2026 INSC 1030 1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. ___________ of 2026

(@ Special Leave Petition (Crl.) No. 5763 of 2026)

Kusumavati Gowda …. Appellant

Vs.

The Government of Karnataka & Ors. …. Respondents

J U D G M E N T

SANJEEV SACHDEVA, J.

1. Leave Granted.

2. Father of a 17 year old girl who was brutally raped and then

murdered had filed the subject Writ Petition being WP No. 3301 of 2024,

seeking a direction to the Central Bureau of Investigation

1

to

reinvestigate/denovo investigate Cr.No.250/2012 originally registered by

the Belthangady Police as per the Complaint dated 09.10.2012 & First

Information Report

2

in Crime No.250/2012 dated 09.10.2012 and re-

1

CBI for short

2

FIR for short

2

registered as FIR No.RC.2(S)/2014/CBI/SCB/CHENNAI d ated

07.03.2014 by CBI, SCB Chennai to ensure that the real perpetrators of the

crime are booked and prosecuted to render justice to the Victim. After the

passing of the impugned order by the High Court, the original petitioner

i.e. the father of the victim passed away and the present appeal was

presented and prosecuted by the mother of the victim.

3. Complaint Cr.No.250/2012 was originally registered by the

Belthangady Police for the missing minor daughter of the complainant, the

father of the girl, but subsequently the offences punishable under section

376 and 302 Indian Penal Code

3

were added.

4. The writ petitioner i.e. father of the deceased was an agriculturist by

profession and also a class II Public Works Department contractor resident

of Dharmasthala Village, Belthangady Taluk, D.K. District. His family

consisted of his wife, 5 children, his aged parents. The deceased victim was

his second daughter aged about 17 years at the time of the incident. She

was studying in 2

nd

year of Pre-University Course at Sri. Dharmasthala

Manjunatheshwara College Dharmasthala.

3

IPC for short

3

5. As per the writ petitioner, the deceased used to go to college by bus

from Nethravathi Bathing Ghat by 8.00 am and she would come back

usually at 2.00 pm. On 09.10.2012 as always she left her Home to go to the

college at 8.00 am. On that day there was a function in the house of her

relative, whose house was very close to her house and all the family

members of the deceased had gone to attend the function.

6. As per the writ petitioner, while going to college she informed her

mother that she would not carry her lunchbox and she would return from

the college at 2.00 pm. On the fateful day i.e., 09.10.2012, returning from

college, she got down from the bus around 04.15 pm near Mannasanka bus

stop and walked towards her house. She was last seen by her uncle and aunt

who were coming in the opposite direction in their jeep and waved at her.

Around 07.00 pm the mother of the deceased found that she had not

returned home or attended the function at their relative’s. The mother of

the deceased informed her father. Immediately thereafter the father and his

relatives and well-wishers reached the Nethravathi Bathing Ghat and

enquired from the locals. Getting no clue about the deceased, they all

started to search for the deceased in and around the place, however

unsuccessfully. Thereafter, the writ petitioner went to the Jurisdictional

Belthangady Police Station and lodged a missing complaint.

4

7. On the next day i.e. 10.10.2012 some locals found a dead body of a

girl in a thick bush near Mannasanka in a half naked condition and her left

hand was found tied to a stem of a tree using a shawl/veil of her college

uniform. The body was identified by the writ petitioner and his relatives as

that of the missing girl. As per the Writ Petitioner, the dead body was found

at the same spot where the search was carried out by the writ petitioner, his

family member and villagers on the previous day. After the body was found

a Complaint was filed by the uncle of the deceased Jagadish Gowda. Based

on the complaint, subject FIR No.250/2012 was altered and offences

punishable under sections 376 and 302 IPC were added.

8. Upon hearing about the incident and the death of the minor girl, large

number of people gathered at the place. The police personnel attached to

the Belthangady police station visited the spot and shifted the dead body to

Belthangady General Hospital. Post-mortem was conducted by Dr. Adam

(CW-8/PW-12) with the assistance of Dr. Rashmi (CW-9/PW-34) in

Spl.C.C.No.203/2016. Both the Doctors opined that the deceased had

sustained abrasions and contusions over upper arm, forearm and both

hands and strangulation mark, measuring 7 inches was present horizontally

at the centre of the neck and further that her vulva and vagina was lacerated

5

with bleeding and mud particles found over vulva and vagina. Hymen was

torn and the time since death was estimated to be 24 to 36 hours.

9. On 11.10.2012 one Santhosh Rao was caught by Mallik Jain and

Ashrith Jain (CW-39 and CW-40) near the stairs of Bhahubali Statute and

was handed over to the Belthangady police. He was projected by the local

police to be the one who committed the gruesome rape and murder of the

deceased. Santhosh Rao was manhandled and assaulted by general public.

He was subjected to medical examination and few injuries were found on

his body. It was suspected that those injuries were caused by the deceased

with her finger nails therefore he was sent for thorough medical

examination to the K.S. Hegde Medical Academy, Mangalore. Dr.

Mahabala Shetty (CW-10/PW-14) conducted the medical examination of

Santhosh Rao and found 17 injuries of different ages on his body and

opined that though he was suffering from phimosis he was capable of

performing sexual intercourse.

10. Santhosh Rao was arrested on 13.10.2012 by the Jurisdictional

Belthangady Police. During the course of investigation, his alleged

voluntary statement was recorded and preliminary investigation was also

conducted by them. As per the prosecution, he was working at a Hotel at

Sringeri till last week of September 2012 and he was removed from the job

6

due to unsatisfactory work by the owner of the Hotel, therefore he had

come to Dharmasthala and was sitting near the stairs of Bahubali statute on

11.10.2012 when he was caught by 2 persons who handed him over to the

Jurisdictional Belthangady Police.

11. As per the Writ Petitioner (father of the victim), Santhosh Rao was

falsely implicated and it was suspected by the Writ Petitioner, his family

and general public that 3 persons who were highly influential and moneyed

persons in the locality had committed the offence. They therefore requested

the Jurisdictional Belthangady Police to conduct a thorough investigation

into the matter. It was contended that, it was their perception that Santhosh

Rao was an innocent person and had nothing to do with the crime.

12. Due to public outcry and considering the sensitivity of the matter, on

12.12.2012, the Government of Karnataka handed over the investigation of

Crime No.250/2012 to its Criminal Investigation Department

4

. The CID

conducted investigation through its investigating officer Rudramuni,

Dy.S.P. (H&B Wing) CID, Bengaluni (CW.30/PW-16). After completion

of investigation, CID filed a charge sheet for the offences punishable under

4

CID for short.

7

sections 376, 302 and 201 IPC alleging that Santhosh Rao had committed

the rape and murder of the deceased and destroyed the evidence.

13. As per the Writ Petitioner, the CID never conducted the investigation

in a proper and perspective manner and shielded the real perpetrators of the

crime by blaming an innocent person who had nothing to do with the crime.

As per the writ Petitioner, he and his relatives had specifically stated before

the CID about the role of the few suspected to be involved in the crime.

However, as per the Writ Petitioner, the CID never bothered to secure their

presence for the purpose of interrogation and the final report was filed

alleging that Santhosh Rao had committed the rape and murder of the

deceased and destroyed evidence in order to conceal the crime.

