Penal Code, 1860 – s. 302 r/w. s. 34 – Prosecution case that accused A-1, A-2, A-3 and A-4 armed with weapons attacked victim-son of PW-1, PW-1, PW-2, PW-3, PW-4 and PW-5 – Accused belaboured son of PW-1 – As a result, he died – PW-1 ran away hid behind the bushes – After sunset, he returned to his village and told them about the incident – Next day, in morning a written complaint filed before police station – Charge-sheet filed – The Trial Court discarded prosecution [2024] 5 S.C.R. 175 Babu Sahebagouda Rudragoudar and Others v. State of Karnataka story and acquitted accused-appellants (A-1, A-2 and A-3) along with other accused, however, the High Court reversed the acquittal of A-1, A-2 and A-3 and convicted these accused u/s. 302 r/w. s.34 IPC – Correctness:

* Author

[2024] 5 S.C.R. 174 : 2024 INSC 320

Babu Sahebagouda Rudragoudar and Others

v.

State of Karnataka

Criminal Appeal No. 985 of 2010

19 April 2024

[B.R. Gavai and Sandeep Mehta,* JJ.]

Issue for Consideration

Whether the High Court was justified in deciding the appeal as a

first Court on independent appreciation of evidence and recording

its own findings to hold the accused appellants (A-1, A-2 and A-3)

guilty of charge u/s. 302 r/w. s.34 IPC.

Headnotes

Code of Criminal Procedure, 1973 – s.378 – Appeal in case

of acquittal – Scope of interference by an appellate Court for

reversing the judgment of acquittal recorded by the trial Court:

Held: It is beyond the pale of doubt that the scope of interference

by an appellate Court for reversing the judgment of acquittal

recorded by the trial Court in favour of the accused has to be

exercised within the four corners of the following principles: (a)

That the judgment of acquittal suffers from patent perversity; (b)

That the same is based on a misreading/omission to consider

material evidence on record; (c) That no two reasonable views

are possible and only the view consistent with the guilt of the

accused is possible from the evidence available on record – The

appellate Court, in order to interfere with the judgment of acquittal

would have to record pertinent findings on the above factors if it is

inclined to reverse the judgment of acquittal rendered by the trial

Court. [Paras 39 and 40]

Penal Code, 1860 – s. 302 r/w. s. 34 – Prosecution case that

accused A-1, A-2, A-3 and A-4 armed with weapons attacked

victim-son of PW-1, PW-1, PW-2, PW-3, PW-4 and PW-5 –

Accused belaboured son of PW-1 – As a result, he died – PW-1

ran away hid behind the bushes – After sunset, he returned

to his village and told them about the incident – Next day,

in morning a written complaint filed before police station –

Charge-sheet filed – The Trial Court discarded prosecution 

[2024] 5 S.C.R. 175

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

story and acquitted accused-appellants (A-1, A-2 and A-3)

along with other accused, however, the High Court reversed

the acquittal of A-1, A-2 and A-3 and convicted these accused

u/s. 302 r/w. s.34 IPC – Correctness:

Held: It was alleged in the report that the complainant-PW-1

along with PW-2, PW-3, PW-4 and PW-5 (servants, who had

accompanied the deceased to erect a bund in their land) witnessed

the incident wherein, however, none other than the deceased

received a single injury in the incident – The witnesses PW-2,

PW-6 and PW-15 admitted that it was raining incessantly in the

village for almost three days – In such circumstances, the reason

assigned by the complainant(PW-1) for the deceased and the

four servants(PW-2, PW-3, PW-4 and PW-5) to have gone to the

agricultural land, i.e., for putting up a bund is totally unacceptable

– Testimony of PW-1 suffers from patent infirmities, contradictions

and inherent loopholes which brings him within the category

of wholly unreliable witness – There is a grave contradiction

on the aspect as to whether the report was submitted by the

complainant(PW-1) in the form of a written complaint or whether

the oral statement of complainant(PW-1) was recorded by the

police officials at his home leading to the registration of FIR(Exhibit

P-10) – Further, PW-6 (who claimed to be an eye witness of the

incident) categorically stated that it was he who had informed the

family members, the informant PW-1 – Thus, the case set up by

prosecution that complainant, PW-1 was an eye-witness to the

incident, is totally contradicted by evidence of PW-6 – The conduct

of the family members of the deceased and the other villagers in

not taking any steps to protect the dead body for the whole night

and instead, casually going back to their houses without giving a

second thought as to what may happen to the mortal remains of the

deceased, lying exposed to the elements is another circumstance

which creates a grave doubt in the mind of the Court that no one

had actually seen the incident and it was a case of blind murder

which came to light much later – There is no logical explanation

for the presence of the deceased and the servants in their field

on the date and time of the incident – Further, the High Court

heavily relied upon the circumstance of recoveries of weapons

made at the instance of the accused as incriminating evidence –

However, as was rightly pointed out that the complainant (PW-1)

admitted in his cross-examination that he was shown the weapons

of the offence by the police on the date of incident itself – In light 

176 [2024] 5 S.C.R.

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of the legal principles, none of the essential mandates governing

an appeal against acquittal were adverted to by Division Bench

of the High Court which proceeded to virtually decide the appeal

as a first Court on independent appreciation of evidence and

recorded its own findings to hold the accused appellants(A-1,

A-2 and A-3) guilty of the charge u/s. 302 r/w. s.34 IPC – Thus,

the impugned judgment rendered by the High Court cannot be

sustained. [Paras 44, 47, 53, 41]

Evidence Act, 1872 – s. 27 – Requirement under law so as to

prove a disclosure statement recorded:

Held: The statement of an accused recorded by a police officer

u/s. 27 of the Evidence Act is basically a memorandum of

confession of the accused recorded by the Investigating Officer

during interrogation which has been taken down in writing – The

confessional part of such statement is inadmissible and only the

part which distinctly leads to discovery of fact is admissible in

evidence as laid down by this Court in the case of State of Uttar

Pradesh v. Deoman Upadhyaya – Thus, when the Investigating

Officer steps into the witness box for proving such disclosure

statement, he would be required to narrate what the accused stated

to him – The Investigating Officer essentially testifies about the

conversation held between himself and the accused which has been

taken down into writing leading to the discovery of incriminating

fact(s). [Paras 59 and 60]

Evidence Act, 1872 – s. 60 – Oral evidence must be direct:

Held: As per Section 60 of the Evidence Act, oral evidence in

all cases must be direct – The section leaves no ambiguity and

mandates that no secondary/hearsay evidence can be given in

case of oral evidence, except for the circumstances enumerated

in the section – In case of a person who asserts to have heard

a fact, only his evidence must be given in respect of the same.

