in
the presence of the panch witness. The Circle Police Inspector of
Ramadurga made a requisition to the Government Hospital of
Ramadurga to visit the spot of offence and examine the skeletal
remains of the deceased. The remains of the deceased were
Page 5 of 60
preserved and examined. In the postmortem report, Ex.P.33, the
cause of death was kept pending for the want of FSL opinion
since the whole body was charred. The said doctor opined that
the body was probably burnt with kerosene. The skeletal
remains of the deceased were sent for chemical analysis to the
forensic science laboratory. The FSL report, Ex.P.34, noted that
the probable cause of death was due to head injuries. It also
stated that the remains were that of one female, aged more than
35 years.
9. It appears that on 03.04.2013, the complainant, PW-1, filed a
second complaint, Ex.P.3, against the deceased’s elder brother
Kalappa, Anand Jakkappa Pujari @Gaddadar, Imamsab
@Haneef, and Mahadev Sidram Hullolli, alleging that they had
abducted, murdered and thereafter burnt the body of the
deceased to destroy evidence. The complaint stated that while
he was searching for his deceased mother, the owner of Bhavani
Steel Centre had informed him that he had seen the deceased
with Kalappa at about 5:30 PM on 23.03.2013. On the same day,
at about 6 PM, Kalappa had stopped his silver Maruti 800 car
near Ranna Circle, Mudhol, while coming from Shivaji Circle
and the deceased was seen to be sitting in the front passenger
seat of the said car. The complainant heard f rom his
acquaintance, PW-7 Ramappa, and CW -17 Thimmanna, that
the deceased picked up Anand and two others and travelled
towards Lokapur. It has been stated that when the complainant
confronted Kalappa, he denied the assertion that the deceased
was with him. While the complainant was searching for the
Page 6 of 60
deceased, he came to know that 4-5 days prior, a case had been
registered with regard to a woman’s body being recovered fully
charred somewhere in the Mullur Hills falling with the limits of
the Ramadurga Police Station. When the complainant,
alongwith his sister and brother-in-law went to enquire at the
police station, they were shown few pieces of saree and bangles
recovered and collected from the place of occurrence. The
complainant identified the items to be of his deceased mother.
Therein, the police informed that no gold ornaments were
recovered from the spot.
10. The complainant further stated that his mother i.e., the
deceased had lent about Rs. 20 lakhs to her elder brother
Kalappa and had also given him a gold chain weighing 30 gms
to pawn in exchange of money. The deceased used to often force
Kalappa to return the money borrowed and the gold chain. It
has been further stated that Kalappa on some pretext or the
other used to avoid the return of gold chain and the repayment
of Rs. 20 lakhs, respectively. When Kalappa sold 10 acres of the
family property, the deceased asked him to repay the debt and
give equal share of the amount received towards the sale
proceeds to the younger brother, Suresh. Thus, according to the
prosecution the motive behind the commission of crime was that
Kalappa wanted to escape repayment of the debt of Rs. 20 lakhs,
return of the gold chain weighing 30 gms, and bestowing a
rightful share of the family property to Suresh.
Page 7 of 60
11. On the strength of the aforesaid complaint, the First Information
Report, Ex.P.38, numbered as Cr. No. 67/13 for the offence
under Sections 302, 364, 404, 201 and 34, respectively was
lodged against Kalappa Hanamant Kamakeri [Accused no. 1],
Anand Jakkappa Pujari @Gaddadar [Accused no. 2], Imamasab
@Hanif [Accused no. 3], Mahadev Sidram Hullolli [Accused no.
4]. The FIR reads thus:-
“All the accused persons mentioned in this have
kidnapped and murdered the complainant’s
mother Bebakka w/o Laxmikanta Nadagoudar @
Hunasikatti, Age-52 years at: Metagudda who has
given debt Rs. 20 lakh and gold chain (30 gms) to
the accused No-1. In order to escape from returning
the money and gold chain and also to rob the gold
ornaments found on her, they have done this crime
and tried to destroy the evidence by burning the
body.”
12. On 04.04.2013, the accused no. 1-Kalappa was arrested from
his farmhouse, and the accused nos. 2 [appellant in SLP (Crl.)
No. 3788 of 2022], 3, and 4 [appellant in SLP (Crl.) No. 15426 of
2025], respectively were arrested from the farmhouse of the
accused no. 2. On the very same day, the accused persons are
said to have expressed their willingness to point out the place
from where the deceased was abducted and later murdered, and
also the place where the dead body was burnt. Accordingly, the
discovery panchanama, Ex.P.50 to Ex.P.53, respectively of all
the four accused persons was drawn in the presence of the
panch witness. The statement of panch witness, Ex.P.8 was
recorded. At the request of the investigating officer, the case
registered at the Ramadurga Police Station Cr. No. 47/2013 was
Page 8 of 60
transferred to Mudhol Police Station. Finally, on completion of
the investigation, the I.O. filed chargesheet in the Court of
Judicial Magistrate First Class, Mudhol, for the offences
enumerated above.
13. As the case was exclusively triable by the Sessions Court, the
Magistrate, committed the same to the Court of Sessions,
Bagalkot. The Sessions Court framed the charge against the
accused persons for the offence punishable under Sections 302,
364, 404, 201 read with Section 34 of the IPC, respectively. The
accused-appellants pleaded not guilty and claimed to be tried.
14. In the course of trial, the prosecution led the following oral
evidence by examining the following witnesses:-
Sr. No. Prosecution Witness Particulars
PW-1 Basanagowda @Milana Complainant; son of the
deceased.
PW-2 Dayananda Rudrappa
Dyamani
Forest Guard on duty in
Mallurugudda reserved
forest area.
PW-3 Avvappa Siddappa
Angadi
Witness to inquest
panchanama, spot
mahazar, Ex.P.4 and 5.
PW-4 Sachin Ramappa Malali Witness to seizure of phone
of A1, Ex.P.7; first pancha of
disclosure statements,
Ex.P.7 to 23.
PW-5 Rakesh Rathanachanda
Vora
Owner of Arihant Gold
Shop.
PW-6 Ramachandra
Tulajanasaa
Owner of Bhavani Steel
Centre.
Page 9 of 60
PW-7 Ramappa Thimmappa Witness of last seen of the
deceased with accused
persons.
PW-8 Lakshmikanth
Pandappa Nadagouda
Husband of the deceased.
PW-9 Raveendra Venkappa
Lendi
Son-in-law of the deceased.
PW-10 Ningappa Appanna Purchaser of the land of the
accused no. 1.
PW-11 Ravi Submitted report on
complaint and FIR in
Mudhol PS Cr. No. 67/13 to
Magistrate, Ex.P.26.
PW-12 Sadashiva V Koli Seized the mobile phone of
the accused no. 1, Ex.P.27;
witness to discovery
panchanama, Ex.P.8(b).
PW-13 Raghavendra
Ranganatha Korthi
Prepared sketch of the spot
in market, Ex.P.28; road
map, Ex.P.29.
PW-14 Ramesh C. Prepared sketch of the spot
in Mullur Hill, Ex.P.30.
PW-15 Vicharasagar Nayak Witness to photographs
being taken on
identification of the accused
persons.
PW-16 M.M. Dyamanagoudar Constable at Ramadurga
PS; submitted complaint
and FIR to Magistrate,
Ex.P.32.
PW-17 Dr. Tanaji Prepared the postmortem
report, Ex.P.33.
PW-18 Dr. Dayananda G.
Gennur
Professor in Dept. of
Forensic Medicine,
Vijayapura. Prepared FSL
report, Ex.P.34.
PW-19 Saanjeeva Shivananda
Baligara
Receiver of PW -2’s
complaint, registered it as
Cr. No. 47/13, Ex.P.35.
Page 10 of 60
PW-20 H.B. Maadinni Police Constable at
Ramadurga PS.
PW-21 H.R. Paatil Officer at Mudhol PS
investigated in missing
woman complaint in Cr. No.
59/13, complaint of murder
of the deceased in Cr. No.
67/13.
PW-22 M. Pandurangaiah Officer at Ramadurga PS
investigating Cr. No.
47/2013; Signed on Inquest
panchanama, Ex.P.4.
PW-23 Dr. Chandrashekara
Anjigowda
Assistant Director, RFSL;
prepared FSL report,
Ex.P.43.
PW-24 H.D. Mudaraddi Investigating officer in Cr.
No. 59/13.
15. It also relied upon few pieces of documentary evidence:-
Exhibit Particulars
Ex.P.1 Missing Complaint dt. 25.03.2013 by PW-1.
Ex.P.3 Complaint dt. 03.04.2013 having signatures of
PW-1 and 21.
Ex.P.4 Inquest panchanama in Cr. No. 47/13 dt.
28.03.213 having signatures of PW-3 and 22.
Ex.P.5 Spot panchanama in Cr. No. 47/13 dt.
28.03.2013 where body was burnt having
signatures of PW-5 and 22.
Ex.P.7 Mobile seizure panchanama of the accused no. 1
dt. 04.04.2013 having signatures of PW-4 and 24.
Ex.P.8 Seizure panchanama dt. 04.04.2013 having
signatures of PW-4, and CW Basappa.
Ex.P.9 to 23 Photographs.
Ex.P.28 to 29 Sketch maps in Cr. No. 67/13 of the spot from
where the accused persons have kidnapped and
murdered the deceased having signatures of PW-
13 and 24.