14. As per the Writ Petitioner, there was a huge outcry and agitation by

the General Public alleging that the law enforcing agency was shielding the

real perpetrators of the crime and hushing up of the case and that they had

implicated an innocent person who had nothing to do with the crime. Due

to public pressure and outcry, the Government of Karnataka on 06.11.2013

handed over the case to CBI, SCB Chennai for further investigation. CBI

filed an FIR in RC.2(S)2014/CBI/SCB/Ch. dated 07.03.2014 under

sections 376 and 302 IPC before the XVII ACMM Court Bengaluru.

8

15. As per the writ petitioner, during the course of investigation the CBI

summoned the suspected persons i.e. Deeraj Jain, Mallik Jain and Uday

Kumar Jain. As per the Investigating Officer

5

of CBI, they were subjected

to Polygraph and Brain Mapping Tests. Upon completion of investigation,

the I.O. attached to the CBI filed the charge sheet before the CBI Court at

Bengaluru concurring with the previous investigation conducted by the

Belthangady Police as well as the CID and pinpointed the role of Santhosh

Rao for the commission of offences and gave a clean chit to the 3 suspected

persons named by the family of the deceased.

16. As per the Writ Petitioner, the manner in which investigation was

conducted by the CBI, jurisdictional police and the CID indicated that they

were shielding real culprits in the crime and had implicated an innocent

person based on unsubstantiated, tailored materials and concocted stories.

17. During the course of the trial, the writ petitioner filed an application

to summon the 3 suspected persons as accused on the ground that there was

material on record to establish that that they had committed the offences of

rape and murder of his minor daughter. The Sessions Court by its order dt,

19.11.2016 directed issuance of summons to Mallik Jain, Deeraj Jain and

5

IO for short.

9

Uday Jain of Belthangady Taluk. Said order was challenged by those 3

suspects before the High Court of Karnataka at Bengaluru in

Crl.P.No.8678/2016.

18. The Writ petitioner (Pw1) also filed an application for further

investigation. Said application was supported by the Public Prosecutor

representing CBI as well as the counsel for Santhosh Rao. Said application

was allowed by the Sessions Court on 07.02.2017. Though the order dated

07.02.2017, was not against any specific individual, it was challenged by

Dhiraj Jain, Uday Jain and Mallik Jain before the High Court of Karnataka

at Bengaluru in Spl.C.C.No.203/2016. In the meantime the writ petitioner

filed W.P.No.2208/2018 (GM-RES) for re investigation of the Crime

No.250/2012 due to certain subsequent developments. By its Order dated

27.01.2021, the High Court dismissed the Writ Petition filed by the Writ

Petitioner and allowed the petition filed by Dhiraj Jain, Uday Jain and

Mallik Jain.

19. The trial, thereafter continued before the Sessions Court at

Bengaluru. During the trial, the Special Public Prosecutor representing the

CBI filed an application Under 319 of Criminal Procedure Code, seeking

to implead Mallik Jain, Dhiraj Jain and Uday Jain as additional accused.

Said application was dismissed by the Sessions Court on 04.10.2021.

10

20. During the course of trial, prosecution examined 35 witnesses on

behalf of the prosecution and marked Exhibits Ex. P-1 to Ex. P-40

documents and Material Objects (MO-1 to MO-26) were also marked.

Defence did not produce any documents or lead any evidence on its behalf.

21. By order dated 16.06.2023 in Spl.C.C.No.203/2016, the Sessions

Court acquitted Santhosh Rao for the offences punishable under sections

376, 302 and 201 of the IPC. The Sessions Court also directed the acquittal

committee to initiate action against the erring officials.

22. The Sessions Court in its judgment, while acquitting Santhosh Rao

held that the prosecution had failed to prove that the accused had

committed the acts alleged against him. Further, that there was no evidence

to connect the accused with the crime. There were no circumstances to

connect the accused with the charges levelled against him. The charges

levelled remained unproved. The Sessions Court further held that the

investigation was not properly conducted in the Golden Hour. The doctor

who collected the vaginal swab virtually demolished the entire case of the

prosecution at the inception.

23. In the above facts and circumstances, the Writ petitioner, filed the

subject Writ Petition under Articles 226 and 227 of the Constitution of

11

India read with Section 482 of the Code of Criminal Procedure seeking for

a direction to the CBI to conduct a reinvestigation/ de novo inquiry in

Cr.No.250/2012 by constituting a Special Investigation Team or Cell.

24. The judgment of the Sessions Court of acquittal was appealed

against, but the appeal was dismissed by the same bench that heard and

dismissed the subject Writ Petition. Subject Writ Petition has been

dismissed by order dated 30.08.2024, impugned herein.

25. In the impugned order dated 30.08.2024, the Writ Court has held that

‘The acquittal judgment has a logical connection with the begging question

in the sense that if Santhosh Rao was not the one who committed crime,

there must be somebody else. This definitely demands reinvestigation.”.

26. The High Court in the impugned order while dismissing the petition

referred to the Judgment of the Supreme Court in Vinay Tyagi vs Irshad

Ali @Deepak and Others (2013) 5 SCC 762 to hold that “there cannot be

second word with the proposition that the power to direct fresh

investigation or reinvestigation or denovo investigation falls within the

domain of the High Court under section 482 of Cr.P.C or Article 226 of the

Constitution of India.” However, thereafter relied upon the judgment of the

Supreme Court in Popular Muthiah vs State (2006) 7 SCC 296 to finally

12

hold that “medical evidence cannot be improved, and so also the forensic

evidence. It is doubtful that evidence that could not be collected at the

golden hour is still available. No useful purpose would be served even if

reinvestigation is permitted.”

27. It may be noticed that the Sessions Court in its judgment has

extensively dealt with the Post-Mortem Report and noticed that the death

was due to asphyxia as a result of compression on neck and that the victim

had been raped. The doctor had opined that the victim had revolted at the

time of sexual assault on her and the injuries were caused during coitus.

The inquest report disclosed that the body of the deceased was found in an

isolated place between thick bushes. The body was half naked and hands

of the deceased were tied to a stem of a tree with a blue chudidar shawl and

the chudidar top was found in a torn condition. As per the inquest report,

the deceased was forcefully dragged into the bushes, raped and later on

strangulated and murdered. The Post-Mortem Report disclosed the nature

of injuries sustained and the struggle put up by the deceased.

28. The Sessions Court noticed that the entire case of the prosecution

was based on circumstantial evidence. The Sessions Court found that there

was no evidence to show that the accused Santhosh Rao was even seen in

the locality. On the other hand, there was evidence on record and deposition

13

by witnesses with regard to some boys in the area prior to the incident

talking that it would be difficult to do anything there. The Sessions Court

also found that there were several pieces of garments of the victim which

were missing. The Session Court noticed that the school bag which was

placed near the deceased and the books inside were intact in spite of heavy

rain.

29. The writ petitioner had not made any allegation against Santhosh

Rao, who had been prosecuted, on the other hand, had suspected

involvement of the three boys referred to above.