[Para 61]

Evidence Act, 1872 – s.27 – Exhibiting memorandum – Proof

of contents – Narration of events – Disclosure statements

resulting into discovery of weapons:

Held: It is settled that mere exhibiting of memorandum prepared

by the Investigating Officer during investigation cannot tantamount

to proof of its contents – While testifying on oath, the Investigating

Officer would be required to narrate the sequence of events which 

[2024] 5 S.C.R. 177

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

transpired leading to the recording of the disclosure statement – In

the instant case, perusal of the extracted part of the evidence of

the Investigating Officer(PW-27), in the backdrop of the exposition

of law laid down by this Court, the interrogation memos of the

accused A-2(Exhibit P-15) and A-1 (Exhibit P-16), it is clear that

the Investigating Officer(PW-27) gave no description at all of the

conversation which had transpired between himself and the accused

which was recorded in the disclosure statements – Thus, these

disclosure statements cannot be read in evidence and the recoveries

made in furtherance thereof are non est in the eyes of law – The

Investigating Officer(PW-27) also stated that in furtherance of the

voluntary statements of accused(A-1 and A-2), he recovered and

seized two axes and one koyta produced by A-1 in the field and

one jambiya produced by A-2 – The Investigating Officer(PW-27)

nowhere stated in his deposition that the disclosure statement of the

accused resulted into the discovery of these weapons pursuant to

being pointed out by the accused – The Investigating Officer(PW-27)

further stated that he arrested accused A-3, recorded his voluntary

statement and seized two sickles – However, neither the so called

voluntary statement nor the seizure memo were proved by the

Investigating Officer(PW-27) in his evidence – Thus, neither the

disclosure memos were proved in accordance with law nor the

recovery of the weapons from open spaces inspire confidence.

[Paras 66-69]

Case Law Cited

Rajesh Prasad v. State of Bihar and Another [2022]

3 SCR 1046 : (2022) 3 SCC 471; H.D. Sundara &

Ors. v. State of Karnataka [2023] 14 SCR 47 : (2023)

9 SCC 581; Mohd. Abdul Hafeez v. State of Andhra

Pradesh (1983) 1 SCC 143; Subramanya v. State of

Karnataka [2022] 14 SCR 828 : 2022 SCC Online SC

1400 – relied on.

State of Uttar Pradesh v. Deoman Upadhyaya [1961] 1

SCR 14 : AIR (1960) SC 1125; Ramanand @ Nandlal

Bharti v. State of Uttar Pradesh [2022] 5 SCR 162 :

(2022) SCC OnLine SC 1396 – referred to.

List of Acts

Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure,

1973.

178 [2024] 5 S.C.R.

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List of Keywords

Section 378 of the Code of Criminal Procedure, 1973; section

27 of the Evidence Act, 1872; Scope of interference by the

High Court; Reversing judgment of acquittal; Patent perversity;

Misreading/omission to consider material evidence; Wholly

unreliable witness; Memorandum of confession of the accused;

Discovery of fact; Oral evidence; Exhibiting memorandum; Proof

of contents; Narration of events; Disclosure statements resulting

into discovery of weapons.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.985

of 2010

From the Judgment and Order dated 14.09.2009 of the High Court

of Karnataka Circuit Bench at Dharwad in CRLA No. 2215 of 2005

Appearances for Parties

Basavaprabhu S. Patil, Sr. Adv., Geet Ahuja, Anirudh Sanganeria,

Samarth Kashyap, Aman Banka, Advs. for the Appellants.

Aman Panwar, A.A.G., V. N. Raghupathy, Manendra Pal Gupta,

Shivam Singh Baghal, Harsh Gattani, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Mehta, J.

1. The appellants herein, namely, Babu Sahebagouda Rudragoudar(A-1),

Alagond Sahebagouda Rudragoudar(A-2) and Mudakappa @

Gadegappa Rudragoudar(A-3) along with Sahebagouda Gadageppa

Rudragoudar(A-4), Basappa Avvanna @ Huvanna Giradi @ Chigari

(A-5) and Basappa Dundappa @ Dondiba Hanjagi (A-6) were

subjected to trial in Sessions Case No. 28 of 2002 in the Court of the

learned Fast Track Court I, Bijapur for charges pertaining to offences

punishable under Sections 143, 147, 148, 506(2) and Section 302

read with Section 149 of the Indian Penal Code, 1860 (hereinafter

being referred to as ‘IPC’).

2. For the sake of convenience, the appellants shall hereinafter be

referred to as A-1, A-2 and A-3. 

[2024] 5 S.C.R. 179

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

3. The learned trial Court proceeded to discard the prosecution story

and acquitted the accused appellants(A-1, A-2 and A-3) along with

A-4, A-5 and A-6 vide judgment dated 23rd July, 2005.

4. The State of Karnataka challenged the said judgment recording

acquittal of A-1 to A-6 by filing Criminal Appeal No. 2215/2005 before

the High Court of Karnataka. The Division Bench of High Court vide

its judgment dated 14th September, 2009 proceeded to allow the

appeal; reversed the acquittal of A-1, A-2 and A-3 and convicted

these accused for the offence punishable under Section 302 read

with Section 34 IPC and sentenced them to undergo imprisonment

for life and to pay a fine of Rs. 50,000/- each within a period of six

months and in default, to further undergo imprisonment for two years.

The appeal as against A-5 and A-6 was dismissed, while appeal qua

A-4 stood abated on account of his death. Out of the fine amount

to be realised, a sum of Rs. 10,000/- was ordered to be paid to the

State Government and the balance amount of Rs. 1,40,000/- was

ordered to be paid to the complainant(PW-1).

5. The judgment dated 14th September, 2009 rendered by the learned

Division Bench of the High Court reversing the acquittal of the

accused appellants and convicting and sentencing them as above

is assailed in the present appeal.

Brief facts: -

6. The complainant, Chanagouda(PW-1) owns agricultural lands and

a house in village Babanagar, Bijapur, Karnataka. It is alleged by

the prosecution that in the morning of 19th September, 2001, the

deceased Malagounda, son of complainant, along with labourers/

servants Revappa(PW-2), Siddappa(PW-3), Hiragappa(PW-4) and

Suresh(PW-5) had gone to put up a bund (check dam) in their land.

At about 12 o’ clock in the afternoon, the complainant(PW-1) packed

lunch for these five persons and proceeded to the field where the

farming operations were being undertaken. The work continued till 3.30

p.m. and thereafter, the four servants(PW-2, PW-3, PW-4 and PW-5),

along with the deceased Malagounda and the complainant(PW-1)

proceeded to the village. They had reached near the land of one

Ummakka Kulkarni at about 4.00 pm, where A-1, A-2, A-3 and A-4

suddenly came around and exhorted that the way the complainant

party had murdered Sangound, they would take revenge upon the

members of the complainant party in the same manner. A-1 holding 

180 [2024] 5 S.C.R.

