* 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
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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.
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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
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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.
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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
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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
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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)
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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.