30. The Session Court observed that Santhosh Rao was apprehended by

one of the three boys along with others, three days after the incident. Malik

Jain asked Santhosh Rao to come to his office but Santhosh Rao refused to

go. However, Malik Jain held him and wanted to forcibly take him to his

office. Santhosh Rao escaped and started to run away but was apprehended

by public and assaulted and later taken to the police station. The assault by

the public explained the injuries found on the medical examination of

Santhosh Rao.

31. The Session Court also observed that the offence had taken place

close to the main road where there was constant vehicular movement and

14

crowded with people till the evening. Even there was a bus stop opposite

Prakruthi Chikithsalaya which was adjacent to the main road and a

watchman was always present at the main gate, even CCTV Cameras were

installed. The Session Court noticed that though details of tower dump of

various mobile numbers were collected by the first investigating officer but

same were not handed over to the successor. Even CCTV footage, from the

camera installed at the main gate of Prakruthi Chikithsalaya was not

collected or looked into.

32. The Session Court noticed that the inner garments on the body of the

deceased were missing. The investigating officer had seized only the

school bag but not the books. The seizure of the school bag and the

condition of the books was necessary to ascertain as to whether the offence

took place at the spot where the body was recovered or somewhere else

and the body was later dumped at the spot. On the day of the incident there

was heavy rain and the body was recovered from an open area. If the body

was present at the spot, where it was discovered a day later, with a school

bag containing books lying beside it, there was no way that the school bag

and the books would not have got wet. It has come in evidence that the bag

and the books were in a dry condition which established that the offence

was committed somewhere else and the body and the books were later

15

brought to the spot from where they were recovered. It has also come in

evidence that the investigating officer did not seize the chit found at the

spot or refer it to the handwriting expert to verify the handwriting. The

post-mortem was not video graphed and there is no mention about the

condition of the watch worn by the deceased which could have helped in

establishing the time of the offence. Even the spot where the body was

found was not video graphed. Though, the undergarments of the victim

were not found at the spot, a fresh set was later collected by the

investigating officer from the house of the victim from the family members

of the victim on a subsequent date and sent for forensic examination,

obviously on which no blood-stain, was found. The crucial medical

evidence such as vaginal swab had been purposefully disintegrated to save

the real culprits. The innerwear of the victim, umbrella, slippers were not

traced and recovered by the investigating agency.

33. It was established that Santhosh Rao had sustained several injuries

on his body when he was apprehended by the public, beaten and handed

over to the police. The Session Court found that the injuries sustained on

the body of Santhosh Rao were caused when he was apprehended and the

clothes recovered from Santhosh Rao did not contain any blood or seminal

stains.

16

34. The Session Court also noticed the contention of the counsel for

Santhosh Rao that he was being falsely implicated at the instance of Malik

Jain and Ashith Jain who had falsely implicated him. Malik Jain was one

of the persons who as per the Writ Petitioner, was suspected to have

committed the offence. Instead of examining his role, he was cited as a

prosecution witness.

35. Further, the counsel for Santhosh Rao before the Sessions Court

contended that the prosecution had deliberately not cited and examined

material witnesses Ashrath Khalid and Kumari Veersha to screen the real

culprits. The prime witness of the case Ravi Pujari who caught the accused

was mysteriously murdered.

36. The body of the victim was not found by the writ petitioner and

others who had extensively searched the same spot a day earlier which

clearly showed that the victim was abducted to some other place and after

committing rape and murder was brought back and dumped at the site. The

CCTV footages were not secured. The belongings of the victim found at

the spot had also been planted.

37. The Sessions Court held in its judgment as under:-

“112. As stated earlier, the entire case of the prosecution has

to prove the guilt of the accused beyond reasonable doubt by

17

establishing the circumstances which connects the accused

with the crime. Accordingly to the prosecution case, there are

no eye witnesses who have seen the accused in the vicinity

prior to the incident, nor the deceased was seen with the

accused prior to her missing. As such, the theory of last seen

is ruled out in this case. The other circumstances as pointed

out by the learned PP is that the arrest of the accused

confessional statement of the accused leading to discovery of

fact, nail scratch marks on the body of the accused and the

accused being 4 in his statements.

113. One of the strongest circumstances relied upon by the

prosecution is the arrest of the accused by CW. 39 and 40 and

thereafter his voluntary statement alleged to have made

before the I.O. as per Ex P39. Based on the disclosure

statement, the I.O. said to have recovered the clothes of the

accused. Ex. P 15 is the mahazar drawn by the I.O. at the

instance of the accused in the presence of mahazar witnesses

CW 36 Ramanna Gowda (Given up) and PW 15-Maxim

Crusta. The evidence of PW 15 discloses that on 13.10.2012

around 3.30 p.m. he had been to police station to see the

accused. At that time, he was asked to be as a witness to the

recovery mahazar. Accordingly accused took them near

Dharmasthala Nature Care Hospital and lead them towards

Kallasanka about 200 meters far. The accused showed a place

and stated that he committed the murder of the deceased and

from there he took them little far and showed his belongings

18

and later in the police station, he gave his shirt and pant to

the police.

114. Corresponding to the evidence of PW15, the Police

Inspector of Belthangadi PW 33-Mr. Bhaskar Rai L.G.

deposed about recording the voluntary statement of the

accused as per Ex P39 and drawing Ex P15 and 16 Mahazar

and recovery of MO 4 to 14 articles does not belongs to the

victim and they are the belongings of the accused itself.

115. As per Ex. P19, DNA report issued by FSL, Madiwala,

Bengaluru discloses that 6 hair samples were found in the

Panche sent at item No. 15 belonging to the accused and out

of 6 hair samples, one hair sample belongs to a different

individual of male sex. It is also disclosed that the deceased

blood sample matches with the nails sent at item No.6

belonging to the deceased. Absolutely, there is no positive

evidence against the accused in the DNA report, which is

placed at Ex. P 19 No seminal stains were detected nor the

hair of victim was found the cloths of accused.

116. However, the forensic psychological assessment report

placed at Ex. P 21 issued by CFSL Chennai discloses that on

the basis of forensic psychological assessment and behavior

analysis interview, they inferred that the accused was

deceptive in his statements and PW 23 Dr. Rupaali opined that

the accused appears to have involved in committing the crime.

But in the cross examination the witness has admitted that a

person would be annoyed if he is asked irrelevant questions

19

repeatedly. Therefore, without there being any circumstances

to connect the accused, one cannot assume unilaterally, that

the accused has involved, in the crime merely he is deceptive

in making statements and much reliance cannot be placed on

the evidence of PW 23.

117. Ex. P22 FSL test report issued after examining the

clothes of the deceased and the vaginal swab. It was opined

that the soil found on the articles and the soil found in the

vaginal swab are similar. Further opined that the soil was not

found on the clothes of the accused. Except the findings given

in respect of the similarity of the soil found on the articles,

nothing has been stated in the report, which would connect

the accused with the crime. Although the doctor has pointed

out nail scratch injuries on the body of accused, yet it has

come on the record that those injuries are caused when the

accused was apprehended and beaten up by the public. The

nails of the victim did not contain any skin tissues or blood

marks of the accused during nails examination. Except the

confessional statement of the accused, there is no any

evidence to connect the accused with the crime.