Page 11 of 60
Ex.P.30 Sketch map in Cr. No. 59/13 showing seen of
offence having signatures of PW-14 and 24.
Ex.P.33 Postmortem report dt. 28.03.2013 by Govt.
Hospital Ramadurga under the signatures of CW
Dr. Shintre T.L.
Ex.P.34 FSL Report dt. 04.06.2013 by Dept. of Forensic
Medicine & Toxicology under the signatures of
PW-18.
Ex.P.35 Complaint dt. 27.03.2013 by PW-2.
Ex.P.50 to 53 Voluntary Statement of Accused Nos. 1 to 4
16. Upon completion of recording of the oral evidence, the Trial
Court recorded the further statements of the accused persons
under Section 313 of the Code of Criminal Procedure, 1973, (for
short, “the CrPC”). The accused-appellants denied everything.
They all stated that they were innocent and had been falsely
implicated in the alleged crime.
17. At the conclusion of the trial, the Trial Judge held the accused-
appellants and the other two co-accused guilty of the alleged
crime and convicted them for the offence punishable under
Sections 302, 364, 404, 201 read with Section 34 of the IPC
respectively and sentenced them to undergo life imprisonment
with fine relying upon the following incrim inating
circumstances:-
i. The death of the deceased being homicidal.
ii. Discovery of the silver coloured Maruti 800 car, weapon of
offence, gold ornaments at the instance of the accused
persons.
iii. The accused persons being last seen with the deceased.
Page 12 of 60
iv. Call record details of the accused no. 1 showing his presence
at Batakurki around 9 PM.
v. The defence put forward by the accused persons not being
established but falsified.
18. The appellants herein being dissatisfied with the judgment and
order of conviction and sentence passed by the Trial Court went
in appeal before the High Court. The High Court after
reappreciation of the oral as well as the documentary evidence
on record dismissed the appeals preferred by the appellants
herein and thereby affirmed the judgment and order of
conviction passed by the Trial Court.
19. In such circumstances referred to above, the accused no. 2 i.e.,
the appellant in SLP (Crl.) No. 3788 of 2022, and the accused
no. 4 i.e., the appellant in SLP (Crl.) No. 15426 of 2025, are here
before this Court with the present appeals.
II. IMPUGNED JUDGMENT
20. The findings recorded by the High Court in its impugned
judgment may be summarized as under:-
i. First, the High Court by relying on the DNA profile
examination held that the bones recovered from the Mullur
forest were of the complainant’s mother. The Court ruled out
the possibility of any contamination with the blood sample
collected of the PW-1 and the CW-8 Rajesh, respectively, as it
was drawn, packed, sealed and sent to RFSL in the presence
of the Magistrate. The relevant observations read thus:-
Page 13 of 60
“45. Identity of the Body: It is sought to be
contended that the body found was not that of
Bebakka. The bones found in Mullur forest are that
belonging to the deceased Bebakka which has
been verified and certified by PW. 23 -
Dr.Chandrashekar, who has conduc ted the DNA
profile examination and opined that the bones
which were found belongs to the mother of
PW.1/CW.1-Basanagowda and CW.8 -Rajesh. The
contention raised that the person who drew the
blood of PW.1/CW.1-Basanagowda and CW.8 -
Rajesh which was sent to forensic examination has
not been examined, giving raise to probable
contamination is also negated by the fact that the
blood was drawn in the presence of the magistrate,
packed sealed and sent to the RFSL, thus the non
examination of the person who drew the blood of
PW.1/CW.1- Basanagowda and CW.8 -Rajesh is
immaterial and would not have any consequence.”
ii. Secondly, as regards the exact cause of death the High Court
looked into the deposition of the PW-17 Dr. Tanaji, wherein it
was stated that pieces of burnt skeletal bones were recovered
from a pit in the Mullur forest area and a severed skull was
recovered from a different spot 20 ft. away from the said pit.
Further, the jaw was recovered from some other place. The
Court also noted that no skin or flesh was left to be seen on
the bones. In such circumstances, the Court held that it
would be inconceivable to ascertain whether the death was
caused due to strangulation using the plastic wire rope. The
relevant observations read thus:-
“47. Cause of Death: Coming to the minor
discrepancies pointed out by Shri Vijay Naik and
Sri Ramachandra Mali, learned counsels
appearing for the appellants/accused, one of the
Page 14 of 60
discrepancies pointed out is that in terms of the
postmortem report, the death of the deceased has
occurred due to skull injury whereas the case of
the prosecution was that the deceased died due to
throttling/strangulating. This issue would have to
be appreciated on the basis of the material
available i.e., the remnants of the body of the
deceased available. As is deposed to by the
witnesses, more particularly, PW.17/CW.25 -
Dr.Tanaji who has deposed that various pieces of
the body were in the form of bones which were
found in a pit in the Mullur forest area and the skull
was found at a different spot after 20 ft. from the
pit and the jaw was found at another place. There
is no skin or flesh available let alone around the
neck of the deceased, since admittedly the neck
itself was not available. In such a background, in
our considered opinion, it is impossible to ascertain
if the death has occurred due to
strangulation/throttling by using M.O.10 being the
plastic wire rope. The skull being found at another
place, it is probable that PW.17/CW.25-Dr.Tanaji
has mentioned in his Post Mortem report that the
death has occurred due to head injury. In the
cross- examination, on a suggestion being made
that death could have occurred due to any other
reason, he has answered in the affirmative. In our
considered opinion, the opinion of PW.17/CW.25-
Dr.Tanaji is a probable cause of death of the
deceased and not the actual cause of the death of
the deceased.”
iii. Thirdly, the High Court observed that the plastic wire rope
used to commit the murder, and the 10 liters plastic
container used to burn the body of the deceased were
discovered at the instance of the accused no. 1-Kalappa from
the dicky of the silver Maruti 800 car belonging to him. It was
further observed that the gold ornaments were also
Page 15 of 60
discovered at the instance of the accused no. 1-Kalappa. The
High Court took the view that the discovery panchanama,
Ex.P.8, had been proved by independent witness. Further, by
relying on the decision of this Court in State (NCT of Delhi)
v. Navjot Sandhu, reported in (2005) 11 SCC 600, the High
Court held that the simultaneous statements and discoveries
made at the instance of the accused persons would be
admissible. The relevant observations read thus:-
“49. Recovery: What is also of importance is that
M.0.10, the plastic wire rope which was used to
commit the murder and M.0.11 the 10 litres
capacity of plastic can which was used to burn the
body of the deceased were recovered at the
instance of accused No.1-Kalappa Hanmanth in
the Silver Maruti 800 car belonging to accused
No.1-Kalappa Hanmanth, in as much as the plastic
Wire rope was in the tool box and the Plastic petrol
can was in the dicky of the said car. M.Os.12 to 18
being the gold ornaments/jewelleries were also
recovered at the instance of accused No.1-Kalappa
Hanmanth wrapped in a handkerchief M.O.19
from a property which belonged to accused No.1-
Kalappa Hanmanth.[…] The recoveries being
made and the spot of occurrence having been
identified on the basis of simultaneous disclosures
made by the accused we are of the opinion that
the decision of the Apex court in STATE (NCT OF
DELHI VS. NAVJOT SANDHU reported in 2005 SCC
(Cri) 1715 would apply and such recoveries and
statement would be admissible.”
iv. Fourthly, the High Court observed that on 05.04.2013 the
PW-7 identified the accused nos. 3 and 4, respectively as the
persons who got in the accused no.1’s silver Maruti 800 car
at Ranna Circle in the evening of 23.03.2013 i.e., the day of
Page 16 of 60
the incident. The Court held that in such circumstances,
there was no requirement of a test identification parade to be
conducted. The relevant observations read thus:-
“51. From the evidence on record it can be gathered
that accused No.3-Imamasab and accused No.4 -
Mahadev Sidram were arrested at 6.30 a.m. on
04.04.2013 and shown to PW.7/CW.16 -Ramappa
on 05.04.2013 when he identified them as the
same persons that he had seen boarding the
Maruthi car of Accused No.1 it is only thereafter
that the statement of PW.7/CW.16-Ramappa was
recorded. In such circumstances there being no
dispute as regards the identity, there was no need
for a test identification parade to be conducted.”
v. Fifthly, the High Court held that the depositions of PWs 1, 7,
8, and 9, respectively establish that there was motive on the
part of the accused no. 1-Kalappa to kill the deceased. The
aforesaid witnesses have consistently deposed that the
deceased had lent an amount of Rs. 20 lakhs to the accused
no. 1-Kalappa, and despite repeated requests he did not
repay the money. The accused no. 1-Kalappa had also sold
the family property and had retained the sale proceeds all to
himself, and had not given the rightful share to Suresh,
another brother of the deceased. The Court concluded that
there was a serious dispute between the deceased and the
accused no. 1-Kalappa. The relevant observations read thus:-
“54. Motive: PW.1/CW.1 -Basanagowda,
PW.7/CW.16-Ramappa, PW.8/CW.7-Lakshmikant
and PW. 9/CW .10-Ravindra have categorically
deposed that the deceased had lent an amount of
Rs.20 lakhs to accused No.1-Kalappa Hanmanth
which despite repeated requests by the deceased,
Page 17 of 60
accused No.1-Kalappa Hanmanth did not make
payment of. Hence, there was a friction between
the deceased and accused No.1 -Kalappa
Hanmanth. The accused No.1-Kalappa Hanmanth
had sold family property and retained the money
from such sale with himself and had not given the
rightful share to Suresh, another brother of the
deceased and accused No.1-Kalappa Hanmanth
due to which the deceased was insisting upon
accused No.1-Kalappa Hanmanth to either give
him a share in terms of money or buy a property as
regards his share which accused No.1-Kalappa
Hanmanth did not want to do. It is an account of
the above two issues that their being dispute and
friction between the deceased and accused No.1-
Kalappa Hanmanth in order to put at rest these
issues wanted to get rid of the deceased. These
depositions of PWs-1, 7, 8 and 9 establish that
there was a motive on the part of accused No.1
Kalappa Hanmanth to cause the death of the
deceased.[…].”
