- 1 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 11TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.200009 OF 2016 (374(Cr.PC)/415(BNSS)) C/W CRIMINAL APPEAL NO.1584 OF 2015 CRIMINAL APPEAL NO.200143 OF 2015 (374(CR.PC)/415(BNSS)) IN CRL.A.NO.200009/2016: BETWEEN: SIRAJ RAJESAB MULLA, AGE: 36 YEARS, R/O BIDARI HALI, JANAVAD, TQ.JAMKHANDI, DIST.BAGALKOT. …APPELLANT (BY SRI SHIVASHANKAR H. MANUR, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH C.P.I., BASAVAN BAGEWADI, CIRCLE POLICE STATION, REPRESENTED BY SPP …RESPONDENT (BY SRI SIDDALING P. PATIL, ADDL. SPP) Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO CALL FOR RECORDS FROM THE COURT OF I ADDL. SESSIONS JUDGE, VIJAYPUR, JUDGMENT DATED 20.11.2015, IN S.C. NO.63/2012 AND SET ASIDE THE CONVICTION AND SENTENCE FOR THE OFFENCE UNDER SECTION 302 READ WITH 120B OF IPC AND FINE OF RS. 10,000/-, AND UNDER SECTION 201 READ WITH 120B OF IPC AND FINE OF RS.10,000/-, AND COMPENSATION OF RS.25,000/- UNDER SEC. 357(A) OF I.P.C., JUDGMENT AND ORDER DATED 20.11.2015, PASSED BY THE I ADDL. SESSIONS JUDGE, VIJAYPUR, IN S.C. NO.63/2012. IN CRL.A.NO.1584 OF 2015: BETWEEN: SHRI BASAVARAJ SHIVAPPA @ SHIVAJI GUNDALLI, AGED ABOUT 29 YEARS, OCC: MECHANIC, R/O BASAVANATTI, HALI BAGEAWADI, GANESH NAGAR, BASAVAN BAGEWADI DIST.VIJAYAPUR-586101. …APPELLANT (BY SRI ASHOK R. KALYANASHETTY AND SRI S. S. MAMADAPUR, ADVOCATES) AND: THE STATE OF KARNATAKA THROUGH CIRCLE POLICE INSPECTOR, BASAVAN BAGEWADI CIRCLE, BY ITS SPECIAL PUBLIC PROSECUTOR, ADVOCATE GENERAL’S OFFICE, HIGH COURT BUILDINGS, BANGALORE-560 001. …RESPONDENT (BY SRI SIDDALING P. PATIL, ADDL. SPP) - 3 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 20.11.2015 AND ORDER OF SENTENCE DATED 26.11.2015 PASSED BY THE I ADDL. SESSIONS JUDGE, VIJAYAPUR, IN S.C.NO.63/2012 AND ACQUIT HIM OF ALL THE CHARGES IN THE INTEREST OF JUSTICE AND EQUITY. IN CRL.A. NO.200143 OF 2015: BETWEEN: PRAKASH S/O SHRISHAIL MUDAPALADINNI, AGE: 29 YEARS, OCC: AGRI, R/O BASAVAN BAGEWADI, NAVANAGAR TQ: B. BAGEWADI, DIST: VIJAYAPUR. …APPELLANT (BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE) AND: THE STATE OF KARNATAKA R/BY ADDL. SPP KALABURAGI BENCH. (THROUGH B. BAGEWADI P.S. DIST: VIJAYAPUR) …RESPONDENT (BY SRI SIDDALING P. PATIL, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO CALL FOR THE RECORDS FROM THE COURT BELOW AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 20.11.2015 AND 26.11.2015 RESPECTIVELY PASSED BY THE I ADDL.SESSIONS JUDGE VIJAYAPUR, IN SESSIONS CASE NO.63/2012 AND ACQUIT THE APPELLANT/ACCUSED NO.2. THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE K NATARAJAN) These appeals are filed by the convicted appellants/accused Nos.1 to 3 under Section 374 of Cr.P.C. as against the judgment of conviction and sentence dated 20.11.2015 passed in S.C.No.63/2012 by the I Addl. Sessions Judge, Vijayapur, [hereinafter referred to as ‘the Trial Court’ for brevity] wherein the Trial Court convicted the appellants/accused Nos.1 to 3 for the offences punishable under Sections 302 r/w 120B of IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.10,000/- each and in default of payment of fine, they are ordered to undergo rigorous imprisonment for a further period of 2 years. Further, they are sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.10,000/- each for the offence punishable under Section 201 r/w 120B of IPC and in default of payment of fine, they are ordered to undergo - 5 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 rigorous imprisonment for a further period of 2 years. Further, they shall also together liable to pay compensation of Rs.25,000/- to the children of deceased Madiwalavva under Section 357(A) of Cr.P.C. All the sentences are ordered to run concurrently and they are entitled for set off for the period which they have undergone in judicial custody as provided under Section 428 of Cr.P.C. 2. The appellants were the accused and respondent is the complainant before the trial Court. For the sake of convenience, the rank of the parties are referred to as per their ranking before the trial Court. 3. We have heard the arguments of Sri.Shivashankar H.Manur and Sri.Rajendra C.Desai, learned counsel for the appellant in Criminal Appeal No.200009/2016, Sri.Ashok R.Kalyanshetty and Sri.S.S.Mamadapur, learned counsel for the appellant in Criminal Appeal No.1584/2015, Sri.Shivanand V.Pattanashetti, learned counsel for the appellant in - 6 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 Criminal Appeal No.200143/2015 and Sri.Siddaling S.Patil, learned Addl. SPP for the respondent/State. 4. The brief facts of the prosecution case are as under; The Circle Police Inspector of Basavan Bagewadi filed the charge sheet against accused Nos.1 to 3 and one more accused Shainaz (absconding accused split up) for the offences punishable under Sections 120B, 302 and 201 r/w 34 of IPC. It is alleged that PW.1 filed a complaint before the police as per Ex.P2 alleging that he himself along with his wife are residing in Mumbai. His sister, PW.2 the sister of the complainant, his brother-PW.15 and his mother Madiwalawwa the deceased were residing in a separate house at Mumbai. The sister Nisha was given in marriage to Kashinath Kadapatti and due to some misunderstanding between them, she left the matrimonial home and is residing along with brother and mother. Accused No.1- Basavaraj said to be son of his Paternal Aunt, running a garage is residing in Basavan Bagewadi along with his - 7 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 family. Whenever, he used to visit Mumbai for purchasing spare parts of the vehicles, he used to visit the house of his mother Madiwalawwa and once he has expressed his willingness to marry PW.2-Nisha, however his mother – the deceased refused the said proposal of marriage as both of them were married and there was some quarrel between them and asked accused No.1 not to come to their house. Therefore, accused No.1 is said to have threatened the deceased stating that he will do away with her life whenever she comes to village. It is further alleged by the complainant that after the death of his father in the year 1988, her mother is maintaining the entire family as well as the landed property by leasing it out to the villagers and whenever she comes to village at Dhavalagi, she was staying for some days by receiving the rent and return to Mumbai. When such being the case, about two months prior to the incident, the accused is said to have threatened the deceased and there was some quarrel between them in - 8 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 respect of marriage of PW.2. On this background of enmity, PW.2 and his mother Madiwalawwa went to Srishail for darshan and thereafter they came back and stayed in their village Dhavalagi. PW.2 came back to Mumbai, however his mother stayed at Dhavalagi in order to make arrangement for cultivation of lands and stated that she will come back