***** ***** *****

120. In the present case, the place where the body of the

victim was found was discovered by the public. As per the

evidence given by the witnesses, nearly around two thousand

20

to three thousand people had witnessed the said place after

finding the body of the victim. It is not the case of prosecution

the said body was recovered at the instance of the accused

only. Rather the witnesses who made search along with the

complainant have categorically deposed that they had search

the place where the body was found on the previous day and

they did not find the body of the victim and also they did not

see any tent nearby to the place.

121. From the plain reading of confessional statement of the

accused, it would appear that cloths and belongings of the

accused were recovered as disclosed by the accused near the

scene of occurrence and also said to have shown the place

where he committed rape and murder. Surprisingly, nothing

has been recovered from the place of occurrence, which

incriminates the accused. If at all the rape has occurred in the

said place, what prevented the I.O. to call a team of experts to

find any clues such as hairs of the accused, foot prints, piece

of cloth, struggle marks etc. Even assuming for a while that,

if belonging of the accused is recovered pursuant to the

disclosure statement, it would have made the fact of recovery

of belongings only, as admissible under Section 27 of the

Indian Evidence Act. It will not make the entire so called

disclosure statement of the accused as admissible.

122. Except the voluntary statement of the accused, there are

no witnesses to speak about the presence of accused in the

scene of occurrence or in the vicinity. No last seen theory has

21

been set up by the prosecution. The prosecution is heavily

burdened to prove the alleged rape committed on the victim

and in turn need to connect the accused with the said act. In

this regard the observation made by the doctor PW.12

assumes much importance.

Section 376 of IPC

123. The observation made by PW 12 - Dr. Adam, the Medical

Officer, General Hospital Belthangadi discloses the

following:-

“Vulva and vagina lacerated with bleeding, mud

particles seen over vulva and vagina. Public hair

present matted. Hymen torn, edematous with bleeding.

Vagina admits defendants No.2, figures bleeding

present. Uterus Antiverted with normal size.”

124. The fact that the victim undergoing penetrative sexual

assault has not disputed by the defense, but it is their

contention that the act of rape is done by three to four persons

and it is not an act done by a single person. It is also their

contention that the victim has been carried away somewhere

else, raped, murdered and then brought thrown into the

bushes at Mannasanka. Hence with the evidence of PW.12-

Doctor and the evidence given by the witnesses who has seen

the body of the victim, a conclusion can be drawn that the

victim has undergone penetrative sexual assault and

consequently she was strangulated to death. Whether, the

22

prosecution has able to establish that it is accused who is

responsible for the said acts. The answer to this question

would be in the negative for the following reasons.

125. Firstly, the evidence of PW. 18 - Scientific Officer,

Vinod J. Lakkappan, FSL Madiwala, Bengaluru discloses the

following:-

“Item number 7, that is, the deceased's vaginal swab,

did not yield any results in the DNA test due to improper

storage. A medical officer should dry and pack the

vaginal swab properly; this information is known to all

doctors.

Even though we submitted the said vaginal swab for

testing, due to the presence of fungus in it, we did not

get any results."

126. Normally in a case of rape, the opinion of the expert

plays crucial role in arriving at right conclusion. Either the

victim has to depose about the acts or the medical evidence

shall disclose about the penetration. In the case on hand,

neither the victim is alive to speak about the acts, nor the

medial evidence is properly collected and preserved. When

there is no clue for the investigation agency about the

assailants, the expert report examining the vaginal swab

would be a best piece of evidence to connect the accused with

the crime. The evidence of the expert clearly indicates that the

vaginal swab sent for the purpose of examination, was not

properly preserved and sent. Hence, no results were obtained.

That apart in the cross-examination, PW.18 admitted that in

23

item no. 18, nails of the deceased did not contain the blood or

skin particles of the accused.

127. Secondly, the evidence of PW.12 doctor while examining

the accused Santhosh Rao indicates the following:

“Pennies well developed, erection+propuse not

retracting back. No injuries seen over genitals. Public

hair collected and sent to examination and his blood

group was B Negative. Further in the cross

examination it was admitted by the witness that the

accused was suffering from Phimosis decease and he

cannot perform coitus easily and the process would be

painful.”

128. Similarly, PW. 14 Dr. Mahabala Shetty who examined

the accused gave similar findings as that of PW.12. In the

cross examination, PW. 14 admitted that a person having

phimosis decease would suffer severe pain in his private part

if he commits rape on minor girl. In such a case there might

be chances of ripping of the foreskin causing injuries.

Strangely, both the doctors have no noticed any injuries on

the private part of the accused. Apart from the evidence of the

doctors, the material witnesses have categorically deposed

that the accused is nowhere connected with the alleged crime

and he has been falsely implicated. These circumstances

create serious doubt in the case of prosecution and failed to

connect the accused with the alleged rape.

Section 302 of IPC

24

129. In so far as the charge against the accused having

committing the murder of the victim girl, the prosecution has

relied upon the disclosure statement made by the accused and

recovery of articles. Except the recovery of the clothes made

under Ex P. 15 /Mahazar, there are no eye witnesses or

circumstantial witnesses to the incident. All along the parents

of the deceased, residents of Belthangadi and even the police

officers have admitted in their evidence to the effect that the

names of PW.29- Mallik Jain, PW.31- Ashrith Jain, Uday Jain

and Neeraj Jain were taken by the witnesses holding them

responsible for the crime.

130. Interestingly, it is PW. 29 and 31 who have caught the

accused near Gomata Statue stairs and handed him over to

the police. It is also brought on record that the accused was

badly beaten up by the public at the time of his arrest. To this

effect the I.O. has also deposed in his evidence that the

accused was badly injured and he was taken to the hospital

for treatment. The entire story of arrest of the accused is fully

surrounded with suspicious circumstances. Except the arrest

of the accused, absolutely there are no other reliable

circumstances to connect the accused with the crime. In this

regard, I wish to extract some of incriminating circumstances

as spoken by the witnesses in their evidence.

***** ***** *****

136. These aforesaid instances indicate that the parents of

the deceased, near relatives and the people of Belthangadi

25

have taken the names of the aforesaid persons about their

alleged involvement in the crime. However, no materials are

on record to show that the I.O. has conducted investigation,

subjected these suspected persons to interrogation and has

done some investigation in respect of the allegations made

against them.

***** ***** *****

138. Reverting back to the allegations levelled against the

accused, there are no circumstances which would connect the

accused with the alleged crime. The evidence of PW. 1 to 28

does not disclose any incriminating evidence against the

accused. Though the evidence of PW.29 and 31 discloses that

they found suspicious in the movements of the accused and

caught him and handed over him to the police, yet the

suspicious doubt in the mind of this Court to accept their

evidence.

139. Although the recovery mahazar witness PW.15 and the

I.O. who recorded the voluntary statement of accused and

recovered the articles, disclosed some sort of evidence against

the accused in respect of he showing the place of rape and

murder and producing the articles before the police, yet the

prosecution has failed to connect the accused with the crime.