vi. Sixthly, on the last scene theory, the High Court held that the
oral testimony of the PWs 1, 5, 6, 7, and 8, respectively clearly
establish that on the fateful day, the deceased was in the
company of the accused no. 1-Kalappa. The accused no. 1-
Kalappa did not explain anything except that he had left the
deceased at the utensil shop which was also refuted by the
deposition of the PW-6. The relevant observations read thus:-
“56. Last scene theory: PW.1/CW.1-Basanagowda
and PW.8/CW.7-Lakshmikant have deposed that
the deceased had at 1130 am gone to the house of
her daughter Shaila and thereafter to the house of
her brother Suresh from where the deceased had
after lunch gone with her brother accused no.1 to
the jewellery shop to get her chain, PW. 5/CW .14-
Rakesh, the owner of jewellery stop has deposed
Page 18 of 60
that the deceased and accused No.1 -Kalappa
Hanmanth came to his shop at 3 p.m. and left
together, PW.6/CW.15-Ramachandra the owner of
the utensil shop has deposed that deceased and
accused No.1-Kalappa Hanmanth came to his shop
to buy utensils, left the shop and again came back
at about 4:45 p.m. bought two big boxes, informed
him that they were not able to take the said boxes
and that they would send somebody to collect the
boxes later in the night. PW.7/CW.16-Ramappa
has deposed that he saw the deceased in the
passenger seat of the car-M.O.21 belonging to
accused No.1-Kalappa Hanmanth at Ranna Circle
at 5:30 p.m. when accused No.2-Anand Pujari,
accused No.3-Imamasab and accused No.4 -
Mahadev Sidram also boarded the said car and the
car went towards Lokapur. Thus, it is clear that
from after lunch on the ill-fated day, the deceased
was in the company of accused No.1 -Kalappa
Hanmanth. Except to state that he had left the
deceased at the utensil shop, accused No.1 -
Kalappa Hanmanth has not stated anything else,
more so, when the deceased and accused No.1 -
Kalappa Hanmanth left together from the utensil
shop which falsifies the contention that accused
No.1 had left the deceased at the utensil shop. This
being so from the disposition and evidence tended
by PW.6/CW.15 -Ramachandra who is an
independent third party witness. Further more, the
deceased and accused No.1-Kalappa Hanmanth
were seen at Ranna Circle at 5:30 p.m. i.e., after
leaving the utensil shop of PW.6/CW.15 -
Ramachandra. Hence, this would also falsify the
assertion made by accused No.1 -Kalappa
Hanmanth that he had left the deceased at the
utensil shop. The CDR marked at Ex.P.60,
indicates that the deceased was in Mudhol at
17.19 hours on 23.03.2013, thereafter, there has
been no phone calls to the deceased. The accused
No.1-Kalappa Hanmanth was in Mudhol at 17.01
hours on 23.03.2013, but at 21.07 hours he was
Page 19 of 60
at Batakurki i.e., the place where the body was
burnt and later found, this also indicates the
presence of Accused no.1 at that place.”
vii. Seventhly, in the aforesaid circumstances, the High Court
held that the circumstances established an irresistible
conclusion of guilt of the accused persons. It observed that
there is no break in the chain of events. The relevant
observations read as under:-
“58. The circumstances above established through
evidence lead to an irresistible conclusion of guilt
of the accused. All the facts and evidence are
consistent, the occurrence of events cannot be
explained in any other manner other than the
drawing of the conclusion that they are guilty of the
offence alleged. The chain of evidence are so
complete that they do not leave any reasonable
ground for doubt and establish that in all human
probability the murder of the deceased has been
committed by the accused.[…]
59. The manner in which the spots were identified
and the items seized through the accused
categorically indicate and establishes the chain of
events as they occurred. There is absolutely no
break or weakness in any of the chain of events
and of all them stand established.”
III. SUBMISSIONS ON BEHALF OF APPELLANTS
21. Mr. Gurudatta Ankolekar, the learned counsel appearing for the
accused-appellant [original accused no. 2] made the following
submissions:-
i. He submitted that there is no cogent or any reliable evidence
to establish the motive attributed for the commission of the
crime as the family of the deceased had more than 100 acres
Page 20 of 60
of land, and the deceased was in charge of the financial
transactions of the family. In such circumstances, anyone
could have had enmity with the deceased. Thus, it cannot be
conclusively said that the appellant committed the offence.
ii. As regards involvement of the appellant, he submitted that
there is no evidence worth the name on record to connect the
appellant with the alleged crime except the testimony of the
PW-7 which ought not to have been relied upon as test
identification parade of the appellant was not conducted.
iii. He further submitted that it clearly emerges from the
testimony of the PW-4 that there was no discovery at the
instance of the accused nos. 2, 3, and 4, respectively. In this
context, he argued that the application of Section 27 of the
Indian Evidence Act, 1872, (for short, “the Evidence Act”)
is erroneous as there has been no discovery of any fact from
the spot where the body was allegedly burnt. Thus, both the
courts erred in taking the discovery statement made by the
accused no. 1-Kalappa as a ‘joint statement’ on behalf of all
the accused persons.
iv. In the last, he submitted that as per the case of the
prosecution, the death was due to strangulation, however,
the postmortem and the FSL report reveal that the cause of
death was injury on the head.
Page 21 of 60
22. In addition to the aforesaid submissions, Mr. Charudatta
Mahindrakar, the learned counsel appearing for the accused-
appellant [original accused no.4] would submit that the
conviction of the appellant is based on weak and incomplete
circumstantial evidence with no discovery at his instance. He
submitted that the only incriminating circumstances against the
appellant is that he was last seen getting into the accused no.
1-Kalappa’s silver Maruti 800 car at Ranna Circle, and he was
one of the persons arrested alongwith the accused nos. 2 and 3,
respectively.
i. In the aforesaid context, Mr. Mahindrakar, with a view to
fortify the submission on identification of the appellant
highlighted that the PW-7 was not acquainted with the
appellant herein. In such circumstances, the absence of a
test identification parade could be said to be a crucial
missing link in the prosecution’s case.
ii. He further submitted that no specific motive has been
attributed to the accused no. 4. He submitted that except the
aforesaid inadmissible confession there is no independent
evidence to prove prior meeting of mind to indicate shared
intention to participate in the crime.
iii. He further submitted that all the articles i.e., gold ornaments
of the deceased, silver Maruti 800 car, petrol can, rope were
discovered at the instance of the accused no. 1-Kalappa from
his own farm land and car.
Page 22 of 60
iv. In the last, he submitted that since the prosecution’s version
is not the only reasonable hypothesis, the chain of evidence
could neither be said to be complete nor incapable of
explanation, and therefore the impugned judgment be set
aside and the appellant be acquitted.
IV. SUBMISSIONS ON BEHALF OF THE RESPONDENT
23. Mr. Avishkar Singhvi, the learned Additional Advocate General,
assisted by learned A.O.R. Mr. Himanshu Mishra, would argue
that the evidence on record clearly indicates that the deceased
was last seen in the company of the appellants, there has been
discovery of material objects at the instance of the appellants,
the depositions establish the motive behind the crime, and the
chain of circumstantial evidence is complete.
i. As regards motive, the learned AAG submitted that the oral
testimony of the PWs 1, 7, 8, and 9, respectively, clearly
establishes that there was a dispute between the deceased
and the accused no. 1-Kalappa over discharge of loan of Rs.
20 lakh and division of family property and thus there was a
clear motive for the accused no. 1-Kalappa to commit the
crime. The accused no. 1 -Kalappa conspired with the
accused no. 2, who introduced him to the accused nos. 3,
and 4, respectively to weed out the disputes.
ii. In the aforesaid context, the learned AAG submitted that the
last seen theory is established from the oral evidence of the
PW-5 (gold shop owner), PW-6 (utensil shop owner), and PW-
7, respectively. At about 5:30 PM, the PW-7 saw the deceased
Page 23 of 60
with the accused no. 1-Kalappa in his silver Maruti 800 car
while the accused-appellants were getting into the said car.
iii. The learned AAG pointed out that the voluntary statements
of the accused persons which led to the discovery of fact i.e.
the plastic wire rope, 10 liters plastic petrol container,
jewellery and silver Maruti 800 car, conclusively connects
the appellants with the commission of crime. The learned
AAG further submitted that the discovery panchanama was
proved by independent panch witnesses i.e., the PWs 3 and
4, respectively.
iv. In the last, the learned AAG submitted 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
judgment.
V. ISSUE FOR CONSIDERATION
24. Having heard the learned counsel appearing for the parties and
having gone through the materials 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.