after some time. It is further alleged that on 02.05.2011, the deceased is said to have called his sister through her mobile phone stating that she is coming to Mumbai with another lady and will reach Kurla Bus-stand Mumbai by next day and told to inform his brother to pick up. After some time, once again the deceased called over mobile phone of PW.2 and informed that she is not coming by bus, however she is coming to Mumbai with accused No.1 in a Nano car along with a lady and three male members who are said to be present in the car. Thereafter, PW.2 tried to contact the mother but her phone was switched off. Later, she intimated the brother PW.1, Manjunath about their mother coming to Mumbai on - 9 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 03.05.2011 at Kurla Bus Stand and asked him to go and receive her as her mother is having luggage. It is further alleged that on 03.05.2011, PW.1 went to Kurla Bus-Stand and waited till 1.30 p.m., but he did not find the mother in the Bus-Stand and came back to the house. Thereafter, he enquired PW.2 about her mother, in turn she informed that her mother is coming with accused No.1 in a Nano car. Thereafter, on the very next day, both the brothers i.e., PWs.1, 5 and PW.2 came to Dhavalagi village and enquired about the mother. They also called accused No.1-Basavaraj and asked about their mother and he told that he did not see their mother. They also tried to search for their mother, however they could not find her. Then, PWs.1, 2, 15 along with accused went to Basavan Bagewadi Police Station, in turn, they told to file a complaint in Bijapur Police Station, as she was found missing from Bijapur. Hence, they went to Bijapur Police Station and finally they lodged the complaint before the Basavan Bagewadi Police Station, in turn, the police have - 10 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 registered the FIR in Crime No.95/2011 with regard to missing of the deceased on 05.05.2011. It is further alleged that while searching for their mother, they met PW.13-Shantappa the cousin brother of their mother, he told that he boarded the deceased in Bijapur bus in order to go to Bijapur. Then they also met PW.16-Nagappa who is said to have informed that he has seen the deceased Madiwalawwa along with accused No.1, while he was getting down from the bus and taking her in the car. In turn, PW.16 also told to PWs.3 and 6 about the same. Later, once again they approached accused No.1 and enquired about their mother and he has not given proper answer. Therefore, they suspected the accused No.1 might have done something to their mother and hence, they once again went to Basavan Bagewadi Police Station on 09.05.2011 and lodged a complaint against accused No.1. Accordingly, the police registered the FIR against accused No.1 for the offence punishable under Sections 302 r/w 34 of IPC on the ground of suspicion and thereafter the police apprehended accused No.1 and he has confessed before - 11 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 the police that he himself along with accused Nos.2 to 4 taken the deceased in a Nano car and strangulated her neck with rope in the car and thereafter thrown the dead body near the bridge situated on Ghataprabha river and came back. The further case of the prosecution is that the police recorded the voluntary statement of accused Nos.1 and 2. On the basis of voluntary statement, the police said to be recovered the dead body of deceased nearby the land of Vasan Desai of Chichakandi village, where the dead body was floating in water. PWs.1, 2 and 15 were identified the dead body as belongs to their mother. Thereafter, the respondent police conducted the investigation by drawing inquest panchanama and subjected the dead body for post mortem examination, conducted the spot mahazar, recovered the incriminating articles from the spot. In the post mortem, the doctor has opined that the death was due to strangulation and thrown the dead body. Thereafter, the police also collected the bones of the - 12 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 deceased which was sent to DNA test for confirming that the body was belongs Madiwalawwa. Later, the police have arrested accused No.3, recovered the mobile phone, Nano car, the earrings of the deceased from the custody of accused No.3 under the panchanama. 5. On completion of investigation, Investigating Officer laid the charge sheet against the accused Nos.1 to 4 by showing accused No.4 as absconding before the Committal Court. On committal of the case before the Sessions Court, the learned Sessions Judge took the cognizance against the accused for the aforesaid offence by splitting the case against accused No.4. Accordingly, the Sessions Court secured the presence of accused Nos.1 to 3 and they have been said to be released on bail for the charges framed against them for the offence punishable under Section 120B, 302 and 201 r/w 34 of IPC and they denied the same and claimed to be tried. 6. In order to prove the charges leveled against the accused, before the trial Court, the prosecution in total - 13 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 examined 33 witnesses as PWs.1 to 33 so also got marked 49 documents as Exs.P1 to 49 and 7 material objects as MOs.1 to 7. 7. After conclusion of the evidence of prosecution, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as contemplated under Section 313 of Cr.P.C. However, the accused denied the same. The accused did not choose to examine any witnesses on their behalf however, got marked documents as Exs.D1 and D2 in the cross examination of PW.2-Nisha. 8. After hearing the arguments and assessment of the oral and documentary evidence, the learned Sessions Judge found the accused guilty and convicted the accused for the charged offence as stated paragraph No.1 of the judgment as stated supra. Being aggrieved by the same, the appellants/accused Nos.1 to 3 filed these before this Court. - 14 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 9. Learned counsel for the appellants have strenuously contended that the case of the prosecution is based upon circumstantial evidence, where the prosecution has relied upon circumstances i.e., the last scene theory, recovery of dead body, motive, the recovery of Nano car, recovery of rope and the enmity. However, the last scene theory spoken by PWs.3, 6 and 16 were totally turned hostile. Even the prosecution has not been able to prove the very complaint at Ex.P2 filed by the complainant as it was said to be scribed by PW.9 as per the instructions of PW.13. Whereas, PW.1 said that he has lodged the complaint prepared by PW.9 which is not correct. PW.1 do not know the contents of complaint and further contended that the evidence of PWs.1 to 15 were not sufficient to prove the guilt of the accused as the evidence of PWs.1 to 15 are inconsistent with each other. There are lot of contradictions, improvements. It is also contended that PW.2 received the phone call from deceased Madiwalawwa on 02.05.2011 and after some time once again the deceased Madiwalawwa called to PW.2 - 15 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 stating that she is not coming by bus and she is coming by car with the accused No.1 and three male persons and a women and she is coming to Mumbai by next day. However, the said aspect was not informed by PW.2 either to PW.1 or to PW.15 who is residing with her and all these improvements are only after filing the missing complaint and they concocted the story as the last scene theory and deceased herself told to PW.2 which was not reflected in the evidence of PW.2 and the statement made by her before the police. It is only an improvement as per Exs.D1 and D2. Therefore, the main chain of circumstances i.e., last seen theory is totally broken. 