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a jambai, A-2 holding an axe, A-3 holding a sickle and A-4 holding

an axe, belaboured Malagounda, as a result of which he fell down.

The assailants thereafter threatened the complainant(PW-1) that if

he tried to intervene, he too would meet the same fate as his son.

Fearing for his own life, the complainant(PW-1) ran away and hid

behind the bushes in order to avoid being beaten by the accused.

7. After sunset, the complainant(PW-1) returned to the village and

narrated about the incident to his family members. A written complaint

of this incident came to be submitted by the complainant(PW-1)

at Tikota Police Station on 20th September, 2001 at 4.00 am in

the morning whereupon FIR(Exhibit P-10) was registered and

investigation commenced. After conclusion of investigation, a charge

sheet came to be filed against the appellants(A-1, A-2, A-3) and

other accused(A-4, A-5 and A-6) for the offences punishable under

Sections 143, 147, 148, 506(2) and Section 302 read with Section

149 IPC in the Court of jurisdictional Magistrate. The case being

exclusively sessions triable was committed to the Court of Sessions

Judge, Bijapur where charges were framed against the accused for

the above offences. The accused persons pleaded not guilty and

claimed trial. The prosecution examined as many as 27 witnesses,

exhibited 24 documents and 17 material objects to prove its case.

The accused, upon being questioned under Section 313 of Code of

Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’)

claimed that they were innocent and had been falsely implicated in

the case. However, no evidence was led in defence. For the sake

of convenience, the details of the prosecution witnesses are enlisted

below: -

PW-1 Chanagouda (complainant)(eye witness)

PW-2 Revappa (eye witness)

PW-3 Siddappa (eye witness) (hostile)

PW-4 Hiragappa (eye witness)

PW-5 Suresh (eye witness) (hostile)

PW-6 Basagonda (eye witness)

PW-7 Appasaheb (last seen witness)

PW-8 Sabu (panch witness)

PW-9 Basu (panch witness)

[2024] 5 S.C.R. 181

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

PW-10 Ramu (panch witness)

PW-11 Bhimanna (panch witness)

PW-12 Sangond (panch witness)

PW-13 Shantinath (panch witness)

PW-14 Sakrubai (mother of the deceased) (hearsay witness)

PW-15 Shankargouda (eye witness)

PW-16 Siddappa (hearsay witness)

PW-17 Dr. Anilkumar (Medical Jurist)

PW-18 Shetteppa (Retd. ASI) (registered the FIR) (Poujadar)

PW-19 Veerbhadrayya (Carrier Constable)

PW-20 Dayanand (Photographer)

PW-21 Raju (Scribe of Sketch Map)

PW-22 Shrishail (Carrier Constable)

PW-23 Ratansing (Assistant Sub-Inspector)

PW-24 Chandrashekhar (Investigating Officer)

PW-25 Jaganath (PSI)

PW-26 Mohammadsharif (Assistant Sub-Inspector)

PW-27 Basanagouda (Police Inspector, State Intelligence,

Bangalore) (2nd Investigating Officer)

8. Upon hearing the arguments advanced by the prosecution and the

defence counsel and after thoroughly appreciating the evidence

available on record, the trial Court proceeded to hold that the

prosecution could not prove the charges levelled against the accused

beyond all manner of doubt and acquitted all the six accused vide

judgment dated 23rd July, 2005 with the following pertinent findings: -

(i) That in the charge sheet, the prosecution had involved A-5

and A-6. However, none of the witnesses examined by the

prosecution spoke a single word incriminating A-5 and A-6 either

individually or vicariously and this circumstance casted serious

doubts in the mind of the Court with regard to the conduct of the

witnesses to implicate A-1 to A-4 while exonerating A-5 and A-6.

(ii) That PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6 gave

contradictory versions regarding exact identities/names of the

assailants.

182 [2024] 5 S.C.R.

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(iii) PW-4 who was a coolie and had worked along with the deceased

Malagounda did not implicate A-4 in the crime.

(iv) Basagonda(PW-6), projected to be an eye witness gave

evidence contradicting the evidence of PW-2 and PW-4.

(v) Rudrappa, son of PW-6 was one of the accused in the murder of

Sangound, son of A-4 and thus, the said witness had a motive

to speak against A-1 to A-4.

(vi) Likewise, another projected eyewitness, namely,

Shankargouda(PW-15), did not state about the presence of

A-4 at the time of incident.

(vii) The trial Court further found that it was admitted by the eye

witnesses(PW-6 and PW-15) that it had rained in the village

continuously for three days prior to the incident and thus, the

theory put forth by the complainant that the deceased and the

four labourers(PW-2 to PW-5) had gone to the field for raising

a bund was improbable as during the spell of incessant rainfall,

it would not have been possible to carry out such an operation

and for that matter, any other farming activity.

9. At para 15 of the judgment, the trial Court concluded as below: -

“…In view of conflicting nature of evidence of these eye

witnesses, it is clear that their evidence is not consistent

with the prosecution case and it has a different version

with reference to each witness. Hence a serious doubt

arises as to the truthfulness of the prosecution.”

10. The trial Court discussed evidence of ASI, Tikota Police Station(PW-18),

wherein he admitted that police visited the place of incident in the

night only. It was also noted that complainant(PW-1) admitted that the

complaint was made after the police had visited the place of incident.