VI. ANALYSIS
25. Before adverting to the rival contentions raised on either side,
we must at the outset state that the entire case of the
prosecution hinges on circumstantial evidence.
Page 24 of 60
26. The prosecution seeks to rely upon the following circumstances
for the purpose of establishing the guilt of the appellants beyond
reasonable doubt. In other words, according to the prosecution
the following circumstances form a chain of evidence excluding
every possible hypothesis except the guilt of the appellants.
i. On the date of incident, the deceased left her house at
around 11:30 AM to visit CW-9 Shaila i.e., her daughter’s
house. She was there till 1:15 PM. From her daughter’s
house, the deceased went to the house of her younger
brother, CW-13 Suresh. The deceased is said to have
reached there at 1:30 PM.
ii. At about 3:30 PM, the deceased left from CW-13’s house
with her elder brother i.e. the accused no. 1-Kalappa, in his
silver Maruti 800 car, as she wanted to get some utensils
exchanged at the market.
iii. At about 3:45 PM, the deceased reached the gold shop with
the accused no. 1-Kalappa and enquired about gold rate
and left stating that they would visit again in two-three
days.
iv. At about 4:30 PM, the deceased alongwith the accused no.
1-Kalappa reached the utensil shop and got two small
containers exchanged for two large containers. At 5:15 PM,
she left the shop stating to the shop owner that she would
return in some time to pick up the exchanged containers.
The deceased was seen going towards the accused no. 1-
Kalappa’s silver Maruti 800 car.
Page 25 of 60
v. At about 5:45 PM, the deceased was last seen by the PW-7
with the accused no. 1-Kalappa in his silver Maruti 800
car, and the accused nos. 2 to 4, respectively later getting
into the said car. The car travelled towards Lokapur.
vi. When the deceased did not return to her home, the PW-1,
CW-8 Rajesh, CW-9 Shaila and CW-10 Ravindra (husband
of the deceased), respectively started searching for the
deceased and enquired at the gold and utensil shop.
vii. After few days i.e. on 27.03.2013, while on patrolling duty,
the PW-2 spotted burnt bones, a skull, a piece of burnt
saree, a piece of bangle in the Mullur forest area. In
pursuance, an FIR was lodged at the Ramadurga Police
Station.
viii. When the PW-1 was informed that a case was registered
with the Ramadurga Police Station in connection with
recovery of a charred body of an unidentified woman, he
identified the deceased’s saree (MO-1) and bangles (MO-2)
at the police station. He informed that no gold ornaments
were found at the spot where the skeletal remains were
found.
ix. As per the FSL report, Ex.P.34, the skeletal remains were
identified to be of a woman, aged more than 35 years. The
time of death was assigned to be 3 to 6 months prior to
examination.
x. As per the DNA report, Ex.P.43, the bones of the deceased
matched with the PW-1 and CW-8 Rajesh as her biological
offspring.
Page 26 of 60
xi. All four accused persons were arrested and their disclosure
statements, Ex.P.50 to 54, respectively, were recorded. The
accused no. 1-Kalappa pointed out the place where the
accused persons committed the murder of the deceased
and also the place where the deceased’s body was burnt.
All the other three accused made simultaneous disclosure
statements.
xii. A silver Maruti 800 car in which the deceased was
abducted; 5 ft. plastic wire rope (MO-10); 10 liters plastic
container (MO-11); gold ornaments (MO-12 to 18) were
discovered in furtherance of the voluntary disclosure
statement of the accused persons.
27. The logical process involved in the admission and consideration
of circumstantial evidence has been explained by Wigmore on
Evidence in paragraph 32 et seq. The test for the admissibility
of evidence to prove a circumstantial fact was expressed in the
following words:-
“The evidentiary fact will be considered when,
and only when, the desired conclusion based upon
it is a more probable or natural, or at least a
probable or natural hypothesis, and when the
other hypotheses or explanations of the fact, if any,
are either less probable or natural, or at least not
exceedingly more probable or natural” (paragraph
32, page 421).
“Where even the possibility of a single other
hypothesis remains open, Proof fails, though it
suffices for Admissibility if the desired conclusion
is merely the more probable, or a probable one,
even though other hypotheses, less probable or
equally probable remain open. It is thus apparent
Page 27 of 60
that, by the very nature of this test or process, a
specific course is suggested for the opponent. He
may now properly show that one or another of
these hypotheses, thus left open, is not merely
possible and speculative, but is more probable and
natural as the true explanation of the originally
offered evidentiary fact” (paragraph 34, page 423).
28. In the aforesaid context, Kenny states that:-
“An amount of testimony which is not sufficient to
rebut the presumption of innocence entirely (i.e., to
shift the burden of proof so completely as to compel
the prisoner to call legal evidence of circumstances
pointing to his innocence), may yet suffice to throw
upon him the necessity of offering, by at least an
unsworn statement, some explanation. If he
remain silent and leave this hostile testimony
unexplained, his silence will corroborate it, and so
justify his being convicted” (page 388).
29. The principle that criminal courts should bear in mind is, in the
words of C.B. Pollock:-
“To make a comparison between convicting the
innocent man and acquitting the guilty is perfectly
unwarranted. There is no comparison between
them. Each of them is a great misfortune to the
country and discreditable to the administration of
justice. The only rule that can be laid down is that
in a criminal trial you should exert your utmost
vigilance and take care that if the man be innocent
he should be acquitted, and if guilty that he should
be convicted.” (quoted in Donough’s Principles of
Circumstantial Evidence, 1918, 158).
30. From the above, the following propositions emerge:-
Page 28 of 60
1. Circumstantial evidence to justify conviction must be
consistent with any reasonable or rational hypothesis of
guilt of the accused.
2. When the inference of guilt from the proved incriminating
facts is a more natural and probable hypothesis than the
other, the onus of offering an explanation for the
incriminating facts lies upon the accused. If he does not
offer any explanation, or falsely denies the very existence of
the incriminating facts, it is itself a circumstantial fact
against him, even if the court is in a position to imagine an
explanation. The guilt is the legitimate inference from the
incriminating facts and the added circumstantial fact of
failure or refusal to offer an explanation for the
incriminating facts because it is not reasonable or rational
to say that the accused would fail or refuse to offer an
explanation consistent with his innocence if he could. It is
immaterial in such a case whether the Court can imagine
an explanation or not.
3. If the inference of guilt from the proved incriminating facts
is a less natural or probable hypothesis than the other, the
Court cannot draw it and the accused must be acquitted
whether he offers any explanation or not.
4. If the inference of guilt from the proved incriminating facts
is as much a natural or probable hypothesis as any other,
the accused may be called upon to explain and if he fails or
refuses, the Court may treat it as an additional
circumstantial fact and infer his guilt. Or it may take
Page 29 of 60
judicial notice of the other hypothesis even without any
explanation by the accused and acquit him.
31. In a catena of decisions, it has been consistently held that when
a case rests upon circumstantial evidence, such evidence must
satisfy the tests laid down by this Court in Sharad
Birdhichand Sarda v. State of Maharashtra, reported in
(1984) 4 SCC 116. The relevant observations read thus:-
“153. A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated
that the circumstances concerned “must or should”
and not “may be” established. There is not only a
grammatical but a legal distinction between “may
be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793
: 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where
the 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 and the mental
distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
Page 30 of 60
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.”
(Emphasis supplied)
32. The picture that emerges on cumulative assessment of the
materials on record is that it was original accused no. 1, namely,
Kalappa who had disputes with his sister i.e., the deceased.
Kalappa had borrowed a huge amount from his sister and was
not ready and willing to repay the said amount. Kalappa is also
said to have disposed of one ancestral property and declined to
share the sale proceeds with his younger brother, namely,
Suresh. This was not liked by the deceased. Due to all these
disputes, the relations between Kalappa and his sister were
strained. Going by the case of the prosecution as it is without
adding or subtracting anything, Kalappa wanted to get rid of his
sister and in such circumstances, he sought help of the other
three co-accused including the two appellants before us.
33. The aforesaid appears to be the actual position considering the
oral evidence on record. The appellants before us as such had
nothing to do with the deceased. In other words, the appellants
had no axe to grind against the deceased. When we are talking
about motive, the appellants had no motive to eliminate the
deceased. The question is what role the appellants could be said
to have played in the alleged crime. The appellants could be said
Page 31 of 60
to be accomplice in the alleged crime. An accomplice is a person
who voluntarily and knowingly participates in the commission
of a crime with the principal offender.
34. An accomplice is one who is associated with an offender or
offenders in the commission of a crime or one who knowingly or
voluntarily helps and cooperates with others in the commission
of the crime. In other words, a guilty associate or partner in
crime or who is somehow connected with the crime. He is an
associate in the crime committed whether as a principal or
accessory. In the New Oxford Dictionary, it is stated that the
word “accomplice” may be spelt as “a complice” meaning a
partner in crime, an associate in guilt.
35. It was held by the Oudh High Court in the case of Jagannath
v. Emperor, reported in AIR 1942 Oudh 221, that contribution
to a crime could take place in several ways. Accomplice is
categorized as follows:-
i. Principal in the First Degree
ii. Principal in the Second Degree
iii. Accessory Before the Fact
iv. Accessory After the Fact
36. By a ‘principal in the first degree’ means the actual offender. In
other words, the man in whose guilty mind lay the latest
blamable mental cause of the criminal act. Almost always, of
course, he will be the man by whom this act itself was done. A
‘principal in the second degree’ is a person who aids and abets
Page 32 of 60
another in the perpetration of a crime and common law has
always been equally punishable with the actual door of the deed.