10. It is further argued that the recovery of MO.4- rope is also not proved. As per the evidence of PW.10, the car was taken by the police constable from the showroom, at that time, he has verified the car, there is nothing mentioned about the existence of the rope in the car. But the car was taken by the police constable and parked in the police station and subsequently the rope was - 16 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 recovered from the car and the rope was planted by the police. Even otherwise, the recovery of the rope was not proved by the prosecution. PWs.29 and 30 have turned hostile. The learned counsel also contended that the recovery of MO.5-mobile phone is also not proved, the alleged recovery of MO.6-Nano car is also suspicion, as per the statement made by PW.2 the said Nano car was silver in colour, whereas the car seized by the police under the panchanama obtained from PW.10 was Champion golden colour and the colour of the car itself differs apart from the Chasis number and engine number under the panchanama, therefore, the recovery of Nano car is also not proved. 11. The learned counsel further contended that the recovery of the earrings (Bendole)-MO.3 as per the evidence of PWs.1 and 2, they identified the dead body by looking to the ornaments which were found on the dead body of deceased. However, the ornament was shown as it was recovered from accused No.3 and even otherwise the - 17 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 recovery witness also turned hostile. Therefore, the connecting evidence against the accused along with recovery of MO.3-earrings, MO.6-car, MO.4-rope are not proved. The MO.7 motorcycle belongs to accused No.3 and there is nothing to do with this case which was seized by the police used for the commission of offence. It is further argued that the recovery of MO.7 is also not proved. The MOs.1 and 2, blouse and bangles have been found on the dead body along with MO.3, however the police have fabricated the document and hence, the recovery is also not proved. It is further contended that PWs.1, 2 and 15 have spoken about the enmity and they are interested witnesses and enmity is a double edged weapon, until other circumstances are proved that cannot be considered. Hence, they have contended that the chain link in respect of the death, crime and the assailants were not proved by the prosecution beyond reasonable doubt. 12. Learned counsel also contended that even the dead body was found totally in a decomposed manner and - 18 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 it is beyond the identification. Such being the case, the suggestion also made to the doctor with regard to strangulation that is also not proved except, the voluntary statement of accused persons. Therefore, the voluntary statement or confession statement of accused persons is not admissible under Section 25 and 26 of the Evidence Act, except the recovery. The recovery is also not proved beyond reasonable doubt. Therefore, it is contended that the trial Court without appreciating the evidence on record wrongly come to conclusion and convicted the accused persons which is not correct. Hence, he prays for acquitting the accused by allowing the appeals. 13. Per contra, learned Addl. SPP supports the judgment of conviction and sentence passed by the trial Court contending that MOs.1 and 2, blouse and bangles were found on the dead body. MO.3 was recovered from accused No.3 under the panchanama. MO.4-rope was seized from the car which belongs to accused No.1 i.e., MO.6-Nano car. Though some discrepancies about the - 19 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 rope found in the car, however the same was recovered and proved by the prosecution with the help of Investigating Officer, who conducted recovery panchanama in presence of eye-witnesses. Therefore, there is no reason to disbelieve the evidence of Investigating Officer to disprove the evidence of prosecution. It is also contended by the learned Addl. SPP that the silver colour of the car is also known as Champion gold colour and both are one and the same. Therefore, it cannot be major defect in the recovery of the car and that can be ignored as the car was seized under the panchanama. It is also contended that MO.7-motorcycle belongs to accused No.3 who joined with accused Nos.2 and 3 near the place of occurrence where they committed the murder. The homicidal death of deceased was not seriously disputed by accused persons and the DNA test report also reveals that the identification of the deceased was due to homicidal death. The enmity has been proved by the evidence of PWs.1, 2 and 15 who are relatives apart from PW.9-Shantappa. Further, there are other - 20 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 relatives who have spoken about the motive aspect, where the accused threatened the deceased stating that he will take away the life whenever she visit the village. Such being the case, the prosecution has successful in proving all the chain links to prove the guilt of the accused. The Trial Court, by appreciating the evidence on record, has rightly convicted the accused persons and sentenced has been passed. Therefore, there is no need to interfere with the sound and well reasoned judgment of the trial court while convicting the accused persons. Hence, prays for dismissal of the appeals. 14. Having heard the learned counsel appearing for the parties and perused the documents, the points that would arise for our consideration are; (a) Whether the prosecution proves beyond all reasonable doubt that on 03.05.2011 the accused Nos.1 to 3 and split up accused on previous enmity committed the murder of deceased Madiwalawwa by throwing the dead body in the river with an intention to destroy - 21 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 the evidence and causing disappearance of evidence and thereby committed an offence punishable under Sections 120B, 302 and 201 r/w 34 of IPC? (b) Whether the judgment of the trial Court found guilty in convicting the appellants and calls for any interference? (c) What order? 