The clothes which are recovered from the accused alleged to

have worn at the time of incident did not contain any kind of

stains and mud particles. Further, the evidence of PW.1

clearly discloses that the undergarments of the victim were not

26

found near the body and therefore, the police had received an

undergarment of the deceased from the house. This

admissions given by the father of the deceased creates much

suspicion in the case of prosecution.

140. The investigation officer has failed to recover the CC

TV footages from the front gate of Nature cure Hospital and

did not recovered the umbrella, slippers, and the inner

garments of the victim. The vaginal swab collected was

disintegrated and not fit for test. In spite of these lapses, the

prosecution has failed to make out any circumstances to

connect the accused with the crime and the circumstances as

brought out from the case remained unproved. None of the

circumstances connects the accused with the crime, A person

accused of an offence cannot be convicted merely on the basis

of suspicion and he can be convicted only on legal evidence

and not on surmises and conjecture.

***** ***** *****

142. From the materials available on record, it is quite

manifest that the accused is. nowhere connected to the present

crime. There are no material on record to hold that the

accused single handedly dragged the victim girl inside the

bushes and committed penetrative sexual assault on her and

thereafter, by using the school gat he strangulated her to

death. Except the recovery of the clothes of the accused under

Ex. P15, absolutely there are no materials on record to

connect the accused with the crime. Contrary to the case of

27

prosecution, the Doctor who has examined the accused has

given opinion that the accused was suffering from Phimosis

disease [retraction of perpetual skin was difficult], which

makes the prosecution case much worse.

143. The prosecution fails to prove that the accused has

committed the acts alleged against him. Absolutely, there is no

evidence to connect the accused with the crime. There are no

circumstances to connect the accused with the charges

levelled against him. The charges levelled remained

unproved. The investigation is not properly conducted in the

golden hour. The doctor who collected the vaginal swab

virtually demolished the entire case of the prosecution at the

inception.”

(emphasis supplied)

38. It may also be noticed that PW 9 Janardhan had deposed that on the

day of incident, the victim carried a black Umbrella. On 09.10.2012, he

had seen the deceased walking towards her house and she was carrying an

Umbrella and bag. The Police did not recover the said Umbrella. Her bag

was recovered, however the books inside did not get wet though it had

rained. Her clothes also did not get wet, which raises a doubt as to whether

the crime was committed at the spot where her body was recovered or it

was brought there later. This is not noticed by any of the investigating

officers.

28

39. PW12 Dr. Adam had deposed that there was undigested food in the

stomach of the deceased. As per his opinion she must have consumed food

at about 6.00 pm. He further stated that the deceased might have died after

the lapse of 6 hours from the time of consumption of food. PW8 Janavi had

deposed that the deceased did not have any food till 4.00 pm. she is stated

to have died at about 12.00 midnight. The Investigating offices did not

notice that if Santhosh Rao had kidnapped her and committed the offence

at the spot, it was not possible for him to have kept it hidden till midnight

when she died. Particularly when the place from where her body was

recovered was close to a main road, with number of persons passing

through and also when several villagers were searching for her at that very

spot. The manner in which the investigation was done raises a doubt as to

whether there was involvement of more than one person in the commission

of offence.

40. During the pendency of the Trial, the Writ Petitioner had filed an

application before the Sessions Court praying for further investigation. The

Sessions Judge by order dated 07.02.2017 held as under:

“5. Now the complainant has filed this application with the

grounds on which he wanted that the further investigation to

be ordered by the Court. On perusal of these averments of the

application, I am of the opinion that the contention of Pw. 1

29

that there are serious lapses on the part of the in not

conducting proper investigation is forthcoming on record.

6. In this case all the observations made by the Pw. 1 are

borne out from the records and even in my opinion also there

are serious lapses on the part of the C.B.I, in not conducting

proper investigation. Even the doctor who had not properly

observed the materials which could have thrown proper light

on the case of the prosecution and the D.N.A. Expert stated

about presence of hair of another person in the material lungi.

The witnesses have stated that one lady-Yashodha had seen

four persons talking together near the scene of occurrence

that they cannot do in the broad day light and that particular

witness is not examined by the C.B.I.

7. Further the material witness-Ravi Poojari is murdered

and the same is also not noticed by the C.B.I. The place of

arrest of the present accused is also a matter which is not

properly probed into. Further it is very interesting to note that

the main accused are the persons who have held this accused

and produced before the police and during the arrest the

public have assaulted to the present accused and he sustained

injuries.

8. Further the doctor has stated to the effect that the accused

is suffering from Phimosis, which is not properly appreciated

by the Investigation Officer and the doctor has stated that

there was no injury to the private part of the accused. If at all

such a heinous crime according to the prosecution is

30

committed by this accused alone, the depth of injuries that he

would have sustained would have forth coming in the medical

evidence of the doctor. Further it is also brought in the

evidence that a girl would have taken from that particular

road and before reaching that place there is a water stream,

above which the girl has to be taken and the physical strength

of that particular girl compared with the accused is also an

important aspect. The C.B.I, ought to have considered

whether it is possible for one person or not.

9. Further all the witnesses have stated that on the date of

the alleged incident, there was rain and the clothes of the

victim were not stained with mud and the bag was not wet,

even the books were not wet. Further the underwear of the

victim was not secured. It is also material that the important

thing which is the under wear of the victim was not found near

by the dead body and the witnesses have stated that the police

have collected the underwear from the house. This also shows

that if at all the crime was committed on that particular spot,

what happened to that particular underwear is also not

investigated.

10. Further if the accused is a person of unsound mind, he

ought not to have taken the girl to an area where any public

access was not easily available there. He ought not to have

thought of that thing if his medical condition was not proper.

He was not secured at the place of incident. Further the

witnesses have categorically stated that this accused was not

31

found near by the place of incident. Further it is stated that

four days prior to the incident he came to that area, then how

could he put up a hut and reside there.

11. Further in this case one girl who accompanied the

deceased in the bus till her stop was not examined by the CBI

who ought to have brought some light to the case, when there

is agitation in the local limits, the C.B.I, police ought to have

probed into the matter as to why there is so much of making

of Bandh and agitation that the real culprits are not secured

even though the present accused was arrested by the police is

a material thing that the C.B.I, ought to have considered. The

investigation of the C.B.I, shows that they have recorded only

the statement of the witnesses whom they like, but they have

left out the statements of the material witnesses. Even they

have not enquired the witnesses whose statements was

recorded by the Belthangady Police or the C.O.D. This shows

that the proper investigation is not conducted by the C.B.I.

These are the materials on which the C.B.I, has to conduct the

investigation because it will show proper light on the case of

the prosecution. This is not a simple case, but it is a case of

brutal rape and murder.

12. Further on perusal of the medical report on record, it

could be gathered that it cannot be an act of one person.

Further the intention behind the engineering mind of the

accused has to be looked into. The persons who have

committed rape have filled the private part of the victim with

32

mud and this shows that the intention behind them is to avoid

the evidence to be collected by the Investigation Officer.

Further what was the necessity for the doctor to conduct the

postmortem of such a serious case during night time without

proper lighting facility as evidenced by his statement and

evidence which also an important point.

