2025 INSC 1135
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Criminal Appeal No.425 of 2014
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.425 of 2014
Nagamma @ Nagarathna & Ors.
…Appellants
Versus
The State of Karnataka
…Respondent
J U D G E M E N T
K. VINOD CHANDRAN, J.
1. The default in repayment of a loan led to a crime, most
foul, of murder, is the prosecution case. The allegation was
that a police man, the 1st accused, took a loan from another
police man, the deceased, who was killed by the wife,
brother and brother-in-law of the former; at his instigation.
The deceased, the driver of a Superintendent of Police made
persistent demands for repayment of the loan. This led to
A2, the wife of A1, calling the deceased to her home on the
pretext of repaying the debt, on the night of 10.03.2006. At
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around 2am on the next day the victim was made immobile
by throwing chili powder on his face and hacked to death
with two choppers wielded by the accused. A2 then, after
sunrise, went directly to the police station and confessed to
the SHO about the crime and apprised him of the presence
of the dead body in her house. The SHO deputed a police
constable to make enquiries and later an inquest was done
by PW-24 at the house of A2, after which the body was taken
to the hospital.
2. Before the trial court, the prosecution examined 24
witnesses and marked 33 documents as also 16 material
objects. The first accused examined himself and during the
examination of the prosecution witnesses marked Exs.D1 to
D8. The trial court found, from the evidence of the
prosecution witnesses, that the presence of the dead body
in the house of A2 was proved, and the crime itself was
confessed to by A2, who also pointed out the dead body
which was lying in her house. A2 is said to have made extra
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judicial confessions to other persons, including the wife of
the deceased.
3. A recovery was made of a chopper, and one chopper
(sickle) was seized from the scene of occurrence itself. A1,
who was arrayed for instigation, had a perfect alibi insofar
as the night duty undertaken in another police station,
deposed to by PW-14, who was also on duty. There was
nothing to indicate an instigation, which led to the acquittal
of A1. A2 to A4 were convicted under Section 302 read with
Section 34 and was sentenced to life. The High Court
affirmed the findings of the Trial Court in an appeal by A2 to
A4, finding established; the motive and the culpability of the
accused based on other circumstances, like extra judicial
confessions, recovery of a chopper under Section 27, the
crime scene being the house of A1&2 and the absence of
explanation for the dead body being at the house of the
accused, under Section 106.
4. Mr.C.B. Gururaj, learned counsel for the appellants
would argue that since Section 302 is charged against four
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accused read with Section 34, when one of the accused is
acquitted, it should inure to the benefit of the others also.
Reliance was placed on State of West Bengal v. Vindu
Lachmandas Sakhrani alias Deru1 and Suraj Pal v. State of
Uttar Pradesh2. The depositions were read over to us and it
was argued that the eye witnesses had turned hostile and
there was no circumstance bringing out the culpability of the
accused.
5. Mr.Nishanth Patil, learned AAG, however, sought to
uphold the conviction on the ground that the dead body was
found in the house of A2, which was pointed out by her and
there was no explanation even under Section 313
questioning. The motive was proved, and the extra judicial
confessions further established the crime. The recovery as
against A4 also provided a link in the chain of
circumstances, which chain is complete.
1 AIR 1994 SC 772
2 AIR 1995 SC 419
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6. Undisputedly, this is a case of circumstantial evidence,
especially since the eyewitnesses who were projected as
tenants in the building in which the crime occurred, turned
hostile. It is also pertinent that as per the allegation of the
prosecution, a police man was killed by the wife of another
police man, with the aid of her brother and brother-in-law.
Upon the sad news being conveyed to the wife of the
deceased, she allegedly went to the premises with her
relatives and friends; the latter of whom were either police
men or their spouses.
7. On the question of whether the death was a homicide,
there can be no dispute raised, unequivocally established
by the evidence of PW-23, the Doctor who conducted the
post-mortem. Almost 13 wounds were noticed which were
lacerated and chop wounds. According to the Doctor, death
was caused due to the injuries sustained to the head; all the
internal and external injuries being ante-mortem in nature.