In other words, the principal in the second degree is one by
whom the actual perpetrator of the felony is aided and abetted
at the very time when it is committed. [See: Kenny’s Outlines of
Criminal Law]
37. We shall now proceed to consider whether there is any cogent
and reliable evidence to hold the two appellants guilty of the
alleged crime as accomplice. As discussed above, there are two
circumstances we need to look into insofar as the two appellants
are concerned:-
(i) Last seen together with the deceased; and
(ii) Discovery of fact in the form of disclosure statement relevant
under Section 27 of the Evidence Act.
A. Last seen together with the deceased
38. We looked into the oral testimony of the PW -7 Ramappa
Timappa Mareguddi. The PW-7 in his examination in chief has
deposed as under:-
“There is a distance of 3-4 Km in between Halaki
village and Metagudd village and I know the family
of Nadagouda of Metagudd and their lands come
in between Halaki and Kamakeri and they were
doing agriculture since from their ancestors. That
about 100 acres land is there to the family of
Nadagouda and money transaction in the family is
looked after by Bebakka and accused No-1 who is
before the Court is elder brother of Bebakka. I
know C.W.17 and one woman given from
Page 33 of 60
Timmanna's family to C.W.8 as such I know
C.W.17.
That about 3 or 3
1/2 years back one day at about
05-30 p.m. I was standing in Ranna Circle of
Mudhol, at that time C.W.17 also came there and
we were talking there at that time accused No.1
and Bebakka were came in Maruti 800 car from
Mudhol Shivaji circle towards Ranna circle and at
a distance vehicle stopped and accused No. 2 to 4
were boarded the said car, hence C.W.17 gone
near the car to talk to his relatives before he reach
the car was gone, the said vehicle gone towards
Lokapur later C.W-17 had been to his village and I
had been to my village.
That after 4-5days of same we heard that Bebakka
has not returned, as such I informed C.W.7
husband of the deceased (siq) that, I and C.W.17
saw Bebakka and Kalappa, after one week of the
same I heard Bebakk's dead body found in Mullur
hill and in that regard there is complaint lodged.
Later police called me to police station and inquired
me and I told regarding the Bebakka gone in car
and police have shown the accused persons and I
identified them as the persons gone in car on that
day. Police have informed me that, these four
accused have murdered Bebakka and burnt.
I came to know that, as accused No.1 borrowed
hand loan from Bebakka and when Bebakka
insisted him to return the loan and also give share
to her younger brother, as such accused No.1 was
unhappy with Bebakka and along with other
accused committed her murder.”
(Emphasis is ours)
39. The cross-examination of the PW-7 reads as under:-
“Our lands and lands of C.W-1 are not near. Since
from the ancestors our family knows the family of
C.W-7 and we use to go to their house and after
Page 34 of 60
missing of Bebakka on that day, next and other
day also their family members searching for her
and on those days I didn't accompanied them. Next
day we didn't inform C.W-7 about Bebekka went
by the car. After four days of the incident I told
C.W.7 regarding I saw the Bebakka. On that day
C.W-7 and I had not been to police station and told
regarding missing of Bebakka. After 10-12 days of
incident police recorded my statement. I didn't
have any problem to inform police after 4-5days
after missing of Bebakka. It is denied that police
have recorded my statements as convenient to this
case.
I deposed that I do not know on that day why
C.W.17 came to Ranna circle Mudhol. C.W-17 is in
Ranna circle for going to his village and I was also
standing there to go to my village. C.W.17 belongs
to Kamaladinni Mudalagi. It is admitted that,
people travel through Belalagi, Mahalingapura to
reach Mudhola from Mudalagi. It is denied that,
there is 30k.m. from Mudalagi to Mudhola, it is
40k.m. I don't know that, it will be 70k.m. if we go
through Yadavada, Kuragoda, Masiguppi from
Mudhol. It is denied that, C.W.-17 has not come to
Ranna Circle, I & C.W. -17 didn't have any
conversation. It is admitted that, I am close to C.W-
7 & C.W-1. It is admitted that, C.W-17 & C.W- 7 are
relatives. Further it is denied that as I know C.W.7
and C.W.1 and we are being relatives of C.W.17 for
that reason C.W.17 and I are deposing falsely that
we have seen the accused with Bebakka going in
car and C.W.1 and 7 have given their name to the
police in his case.
Further denied that I am deposing falsely that,
when I tried going near the car to talk with relatives
the car passed away. Further denied that I am
deposing falsely that, after 4-5 days of the incident
I and CW.17 told CW.7 regarding taking of
Bebakka by accused persons. It is denied that, I'm
Page 35 of 60
deposing falsely that, police have taken my
statement after 10-12days of the incident. It is also
denied that, I am deposing falsely that, police have
told me that, four accused have murdered Bebakka
and burnt.
Further denied, as the Bebakka given money to
accused No.1 and accused No.1 unable to return
the hand loan and as such he along with other
accused committed her murder and burnt her and
by listening to the CW.7 I am deposing falsely
before the court. Further it is denied that CW.7 has
agreed to sell the land and took Rs.40 lakh as
consideration and as he is not executing the sale
deed made false allegation against accused No-1
and other accused persons. I don't know the names
of accused No-3 & 4.”
40. Thus, according to the PW-7, on one particular day at around
5:30 PM, he had seen the deceased sitting in Maruti 800 car
along with her brother i.e., Kalappa somewhere near Mudhol
Shivaji Circle and at that point of time the appellants and the
third co-accused are alleged to have got into the said car. Thus,
relying on the oral testimony of the PW-7, the prosecution seeks
to argue that all the four accused persons were last seen in
company of the deceased.
41. The last seen theory comes into play where the time gap between
the point of time when the accused and the deceased were last
seen alive and the deceased is found dead is so small that
possibility of any person other than the accused being the
author of the crime becomes impossible. Even in such a case,
the courts should look for some corroboration.
Page 36 of 60
42. In State of U.P. v. Satish reported in (2005) 3 SCC 114, this
Court observed:-
“22. The last-seen theory comes into play where
the time-gap between the point of time when the
accused and the deceased were last seen alive
and when the deceased is found dead is so small
that possibility of any person other than the
accused being the author of the crime becomes
impossible. It would be difficult in some cases to
positively establish that the deceased was last
seen with the accused when there is a long gap
and possibility of other persons coming in between
exists. In the absence of any oth er positive
evidence to conclude that the accused and the
deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those
cases. In this case there is positive evidence that
the deceased and the accused were seen together
by witnesses PWs 3 and 5, in addition to the
evidence of PW 2.”
(Emphasis Supplied)
43. By now, it is a well settled position of law that the circumstance
of “last seen together” does not by itself and necessarily lead to
the inference that it was the accused who committed the crime.
There must be something more establishing the connectivity
between the accused and the crime. The Courts should look for
some corroboration.
44. For the present, we proceed on the footing that the accused
persons were last seen along with the deceased as deposed by
the PW-7. However, it would be too risky to reach the conclusion
that the appellants before us are guilty of a serious crime like
murder, in their capacity as accomplice, solely on this piece of
Page 37 of 60
circumstance of “last seen together”. We shall examine whether
there is any other incriminating piece of circumstance to lend
credence to the circumstance of last seen together.
B. Discovery at the instance of the accused-appellants
45. Apart from calling the two panchas at the police station for the
purpose of drawing a discovery panchanama the Investigating
Officer (I.O.) adopted a very unusual procedure. He recorded
confessional statements of each of the accused persons. We
looked into those confessional statements which the Trial Court
exhibited in evidence i.e., Exhs. 50 to 53 respectively. In each of
the confessional statements, the accused persons made a clean
breast of their crime. These confessional statements, as such
could be said to be hit by Section 25 of the Evidence Act and
could not have been exhibited. For the time being, we ignore this
and proceed further.
46. It appears from the materials on record that the appellants were
arrested on 04.04.2013 at around 6:30 AM. It is the case of the
prosecution that while they were in police custody, they on their
own free will and volition expressed their willingness to point out
the place from where the deceased was abducted, later on killed
and the body was burnt. In this regard, the I.O. is said to have
called two panchas (independent witnesses) for the purpose of
drawing the discovery panchanama.
Page 38 of 60
47. We straightaway proceed to look into the oral evidence of the
panch witnesses the PW-4, namely, Sachin Ramappa Malali. The
examination-in-chief of the PW-4 reads thus:-
“Sachin has deposed that, about 3 1/2 years back
one day he along with C.W-6 Basappa were going
from Metagudd towards Mudhol at about 07.00am,
when we were passing in-front of police station,
they called us and asked to which village we
belongs to and when we told that we are from
Metagudda, they told that C.P.I has calling us and
took us to the Police Station. There police have
shown four accused persons and in which we
identified accused No-1, Kalappa and accused
No.2 Ananda and told that we are not familiar with
accused No-3 & 4.
Later, police told us that all the accused have
committed murder of woman by name Bebakka
and they are going to prepare panchanama and
asked us to come with them. Then accused No-1
has produced his Samsung mobile in which one
BSNL and another Vodafone Sims were there.