15. We have perused the records and the evidence adduced before the Trial Court by the prosecution. Before re-appreciating the evidence on records, it is worth to mention the evidence adduced by the prosecution before the Trial Court. 16. We have already stated above that the prosecution has examined in all 33 witnesses. PW.1- Manjunath Jalapur, who is the complainant-first informant as well as the son of deceased Madiwallavva has given evidence before the Trial Court on par with the complaint made by him before the police on 10.05.2011 that he got the information from PW-2-Nisha that his mother is - 22 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 coming to Kurla bus stand and she requested him to pickup his mother. Accordingly, on 03.05.2011 he waited. But, his mother did not come. Then, he has contacted Nisha (PW-2) and she stated that his mother has already left in the bus. Thereafter, both him and PW-15 went to the Davalagi village and enquired about their mother. They also met accused No.1 and asked about the whereabouts of their mother and accused No.1 stated that he do not know anything about the deceased Madiwalavva. Thereafter, they along with accused No.1 went to the police station and lodged a missing complaint. Then, Shantappa(PW.13), who in turn informed that he himself boarded the mother of the complainant in order to go to Vijayapur and later, he came to know from PW.16- Nagappa that he has seen the deceased in the company of accused No.1 while going in a Nano car. Subsequently, on asking once again to accused No.1 about the whereabouts of the deceased, he has given an evasive answer. Hence, they suspected that the accused No.1 has done something to the deceased and hence lodged compliant to the police. - 23 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 They have identified the complaint as per Ex.P-2 and further stated that after arrest of the accused he has confessed before the police thereafter accused Nos.1 and 2 led them and the police to the Ghataprabha river where they are said to have committed murder and thrown the dead body. He further deposed that the dead body was traced near the land of Vasan Desai and with the help of fishermen and the police, the body was identified by them then the body was taken for postmortem examination. He has stated that due to enmity between accused No.1 and his mother, the accused committed the murder as the accused proposed to marry his sister, but his mother had refused for the same. 17. PW-2 – Nisha, who is the daughter of the deceased and sister of PW-1, has also given evidence on par with her brother stating that the accused used to visit their house and he had proposed to marry her but her mother refused to give to accused No.1 who is the son of paternal aunt. Therefore, the accused said to have - 24 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 threatened with dire consequences and life. Thereafter, herself and her mother (deceased) went to Shrishail for a Annual fair and after completion, they went to Dhavalaga village and her mother told she will come after sometime and asked PW-2 to go to Mumbai. Accordingly, she left for Mumbai, her mother stayed in the house and she further deposed that subsequently on 02.05.2011 her mother telephoned to her through mobile phone and told she is coming to Mumbai and asked her to come and pick her up at Kurla bus stand on the next day i.e., on 03.05.2011. Accordingly, she also intimated to her brother PW-1 to go and pick up their mother from Kurla bus stand. Accordingly, on 03.05.2011 her brother PW-1 is said to have went to the bus stand, waited for arrival of their mother, but she did not come. Hence, he made phone call to PW-2, at that time she also intimated that on the earlier day the mother once again telephoned to her that she is coming along with accused No.1 in a Nano car and two to three other persons are also there with her. Subsequently, deceased did not come to Mumbai. Hence, - 25 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 they visited Dhavalagi village for searching the deceased but they were not able to find her. Thereafter, they enquired with accused No.1, he also stated that he has not seen the deceased. Herself and her brother met PW-9, he has intimated that while boarding the bus later PW-16 intimated that the deceased went along with accused No.1 and others in a car. Therefore, they lodged the complaint. She has given evidence on par with PW-1. 18. PW-3 Bandenawaz Nadaf who stated to have came to know from PW-16 Nagappa Pujari that the accused was in the company of the deceased, they went in a car but he has turned hostile and not supported the prosecution case. 19. PW-4 is a panch witness to Exs.P-4 and P-5 where the deceased was taken by the accused in a car and also Ex.P-5 spot panchanama where the accused stated to have committed murder. This witness though supported the prosecution case, however, the spot panchanama was - 26 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 prepared as per the spot shown by the accused to the police. 20. PW-5 another witness for Exs.P-6 to P-10 where the police have prepared the panchanama on the spot where the body was thrown near river thereafter traced dead body near the property of one Vasan Desai. Ex.P-8 inquest panchanama had been drawn on the dead body. Ex.P-9 is seizure of the blouse M.O.-1 bangles M.O.2 from the dead body. He also speaks about the seizure of the Nano car from the premises of the police station. 21. PW-6 is the another witness Suresh Gothe said to have last seen the accused with the company of the deceased. This witness also turned hostile and not supported the prosecution case. 22. PW-7 Riyaz Ahmed Kanakarpheer is the hotel owner where the deceased and the accused said to have taken meals but he has turned hostile and not supported the prosecution case. - 27 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 23. PW-8 Pintu Pattar is a goldsmith and appraiser of the ornaments. He has also turned hostile. He has verified M.O.3 earrings. 24. PW-9 Aravind Kasinkunte is the scribe of the complaint Ex.P-2. According to him, PW-13 gave instructions to him to prepare the complaint as per Ex.P-2. His evidence will be considered subsequently. 25. PW-10 - Shrishail Kondagoli is the Manager of the car showroom where the accused said to have left the car in a showroom and police again took the car from the showroom. He has given evidence in respect of producing car by accused No.1 and taking back by the police to the police station. However, he has stated that at the time of receiving the car he has verified that there is no material found in the car and while giving back the car, there was no material found in the car and it is alleged that in the police station, M.O.4-rope said to have been seized from this car. The same will be discussed in the later part of the judgment. - 28 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 26. PW-11 - Shrikant Kuppigoudar is Police Constable who is said to have brought the car from showroom of PW-10 as per the instructions given by I.O. Ex.P-17. 