The chop wounds were found on the right side & middle of
the forehead as also over the left parietal prominence and
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the eye, the nose and the lip on the left side. There were
wounds on the right cheek, over the right ear lobe, incised
wound extending from the occipital area to the left ear, with
comminuted fracture on the occipital area, at the right
temporal bone extending to lower of left temporal bone,
with brain tissue exposed. There were other lacerated and
chop wounds on the left leg exposing the libia and fibula and
on the left wrist a joint fracture in the second metacarpal
bone. The injuries bring forth a case of a brutal frontal
attack, which is opined, by PW-23, to be possible by the
chopper recovered from the scene of occurrence and that
recovered at the instance of A4.
8. The death, no doubt is homicidal in nature and now we
turn to the culpability of the accused. The first argument of
the learned counsel for the appellants, that, the appellants
too have to be acquitted, considering their parity with A-1,
cannot at all be countenanced. In Vindu Lachmandas
Sakhrani alias Deru1 (supra), a husband and his wife were
charged with the kidnapping and murder of a six-year-old
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child. While the husband was acquitted, the trial court
convicted the wife, which conviction was overturned in
appeal on the ground of parity. In that case, dependent
solely on circumstantial evidence, it was held that the
charge under Section 302 read with Section 34 IPC, based
on the common intention of both, falls flat with the acquittal
of the husband, especially when there was no simpliciter
charge under Section 302 against the wife.
9. In Suraj Pal2 (supra), the charges were under Sections
147, 323, 307 and 302 read with Section 149 of the IPC. There
was no independent charge against the sole accused
convicted for the offence under Sections 307 and 302 IPC. In
that circumstance when all the others were acquitted, one of
the accused who was arrested for shooting the deceased,
could not have been convicted under Sections 307 and 302
IPC, was the finding. In the present case, the charge against
A1 was under Section 109, instigation, leading to a charge
under Section 302 read with Section 34. The charge against
the other accused was under Section 302 read with Section
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34 IPC; quite distinguishable. There was no evidence to
substantiate instigation and an independent charge under
Section 302 would not stand against A2 by reason of the airtight alibi.
10. The motive alleged is of a loan of Rs.1 lakh taken from
the deceased having not been repaid giving rise to
persistent demands, resulting in ill will between the
deceased and the accused, leading to frequent quarrels.
The trial court and the High Court placed reliance on the
evidence of PW-18, 11 &12, the wife, mother and brother of
the accused and PW-7, to find motive.
11. In chief examination, PW-18 deposed that it was A2
who revealed to her that she owed a sum of Rs.1 lakh to the
deceased which A2 had obtained at the time of construction
of the house. The chief examination of PW-18 does not at all
support the motive set up by the prosecution. In cross
examination, it was categorically stated by PW-18 that in the
domestic inquiry against A-1, she had appeared before the
inquiry officer; Dy. S.P. Arasikare, and deposed that her
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husband and accused were in cordial terms and there were
no transactions between them. Very strangely, after the
cross examination by the accused, the Special Public
Prosecutor sought to treat the witness as hostile and
attempted a cross examination. She categorically asserted
that the statement made before the inquiry officer was not
under coercion.
12. Yet another witness proffered by the prosecution to
prove the motive was PW-7, a police constable and a
neighbour of the deceased. In his chief examination, it was
deposed that while occupying the police quarters, the
deceased and the accused were on friendly terms. He also
deposed that he had no information regarding any loan
taken by A-1 from the deceased. The witness was treated
hostile and cross examined by the prosecution, when it was
brought out that in the statement under Section 161, Cr. PC,
the witness had spoken about the loan of Rs.1 lakh taken by
A-1 from the deceased, which alone would not prove the
motive since it was not deposed in his chief examination.
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13. PW-11 and PW-12, the mother and brother of the
deceased, however spoke of a loan having been taken by
A-1 from the deceased. The reliability of the said witnesses
has to be tested on the totality of the circumstances as
deposed to by the witnesses. PW-18 deposed that PWs11&12 were not on cordial terms with her husband; belying
their knowledge of the loan availed, which even the wife of
the deceased was not aware of. PW-18 asserted that she or
her husband were not in the habit of discussing their
problems with PWs-11&12 nor was there even exchange of
pleasantries. There are further reasons to disbelieve the
testimony of PWs-11&12, which we shall deal with a little
later.