13. The witnesses have categorically stated the names of

the persons who have committed the crime, but the C.B.I, has

not properly probed into that particular aspect. Even the

agitation was continued for a long period of one year which

is also not considered by the C.B.I. If at all there was nothing

against this doubted persons, then why there was such a big

hue and cry for justice. In this case all these aspects goes to

show that the C.B.I., has not properly conducted the

investigation and this Court want to know about the finding

of the C.B.I., which it has to answer by conducting proper

impartial investigation. Thus the Court has to refer this matter

for further investigation and the C.B.I, has to answer all these

queries.

14. Further 1 have received some documents from

Nagarika Seva Trust Office, Guruvayana Kere, wherein this

particular case was also discussed along with other matters

and the same is also kept in the record of this particular case

which shows that no proper investigation is conducted by the

C.B.I, as per the information of the local public also.

33

15. Further the Sessions Judge is having power to order for

further investigation as provided under Section178(3) of

Cr.P.C. In this regard 1 rely upon the citation reported in AIR

2004 SC 2078 between Hasanbhai Valighai Qureshi Vs. State

of Gujarath and Others. Hence, in my opinion the Court can

order for further investigation in this matter. Hence acting

under Section 178(3) of Cr.P.C., the court has to observe that

the C.B.L, has to probe into the matter and to conduct fair and

proper investigation by considering all the observations made

in this order and also by examining the proper witnesses and

the documents and also the relevant C.D.Rs of the persons

against whom the allegations are made and thereafter submit

the report without fail within 24.04.2017, because the accused

is in judicial custody and the trial cannot be stopped by giving

enormous time to the C.B.I., Hence the C.B.I, to take this

matter on priority basis and conduct investigation and submit

the report by 24.04.2017. Hence, I proceed to pass the

following

ORDER:

The C.B.I, to take this matter on priority basis and conduct

further investigation by considering the observations made in

the order and submit the report by 24.04.2017. Office is

directed to intimate this order to the learned Public

Prosecutor and to the C.B.I., forth with.”

(underlining supplied)

34

41. (1) Dhiraj Jain, (2) Uday Jain and (3) Malik Jain filed a Petition

impugning the order dated 07.02.2017 being Criminal Petition No. 8678 of

2016 whereby the Sessions Judge had directed further investigation by the

CBI. The High Court in its Judgment dated 27.01.2021, noticed that 18

witnesses had already been examined and there were 44 cited witnesses in

the Charge Sheet. The High Court held that as trial had already commenced

against the accused and if fresh investigation was ordered, it would deviate

from the investigation reports of the Belthangady Police Station, the CID

and CBI and therefore it was unwarranted. Further, if relief was granted it

would dilute the powers under section 173(8) CrPC. The High Court while

setting aside the order reserved the liberty of the prosecution to proceed in

respect of an application filed under section 319 CrPC by giving an

opportunity to the proposed party.

42. Thereafter an application was filed before the Sessions Court by the

prosecution/CBI under section 319 CrPC seeking to add (1) Mallik Jain,

(2) Dheeraj Jain and (3) Uday Jain as additional accused in the case. Said

application was dismissed by the Sessions Judge on 04.10.2021, holding

that there was no material or evidence at all as contemplated under Sec.

319 Cr.P.C. as against the proposed accused so as to proceed against them

also. Said order was not appealed against.

35

43. Thereafter, further evidence was led by the prosecution. Ultimately,

as noticed hereinabove, the charged accused Santhosh Rao was acquitted

by judgment dated 16.06.2023, holding that the accused was nowhere

connected to the crime. There was absolutely no material on record to

connect the accused with the crime. The prosecution failed to prove that

the accused had committed the acts alleged against him. There were no

circumstances to connect the accused with the charges levelled against him.

44. It may be recalled at this juncture that not only the Writ Petitioner

but also other witnesses and persons, who though were not cited as

witnesses had come forward to share some material information about the

crime had all along been contending that Santhosh Rao was not the culprit

and the investigating agency had been trying to shield the real culprits.

Certain persons who claimed to have material information were not even

cited as witnesses and their statements ignored.

45. After the judgment dated 16.06.2023 of the Sessions Court,

acquitting Santhosh Rao, the Writ Petitioner filed the subject Writ Petition

seeking re-investigation/denovo investigation.

46. Subject Writ Petition has been dismissed by the impugned order

dated 30.08.2024. The High Court in the impugned order has held that

36

“…The acquittal judgment has a logical connection with the begging

question in the sense that if Santhosh Rao was not the one who committed

crime, there must be somebody else. This definitely demands

reinvestigation...”. However, the High Court despite opining that the facts

demanded reinvestigation, held that it is doubtful that evidence that could

not be collected at the golden hour is still available and that no useful

purpose would be served even if reinvestigation was permitted.

47. At this stage, it is apposite to note that on 29.04.2026, this Court had

passed an order directing the State of Karnataka to provide adequate

protection to 8 potential witnesses listed in the Petitioner’s additional

affidavit filed before us, at serial numbers 12-19. The State of Karnataka

has complied with the order, found the potential witnesses within 3 weeks

of its passing. The State’s ability to successfully locate the witnesses within

3 weeks, raises questions on the inability of 3 investigative agencies to

examine these leads when it was timely.

48. It may be noticed that PW-18 Mr. Vinod J Lakkappan, Assistant

Director Toxicology Division, Madivala Bengaluru who had conducted the

DNA analysis has deposed that “At the time of receiving the objects by us,

we do not open it and see. Apart from the hairs of this Accused, hairs of

other persons were also found in Material Object No. 15. In case there are

37

an suspicious persons, their blood samples could be collected even now

and on its DNA examination, comparison could be made.” His deposition

thus shows that if suspected persons are found, the DNA sample collected

from the victim’s ‘Chudidhar Top’ marked as material object no.15, can

still be matched. Thus the observation of the High Court that it is doubtful

that evidence that could not be collected at the golden hour is still available

and that no useful purpose would be served even if reinvestigation was

permitted is clearly erroneous and cannot be sustained.

49. Material witnesses are available and the hair of other persons found

and produced as Material Object No. 15 available and if suspected persons

found, their blood sample could be collected and on its DNA examination,

comparison can be made.

50. In this backdrop it would be expedient for the ends of justice to

examine the law on the question of denovo/reinvestigation and the

circumstances under which the same may be ordered.

51. A three judge bench of the Supreme Court in Neetu Kumar Nagaich

v. State of Rajasthan, (2020) 16 SCC 777 extensively examined and

referred to various judgments of the Supreme Court with regard to the

power of the Court specially the Constitutional Court to direct a denovo

38

investigation and the circumstances under which the same could be

ordered.