27. PW-12 - Ashok Sindhe is Head Constable who is said to have carried the blood sample of PW-1 and PW-15 as well as bone of the deceased, for DNA test. 28. PW-13 - Shantappa Bheeragonda brother of the deceased speaks about the motive aspect and also that he brought the deceased Madivalamma in the bus going to Vijayapur on 02.05.2011. Thereafter he came to know from PW-1 that his mother had not reached and later he speaks that he came to know that accused said to have committed the murder and he accompanied PW-1 for lodging the compliant. 29. PW-14 – Annappa Hadagali is the witness who identified the dead body along with PW-1 and PW-2 and was also present at the time of inquest panchanama. The - 29 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 said witness turned hostile and he is not a material witness to the prosecution case. 30. PW-15 – Siddanath Jalapur is the another son of the deceased who has also given evidence on par with PW-1 and PW-2. He has given his blood sample to the police. 31. PW-16 – Nagappa Pujari is one of the star witness to the prosecution case who has seen the accused with the company of the deceased on 02.05.2011. Subsequently he is said to have informed PW-3 and PW-6 about the deceased gone with the accused No.1 in a car but this witness unfortunately turned hostile and not supported the prosecution case. After treating him hostile, the prosecution was unable to elicit any truth from the mouth of this witness. Therefore, this witness is not useful for the prosecution case. 32. PW-17 Basavaraj Bisnal supposed to speak that he was present when the accused made confession before - 30 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 the police that the accused taken the deceased along with them in the car. But this witness has also turned hostile and not useful to the prosecution case. 33. PW-18 – Ningaraya Bisnal also supposed to speak on par with PW-17 but turned hostile and not supported the prosecution case. 34. PW-19 – Sadashiv Salimantap is said to be fisherman who traced the dead body in Ghataprabha river and later the body was traced at the instance of PW-19. PW-20 – Ladappa Salimantap, PW-21 – Sanju Salimantap, PW-22 - Subhash Salonke and PW-23 – Bheemsena Sarcha are the fishermen who helped the police for searching and tracing the dead body but they have turned hostile and not supported the prosecution case. However, tracing the dead body and subjecting it to postmortem examination is not in dispute. Though these witnesses not supported the prosecution case but these witnesses are only formal witnesses. - 31 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 35. PW-24 - Dr. Anil conducted the postmortem examination and autopsy on the dead body of the deceased and he has issued Ex.P-33. He has opined that death was due to asphyxia due to strangulation secondary to the injury and he has kept pending for the final opinion awaiting the DNA test. Ex.P-33 postmortem report, death of the deceased is not in dispute. The evidence of this witness will be discussed in subsequent part of the judgment. 36. PW-25 Dr. Siddaraya Kupasad is stated to have collected blood sample of PW-1, PW-5 and sent to DNA test along with the bones collected from the dead body of the deceased. He has also not supported the prosecution case and is a formal witness. 37. PW-26 Shivanand Tumbarmatti is a Junior Engineer who prepared the sketch Ex.P-34 where the dead body was thrown and he is only a formal witness. He has prepared the sketch as per the instructions of the Police Officer. - 32 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 38. PW-27 – Sunil Nayak is one of the Investigation Officer who conducted the investigation in part. 39. PW-28 Basvaraj Katigeri is working in showroom and he has turned hostile. He is said to have seen accused No.1 while dropping the vehicle for service. His evidence is of no use. 40. PW-29 - Iranna Masabinal is a panch witness to the seizure of the motor cycle and mobile phone of accused No.3. He has also turned hostile. 41. PW-30 – Chandrashekhar Bajentri is a panch witness to the seizure of M.O.3 and mobile phone from accused No.3 as well as motor cycle. He also turned hostile and not supported the prosecution case. 42. PW-31 – Shilpa Karur is WPC who accompanied the dead body for the purpose of postmortem and given evidence. She is a formal witness. 43. PW-32 – Chandrashekhar Mathapati is the Police Sub-Inspector who has conducted part of - 33 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 investigation. As per the instructions of CPI, he said to have arrested accused Nos.1 and 2 and said to have produced them before the CPI, B. Bagewadi. 44. PW-33 – Sheelavant is Investigation Officer who has conducted the investigation and filed charge sheet. 45. On careful reading of the entire evidence on record and the documents as it is extracted above, it is clear that the prosecution case is purely based upon circumstantial evidence. The prosecution relied on circumstances as under: (1) The enmity/motive for the offence; (2) The deceased seen with the company of the accused (last seen theory); (3) Recovery: a. Recovery of the dead body; b. Recovery of ornaments of the deceased M.O.3; c. Recovery of the rope M.O.4 and Nano car M.O.6; and d. Recovery of mobile phone and motor cycle from accused No.3. - 34 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 46. We would take the last seen theory first since the enmity and motive is double-edged weapon and unless the other circumstances proved by the prosecution, the motive cannot play a vital role in this case. Last seen theory: 47. As per the prosecution case, the prosecution relied upon the evidence of PWs-2, 3, 6, 7 and 16. As stated above, PW-13 said to be seen the deceased with the company of the accused as the accused is said to have got down the deceased from the bus which was going to Vijayapur. He has stated to have got down the deceased at Muddebihal and took her in his Nano car. This was seen by PW-16 later PW-16 informed the same to PW-3 and PW-6. Pw-3, PW-6 and 16 have totally turned hostile and have not supported the prosecution case. Another witness is PW-7 the hotelier where the deceased and the accused said to have taken lunch in his hotel on the fateful day 02.05.2011. This witness has also turned hostile. The only witness left to the prosecution to connect the company of the accused with the deceased is PW-2 - Nisha. PW-2 - 35 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 Nisha gave evidence in support of the prosecution case. As per her evidence which led to the filing of the complaint by PW-1 where she has stated that herself and her mother went to Shrishail Annual fair which is not relevant. However, both of them said to have went