14. Absence of motive is not an imperative circumstance
to arrive at a conviction, in a case where there is ocular
evidence. The role of motive is not very significant even
when circumstances otherwise form an unbreakable chain.
Motive only provides another link, and the absence of
motive is a factor that weighs in favour of the accused as held
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in Babu v. State of Kerala3. We cannot find a motive in this
case; of the financial transaction having led to the crime.
Further, the prosecution case is that the deceased was
summoned over telephone, to the house of A2, on the
pretext of repaying the loan. But even PW-18 has no case
that the deceased left the house on such a mission, after a
telephone call. There is also no clear evidence as to whether
the deceased returned to his home in the evening of that
day.
15. Even according to the prosecution, the police came to
know about the death from A2 who surrendered before the
Police Station and made a voluntary statement before PW15, the Station House Officer (SHO) in the presence of PW17, a Sentry on duty at the Police Station. PW-15,
immediately called PW-21, a constable and directed him to
proceed to the house of A2 to verify the information given
by A2. PW-22, with another constable, visited the house of
3
(2010) 9 SCC 189
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A2 and having seen the dead body, intimated it to PW-15.
PW-15 informed PW-18, who in turn informed her
neighbours and her relatives.
16. The prosecution in addition to the official witnesses,
sought to establish the presence of the dead body at the
house of A1& A2, through the other witnesses including the
wife, mother and brother of the deceased who were alleged
to have come to the crime scene and witnessed the presence
of the dead body thereat. PW-18, the wife of the deceased
more than once deposed in her chief examination and cross
examination, that she came to know of the death of her
husband at ‘7 O’clock’ on the morning of 11.03.2006 when
the police came to her house with the information of the
crime. Though, she stated in her chief examination that she
went to the house of A2 and saw the dead body, before the
inquiry officer, Dy. S.P. Arasikare, she had stated that she
saw the dead body first at the hospital; admitted in her
testimony before Court. In cross examination by the
Prosecutor, after she was declared hostile, it was
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categorically stated by PW-18 that she did not see the dead
body of her husband at the house of A-1&2.
17. PW-6 and PW-8, the wives of two police constables
who resided near to the house of the deceased stated before
police that they saw the dead body at the house of A-1&2,
but resiled from their statement before Court and both of
them were declared hostile. PW-7, in his chief examination
stated that he too saw the dead body first at the hospital but,
in cross examination by the prosecution, sought to assert
that he had seen the body of the deceased at the house of A1&2; which statement he had not made before the police.
18. The inquest report was drawn up by PW-24, allegedly
at the house of A-1&2. PWs-1&4, the witnesses to the inquest
report, did not corroborate and deposed that the report was
drawn up and signed at the hospital. PW-11 and PW-12, the
mother and brother of the deceased spoke of having seen
the dead body at the alleged crime scene, the house of A1&2. It is pertinent that according to PW-18, the relatives
including her mother-in-law and brother-in-law came to the
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hospital. The presence of the said witnesses in the alleged
scene of crime, after the crime proper, is suspect.
19. PW-11, the mother of the deceased stated in her cross
examination that PW-18 called her over phone at 4 am to
inform her about the crime committed. It is also stated that
she was informed by PW-18 through the phone of one
Shankarappa, who was not examined before Court. PW-12,
the brother of the accused stated in his cross examination
that having been informed of the murder of his brother, by
PW18, he came to Hassan at about 05:30 am in the morning.
PW18 at the risk of repetition, asserted before Court more
than once, that she was first informed about the death of her
husband at 7 am when the police came to her house with the
said information.