52. The Supreme Court in Neetu Kumar Nagaich (supra) held as under:

“10. Normally when an investigation has been concluded

and police report submitted under Section 173(2) of the Code,

it is only further investigation that can be ordered under

Section 173(8) of the Code. But where the constitutional court

is satisfied that the investigation has not been conducted in a

proper and objective manner, as observed in Kashmeri

Devi v. Delhi Admn. [Kashmeri Devi v. Delhi Admn., 1988

Supp SCC 482 : 1988 SCC (Cri) 864] , fresh investigation

with the help of an independent agency can be considered to

secure the ends of justice so that the truth is revealed. The

power may also be exercised if the court comes to the

conclusion that the investigation has been done in a manner

to help someone escape the clutches of the law. In such

exceptional circumstances the court may, in order to prevent

miscarriage of criminal justice, direct de novo investigation

as observed in Babubhai v. State of

Gujarat [Babubhai v. State of Gujarat, (2010) 12 SCC 254 :

(2011) 1 SCC (Cri) 336] . A fair investigation is as much a

part of a constitutional right guaranteed under Article 21 of

the Constitution as a fair trial, without which the trial will

naturally not be fair. The observations in this context

in Babubhai [Babubhai v. State of Gujarat, (2010) 12 SCC

39

254 : (2011) 1 SCC (Cri) 336] are considered relevant at para

45 as follows: (SCC p. 272)

“45. Not only fair trial but fair investigation is also

part of constitutional rights guaranteed under Articles

20 and 21 of the Constitution of India. Therefore,

investigation must be fair, transparent and judicious as

it is the minimum requirement of rule of law. The

investigating agency cannot be permitted to conduct an

investigation in a tainted and biased manner. Where

non-interference of the court would ultimately result in

failure of justice, the court must interfere. In such a

situation, it may be in the interest of justice that

independent agency chosen by the High Court

[Ganeshbhai Jakshibhai Bharwad v. State of Gujarat,

2009 SCC OnLine Guj 12130] makes a fresh

investigation.”

11. In Bharati Tamang v. Union of India [Bharati

Tamang v. Union of India, (2013) 15 SCC 578 : (2014) 6 SCC

(Cri) 566] , relief was sought in a writ petition to quash the

charge-sheet and the supplementary charge-sheet coupled

with a mandamus for a de novo investigation by a Special

Investigation Team of competent persons having impeccable

credentials to unravel the conspiracy. This Court relied on the

following extract from Zahira Habibulla H. Sheikh v. State of

Gujarat [Zahira Habibulla H. Sheikh v. State of Gujarat,

(2004) 4 SCC 158 : 2004 SCC (Cri) 999] , as follows:

(Bharati Tamang case [Bharati Tamang v. Union of India,

(2013) 15 SCC 578 : (2014) 6 SCC (Cri) 566] , SCC pp. 594-

97, paras 33, 37-38 & 41)

“33. …‘56. … Courts have to ensure that accused

persons are punished and that the might or authority of

the State are not used to shield themselves or their men.

40

It should be ensured that they do not wield such powers

which under the Constitution has to be held only in trust

for the public and society at large. If deficiency in

investigation or prosecution is visible or can be

perceived by lifting the veil trying to hide the realities

or covering the obvious deficiencies, courts have to

deal with the same with an iron hand appropriately

within the framework of law. It is as much the duty of

the prosecutor as of the court to ensure that full and

material facts are brought on record so that there might

not be miscarriage of justice.’ (Zahira Habibulla H.

Sheikh case [Zahira Habibulla H. Sheikh v. State of

Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] ,

SCC pp. 192-93, para 56)

***

37. In the decision of Babubhai v. State of

Gujarat [Babubhai v. State of Gujarat, (2010) 12 SCC

254 : (2011) 1 SCC (Cri) 336] , in para 40, this Court

held that the scheme of investigation particularly

Section 173(8) CrPC provides for further investigation

and not of reinvestigation but held in para 42 as under:

(SCC p. 272)

‘42. Thus, it is evident that in exceptional

circumstances, the court in order to prevent the

miscarriage of criminal justice, if considers

necessary, may direct for investigation de novo

wherein the case presents exceptional

circumstances.’

38. Therefore, at times of need where this Court

finds that an extraordinary or exceptional

circumstance arise and the necessity for

reinvestigation would be imperative in such

extraordinary cases even de novo investigation can be

ordered.

***

41

41.3. If deficiency in investigation or prosecution is

visible or can be perceived by lifting the veil which try

to hide the realities or covering the obvious deficiency,

courts have to deal with the same with an iron hand

appropriately within the framework of law.

***

41.5. In order to ensure that the criminal prosecution

is carried on without any deficiency, in appropriate

cases this Court can even constitute Special

Investigating Team and also give appropriate

directions to the Central and State Governments and

other authorities to give all required assistance to such

specially constituted investigating team in order to

book the real culprits and for effective conduct of the

prosecution.

***

41.7. In appropriate cases even if the charge-sheet is

filed it is open for this Court or even for the High Court

to direct investigation of the case to be handed over to

CBI or to any other independent agency in order to do

complete justice.

41.8. In exceptional circumstances the Court in order

to prevent miscarriage of criminal justice and if

considers necessary may direct for investigation de

novo.”

12. The power of the constitutional court may extend to

directing reinvestigation was again noticed in Pooja

Pal v. Union of India [Pooja Pal v. Union of India, (2016) 3

SCC 135 : (2016) 1 SCC (Cri) 743] , as follows: (SCC pp.

176-79, paras 87, 90 & 96)

“87. Any criminal offence is one against the society at

large casting an onerous responsibility on the State, as

the guardian and purveyor of human rights and

protector of law to discharge its sacrosanct role

42

responsibly and committedly, always accountable to

the law-abiding citizenry for any lapse. The power of

the constitutional courts to direct further investigation

or reinvestigation is a dynamic component of its

jurisdiction to exercise judicial review, a basic feature

of the Constitution and though has to be exercised with

due care and caution and informed with self-imposed

restraint, the plenitude and content thereof can neither

be enervated nor moderated by any legislation.

***

90. That the victim cannot be afforded to be treated

as an alien or total stranger to the criminal trial was

reiterated by this Court in Rattiram v. State of

M.P. [Rattiram v. State of M.P., (2012) 4 SCC 516 :

(2012) 2 SCC (Cri) 481] It was postulated that the

criminal jurisprudence with the passage of time has

laid emphasis on victimology, which fundamentally is

the perception of a trial from the viewpoint of criminal

as well as the victim when judged in the social context.

***

96. The avowed purpose of a criminal investigation

and its efficacious prospects with the advent of

scientific and technical advancements have been

candidly synopsised in the prefatory chapter dealing

with the history of criminal investigation in the treatise

on Criminal Investigation — Basic Perspectives by

Paul B. Weston and Renneth M. Wells:

‘Criminal investigation is a lawful search for

people and things useful in reconstructing the

circumstances of an illegal act or omission and

the mental state accompanying it. It is probing

from the known to the unknown, backward in

time, and its goal is to determine truth as far as

it can be discovered in any post-factum inquiry.

Successful investigations are based on fidelity,

accuracy and sincerity in lawfully searching for

the true facts of an event under investigation and

43

on an equal faithfulness, exactness, and probity

in reporting the results of an investigation.

Modern investigators are persons who stick to

the truth and are absolutely clear about the time

and place of an event and the measurable

aspects of evidence. They work throughout their

investigation fully recognising that even a minor

contradiction or error may destroy confidence in

their investigation.