to Dhavalaga village, native place of the deceased. After one or two days the deceased is said to have informed PW-2 that she want to stay back in the village for leasing out the property to some third persons and she will come back after sometime and therefore, PW-2 came to Mumbai. The staying of the deceased at Dhavalaga village and Nisha PW-2 going to Mumbai is not disputed by the defence counsel. It is further case of the prosecution that as per PW-2 on 02.05.2011 the mother of the deceased said to have made a phone call from her mobile phone to PW-2 and informed that she is coming in a bus to Mumbai and she will reach to Kurla bus stand on the next date and she requested PW-2 to ask her brother (PW-1) to come and pick her up near the bus stand. According to her evidence, on the very same day after sometime deceased - 36 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 said to have made one more phone call to PW-2 and informed that she is not coming by bus but she is coming in the Nano car and accused No.1 - Basavaraj is with her and other three male persons and a female person are also along with her. Subsequently, PW-2 informed PW-1 requesting him to pick her mother in the Kurla bus stand. According to the evidence of PW-2, PW-15 and PW-1 went to Kurla bus stand by next date, waited for arrival of their mother, but she did not come. Hence, PW-1 made a phone call to PW-2 - Nisha asking about their mother, then she has intimated that their mother will come by car. Then all of them waited but deceased did not come and hence they went to Dhavalaga village and started searching for their mother. They said to have met accused No.1 and enquired about the whereabouts of their mother but he has stated that he has not seen her. Thereafter, they went on searching for the deceased and later they filed missing complaint as per Ex.P-1 on 05.05.2011 to the Muddebhial police station and stated that their mother is missing and subsequently while searching for their mother - 37 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 PW-1 is said to have met PW-13 Shantappa who is said to have heard that their mother had boarded to the bus which was going to Vijayapur. Further, PW-16 said to have informed PW-1 and PW-2 that they have seen the accused in the company of the deceased. PW-16 is the only witness to connect the last seen of accused in the company of the deceased. In the complaint filed by PW-1 along with accused No.1, PW-2 and PW-5 not at all stated anything about the fact that the deceased had telephoned to PW-2 immediately after sometime and informed that she is coming in the car along with the accused and three male persons and one female. If at all this fact was intimated to PW-2 by her mother, there was no impediment for PW-2 to intimate the same to PW-1 stating that mother is coming by car with accused No.1. If at all she had intimated, there is no question of PW-1 going to Kurla bus stand on the very next date waiting for arrival of their mother by bus in the Kurla bus stand. It reveals the company of the deceased along with the accused was only an improved version by PW-1, PW-2 and PW-15 along with - 38 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 PW-13 that PW-16 said to have told that the accused was in the company of the deceased and going in the Nano car. PW-2 has not stated that her mother telephoned second time and informed that she is coming in a car and accused No.1 being their relative knows the address and house of the deceased, such being the case, question of PW-2 asking PW-1 to pick up her mother from Kurla bus stand does not arise. The telephone made by the deceased to PW-2 was not properly investigated by the police by collecting any Call Detail Records [CDR] to show that the deceased actually made a mobile phone call to PW-2 for the first time to intimate about she coming by bus and subsequently intimating that she is coming by Nano car with accused No.1 and three others. It appears, that even this fact of deceased coming with accused No.1 was not mentioned in Ex.P-1 the missing complaint made by PW-1. At that time, PW-2, PW-15 and PW-13 were also there with them. Apart from this, it appears, after coming to know the information from PW-16 they might have - 39 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 improved the case and filed the second complaint on 10.05.2011 by implicating the accused. 48. It is also brought to the notice of the Court by the learned counsel for the appellants that the missing complaint registered on 05.05.2011 has been received by the Magistrate only on 22.06.2011, whereas the complaint Ex.P-2 was made on 10.05.2011. The second FIR reached the Court on 11.05.2011. Therefore, the improved version of fact that the deceased was coming with accused No.1 was not stated by PW-2 or PW-1 in the first complaint Ex.P-1 but it was improved in the second complaint after due deliberation for almost eight days of the missing of the deceased. The I.O. also not collected any Call Details Record [CDR] to show that the deceased had actually telephoned to PW-2 informing about she coming to Mumbai by car. Therefore, the version of PW-2 that deceased telephoned to her that she is coming with accused No.1 in the car is not believable. PW-1 and PW- 15 came to know this fact by PW-2 which was not - 40 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 intimated to them at earlier point of time while lodging missing complaint for the first time. Hence, the last seen theory is not proved by the prosecution beyond all reasonable doubt. Therefore, we are of the view that the prosecution failed to prove one of the main circumstance of deceased last seen with the company of the accused on 02.05.2011 and 03.05.2011. Recovery: 49. As regards the recovery of various materials, the prosecution to prove the recovery of M.O.3 earrings, examined PW-29 and PW-30. Both of them have turned hostile and not supported the prosecution case. Though the police recovered M.O.3 earrings stated to be worn by the deceased, M.O.7 - motor bike and M.O.5 - mobile phone of accused No.3, the same is of no consequence as there is no evidence to prove that this vehicle was actually used by accused No.3 for commission of offence and without any positive evidence, except the confession statement made by accused persons. It is well settled that any confession made by the accused in the custody of - 41 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 the Investigation Officer is not admissible as per Sections 24, 25 and 26 of the Indian Evidence Act except recovery under Section 27 of the Indian Evidence Act. The recovery of M.O.3 earrings from accused No.3 is not proved by the prosecution. However, PW-1, PW-2 and PW-15 identified the M.O.3 as belongs to the deceased. 