20. Useful reference can be made to the decision of this
Court in Santosh v. State (NCT of Delhi)4
, wherein the dead
body was recovered from an apartment occupied by the
4
(2023) 19 SCC 321
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appellant/accused as a tenant. The Court categorically
found that there was no serious dispute to the tenancy
arrangement but even then, that was insufficient by itself, to
hold the accused guilty. It was held:
“… there is no general presumption against the
owner/tenant of a property with regard to his/her
guilt if a dead body with homicidal injuries is
found in his/her property. No doubt if the
prosecution succeeds in proving a chain of
circumstances from which a reasonable inference
can be drawn regarding one’s guilt then, in
absence of proper explanation, the court can
always draw an appropriate conclusion with
respect to his/her guilt with the aid of Section 106
of Evidence Act, 1872. But, if the chain of
circumstances is not established, mere failure of
the accused to offer an explanation is not sufficient
to hold him guilty.”
21. This Court also relied on Shivaji Chintappa Patil v.
State of Maharashtra5
in which it was observed that Section
106 of Evidence Act 1872 does not directly operate against
either the husband or the wife, staying under the same roof,
even if he/she is the last person seen with the deceased. It
does not absolve the prosecution of discharging its primary
5
(2021) 5 SCC 626
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burden of proving a case beyond reasonable doubt. Unless
there is evidence led to sustain a conviction or which makes
out a prima facie case, the question does not arise of a
burden of proof placed upon the accused to offer an
explanation.
22. As we found, there is no cogent, credible evidence
that the body was at the house of A-1&2. But, for the moment
we will accept the said circumstance to have been proved
on two grounds. One, PW-15, the SHO to whom A2 spoke of
the crime, even if eschewed as a confession, recorded the
statement, marked as Ext.P10(a) in the Station Diary
produced as Ext.P10. PW-17 corroborated the statement,
leading to the discovery of the body at the house of A2 by
PW-21, the Constable deputed to verify. Even if these
circumstances are accepted, going by the decisions cited,
that alone cannot be conclusive proof to find A2 guilty,
without other corroborating evidence.
23. One another circumstance, heavily relied upon by the
trial court and the High Court are the extra judicial
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confessions made by A2 to various persons, but all inside
the police station. The First Information Report was on the
complaint made by PW-18, the wife of the deceased, though
the information first supplied was by A2 in the morning, to
PW-15, the SHO and PW-17, the Sentry. Both these extra
judicial confessions have been made in the police station
before the police officers, even according to the
prosecution, on which no reliance can be placed. PW-18, the
wife of the deceased deposed that it was A2 who revealed
to her the murder of her husband, at the police station, which
was the testimony of PW-7 also. The extra judicial
confessions and the context in which they were made, within
the police station cannot at all be relied upon.
24. Section 25 of the Evidence Act mandates that no
confession made to a police officer shall be proved as
against a person accused of any offence and Section 26 also
restricts any confession by a person in the custody of a
police officer from being proved against him unless it is
made in the immediate presence of a Magistrate. In State of
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U.P. v. Deoman Upadhyaya6
, this Court had considered the
impact of Section 25 and 26, in paragraph 7, from which the
relevant portion is extracted herein below:
“… The expression, “accused person” in
Section 24 and the expression “a person
accused of any offence” have the same
connotation, and describe the person against
whom evidence is sought to be led in a criminal
proceeding. As observed in Pakala Narayan
Swami v. Emperor by the Judicial Committee of
the Privy Council, “Section 25 covers a
confession made to a police officer before any
investigation has begun or otherwise not in the
course of an investigation”. The adjectival
clause “accused of any offence” “is therefore
descriptive of the person against whom a
confessional statement made by him is declared
not provable, and does not predicate a
condition of that person at the time of making
the statement for the applicability of the ban.
Section 26 of the Indian Evidence Act by its first
paragraph provides. “No confession made by
any person whilst he is in the custody of a police
officer, unless it be made in the immediate
presence of a Magistrate, shall be proved as
against a person accused of any offence”. By this
section, a confession made by a person who is
in custody is declared not provable unless it is
made in the immediate presence of a
Magistrate. …”
6 1960 SCC OnLine SC 8
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25. The extra judicial confessions, said to have been made
by A2 in the present case, were all within the police station,
where she is said to have voluntarily come, to confess about
the murder. The confession made to the SHO, PW-15,
overheard by PW-17, the Sentry of the police station, hence
has to be completely eschewed under Section 25. The
confession made to PW-18, the wife of the deceased and
PW-7, though a police constable; who arrived at the police
station in the status of the neighbour of the deceased, also
has to be eschewed under Section 26. The other witnesses
to whom the extra judicial confession was made, that too
inside the police station, in any case turned hostile.