11. PW-2 stated in his cross examination that the police came to the village

at about 10 or 11 am and recorded his statement at the police station

at that time only i.e. at 12 o’ clock. Taking this into consideration, the

trial Court recorded a categoric finding that complaint(Exhibit P-1) was

a post-investigation document and as such, it was hit by Section 162

CrPC and did not have any evidentiary worth. This conclusion was

recorded in Para 17 of the judgment which is extracted hereinbelow

for the sake of ready reference: -

[2024] 5 S.C.R. 183

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

“According to the cross – examination of P.W.2, the police

came to the village at about 10 or 11 a.m. He called by

the police and they went to the place and the police

inspected the dead body. P.W.2 is very much specific that

they went to the place along with the police at 11p.m. and

thereafter went to the police station at 12 O’ clock in the

night. According to P.W.2, the police have recorded his

statement in the police station at that time only i.e., at 12

O clock. This goes to show that the police were aware

of the offence at 11.00 p.m. on 19.09.2001. P.W.6., who

claims to be an eye witness, returned to the house at about

5-00 or 6-00 p.m. and informed the incident to the children

of his uncle viz., he informed Pargouda, Shankargouda

and Chanagouda. But, however, P.W.1 was hiding near

the bushes at his land and if what P.W.6 says is true,

then in that case, P.W.1 was in the house at 5-00 or 6-00

pm only. Nothing prevented P.W.1 to rush immediately

to the police station which was 10 Kms away and to file

the complaint. Even P.W.6 further admits that he told

the incident to these persons and they had told him that

they will go to the police station and it was 6-00 or 7-00

p.m., at the time. Even if that is the case, P.W.1 has to

offer explanation as to why he filed the complaint at 4.00

a.m. When the admissions of this witness are taken into

account, the police were aware of the murder at about

11 p.m. in the night and they had even visited the place

of offence. Nothing prevented the police who visited the

place of offence to record the statement of P.W.1 at his

house and the delay for six hours as per the evidence of

P.W.1 or as to the evidence of P.W.6, the delay of eight

hours is not explained by the prosecution. If already the

statements of the witnesses were recorded at the village

only after seeing the dead body, then in that case Ex.P1

which is the complaint, is hit by Section 162 of CrPC and

cannot have evidentiary value.”

12. The trial Court also concluded that the opinion of the Medical Officer

regarding time of death of the deceased totally contradicted the case

set up by the prosecution witnesses in their evidence regarding the

time of incident.

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13. Regarding the seizure of weapons/articles, the trial Court noted at

para 19 that the complainant(PW-1) admitted in his cross-examination

that the police had shown him the weapons of offence on the date of

incident itself. However, as per the Investigating Officer(PW-27), the

weapons were shown to have been recovered on 1st October, 2001

and, therefore, evidence of complainant(PW-1) totally contradicted

the claim of the Investigating Officer(PW-27) that he had seized the

weapons in furtherance of the disclosure statements of the accused.

14. Taking note of these inherent lacunae, infirmities and contradictions

in the prosecution evidence, the trial Court proceeded to hold that

the prosecution case was full of inconsistencies and infirmities and

that it had failed to prove the charges against the accused beyond

all manner of doubt. Accordingly, the accused appellants(A-1, A-2

and A-3) and other three accused(A-4, A-5 and A-6) were acquitted

of the charges.

15. The State preferred an appeal under Section 378(1) read with 378(3)

CrPC challenging the acquittal of the accused. The learned Division

Bench of High Court of Karnataka partly allowed the said appeal

vide judgment dated 14th September, 2009 and while reversing the

acquittal of the accused A-1, A-2 and A-3 as recorded by the trial

Court, convicted and sentenced them as above. The appeal against

A-4 stood abated on account of his death. The appeal against A-5

and A-6 was dismissed upholding their acquittal.

16. The instant appeal has been instituted at the instance of the accused

appellants(A-1, A-2 and A-3) for assailing the judgment dated 14th

September, 2009 rendered by the learned Division Bench of the High

Court of Karnataka, Circuit Bench, Gulbarga whereby the acquittal

of the appellants has been reversed and they have been convicted

and sentenced to suffer life imprisonment.

Submissions on behalf of the appellants: -

17. Learned counsel representing the appellants urged that the view

taken by the High Court in reversing the acquittal of the appellants

recorded by the trial Court by a well-reasoned judgment is totally

contrary to the settled principles laid down by this Court regarding

scope of interference in an appeal against acquittal.

18. Learned counsel urged that the appellate Court should be very slow

to intervene with the acquittal of an accused as recorded by the trial 

[2024] 5 S.C.R. 185

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

Court. Acquittal can be reversed only if the findings recorded by

the trial Court are found to be patently illegal or perverse or if the

only view possible on the basis of the evidence available on record

points towards the guilt of the accused. If two views are possible,

the acquittal recorded by the trial Court should not be interfered

with unless perversity or misreading of evidence is reflected from

the judgment recording acquittal.

19. Learned counsel further urged that the learned Division Bench of the

High Court, while rendering the judgment reversing acquittal of the

appellant barely referred to the findings on the basis of which the trial

Court had acquitted the accused by extending them the benefit of doubt.

Rather, the High Court went on to record its own fresh conclusions

after re-appreciation of the evidence. Such an approach is de hors the

well-settled principles governing consideration of an appeal against

acquittal and hence, the impugned judgment deserves to be set aside.

20. They advanced pertinent submissions assailing the judgment of the

High Court seeking acquittal of the accused appellants.

21. It was urged that the complainant(PW-1), father of the deceased

Malagounda and the four labourers(PW-2, PW-3, PW-4 and PW-5)

abandoned the deceased victim whom they claimed to have seen

being belaboured with their own eyes. They neither made any efforts

to take stock of the victim’s condition nor was the matter reported

to the police promptly which makes it clear that the so called eye

witnesses actually never saw the incident happening with their own

eyes and a case of blind murder has been foisted upon the appellants

on account of prior enmity.

22. The attention of this Court was drawn to the following excerpts from

the evidence of complainant, Chanagouda(PW-1):-

“….Again I returned back and went near my land and

entered the bushes to hide myself. I sat at that place

up to 6 or 7 PM in the evening. After the sun-set I

returned to my village. I told the incident to my family

members. In the night myself and my brothers and

relatives went to the place and saw the dead body.

Thereafter we informed to the police. The cousins

informed about the incident to the police. At that time

the police came to our house and took me to the police 

186 [2024] 5 S.C.R.

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station. The police enquired me and I informed them

about the incident and they made a writing. It was

about 2 or 3 AM in the morning. In the morning hours

the police came to the place. I now see the complaint at

ex.P.1, and it bears my signature at Ex.p.1(a)….

 ….The police recorded what I have stated to them in the

police station. Thereafter I signed to that writing. On the

next day the police have taken my statement. The Poujadar

recorded my statement. The inspector also questioned

me. It is not correct to suggest that the inspector has not

recorded my statement…..

….My relatives did not made a telephone call and

personally went to the police station and brought

the police. At that time initially the police came and

thereafter the Poujadar came. They came to our house.

The poujadar questioned me what has happened. I

told the Poujadar what I was knowing. The poujadar

made a writing about it. The writing was made after

the police visited the place of incident…..

…..Myself and my relatives went to see the dead

body in the night and at that time it was 10 to 11 PM.

When we returned to house it was 10 or 11 PM. Phone

facilities are available in our village. I did not made any

telephone call to the police. I also did not tell-to my

relatives to make a telephone call to the police station.

Shivanagouda and Banagouda are my other two sons.

Both of them are educated. They were present in the

house when I returned from the land. When I told my

son about the incident, they went on motor-cycle to

the police station but did not made any telephone

call to the police station. My son Shivanagouda and

Sangond went on the motor-cycle to the police station.