50. However, the learned counsel for the appellants vehemently contended that the very identification of dead body by PW-1, PW-2 and PW-15 is based upon the ornaments worn are found on the dead body at the time of tracing the dead body. But on perusal of Ex.P-5 - inquest panchanama, the dead body was found with a blouse M.O.1 and the bangle M.O.2. There is no mention of earrings found on the ear of the deceased. Therefore, the contention of the learned counsel for the appellants that the ornament M.O.3 was found on the ear of the deceased cannot be accepted. However, when the very earrings said to be seized from the accused No.3 said to be different shape from the one mentioned in the complaint Ex.P-1. In Ex.P-1 the earrings are said to be of flower - 42 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 shape whereas seized earrings are ordinary ring. Hence, the seizure itself is not proved. Such being the case, seizure of M.O.3 – earrings is not useful to the case of the prosecution. 51. As regards to the seizure of car and recovery of M.O.4 – rope, as per the evidence of PW-10 - the car showroom owner supposed to speak that accused No.1 said to have left his Nano car in the showroom for service as it is stated that the vehicle had met with an accident and later the said car is said to be seized by PW-11 from showroom as per the instructions given by PW-33. PW-10 has given evidence the car was kept in the showroom and it was given to PW-11 as instructed by the police but he has stated that there was no material found in the car at the time when the accused left the car and when PW-11 took the car from his showroom. PW-11 has stated that as per the instructions of the Investigation Officer, he took the car and produced the same before the I.O. in the police station. PW-10, except producing the car for - 43 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 service, has not spoken about any other relevant evidence against the accused. However, he has stated there was no material found in the car. Whereas the I.O. has stated in his evidence that when the car was produced by PW-11 in the police station, as per the confession of accused No.1, the rope M.O.-4 was seized from the car. As per the evidence of PW-10 there is no rope or any other material found in the car when the vehicle was produced and taken back by PW-11. Such being the case, the question of recovery of rope from the car alleged to have been used by the accused for the purpose of strangulating the deceased cannot be acceptable. Once the accused thrown the dead body in the river, one cannot expect from an ordinary person that he will keep the rope in the car without throwing the same into the river. It is also contended by the learned counsel for the appellants that when the car was taken from the showroom there was no mahazar done. If the mahazar was done in the car showroom itself, the availability of rope in the car would have come to light, but it was not done. Since search was - 44 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 conducted in the police station premises, there is every chances of planting the same by the police cannot be ruled out. Hence, we hold that the recovery of M.O.4 – rope was not proved. 52. As regards the recovery of M.O.6 the Nano car, the same is said to be champagne colour as per the evidence of PW-10, whereas the prosecution story says that Nano car in which the accused No.1 took the deceased was silver colour Nano car. Though there is some discrepancy in the engine number and chassis number from the recovery panchanama of the car, but the police have mentioned in the panchanama only chassis number and not engine number. Mere discrepancy will not take away the case of prosecution. However, the prosecution has failed to prove the very car whether it is silver colour car or golden colour car used by the accused at the time of taking the deceased. When last seen theory itself is failed to be proved, the colour of the car is not material evidence to the court. However, the prosecution - 45 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 failed to prove the seizure of M.O.4 the recovery of the rope at the instance of the accused as required under Section 27 of the Indian Evidence Act. 53. As regards to the seizure of the mobile phone M.O.5 and M.O.7 motor cycle, there is no consequence as no witness has stated that this vehicle was used for commission of offence except voluntary statement. There is no CDR collected by the I.O to prove that the accused No.3 has conspired with accused Nos.1 and 2 and participated in the commission of murder in order to prove the offence punishable under Section 120B of IPC as against accused Nos.1 to 3. Therefore, recovery of M.O.5 and M.O.7 is also of no consequence and went unproved by the prosecution. Motive/enmity: 54. As regards the motive or enmity for the commission of murder, PW-1, PW-2 and PW-15 have given evidence that in support of the prosecution case, all of them are family members and children of the deceased. It - 46 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 is stated the accused No.1 is the paternal son of the deceased. PW-2 is stated to be married but due to some misunderstanding with her husband, she is residing with her mother and PW-15 in Mumbai away from PW-1. She has also stated that accused No.1 intended to marry her, but her mother refused for the same, therefore, the accused said to have threatened her long back. After two months the incident is said to have taken place. This motive aspect of threatening by accused No.1 was not mentioned by PW-1 in his missing complaint Ex.P-1 but it is stated in Ex.P-2 the complaint. Though this witness has stated that accused threatened with dire consequences, but there is no other witness stated about the accused having knowledge about the deceased having come to Dhavalaga village as the accused is said to be running mechanic garage at Basavana Bagewadi and residing there. There is no connecting evidence to show this matter was intimated to either PW-1 or PW-15 by PW-2 or mother or even it is mentioned in the missing complaint lodged at the earlier point of time. Therefore, even - 47 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 otherwise the motive is double-edged weapon which can be used against the accused or also in favour of the accused, that too when two probabilities are possible to infer. When two views are possible, the view which is favourable to the accused has to be taken for consideration. It is also brought to our notice that if there was enmity between the deceased and accused No.1 and there was strained relationship hence, there is no question of deceased going with accused No.1 and coming to Mumbai in his car, which is not acceptable one. The version of the prosecution is only an improved version after knowing the information from PW-16. Therefore, the circumstance of enmity is also not proved by the prosecution. 