Later, police have pasted a slip on the mobile in
which they have signed and then prepared
panchanama in laptop in the police station and
took print after reading over the same, I and C.W-
6, Basappa have signed on it. Witness has
identified their signature on the said inquest; it
was marked at Ex.P-7, his signature on Ex.P-7 has
marked at Ex.P-7(a). I can identify the mobile &
Sims which was seized from accused no -1.
Witness has identified mobile and Sims which
were before the court, mobile and Sims were
marked at M.O-9.
Later, police brought a Cruiser vehicle and I along
with four accused, four police, C.W-6 Basappa,
C.P.I and P.S.I boarded the vehicle and accused
No-1 Kalappa first took the vehicle to Bhavani steel
shop, then accused No.1 told that, from Bhavani
Page 39 of 60
Steel Shop he picked Bebakka in his car, police
have drawn panchanama and took photograph.
Later, again when we sat in the cruiser vehicle,
accused No.1 told us to turn the vehicle towards
Lokapur and on Lokapur road after crossing
Jeeragal at a distance of 2km accused No.1 told to
take the vehicle towards Ingalagi cross, after
passing 1km stopped the vehicle and there we all
got down from the vehicle and there accused told
that they have committed murder of Bebakka by
putting wire rope to her neck and there also police
have drawn panchanama.
Then accused took the vehicle towards Mullur hill
and after passing Lokapur, Betakurki, Ramdurg at
a distance of 4km at Mullur hill accused No.1
asked to take the vehicle in a katcha road after
passing 1Km stopped the vehicle and then
Kalappa and all of us got down from the vehicle
and other 3 accused were there in vehicle. Later
accused No.1 took them near a crossing road
where there was a three feet deep and four width
ditch and told that they had burnt Bebakka there.
Later three accused were brought one after the
other and they also showed the same spot where
they had burnt Bebakka and there police drew
panchanama and took photographs.
Later, accused No.1 after all boarding on the
vehicle told CPI to take the vehicle towards
Metaguud village and from Salahalli, Dondikatti,
Halagi we gone to Metagudd village. Later accused
No.1 told to drive the vehicle towards land and
there in the land one house was there and one 800
car was packed. There accused took us and shown
that in that car and informed that, he has
kidnapped Bebakka and same is Maruti 800 of
silver colour. Later accused No.1 opened the door
and from tool box produced one plastic wire rope
about 5 feet in length and told that from which he
Page 40 of 60
has committed murder by putting it to her neck,
then from Dickey he has produced one plastic can
in which he has took petrol. Later police have
seized rope, can and car under panchanama.
Later, accused No.1 took us behind the cattle shed
and there he produced one handkerchief in which
he had put the golden ornaments in which two
patlis, four bilwars, one bendawale, one
Venkataraman locket chain, one nuptial knot, one
suttungur, one gold ring with stone, and police
have seized all the material under panchanama.
Later, police have taken my and C.W-6 Basappa's
signatures on all the five pancahnamas and on all
the spot police have taken photographs. Under
panchanama Ex.P-8 rope can and car were seized
which were marked at M.O-10 and 11. Photograph
of car marked at Ex-P-9 and CD at Ex.P-9(a).
During the drawing of panchanama Ex.P -7 and
Ex.P-8 14 photographs have been taken which
were marked at Ex.P.10 to Ex.P-23. I will identify
the ornaments if I see now.”
(Emphasis is ours)
48. A plain reading of the oral testimony of the PW-4 would indicate
that when the PW-4 reached the police station, he noticed that
four individuals were arrested in connection with the alleged
crime. The I.O. informed the PW-4 that all the four accused had
committed murder of a woman by name Bebakka and the police
would like to draw a discovery panchanama.
49. The PW-4, thereafter, proceeded to depose how the original
accused no. 1-Kalappa produced his Samsung mobile, other
articles etc. What is most relevant to note is that according to
Page 41 of 60
the PW-4, the first person to get down from the police vehicle
was Kalappa, and it was Kalappa who led the police party
through a kaccha road and pointed out the place where the dead
body of the deceased was burnt. According to the PW-4, later the
other three accused including the appellants before us one after
the other pointed out the same spot. Again, what is most
relevant for us is to note that the PW-4 has not deposed anything
about any particular statement made by the appellants in his
presence.
50. The oral evidence of the PW-4 insofar as discovery is concerned
should be looked into and appreciated keeping in mind the
principles of law as explained by a Three-judge Bench decision
of this Court in the case of Ramanand @Nandlal Bharti v.
State of Uttar Pradesh, reported in (2023) 16 SCC 510. We
quote the relevant paragraphs as under:-
“55. Section 27 of the Evidence Act, 1872 reads
thus:
“27. How much of information received from
accused may be proved.—Provided that, when
any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence, in the custody
of a police officer, so much of such information,
whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered,
may be proved.”
56. If, it is say of the investigating officer that the
appellant-accused while in custody on his own free
will and volition made a statement that he would
lead to the place where he had hidden the weapon
of offence along with his bloodstained clothes then
Page 42 of 60
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 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. When the accused while in custody makes
such statement before the two independent
witnesses (panch witnesses) the exact statement
or rather the exact words uttered by the accused
should be incorporated in the first part of the
panchnama that the investigating officer may draw
in accordance with law. This first part of the
panchnama for the purpose of Section 27 of the
Evidence Act is always drawn at the police station
in the presence of the independent witnesses so as
to lend credence that a particular statement was
made by the accused expressing his willingness on
his own free will and volition to point out the place
where the weapon of offence or any other article
used in the commission of the offence had been
hidden. Once the first part of the panchnama is
completed thereafter the police party along with the
accused and the two independent witnesses
(panch witnesses) would proceed to the particular
place as may be led by the accused. If from that
particular place anything like the weapon of
offence or bloodstained clothes or any other article
is discovered then that part of the entire process
would form the second part of the panchnama. This
is how the law expects the investigating officer to
draw the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If we read
the entire oral evidence of the investigating officer
then it is clear that the same is deficient in all the
aforesaid relevant aspects of the matter.
57. The reason why we are not ready or rather
reluctant to accept the evidence of discovery is that
Page 43 of 60
the investigating officer in his oral evidence has not
said about the exact words uttered by the accused
at the police station. The second reason to discard
the evidence of discovery is that the investigating
officer has failed to prove the contents of the
discovery panchnama. The third reason to discard
the evidence is that even if the entire oral evidence
of the investigating officer is accepted as it is, what
is lacking is the authorship of concealment. The
fourth reason to discard the evidence of the
discovery is that although one of the panch
witnesses PW 2 Chhatarpal Raidas was examined
by the prosecution in the course of the trial, yet has
not said a word that he had also acted as a panch
witness for the purpose of discovery of the weapon
of offence and the bloodstained clothes. The
second panch witness, namely, Pratap though
available was not examined by the prosecution for
some reason. Therefore, we are now left with the
evidence of the investigating officer so far as the
discovery of the weapon of o ffence and the
bloodstained clothes as one of the incriminating
pieces of circumstances is concerned. We are
conscious of the position of law that even if the
independent witnesses to the discovery
panchnama are not examined or if no witness was
present at the time of discovery or if no person had
agreed to affix his signature on the document, it is
difficult to lay down, as a proposition of law, that
the document so prepared by the police officer must
be treated as tainted and the discovery evidence
unreliable. In such circumstances, the Court has to
consider the evidence of the investigating officer
who deposed to the fact of discovery based on the
statement elicited from the accused on its own
worth.”
(Emphasis Supplied)
Page 44 of 60
51. The manner of proving a disclosure statement under Section 27
was also explained in Mohd. Abdul Hafeez v. State of A.P.,
reported in (1983) 1 SCC 143, which reads thus:-
“5.[…] If evidence otherwise confessional in
character is admissible under Section 27 of the
Indian Evidence Act, it is obligatory upon the
Investigating Officer to state and record who gave
the information; when he is dealing with more than
one accused, what words were used by him so that
a recovery pursuant to the information received
may be connected to the person giving the
information so as to provide incriminating evidence
against that person.[…].”
(Emphasis supplied)
52. The conditions necessary for the applicability of Section 27 of
the Evidence Act are broadly as under:-
1. Discovery of fact in consequence of an information
received from accused;
2. Discovery of such fact to be deposed to;
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 — Mohd. Inayatullah
v. State of Maharashtra, (1976) 1 SCC 828.
53. We may refer to and rely upon a Constitution Bench decision of
this Court in State of U.P. v. Deoman Upadhyaya , reported in
1960 SCC OnLine SC 8, wherein, para 65 explains the position
of law as regards Section 27 of the Evidence Act. It reads thus:-
“65. The law has thus made a classification of
accused persons into two : (1) those who have
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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
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 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)
54. The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kotayya v. King Emperor,
reported in 1946 SCC OnLine PC 47 , 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 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 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
Page 46 of 60
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 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.”