They went to the police station at about 12 o’clock in

the night. The distance between Tikota Police Station

and my village is 10 KMS…..

….On the day of incident only the police showed the

weapon of offence..”

(emphasis supplied)

[2024] 5 S.C.R. 187

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

23. In this very context, the attention of the Court was drawn to the

evidence of ASI Tikota Police Station(PW-18), who recorded the

FIR(Exhibit P-10) wherein he admitted that he did not know whether

prior to 4.00 am on that day, the information of the murder was

already provided at the police station.

24. Learned counsel thus urged that the police had already been

informed about the incident by none other than the sons of the

complainant(PW-1) around 12 o’ clock in the night and hence, there

was no reason as to why the FIR was not registered immediately

on receiving such information.

25. Learned counsel contended that the complainant(PW-1) admitted

in cross examination that the Poujadar scribed a complaint and he

was made to append his signatures thereupon. It was submitted that

the said complaint was not produced on record. Hence, there is a

genuine doubt regarding the FIR(Exhibit P-10) being a subsequently

created post investigation document.

26. He then referred to the statement of Revappa(PW-2) who admitted

in cross-examination that the police came to the village at about 10

or 11 pm and he was sleeping in his house when the call came from

the police. A police officer from Tikota Police Station came to call him.

He along with the police officer went to the place of incident where

the dead body was lying. The time was about 11.00 pm. They went

to the police station at 12 o’ clock in the night where his statement

was recorded.

27. The Court was taken through the statement of Hiragappa(PW-4)

who also stated that police came to their village at 8.00 or 9.00 pm

in the night. They inquired from him and he divulged as to how the

incident had happened. He and the other witnesses were questioned

and their statements were noted whereafter they proceeded to the

crime scene. They all went to the police station at about 11.00 pm

in the night. He travelled in the police jeep. His statement was again

recorded at the Police Station around 12’o clock or 1.00 am.

28. Learned counsel also referred to the statement of Basagonda(PW-6)

who claimed to be an eye witness of the incident and urged that

the witness stated about the presence of only two servants with the

deceased Malagounda while he was allegedly being assaulted by

the accused. Most significantly, he did not state about the presence 

188 [2024] 5 S.C.R.

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of the complainant(PW-1) at the crime scene. PW-6 admitted in his

cross-examination that he returned to his house at about 5 to 6 pm

and informed about the incident to the children of his uncle and

Paragouda, Shankargouda and Chanagouda(PW-1). Many people

had gathered when he spoke about the incident. It was submitted

that this version of PW-6 completely belies and eclipses the claim of

the complainant(PW-1) that he had seen the incident with his own

eyes because, if the complainant(PW-1) had himself witnessed the

occurrence, there was no occasion for PW-6 to collect all the family

members including the complainant(PW-1) and inform them about

the incident.

29. The evidence of PW-15, another alleged eye witnesses was criticised

and it was submitted that the conduct of this witness who happens to

be a cousin of PW-1, in casually going away to his farmland despite

witnessing the brutal assault and not taking any steps to inform the

police or the close relatives clearly shows that he is a cooked up

witness and was not present at the crime scene.

30. The statement of Dr. Anil Kumar(PW-17) was referred to and it

was submitted that the Medical Jurist conducted autopsy upon the

dead body at about 9.00 am on 20th September, 2001 and gave

pertinent opinion that the time of death of the victim was 18 to 24

hours before the autopsy being carried out. In cross-examination,

he admitted that decomposition had set in the dead body and that

the time of death was more than 24 hours prior to the examination.

Thus, it was submitted that the time of incident as portrayed in the

evidence given by the so called eye witnesses is totally contradicted

by the opinion of the Medical Jurist.

31. It was also contended that the Investigating Officer(PW-27) has given

false evidence regarding the disclosure statements made by the

accused and the recoveries of the weapons effected in furtherance

thereof, because the complainant(PW-1) clearly admitted in his

evidence that the police had showed him the weapons on the very

day of the incident.

32. It was also contended that neither the disclosure statements nor

the recovery memos bear the signatures/thumb impressions of the

accused and hence, the recoveries cannot be read in evidence or

attributed to the accused appellants.

[2024] 5 S.C.R. 189

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

33. Learned counsel for the appellants vehemently urged that the

learned Division Bench of the High Court was not justified in causing

interference into the well-reasoned judgment of acquittal rendered

by the learned trial Court and reversing the acquittal of the accused

appellants and that too, without recording any finding that the trial

Court’s judgment was perverse or that no view except the one

warranting conviction of the accused was possible upon appreciation

of evidence as available on record. On these grounds, he implored

the court to set aside the impugned judgment and restore the acquittal

of the appellants.

Submissions on behalf of Respondent-State: -

34. Per contra, learned counsel appearing for the respondent State

vehemently and fervently opposed the submissions advanced

by learned counsel for the appellants. He urged that learned

Division Bench of the High Court, while considering the appeal

against acquittal, thoroughly reappreciated the evidence available

on record and arrived at an independent and well considered

conclusion that the depositions of the eye witnesses PW-1, PW2, PW-4, PW-6 and PW-15 were convincing and did not suffer

from any significant contradictions or infirmities so as to justify

the decision of the trial Court in discarding their evidence and

acquitting the accused of the charges. The FIR(Exhibit P-10) was

promptly lodged at 4.00 am in the morning of 20th September,

2001. There was no such delay in lodging the report which

could cast a doubt on the truthfulness of the prosecution story.

The so called contradictions and discrepancies highlighted by

the trial Court in the evidence of the eyewitnesses for doubting

their evidentiary worth are trivial and insignificant and acquittal

of accused as recorded by the learned trial Court disregarding

the testimony of the eyewitnesses is based on perverse and

unacceptable reasoning. Learned counsel thus urged that the

High Court was perfectly justified in reversing the acquittal of the

accused appellants by the impugned judgment which does not

require interference in this appeal.

35. We have given our thoughtful consideration to the submissions made

at bar and have gone through the judgments of the trial Court and

High Court as well as the evidence available on record.

190 [2024] 5 S.C.R.

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Discussion and Conclusion: -

36. First of all, we would like to reiterate the principles laid down by this

Court governing the scope of interference by the High Court in an

appeal filed by the State for challenging acquittal of the accused

recorded by the trial Court.