The joining of science with traditional criminal

investigation techniques offers new horizons of

efficiency in criminal investigation. New

perspectives in investigation bypass reliance

upon informers and custodial interrogation and

concentrate upon a skilled scanning of the crime

scene for physical evidence and a search for as

many witnesses as possible. Mute evidence tells

its own story in court, either by its own

demonstrativeness or through the testimony of

an expert witness involved in its scientific

testing. Such evidence may serve in lieu of, or as

corroboration of, testimonial evidence of

witnesses found and interviewed by police in an

extension of their responsibility to seek out the

truth of all the circumstances of crime

happening. An increasing certainty in solving

crimes is possible and will contribute to the

major deterrent of crime—the certainty that a

criminal will be discovered, arrested and

convicted.’”

13. In Dharam Pal v. State of Haryana [Dharam

Pal v. State of Haryana, (2016) 4 SCC 160 : (2016) 2 SCC

(Cri) 259] , it was noticed that the power of the constitutional

court to order fresh or de novo investigation could also be

exercised after commencement of the trial and the

44

examination of some witnesses could not be an impediment,

observing as follows: (SCC p. 170, para 25)

“25. … The power to order fresh, de novo or

reinvestigation being vested with the constitutional

courts, the commencement of a trial and examination

of some witnesses cannot be an absolute impediment

for exercising the said constitutional power which is

meant to ensure a fair and just investigation. … It is the

bounden duty of a court of law to uphold the truth and

truth means absence of deceit, absence of fraud and in

a criminal investigation a real and fair investigation,

not an investigation that reveals itself as a sham one. It

is not acceptable. It has to be kept uppermost in mind

that impartial and truthful investigation is imperative.”

53. The Supreme Court in Neetu Kumar Nagaich (supra) held that

normally when an investigation has been concluded and police report

submitted under Section 173(2) of the Criminal Procedure Code, it is only

further investigation that can be ordered under Section 173(8) of the

Criminal Procedure Code. But where the Constitutional Court is satisfied

that the investigation has not been conducted in a proper and objective

manner, fresh investigation with the help of an independent agency can be

considered to secure the ends of justice so that truth is revealed. It held that

the power to direct fresh investigation may be exercised if the court comes

to the conclusion that the investigation has been done in a manner to help

someone escape the clutches of the law. In such exceptional circumstances

the court may, in order to prevent miscarriage of criminal justice, direct de

novo investigation.

45

54. The Supreme Court held that a fair investigation is as much a part of

a constitutional right guaranteed under Article 21 of the Constitution as a

fair trial, without which the trial will naturally not be fair. Investigation

must be fair, transparent and judicious as it is the minimum requirement of

rule of law. The investigating agency cannot be permitted to conduct an

investigation in a tainted and biased manner. Where non-interference of the

court would ultimately result in failure of justice, the court must interfere.

55. Relying upon the decision in Zahira Habibulla H. Sheikh (supra),

the Supreme Court in Neetu Kumar Nagaich (supra) held that if deficiency

in investigation or prosecution is visible or can be perceived by lifting the

veil which try to hide the realities or covering the obvious deficiency,

courts have to deal with the same with an iron hand appropriately within

the framework of law. In order to ensure that the criminal prosecution is

carried on without any deficiency, in appropriate cases this Court can even

constitute Special Investigating Team and also give appropriate directions

to the Central and State Governments and other authorities to give all

required assistance to such specially constituted investigating team in order

to book the real culprits and for effective conduct of the prosecution. And

in exceptional circumstances the Court in order to prevent miscarriage of

46

criminal justice and if considers necessary may direct for investigation de

novo.

56. Reference was also made by the Supreme Court in Neetu Kumar

Nagaich (supra) to the judgment in Pooja Pal (supra) wherein it has been

held that a criminal offence is one against the society at large casting an

onerous responsibility on the State, as the guardian and purveyor of human

rights and protector of law to discharge its sacrosanct role responsibly and

committedly, always accountable to the law-abiding citizenry for any

lapse.

57. The power of the constitutional courts to direct further investigation

or reinvestigation is a dynamic component of its jurisdiction to exercise

judicial review, a basic feature of the Constitution and though has to be

exercised with due care and caution and informed with self-imposed

restraint, the plenitude and content thereof can neither be enervated nor

moderated by any legislation.

58. The Supreme Court in Neetu Kumar Nagaich (supra) also relied

upon the decision in Rattiram (supra) wherein it was held that the victim

cannot be afforded to be treated as an alien or total stranger to the criminal

trial and criminal jurisprudence with the passage of time has laid emphasis

47

on victimology, which fundamentally is the perception of a trial from the

viewpoint of criminal as well as the victim when judged in the social

context.

59. In a case where a minor girl of 17 years of age is brutally raped and

murdered, the manner in which the investigation had progressed and the

manner in which the various investigating agencies conducted the

investigation and gathered and evaluated the evidence shocks the very

conscience of the court. The person who was prosecuted was held to be

incapable of committing the offence. Clearly the investigation has been

conducted in a manner that causes injustice to the victim. The possibility

of the real culprit(s) manipulating the investigation cannot be ruled out.

Such lax and improper investigation gives premium to the Investigating

Officers who failed to do their job correctly and diligently.

60. Injustice to a person who was falsely charged can always be

compensated, however injustice to the victim who was brutally raped and

then murdered can never be compensated. Society would be failing in its

duty if it does not provide justice to the victim of such a heinous crime by

conducting a proper investigation and bringing the real culprits to the book.

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61. In view of the above, the appeal is disposed of in the following

terms:

(i) impugned order dated 30.08.2024 in WP No. 3301 of 2024, in

so far as it dismisses the Writ Petition filed by Sri Chandappa

Gowda, is set aside and

(ii) a denovo investigation be carried out in Cr.No.250/2012

originally registered by the Belthangady Police as per the

Complaint dated 09.10.2012 & First Information Report in

Crime No.250/2012 dated 09.10.2012 and re-registered as

FIR No.RC.2(S)/2014/CBI/SCB/CHENNAI dated

07.03.2014 by CBI, SCB Chennai; and

(iii) Respondent No. 1 – State of Karnataka shall constitute a

Special Investigation Team comprising efficient investigators,

well conversant with the use of modern investigative

technology, headed by a senior police officer of the State; and

(iv) no officer who was part of the investigation teams of the

Belthangady Police Station, CID or CBI who had been

associated with the earlier investigation shall be part of the

Special Investigation Team; and

(v) Since, Santhosh Rao has already been tried and acquitted by

the Sessions Court in the subject FIR, he enjoys the protection

of Article 20 (2) of the Constitution of India and Section 300

CrPC from being tried or prosecuted a second time, he shall

not be subjected to further investigation or prosecution; and

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(vi) nothing stated herein shall be construed as expressing an

opinion, even prima facie, on the role of any individual

including Mallik Jain, Deeraj Jain and Uday Jain. The Special

Investigating Team shall conduct the investigation without

being influenced by anything stated on merits in this order;

and

(vii) fresh investigation shall be concluded within a period of three

months and the police report shall be filed before the court

concerned in accordance with law, whereafter the matter shall

proceed in accordance with law.

62. The appeal is disposed of in the above terms.

………………………….J.

[SANJAY KUMAR]

…………………………….J.

[SANJEEV SACHDEVA]

New Delhi;

September 21, 2026