(Emphasis supplied)
55. Alongwith the oral testimony of the PW-4, we also looked into
the oral testimony of the I.O. i.e., PW-24, namely, Holebasappa
Devareddy Mudareddy which reads thus:-
“I am working as CPI of Mudhol from February
2012 to 03.10.2012. On 03.04.2013 I had
taken over the case file in this case from
C.W.31 and perused the investigation done so
far. Then instructed C.W.31 and perused the
investigation done so far. Then instructed
C.W.31 and his staff for searching accused
persons at about 06.30a.m produced them in
Mudhol police station. The report submitted by
C.W-31 in that regard is already marked as
Ex.P-39 and witness signature marked as
Ex.P.39 (b). During the enquiry accused have
admitted the commission of guilt as such
arrested them and followed the arrest
procedure. Then all the four accused have given
their voluntary statements as per Ex.P.50 to
Ex.P.53 and witness signatures have been
marked as Ex.P.50 (a) to Ex.P.53 (a). Accused
Nos. 1 and 3 have signed and accused Nos.2
and 4 have put their thumb impressions.
Later accused No.1 Kalappa has produced his
mobile and two SIMS are seized in the presence
of C.W.5/PW-4 and 6 Basappa (siq) from 07.30
Page 47 of 60
to 08.00 pm at Mudhol police Station, said
panchanama marked as Ex.P.7 and witness
signature marked as Ex.P.7 (b). Witness has
identified M.O.9. During the panchanama
photograph Ex.P.10 is taken.
Later the accused stated that they would show
the places where they committed the offence
and where they have kept the materials used
for commission of offence. Then along with
C.W.5 and 6, I and C.W.31 and his staff along
with accused boarded in a private cruiser
bearing No.KA-48/M-3769 and the first
accused took us to Tambak chowk Bhavani
Steel shop from where the accused No.1 had
picked up his sister Bebakka. We drew spot
panchanama between 09:45 to 10:00 AM and
prepared rough sketch and took photographs.
Rough Sketch marked at Ex.P.54 and witness
signature at Ex.p.54 (a) and photograph
marked at Ex.P.11
Later the accused said that they would show
the place where they had killed the deceased
and then we travelled via Shivaji Circle
towards Yadwad cross, Jeeragal, Jeeragal to
Ingalagi on a katcha road after crossing 1km
near the land of Bhimashi Ramappa Upp ar
asked to stop the vehicle and got down from the
same and showed the spot where they had
killed deceased and in the presence of Panchas
from 10.20 to 10.45 a.m. drawn panchanama
and prepared rough sketch and taken
photograph. Said rough sketch map is marked
at Ex.P.55 and witness signature marked at
Ex.P.55 (a) and photograph marked at Ex.P.12.
Then accused told us that they would show the
spot where they had burnt the deceased and
they proceeded towards Batakurki, Ramadurg
and from Ramadurg at a distance of 4km gone
Page 48 of 60
in a Mulluru hill and on the left side hill at a
distance of 1km inside took them and showed
a ditch where they had burnt the deceased. All
the accused were taken separately to the said
spot and they have shown the same place, as
such prepared the rough sketch map and took
photograph there. Rough sketch map marked
at Ex.P.56 and witness signature marked at
Ex.P.56 (a) and Photographs Ex.P.13 to 17 was
identified. We have executed panchanama
from 11.45 to 12.30, from the spot not seized
any thing as earlier to them the Ramadurga
police have seized those thing as earlier to
them the Ramadurga police have seized those
things in their P.S. Cr.No.47/2013 and they
have got information in that regard.
Later accused No.1. told that, he would show
the vehicle used for committing murder, rope
used for committing offence and later took them
to his farm house from Ramadurga via
Salahalli, Tondikatti, Metagudd and Jaliberi
limits and stopped the vehicle in front of his
house. Where he has shown the vehicle Maruti
Suzuki bearing No.KA 48/M4843 and one
white rope from dash board of the car and one
10 ltrs plastic cane in which they have took
petrol and produced all the things. There from
02.00 to 02.45p.m. drawn the panchanama
and seized the same and also taken
photograph. Rope and can are marked at
M.O.10 and M.O.11. Witness has identified the
vehicle he seized. (Vehicle was given to interim
custody to the accused no-1 as per the order.)
Then accused No.1 told them that he will show
the ornaments taken from deceased body and
took them behind the cattle sheet and there by
digging the land took a hand kerchief and
produced the ornaments and in the presence of
Panchas from 02.20 to 03.20 seized the same
Page 49 of 60
which are marked at M.0.12 to M.0.19 and
taken photographs Ex.P.18 to Ex.P.23 during
the panchanama, said panchanama is already
marked at Ex.P.8 and witness signature
marked at Ex.P.8(c). Later we returned to the
station along with seized material objects.
Then called C.W.1, C.W.7 to C.w.15 and shown
the accused and seized materials to them and
recorded their further statements. C.W.14 and
C.W.15 have given their statements as per
Ex.P.24 and Ex.P.25. Then sent the accused for
medical examination and sent them along with
remand application to produce before the court.
Witness has identified the accused present
before the court.”
(Emphasis is ours)
56. What emerges from the oral testimony of the PW-24 i.e., the I.O.
is that all the accused persons led the police party to the place
where the deceased is alleged to have been killed. However, first,
it is the accused no. 1, namely, Kalappa who got down first from
the police vehicle and showed the spot where the deceased was
killed. Secondly, the accused persons are said to have shown the
place where they had burnt the body of the deceased. Each of
the accused was taken separately to the said spot and each of
the accused is said to have shown the same place. Rest of the
discoveries according to the I.O. were at the instance of the
original the accused no. 1-Kalappa.
57. We do not propose to outright discard the evidence in the form
of discovery solely on the ground that a joint disclosure
statement was recorded by the I.O. without indicating the
precise statement made by each of the accused persons. The
Page 50 of 60
argument before us on behalf of the appellants is that it cannot
be said with certainty whether all the four accused persons
simultaneously made the statement or each stated separately
one after the other and with what interval. It was argued that
joint disclosure statement being a statement by more than one
person had failed to be of any use insofar as Section 27 of the
Evidence Act was concerned.
58. Insofar as joint disclosure statement is concerned, the position
of law is well settled as explained by this Court in the case of
Navjot Sandhu (supra). We quote the relevant paragraph as
under:-
“145. Before parting with the discussion on the
subject of confessions under Section 27, we
may briefly refer to the legal position as
regards joint disclosures.[…]Some of the High
Courts have taken the view that the wording “a
person” excludes the applicability of the section
to more than one person. But, that is too narrow
a view to be taken. Joint disclosures, to be more
accurate, simultaneous disclosures, per se, are
not inadmissible under Section 27. “A person
accused” need not necessarily be a single
person, but it could be plurality of the accused.
It seems to us that the real reason for not acting
upon the joint disclosures by taking resort to
Section 27 is the inherent difficulty in placing
reliance on such information supposed to have
emerged from the mouths of two or more
accused at a time. In fact, joint or simultaneous
disclosure is a myth, because two or more
accused persons would not have uttered
informatory words in a chorus. At best, one
person would have made the statement orally
and the other person would have stated so
Page 51 of 60
substantially in similar terms a few seconds or
minutes later, or the second person would have
given unequivocal nod to what has been said
by the first person. Or, two persons in custody
may be interrogated separately and
simultaneously and both of them may furnish
similar information leading to the discovery of
fact. Or, in rare cases, both the accused may
reduce the information into writing and hand
over the written notes to the police officer at the
same time. We do not think that such
disclosures by two or more persons in police
custody go out of the purview of Section 27
altogether. If information is given one after the
other without any break, almost
simultaneously, and if such information is
followed up by pointing out the material thing
by both of them, we find no good reason to
eschew such evidence from the regime of
Section 27. However, there may be practical
difficulties in placing reliance on such evidence.
It may be difficult for the witness (generally the
police officer), to depose which accused spoke
what words and in what sequence. In other
words, the deposition in regard to the
information given by the two accused may be
exposed to criticism from the standpoint of
credibility and its nexus with discovery.
Admissibility and credibility are two distinct
aspects, as pointed out by Mr Gopal
Subramanium. Whether and to what extent
such a simultaneous disclosure could be relied
upon by the Court is really a matter of
evaluation of evidence. With these prefatory
remarks, we have to refer to two decisions of
this Court which are relied upon by the learned
defence counsel.”
(Emphasis supplied)
Page 52 of 60
59. This Court in Nagamma v. State of Karnataka reported in
2025 SCC OnLine SC 2038 , wherein one of us, K. V.
Viswanathan, J., was a part of the Bench, pithily explained that
joint or simultaneous disclosure statements are not out of the
purview of Section 27. The relevant observations read thus:-
“27. Disclosure statements taken from one or
more persons in police custody do not go out of
the purview of Section 27 altogether, as held
in State (NCT of Delhi) v. Navjot Sandhu @
Afsan Guru7 and reiterated in Kishore
Bhadke v. State of Maharashtra 8. While
asserting that a joint or simultaneous
disclosure would per se be not inadmissible
under Section 27, it was observed that it is very
difficult to place reliance on such an utterance
in chorus; which was also held to be, in fact, a
myth. Recognising that there would be practical
difficulty in placing reliance on such evidence,
it was declared that it is for the Courts to
decide, on a proper evaluation of evidence,
whether and to what extent such a
simultaneous disclosure could be relied upon.
In Kishor Bhadke, while affirming the above
principles in Navjot Sandhu, the facts revealed
were noticed, wherein the information given by
one, after the other, was without any break,
almost simultaneously and such information
was followed up by pointing out the material
thing by both the accused, in which
circumstance it was held that there is no
reason to eschew such evidence.”