37. This Court in the case of Rajesh Prasad v. State of Bihar and

Another1 encapsulated the legal position covering the field after

considering various earlier judgments and held as below: -

“29. After referring to a catena of judgments, this Court

culled out the following general principles regarding

the powers of the appellate court while dealing with an

appeal against an order of acquittal in the following words:

(Chandrappa case [Chandrappa v. State of Karnataka,

(2007) 4 SCC 415]

“42. From the above decisions, in our considered

view, the following general principles regarding

powers of the appellate court while dealing with

an appeal against an order of acquittal emerge:

(1) An appellate court has full power

to review, reappreciate and

reconsider the evidence upon

which the order of acquittal is

founded.

(2) The Criminal Procedure Code,

1973 puts no limitation, restriction

or condition on exercise of such

power and an appellate court

on the evidence before it may

reach its own conclusion, both

on questions of fact and of law.

(3) Various expressions, such as,

“substantial and compelling

reasons”, “good and sufficient

1 [2022] 3 SCR 1046 : (2022) 3 SCC 471

[2024] 5 S.C.R. 191

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

g r o u n d s ” , “ v e r y s t r o n g

circumstances”, “distorted

conclusions”, “glaring mistakes”,

etc. are not intended to curtail

extensive powers of an appellate

court in an appeal against

acquittal. Such phraseologies

are more in the nature of

“flourishes of language” to

emphasise the reluctance of

an appellate court to interfere

with acquittal than to curtail the

power of the court to review the

evidence and to come to its own

conclusion.

(4) An appellate court, however,

must bear in mind that in case

of acquittal, there is double

presumption in favour of the

accused. Firstly, the presumption

of innocence is available to him

under the fundamental principle

of criminal jurisprudence that

every person shall be presumed

to be innocent unless he is

proved guilty by a competent

court of law. Secondly, the

accused having secured his

acquittal, the presumption of his

innocence is further reinforced,

reaffirmed and strengthened by

the trial court.

(5) If two reasonable conclusions

are possible on the basis of

the evidence on record, the

appellate court should not

disturb the finding of acquittal

recorded by the trial court.”

192 [2024] 5 S.C.R.

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38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka2

this Court summarized the principles governing the exercise of

appellate jurisdiction while dealing with an appeal against acquittal

under Section 378 of CrPC as follows: -

“8.1. The acquittal of the accused further strengthens the

presumption of innocence;

8.2. The appellate court, while hearing an appeal

against acquittal, is entitled to reappreciate the oral and

documentary evidence;

8.3. The appellate court, while deciding an appeal against

acquittal, after reappreciating the evidence, is required

to consider whether the view taken by the trial court is a

possible view which could have been taken on the basis

of the evidence on record;

8.4. If the view taken is a possible view, the appellate court

cannot overturn the order of acquittal on the ground that

another view was also possible; and

8.5. The appellate court can interfere with the order

of acquittal only if it comes to a finding that the only

conclusion which can be recorded on the basis of the

evidence on record was that the guilt of the accused

was proved beyond a reasonable doubt and no other

conclusion was possible.”

39. Thus, it is beyond the pale of doubt that the scope of interference by

an appellate Court for reversing the judgment of acquittal recorded

by the trial Court in favour of the accused has to be exercised within

the four corners of the following principles:-

(a) That the judgment of acquittal suffers from patent perversity;

(b) That the same is based on a misreading/omission to consider

material evidence on record;

(c) That no two reasonable views are possible and only the view

consistent with the guilt of the accused is possible from the

evidence available on record.

2 [2023] 14 SCR 47 : (2023) 9 SCC 581

[2024] 5 S.C.R. 193

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

40. The appellate Court, in order to interfere with the judgment of acquittal

would have to record pertinent findings on the above factors if it is

inclined to reverse the judgment of acquittal rendered by the trial Court.

41. In light of the above legal principles, if we go through the impugned

judgment, we find that none of these essential mandates governing

an appeal against acquittal were adverted to by learned Division

Bench of the High Court which proceeded to virtually decide the

appeal as a first Court on independent appreciation of evidence and

recorded its own findings to hold the accused appellants(A-1, A-2

and A-3) guilty of the charge under Section 302 read with Section

34 IPC and sentenced them to imprisonment for life.

42. Thus, on the face of record, the judgment of the High Court causing

interference with the acquittal of the accused appellants as recorded

by the trial Court is contrary to the principles established by law.

43. Keeping the above scenario in mind, we now proceed to analyse

the evidence and shall assign our reasons regarding the impugned

judgment being flawed, with reference to the material infirmities and

lacunae in the prosecution case.

44. The place of occurrence is admittedly at a distance of 10 kms from

Police Station Tikota. The complainant(PW-1), father of the deceased

Malagounda claiming to be an eye witness of the incident deposed

that he lodged a complaint(Exhibit P-1) at the police station at 4 am,

which resulted into registration of FIR(Exhibit P-10). It was alleged in

the report that the complainant along with PW-2, PW-3, PW-4 and

PW-5(servants, who had accompanied the deceased Malagounda

to erect a bund in their land) witnessed the incident wherein, the

assailants including the appellants herein, assaulted and killed

the deceased by inflicting injuries with sharp weapons. It may be

noted that even though the complainant(PW-1), the deceased and

the labourers were all going together and the assailants were six

in number, none other than the deceased Malagounda received a

single injury in the incident.

45. Relevant portions from the evidence of complainant(PW-1) have been

extracted and highlighted above and on going through the same, we

find that his testimony suffers from patent infirmities, contradictions

and inherent loopholes which brings him within the category of wholly

unreliable witness.

194 [2024] 5 S.C.R.

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46. The complainant(PW-1) stated in his evidence that he saw the

brutal assault launched by the appellants and A-4(Sahebagouda)

on his son Malagounda which took place at 4.00 pm or 5.00 pm in

the evening of 19th September, 2001. While the incident was going

on, he hid amongst the bushes so as to avoid being harmed by the

assailants. The complainant did not state anything about the accused

going away from the crime scene after the incident. However, he

claimed that he returned back to his house just after sunset. The

incident took place in the month of September and thus, it can be

presumed that sunset must have occurred around 6:15 to 6.30 pm.

The complainant stated that on reaching home, he divulged about

the incident to his family members and soon thereafter, he and his

cousins (as per his version in examination-in-chief) and his sons

Shivanagouda and Banagouda(as per cross-examination) went to

the Police Station Tikota and informed the police about the incident.