55. It is also seen from Ex.P-1, that the very accused No.1 also accompanied PW-1, PW-2 and PW-15 to Vijayapur, Basavan Bagewadi, for searching the deceased and filing the missing complaint. Therefore, the motive cannot be accepted in this case. Given the circumstances of the case, the only evidence available is the children of - 48 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 the deceased. Obviously, they are the interested witnesses and it is well settled by the Hon’ble Apex Court in catena of decisions that in case the prosecution relies upon the circumstantial evidence, the prosecution is required to prove all the chain links without any break. If any chain link is broken, the benefit of doubt shall be given in favour of the accused. Recovery of dead body: 56. As regards to the death of the deceased, the recovery of the dead body, the missing complaint was filed subsequently by PW-1 as per Ex.P-2 and it is also based on the accused having confessed before the police and accused Nos.1 and 2 led the police to the place where they have shown the actual murder of the deceased by strangulating while using the rope when she was sitting in the car and thrown the dead body in Ghataprabha river. The police along with the fishermen traced the dead body near the land belonging to one Vasan Desai and the dead body was then recovered under the panchanama and was seized by I.O. by looking to the place and the identity of - 49 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 the dead body was also made by the prosecution by way of DNA test and its report is as per Ex.P-42 which was marked with consent of the accused. The inquest was conducted then the dead body was subjected to postmortem examination as per the evidence of doctor PW-24 and as per Ex.P-33 the death had occurred due to strangulation. Therefore, the prosecution is successful in proving homicidal death and dead body was found in water which also belongs to Madivalamma. Except one or two circumstances, the prosecution was not able to prove the other linking circumstances against the accused persons. 57. In support of their case, the learned counsel for the appellants relied upon the judgment of the Hon’ble Apex Court in the case of Bhim Singh & Anr. vs. State of Uttarakhand1. The relevant portion of the said judgment is extracted as under: “In the present case, the guilt or innocence of the accused has to be adduced from the circumstantial evidence. The law regarding circumstantial evidence 1 2015 AIR SCW 1118 - 50 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 is more or less well settled. This Court in a plethora of judgments has held that when the conviction is based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused is entitled to benefit of doubt. Gurpreet Singh v. State of Haryana (2002) 8 SCC 18 is one of such cases. On the question of any reasonable hypothesis, this Court has held that if some of the circumstances in the chain can be explained by any other reasonable hypothesis, then the accused is entitled to benefit of doubt. But in assessing the evidence, imaginary possibilities have no place. The Court considers ordinary human probabilities. On circumstantial evidence, this Court has laid down the following principles in Sharad Birdhichand Sardar v. State of Maharashtra, (1984) 4 SCC 116: The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of conclusive nature and tendency. - 51 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 They should exclude every possible hypothesis except the one to be proved and, There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Whenever there is a break in the chain of circumstances, the accused is entitled to the benefit of doubt; State of Maharashtra v. Annappa Bandu Kavatage (1979) 4 SCC 715. Following the decision in Sharad Birdhichand (supra), this Court in the case of Liyakat v. State of Uttaranchal, (2008) 16 SCC 148, and in the case of Kusuma Ankama Rao v. State of Andhra Pradesh, (2008) 13 SCC 256, upheld the conviction as awarded by the Trial Court and affirmed by the High Court. 58. Following the said judgment, the Hon’ble Apex Court in the case of Darshan Singh vs. The State of Punjab in Criminal Appeal No.163/2010 in subsequent judgment has held as under: “37. Seen in this background, we need not go further and consider the evidence qua other circumstances - 52 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 sought to be proved by the prosecution since the failure to prove a single circumstance cogently can cause a snap in the chain of circumstances. There cannot be a gap in the chain of circumstances. When the conviction is to be based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused is entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt. 59. As we have stated above, except the homicidal death and the recovery of the dead body, the other circumstances have not been proved by the prosecution beyond all reasonable doubt. Therefore, we are of the view that the Trial Court, without proper appreciation of the evidence on record, came to a wrong conclusion by accepting the evidence of PW-1, PW-2, PW-13, though the very complaint also said to be made by PW-13 as per the evidence of PW-9 scribe is erroneous. The Trial Court, without appreciating the evidence on record, wrongly jumped to the conclusion that the prosecution proved the guilt of the accused beyond all reasonable doubt. We have - 53 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 also gone through the judgment of the Trial Court, where the circumstances are not properly bifurcated while appreciating the evidence on record. Such being the case, on conjuncture and surmises, the Trial Court accepted the evidence of the prosecution with the interest of witnesses, which is not correct. Therefore, this Court finds that the prosecution has failed to prove the guilt of the accused that the accused Nos.1 to 3 along with the split-up accused, committed murder of the deceased on 02.05.2011 and thrown the dead body to river to cause the disappearance of the evidence with conspiracy between accused, beyond all reasonable doubt. Therefore, the benefit of doubt shall be extended to the accused and they are entitled for acquittal. Hence, the judgment of the Trial Court calls for interference by this Court. Accordingly, we proceed to pass the following: ORDER (i) The appeals are allowed. (ii) The judgment of conviction dated 20.11.2015 and order of sentence dated - 54 - NC: 2025:KHC-K:1573-DB CRL.A No. 200009 of 2016 C/W CRL.A No. 1584 of 2015 CRL.A No. 200143 of 2015 26.11.2015 passed by the I-Additional Sessions Judge, Vijaypur in S.C.No.63/2012 is hereby set aside. (iii) All the appellants/accused Nos.1 to 3 are acquitted of the offences punishable under Sections 120B, 302, 201 read with Section 34 of IPC. (iv) Their bail bonds stand cancelled and fine amount collected, if any, are ordered to be refunded. Send the copy of this judgment to the Trial Court along with the Trial Court records, forthwith. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE MSR/NJ/SWK List No.: 1 Sl No.: 46 CT:SI