(Emphasis supplied)
60. In State Govt., M.P. v. Chhotelal Mohanlal, reported in AIR
1955 Nag 71, it was held that simultaneous statements made
by accused persons are not per se inadmissible in evidence and
Page 53 of 60
are liable to be considered if the discovery made in consequence
thereof affords guarantee about the truth of the statements. The
aforesaid case pertained to theft of bales from the train.
Evidence was sought to be given that two of the accused A and
B, respectively had made certain simultaneous statements to
police in consequence of which the five bales of cotton i.e., the
subject of offence were discovered. The statement was to the
following effect, “I and B have kept (them) hidden at mile 313 in
the jungle near the railway line, 3 bales in the nala and 2 bales
in the bushes. I can go and point out them. B and I together have
concealed the bales for which I shall go and point out”. B’s
statement was as follows: “All these 5 bales were kept hidden on
the same day in the night before sun-rise. I am prepared to go and
point. I may be excused.” The two accused then took the police
to the spot. A then pointed out two places wherefrom two bales
of cloth were recovered. B then pointed out another place
wherefrom three bales of cloth were recovered. Though the giving
of information was simultaneous and the recording of their
statements was part of the same transaction there was no
satisfactory evidence to show as to who made the statement
first. The High Court held that in the circumstances, the
respective statement made by each of the accused was
admissible against him as the pointing out of the different places
by the different accused afforded some guarantee about the
truthfulness of their statements.
61. In the above referred decision, the High Court placed its reliance
on Lachhman Singh v. State, reported in (1952) 1 SCC 362.
Page 54 of 60
The Government pleader had strongly relied upon this decision
because that was also a case where the accused persons made
statements disclosing that the dead bodies of the persons
murdered were thrown in a nala and thereafter, the police party
with the accused went to the nala where each of them pointed
out a place where different parts of the dead body were
discovered. But the ‘initial pointing out’ was by accused S. This
Court held:-
“11. The learned counsel for the appellants
cited a number of rulings in which Section 27
has been construed to mean that it is only the
information which is first given that is
admissible and once a fact has been
discovered in consequence of information
received from a person accused of an offence,
it cannot be said to be re -discovered in
consequence of information received from
another accused person. It was urged before us
that the prosecution was bound to adduce
evidence to prove as to which of the three
accused gave the information first. The Head
Constable, who recorded the statements of the
three accused, has not stated which of them
gave the information first to him, but Bahadur
Singh, one of the witnesses who attested the
recovery memos, was specifically asked in
cross-examination about it and stated:
“I cannot say from whom information was got
first”. In the circumstances, it was contended
that since it cannot be ascertained which of the
accused first gave the information, the alleged
discoveries cannot be proved against any of the
accused persons.
It seems to us that if the evidence adduced by
the prosecution is found to be open to suspicion
Page 55 of 60
and it appears that the police have deliberately
attributed similar confessional statements
relating to facts discovered to different accused
persons, in order to create evidence against all
of them, the case undoubtedly demands a most
cautious approach. But, as to what should be
the rule when there is clear and unimpeachable
evidence as to independent and authentic
statements of the nature referred to in Section
27 of the Evidence Act, having been made by
several accused persons, either
simultaneously or otherwise, all that we wish
to say is that as at present advised we are
inclined to think that some of the cases relied
upon by the learned counsel for the appellants
have perhaps gone farther than is warranted
by the language of Section 27, and it may be
that on a suitable occasion in future those
cases may have to be reviewed.
It may be that several of the accused gave
information to the police that the dead bodies
could be recovered in the Sakinala, which is a
stream running over several miles, but such an
indefinite information could not lead to any
discovery unless the accused followed it up by
conducting the police to the actual spot where
parts of the two bodies were recovered. From
the evidence of the Head Constable as well as
that of Bahadur Singh, it is quite clear that
Swaran Singh led the police via Salimpura to a
particular spot on Sakinala, and it was at his
instance that bloodstained earth was
recovered from a place outside the village, and
he also pointed out the trunk of the body of
Darshan Singh. The learned Judges of the High
Court were satisfied, as appears from their
judgment, that his was “the initial pointing out”
and therefore the case was covered even by the
rule which, according to the counsel for the
Page 56 of 60
appellants, is the rule to be applied in the
present case.”
(Emphasis supplied)
62. Section 27 of the Evidence Act is in the nature of an exception
to the general rules contained in the two preceding Sections 25
and 26, respectively. Section 25 makes inadmissible any
confession by an accused person to a police officer. Under
Section 26, no confession by any person while he is in the
custody of a police officer shall be proved against such person
unless it be made in the presence of a Magistrate. Section 27
says that such part of the information given by an accused
person while in the custody of a police officer may be proved
against him as distinctly relates to the fact which is thereby
discovered. It therefore makes admissible a confession made
while in police custody if the other conditions laid in it are
fulfilled. Being an exception to the general rule it has to be
strictly construed. Section 27 of the Evidence Act does not
permit the admission in evidence of the whole of the confession,
but of such portion only of it as can be said to relate distinctly
to the fact discovered.
63. We are of the view that the courts below committed an error in
placing implicit reliance on the discovery part. As explained
earlier, the discovery panchanama was not drawn in accordance
with law. The panch witness i.e., the PW-4 has not said a word
as regards the exact statement made by the appellants in his
presence. The discovery of fact relevant under Section 27 of the
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Evidence Act in the form of various objects, place of occurrence
etc., was at the instance of the accused no. 1, namely, Kalappa.
Kalappa is not before us. We are informed that Kalappa has not
preferred any appeal before this Court. There is nothing to even
remotely indicate that there was discovery of any fact at the
instance of the appellants admissible under Section 27 of the
Evidence Act.
64. The information should directly and distinctly relate to the facts
discovered. Where, therefore, a fact has already been discovered
any information given in that behalf afterwards cannot be said
to lead to the discovery of the fact. There cannot be a re-
discovery. Where the information as to the fact said to have been
discovered is already in the possession of the police, the
information given over again does not actually lead to any
discovery so that its discovery over again in consequence of the
information given by the accused is rightly inadmissible under
Section 27 of the Evidence Act.
65. We can, of course, envisage a situation wherein more than one
accused makes an oral statement giving the same type of
information one after the other in quick succession. But even in
such a case, unless the guarantee of the truth and voluntary
nature of such statements is obtained by the discovery of a
distinct fact, the provisions of Section 27 would not, in any
manner, help the prosecution. Take for instance, two or three
accused persons make statements in quick succession giving an
information of some or similar nature, and then proceed to
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discover different facts from different places. In such a case even
though the statements made by them is treated as “joint” yet the
discovery is not joint because it is the discovery of different facts
from different places. Such discoveries guarantee the protection
contemplated by Section 27 and therefore can be of good use to
the prosecution. In our opinion, the cases of Lachhaman
Singh (supra) and Chhotelal Mohanlal (supra) referred above
were the cases of this type.
66. It is important to note that in Lachhman Singh (supra) this
Court had doubted the correctness of some High Courts’
decisions on the question of joint and simultaneous statements.
Referring to the facts of that case, this Court clearly observed
that even if several accused gave information to the police that
dead bodies could be recovered in the “ Sakinala” the said
information was indefinite, and could not have led to any
discovery unless the accused followed it up by leading the police
to the actual spot from where the parts of the dead bodies were
recovered. In the Chhotelal Mohanlal (supra), different facts
were discovered from different places by different accused. Thus,
in both these cases discovery evidence was accepted only
because it could be said that the statement made by each
accused related to the facts thereby discovered “distinctly”.
67. At one stage of the hearing of these appeals, the learned AAG
appearing for the State tried to read some of the contents of the
panchanama and confessional statements of the appellants as
well. We are afraid this is something impermissible in law. The
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contents of the panchanama are not substantive evidence. The
law is settled on that issue. What is substantive evidence is what
has been stated by the panchas or the persons concerned in the
witness box. [See: Murli v. State of Rajasthan, (2009) 9 SCC
417]
68. In the case before us, the evidence is purely of a joint discovery
of the same mental fact said to have been made by all the four
accused simultaneously with the result that it is not possible to
say which statement of a particular accused relates distinctly to
the discovery of a particular mental fact. Thus, in the present
case, the safeguards contemplated by Section 27 are not evident,
and in the absence of these safeguards, the discovery evidence
of two particular places i.e., the place where the deceased was
killed and the place where her dead body was burnt cannot be
utilized against the appellants.
69. Having reached the conclusion that the discovery evidence
cannot be utilized against the appellants, we are now left with
only one piece of incriminating circumstance and that is last
seen together. We are of the view that it will be too much for us
to affirm the conviction of the appellants for a serious offence
like murder solely relying on the circumstance of last seen
together. The prosecution has to prove its case beyond all
reasonable doubt. The prosecution case “may be true” but it is
not that of “must be true”, and there is a long distance to travel
between “may be” and “must be”.
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VII. CONCLUSION
70. In the overall view of the matter, we have reached the conclusion
that the prosecution could be said to have failed to prove its case
against the appellants beyond reasonable doubt.
71. In the result both the appeals succeed and are hereby allowed.
The impugned judgment and order passed by the High Court is
set aside. The appellants are acquitted of all the charges. They
be set at liberty forthwith, if not required in any other case.
72. Pending application(s) if any including application for
intervention, stand disposed of.
…………………………..J.
(J.B. PARDIWALA)
.…………………………..J.
(K. V. VISWANATHAN)
27
th April, 2026;
New Delhi
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