26. Yet another circumstance relied upon by the
prosecution is the recovery of a chopper, MO-16 on the
confession statement of A4 under Section 27. In this context,
we have to look at the evidence of PW-24, the investigating
officer (I.O) who deposed that A3 and A4 were taken into
police custody on 15.03.2006 after their voluntary surrender
before Court on 13.03.2006. It is the categoric statement of
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the I.O that both A3 and A4 confessed in their voluntary
statements that they would point out the chopper used for
commission of offence by leading the police to the spot
where they concealed it. A4 alone was taken to the spot,
leading to the recovery of MO-16, is the case of the
prosecution.
27. Disclosure statements taken from one or more persons
in police custody do not go out of the purview of Section 27
altogether, as held in State (NCT of Delhi) v. Navjot Sandhu
@ Afsan Guru7 and reiterated in Kishore Bhadke v. State of
Maharashtra8. While asserting that a joint or simultaneous
disclosure would per se be not inadmissible under Section
27, it was observed that it is very difficult to place reliance
on such an utterance in chorus; which was also held to be, in
fact, a myth. Recognising that there would be practical
difficulty in placing reliance on such evidence, it was
declared that it is for the Courts to decide, on a proper
7
(2005) 11 SCC 600
8
(2017) 3 SCC 760
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evaluation of evidence, whether and to what extent such a
simultaneous disclosure could be relied upon. In Kishor
Bhadke7, while affirming the above principles in Navjot
Sandhu6, the facts revealed were noticed, wherein the
information given by one, after the other, was without any
break, almost simultaneously and such information was
followed up by pointing out the material thing by both the
accused, in which circumstance it was held that there is no
reason to eschew such evidence.
28. With the above principles in mind when we look at the
facts of the present case, the I.O though has stated about the
disclosure statement of both A3 and A4, he does not specify
whether it is simultaneous or one after the other. It is also not
clear; if the disclosure is at different points of time, in which
event, who made the first disclosure. Deposition of PW-24
though does not speak of the exact location as stated by the
accused in the confession statement; PW-24 speaks of
having taken A4 to the bush of Rose Trees at the Helipad
near Udayagiri Layout from where the chopper was
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produced. PW-2 and PW-3, the witnesses of recovery of MO16 turned hostile and they deposed that they affixed their
signatures to the recovery mahazar at the police station.
Further, it also has to be noticed that but for the recovery
there is nothing to indicate the culpability of A3 and A4
through forensic evidence to link the recovered weapon to
the crime proper.
29. Insofar as the recovery under Section 27, as has been
reiterated in Mohd. Inayatullah v. State of Maharashtra9
,
the expression ‘fact discovered’ includes not only the
physical object produced, but also the place from which it is
produced and the knowledge of the accused about the
concealment. In the cited decision, which considered the
offence of theft, the accused had made a statement of the
place where the stolen drums were kept by him. Finding the
admissible portion of the statement to be only the location
of the three drums, it was held that the information taken in
9
(1976) 1 SCC 828
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conjunction with the facts discovered, was insufficient to
draw the presumption that the accused was the thief or the
receiver of the stolen property, with the knowledge that it
was stolen. The drums in question were found in the
compound or yard of a musafirkhana (rest place for
travellers) and it was neither lying concealed nor was the
compound under the lock and key of the accused. In the
present case, the I.O, PW-24, categorically deposed before
Court that after A3 and A4 were taken into custody on
15.03.2006, pursuant to their surrender before Court on
13.03.2006, confessions were made by both the accused
regarding the concealment of the chopper allegedly used
for commission of offence; which statement of ‘use in the
commission of offence’ has to be totally eschewed. The exact
spot in which the concealment was made as stated in the
disclosure statement has also not been deposed to by the
I.O.