47. Apparently, thus, the close relatives of the deceased had gone to

the police station in the late hours of 19th September itself. If this

version was true then, in natural course, these persons were bound

to divulge about the incident to the police and their statement/s

which would presumably be about an incident of the homicidal death

would have mandatorily been entered in the Daily Dairy of the police

station if not treated to be the FIR. However, the Daily Diary or the

Roznamcha entry of the police station corresponding to the so called

visit by the relatives of the deceased to the police station was not

brought on record which creates a grave doubt on the genuineness

of the FIR(Exhibit P-10). The complainant(PW-1) admitted in cross

examination that the Poujadar came to his house and he narrated

the incident to the officer who scribed the same and thereafter, the

complainant appended his signatures on the writing made by the

Poujadar. However, ASI Tikota Police Station(PW-18) testified on oath

that complainant(PW-1) came to the police station and submitted a

written report which was taken as the complaint of the incident. He

did not state anything about any complaint being recorded at the

house of the complainant prior to lodging of the report. Thus, there

is a grave contradiction on this important aspect as to whether the

report was submitted by the complainant(PW-1) in the form of a written

complaint or whether the oral statement of complainant(PW-1) was

recorded by the police officials at his home leading to the registration of

FIR(Exhibit P-10). The non-production of the Daily Dairy maintained at 

[2024] 5 S.C.R. 195

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

the police station assumes great significance in the backdrop of these

facts. Apparently thus, the FIR(Exhibit P-10) is a post investigation

document and does not inspire confidence.

48. Shivanagouda and Banagouda, the educated sons of the

complainant(PW-1), who were the first persons to approach the

police station(as stated by PW-1 in cross-examination) were not

examined by the prosecution. The complainant(PW-1) also stated

that his relatives personally went to the police station and brought

the police to the village. The factum of the police having arrived at

the village at about 10.00 pm or 11.00 pm was also stated by PW-2

and PW-4.

49. A very important fact which is evident from the evidence of

Basagonda(PW-6) who claimed to be an eye witness of the incident

is that he did not state about the presence of the complainant(PW-1)

at the place of incident while the victim was being assaulted. PW-6

stated that he returned to his house at about 5.00 pm or 6.00 pm and

then he informed the family members, i.e., Paragouda, Shankargouda

and Chanagouda(PW-1). Thus, the case set up by prosecution that

complainant, Chanagouda(PW-1) was an eye-witness to the incident,

is totally contradicted by evidence of PW-6 who categorically stated

that it was he who had informed the family members, the informant

Chanagouda (PW-1) being one of them, about the incident at 6.00

or 7.00 pm and that they responded saying that they would be going

to the police station for filing a report.

50. Thus, the claim of complainant(PW-1) that he was an eye witness

to the incident is totally contradicted by the statement of PW-6. The

conduct of the family members of the deceased and the other villagers

in not taking any steps to protect the dead body for the whole night

and instead, casually going back to their houses without giving a

second thought as to what may happen to the mortal remains of the

deceased, lying exposed to the elements is another circumstance

which creates a grave doubt in the mind of the Court that no one had

actually seen the incident and it was a case of blind murder which

came to light much later. As a matter of fact, if at all the sequence of

events as emanating from the evidence of the prosecution witnesses

was having even a grain of truth, then it cannot be believed that

the dead body would be abandoned in this manner or that even the

police officials would not put a guard at the crime scene. 

196 [2024] 5 S.C.R.

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51. Added to that, the version of Medical Jurist(PW-17) who stated in his

cross-examination that the dead body of the deceased Malagounda

was in a stage of decomposition and that the time of death was

more than 24 hours prior to the autopsy done at 9.00 a.m. on 20th

September, 2001 creates further doubt in the mind of the Court on

the theory of the so called eye witnesses that the incident happened

at 4.00 pm on 19th September, 2001.

52. The witnesses Revappa(PW-2), Basagonda(PW-6) and

Shankargouda(PW-15) admitted that it had been raining incessantly

in the village for almost three days. In such circumstances, the

reason assigned by the complainant(PW-1) for the deceased

Malagounda and the four servants(PW-2, PW-3, PW-4 and PW-5)

to have gone to the agricultural land, i.e., for putting up a bund is

totally unacceptable. Since it was raining incessantly, there could

not be any possibility for these people to have made an attempt to

put up a bund on the land.

53. Thus, there is no logical explanation for the presence of the deceased

and the servants in their field on the date and time of the incident. It

seems that not only did the complainant party create eye witnesses

of the incident but has also suppressed the true genesis of the

occurrence.

54. PW-1 and PW-6 admitted that Sangound, son of the accused A-4

had been murdered in front of their house and that the accused

party was carrying a grudge that deceased Malagounda had

murdered the boy. PW-6 also admitted that deceased Malagounda,

his father[(complainant)(PW-1)] and two brothers(Shivanagouda

and Banagouda) were arraigned as accused for the murder of

Sangound(son of A-4). The incident of murder of Sangound happened

two years prior which is far too remote in point of time so as to

impute motive to the appellants that in order to seek revenge, they

had murdered the deceased Malagounda.

55. It has been laid down by this Court in a catena of decisions that

motive acts as a double-edged sword. Hence, the very fact that

members of the prosecution party were arraigned as accused in

the murder of Sangound, son of A-4, this could also have been the

motive for the prosecution witness to rope in the accused appellants

for the murder of Malagounda.

[2024] 5 S.C.R. 197

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

56. The High Court heavily relied upon the circumstance of recoveries

of weapons made at the instance of the accused as incriminating

evidence. However, as was rightly pointed out by learned counsel

representing the accused appellants, the complainant(PW-1) admitted

in his cross-examination that he was shown the weapons of the

offence by the police on the date of incident itself.

57. At this stage, we would like to note that the Investigating Officer(PW-27)

who investigated the matter, claims to have effected the recoveries in

furtherance of the disclosure statements of the accused and testified

as below to prove the procedure of disclosure and the discoveries: -

“On 1.10.2001 PSI Tikota produced accused Babusaheb

Sahebgouda Biradar and Alagond Sahebgouda Biradar

who were interrogated and recorded vol. statement of

both accused persons. I now see the vol. statement

or Alagond which is at Ex.P.15. It bears my signature

and the LTM of Alagond. I now see the vol. statement

of Babu and it is marked as Ex.P.16 and it bears my

signature and the LTM of Babu Biradar. I recorded vol.

statement of Babu Sahebgouda Pudragoudar and Alagond

Sahebgouda Biradar. And accordingly conducted seizure

panchanama and seized two axes and one koyta produced

by Pudragoudar i.e. Babu Sahebgouda Pudragoudar,

in the field of Anasari. And accordingly also seized one

Jambiya produced by Alagond Biradar. I recorded the

statements of Krishnaji Govindappa Kulkarni. On 2.10.2001

produced both the accused before the Hon’ble Court. On

3.10.01 I arrested accused Mudakappa Gadigoppa@

Sahebgouda Pudragoudar and the interrogated to him

and also recorded his voluntary statement. As per the

vol. st. conducted seizure panchanama and seized two

sickles, 0 pen shirt which was blood stained, bush-shirt

which was blood stained which were belonging to accd.

Gradi and one plastic carry bag.Which articles are kept

in land of Basappa Gradi.”

58. We would now discuss about the requirement under law so as to

prove a disclosure statement recorded under Section 27 of the Indian

Evidence Act, 1872(hereinafter being referred to as ‘Evidence Act’)

and the discoveries made in furtherance thereof.

198 [2024] 5 S.C.R.

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59. The statement of an accused recorded by a police officer under

Section 27 of the Evidence Act is basically a memorandum of

confession of the accused recorded by the Investigating Officer

during interrogation which has been taken down in writing. The

confessional part of such statement is inadmissible and only the part

which distinctly leads to discovery of fact is admissible in evidence

as laid down by this Court in the case of State of Uttar Pradesh v.

Deoman Upadhyaya3

.

60. Thus, when the Investigating Officer steps into the witness box for

proving such disclosure statement, he would be required to narrate

what the accused stated to him. The Investigating Officer essentially

testifies about the conversation held between himself and the accused

which has been taken down into writing leading to the discovery of

incriminating fact(s).

61. As per Section 60 of the Evidence Act, oral evidence in all cases must

be direct. The section leaves no ambiguity and mandates that no

secondary/hearsay evidence can be given in case of oral evidence,

except for the circumstances enumerated in the section. In case of

a person who asserts to have heard a fact, only his evidence must

be given in respect of the same.

62. The manner of proving the disclosure statement under Section 27

of the Evidence Act has been the subject matter of consideration by

this Court in various judgments, some of which are being referred

to below.

63. In the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh4

,

it was held by this Court as follows: -

“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.”

3 [1961] 1 SCR 14 : AIR 1960 SC 1125

4 (1983) 1 SCC 143

[2024] 5 S.C.R. 199

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

64. Further, in the case of Subramanya v. State of Karnataka5

, it was

held as under: -

“82. Keeping in mind the aforesaid evidence, we proceed

to consider whether the prosecution has been able to

prove and establish the discoveries in accordance with

law. Section 27 of the Evidence Act 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.”

83. The first and the basic infirmity in the evidence of all the

aforesaid prosecution witnesses is that none of them have

deposed the exact statement said to have been made by

the appellant herein which ultimately led to the discovery

of a fact relevant under Section 27 of the Evidence Act.

84. If, it is say of the investigating officer that the accused

appellant while in custody on his own free will and volition

made a statement that he would lead to the place where

he had hidden the weapon of offence, the site of burial

of the dead body, clothes etc., then the first thing that the

investigating officer should have done was to call for two

independent witnesses at the police station itself. Once

the two independent witnesses would arrive at the police

station thereafter in their presence the accused should

be asked to make an appropriate statement as he may

desire in regard to pointing out the place where he is

said to have hidden the weapon of offence etc. When the

accused while in custody makes such statement before the

two independent witnesses (panch-witnesses) the exact

statement or rather the exact words uttered by the accused

5 [2022] 14 SCR 828 : 2022 SCC Online SC 1400

200 [2024] 5 S.C.R.

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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 blood stained clothes

or any other article is discovered then that part of the entire

process would form the second part of the panchnama.

This is how the law expects the investigating officer to

draw the discovery panchnama 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.” (emphasis supplied)

65. Similar view was taken by this Court in the case of Ramanand @

Nandlal Bharti v. State of Uttar Pradesh6

, wherein this Court held

that mere exhibiting of memorandum prepared by the Investigating

Officer during investigation cannot tantamount to proof of its contents.

While testifying on oath, the Investigating Officer would be required

to narrate the sequence of events which transpired leading to the

recording of the disclosure statement.

66. If we peruse the extracted part of the evidence of the Investigating

Officer(PW-27)(reproduced supra), in the backdrop of the above

exposition of law laid down by this Court, the interrogation memos

of the accused A-2(Exhibit P-15) and A-1 (Exhibit P-16), it is clear

that the Investigating Officer(PW-27) gave no description at all of

the conversation which had transpired between himself and the

6 [2022] 5 S.C.R. 162 : 2022 SCC OnLine SC 1396

[2024] 5 S.C.R. 201

Babu Sahebagouda Rudragoudar and Others v. State of Karnataka

accused which was recorded in the disclosure statements. Thus,

these disclosure statements cannot be read in evidence and the

recoveries made in furtherance thereof are non est in the eyes of law.

67. The Investigating Officer(PW-27) also stated that in furtherance of

the voluntary statements of accused(A-1 and A-2), he recovered and

seized two axes and one koyta produced by A-1 in the field of Ansari

and one jambiya produced by A-2. The Investigating Officer(PW-27)

nowhere stated in his deposition that the disclosure statement of the

accused resulted into the discovery of these weapons pursuant to

being pointed out by the accused.

68. The Investigating Officer(PW-27) further stated that he arrested

accused A-3, recorded his voluntary statement and seized two

sickles. However, neither the so called voluntary statement nor the

seizure memo were proved by the Investigating Officer(PW-27) in

his evidence.

69. Thus, we are of the firm opinion that neither the disclosure memos

were proved in accordance with law nor the recovery of the weapons

from open spaces inspire confidence and were wrongly relied upon

by the High Court as incriminating material so as to reverse the

finding of the acquittal recorded by the trial Court.

70. The evidence of seizure of weapons of the offence is not trustworthy

and was rightly discarded by the trial Court.

71. In addition thereto, we may note that admittedly, the prosecution did

not procure any serological opinion to establish blood group, if any,

on the weapons so recovered. Thus, the recoveries are otherwise

also meaningless and an exercise in futility.

72. Thus, neither the evidence of the eye witness is trustworthy nor

did the prosecution provide any corroboration to the vacillating

evidence of the so called eye witnesses. We have already held that

the FIR(Exhibit P-10) was a post investigation document. Thus, the

entire prosecution case comes under the shadow of doubt.

73. Resultantly, we are of the firm opinion that the view taken by the

trial Court in the judgment dated 23rd July, 2005 recording acquittal

of accused is a plausible and justifiable view emanating from the

discussion of the evidence available on record. The trial Court’s

judgment does not suffer from any infirmity or perversity. Hence, the 

202 [2024] 5 S.C.R.

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High Court was not justified in reversing the well-reasoned judgment of

the trial Court thereby turning the acquittal of the accused appellants

into conviction.

74. The impugned judgment dated 14th September, 2009 rendered by

the High Court cannot be sustained and is hereby reversed. The

accused appellants are acquitted of all the charges. They are on bail

and need not surrender. Their bail bonds are discharged.

75. The appeal stands allowed accordingly.

76. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.