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30. Manoj Kumar Soni v. State of M.P.10 was a case in
which all the accused persons made disclosure statements
to the IO whereupon recovery of various articles were
effected. It was held that even when disclosure statements
hold significance as a contributing factor in a case, it is not
so strong a piece of evidence sufficient on its own and
without anything more to bring home the charges beyond
reasonable doubt (sic, para 22).
31. The fact that confessions were made by both the
accused and the recovery was made from one of the
accused, A4, leading the police to the spot would restrain us
from treating the recovery as an inculpating circumstance
against A3 or A4, especially when the confession is taken
simultaneously from both the accused. We are of the opinion
that in the present case there can be no reliance placed on
the recovery based on the sketchy evidence adduced.
10 2023 SCC OnLine SC 984
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32. Now, looking at the witness who supported the
prosecution case, we find them to be totally unreliable.
PW-7, whose evidence was relied upon for the purpose of
motive and also the presence of the dead body at the house
of A-1&2, we have already found, did not speak of either of
these circumstances before the police under Section 161 or
in the chief examination. As far as PW-11 and PW-12 are
concerned, their presence at the scene of occurrence itself
is doubtful. The motive sought to be proved through PW11&12 as also the presence of the dead body in the house of
A-1&2, hence stands totally discredited. It is also relevant
that PW-16, the brother-in-law of the deceased,
categorically stated that he saw the dead body at the
hospital and not at the house of A-1&2.
33. As we noticed at the outset, PW-20 and PW-22
eyewitnesses turned completely hostile. We are at a loss to
understand how the High Court and the trial court made an
observation that though they were declared hostile, there
was credible material in their evidence pointing to the
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culpability of the accused, which could be relied upon. We
find no such material in the chief examination or the cross
examination. PW-20 and PW-22, who as per the prosecution
were brothers staying in the house of A1 and A2 on rent. The
witnesses admitted that they were bothers but they denied
that they were tenants of A1 and A2. After PW-20 was
declared hostile, the prosecutor had put forth P-12 to P-20
contradictions in the alleged statements under Section 161
recorded by the police, which were all denied by the said
witness. Likewise, PW-22 also did not subscribe to the
prosecution case and there was nothing in his evidence to
find culpability of the accused.
34. The prosecution case itself was that the deceased was
summoned to the house of A-1&2, for which there is no
evidence adduced nor does PW-18, the wife speaks of the
deceased having left the house on receiving such a call.
Further it is the case of the prosecution that the deceased
reached the house of the accused at around 10 pm while the
death was confirmed as having occurred at 2 pm. What
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happened in the interregnum is not clear and together with
what we noticed above, there is a suspicion as to the genesis
and origin of the crime which compounds the reasonable
doubt regarding the prosecution case.
35. Undisputably, the case is one of circumstantial
evidence which is treated as proved only when there is a
complete chain of circumstances, comprising cogent and
reliable material, providing an unbreakable link, leading
only to the culpability of the accused and bringing forth the
hypothesis only of guilt and not leading to any reasonable
doubt as to the guilt or otherwise of the accused. The motive
projected and the crime itself has not at all been proved and
there is no circumstance leading to the culpability of the
accused. The presence of the dead body in the house of the
accused is also under a cloud and in any event, that, with the
absence of a proper explanation cannot by itself bring home
a conviction.
36. Considering the totality of the circumstances and the
evidence led in the trial, we are of the considered opinion
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that the conviction cannot be sustained; which we set aside
and acquit the accused. If the accused are in custody, they
shall be released forthwith, if they are not wanted in any
other case. However, if they are on bail, their bail bonds
shall stand cancelled and revoked.
37. The criminal appeal stands allowed.
38. Pending applications, if any, shall stand disposed of.
……….…………………….….. J.
(K. V. VISWANATHAN)
……….…………………….….. J.
(K. VINOD CHANDRAN)
NEW DELHI;
SEPTEMBER 22, 2025.
