- 1 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.100288 OF 2025 [439(Cr.PC)/483(BNSS)] BETWEEN: 1. SHRI PADIAPPA @ PRADEEP S/O. SHIVABASU SUNAGAR, AGED ABOUT 27 YEARS, OCC. BUSINESS, CHURCH ROAD, GANDHI ROAD, MUDALAGI-591312, DIST. BELAGAVI. 2. SHRI CHANDAN @ CHANDRAPPA S/O. RAMAPPA MADAR, AGED ABOUT 22 YEARS, OCC. DRIVER, NEAR DURGA DEVI TEMPLE, ITNAL-591235, TQ. RAIBAG, DIST. BELAGAVI. 3. SHRI RAMESH S/O. SHIVABASU CHIPPALKATTI, AGED ABOUT 22 YEARS, OCC. COOLIE, R/O. NAGALINGA NAGAR, MUDALAGI-591312, TQ. MUDALAGI, DIST. BELAGAVI. … PETITIONERS (BY SRI ASHOK R.KALYANASHETTY, ADVOCATE) AND: THE STATE OF KARNATAKA (HARUGERI P.S.) BY ITS STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT PREMISES, DHARWAD-580001. … RESPONDENT (BY SMT. GIRIJA S.HIREMATH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BNSS 2023, SEEKING TO ENLARGE THEM ON REGULAR BAIL ON SUCH TERMS AND CONDITIONS AS DEEMED FIT AND PROPER IN HARUGERI P.S. CRIME NO.112/2024 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 120(B), 364, 302, 201 READ WITH 149 OF THE IPC PENDING ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC RAIBAG. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.24 14:25:23 +0530 - 2 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 ( ‘BNSS’ for short,) for grant of regular bail in Crime no.112/2024 by Harugeri Police Station for offences punishable under Sections 143, 147, 148, 120B, 364, 302, 201 read with 149 of Indian Penal Code (‘IPC’ for short) by accused no.3 to 5 (petitioners). 2. Sri Ashok R. Kalyanashetty, learned counsel for petitioners submitted, Smt.Bharati (complainant) filed complaint on 12.06.2024 stating that she was married to Irappa Alagonda Chougala (victim) since 12 years and residing at Sultanpur, with their three children and parents-in-law. Her sisters-in-law were married and residing with their husbands. She also stated that their family was holding lands at Sultanpur. Without any necessity, her brother-in-law Shrishail (accused no.1) expressed intention to sell 1 Acre of property by claiming it to be necessary to meet family necessity. Same was opposed by her. This had led to altercation with Shrishail who - 3 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 threatened that even if it necessitated murder of victim, he would achieve his objective. Due to threat, her husband had asked her to reside at her maternal home at Mugalkhod with children. Nevertheless, she used to visit her home every week, while victim stayed at Sultanpur. 3. It was further stated, in order to prevent accused no.1 from selling land, victim had filed suit before Civil Court at Raibag, which had further enraged petitioner and he frequently threatened to kill victim. On morning of 05.06.2024, her father- in-law called to enquire about victim, who went out of house at 10:00 pm previous day, had not returned and was missing and he was unable to contact him over phone. A missing complaint was also filed with Harugeri Police Station when victim was not traced anywhere. 4. At 5:00 p.m. on 12.06.2024, when she was at Mugalkhod, Rajashekhar Balchandra Naik and her brother Mahantesh informed her that accused no.1 had confessed about committing a grave mistake and asked for saving him. On enquiry, accused no.1 had told about altercation with victim over sale of land and his refusal to consent for withdrawal of - 4 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 civil suit had got him angry and assuming his murder would yield him entire property, had given supari (contract) to Bharmappa Balappa Naik (accused no.2) for Rs.14 Lakhs to murder victim. And at 9:30 p.m. on 04.06.2024, he along with Bharmappa and boys from Mudalagi village, kidnapped victim in Innova vehicle, killed victim and disposed of his body. But as he had given missing complaint to police, their frequent visits and enquiry had caused fear and therefore, he intended to sell 1 Acre of land and give share to complainant and sought help to escape from police case. But, he was advised to surrender before police. Complainant further stated, this indicated that accused no.1 had offered Rs.14 Lakhs to accused no.2 to murder victim and they along with boys from Mudalagi had kidnapped victim, killed him and disposed of his body. Based on complaint, Harugeri Police registered Crime no.112/2024 (supra). 5. It was submitted, initially only a missing complaint was filed. Even present complaint was registered against accused no.1, 2 and others. Therefore, without any basis petitioners were arraigned. In any case, there were no specific overt acts against any of petitioners or about manner of their - 5 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 involvement in murder of victim. It was submitted, present case was a mere property dispute between accused no.1 and victim, with which petitioners were not at all concerned. Thus, prosecution had failed to establish motive insofar as present petitioners. It was submitted, petitioners were arrested on 15.06.2024. And after completion of investigation, charge- sheet was filed on 10.09.2024 citing 74 witnesses. Therefore, conclusion of trial was likely to be delayed. 6. It was further submitted, there were no eye- witnesses. Therefore, prosecution case was circumstantial. It was further submitted, in charge-sheet body of victim stated to be found in 15ft. deep Krishna River after 8 days in highly decomposed state. It was submitted as per charge-sheet, “victim was murdered by strangulation as well as inflicting testicular injury”. But, in Postmortem Report (‘PMR’), opinion as to cause of death was “due to shock secondary to testicular injury” which would contradict with prosecution case. 7. It was submitted, even CWs-27 and 28 had not identified anyone else than accused no.1 and 2. Therefore, arraignment of petitioners was without corroboration. And - 6 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 allegation of supari murder was also not corroborated with any recovery. 8. Prosecution case against petitioners was dependant on confessional statement of accused no.1, before CW-21 which would be in nature of Extra Judicial Confession (‘EJC’ for short) a weak form of evidence. Thus there was no any incriminating material directly implicating petitioners. Under above circumstances, as investigation was already completed and charge-sheet was filed, petitioners would not be required for any further custodial interrogation. Petitioners were law abiding citizens and permanent residents along with their families, who were dependent on them. Therefore, they were entitled for bail. 9. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent – State sought to oppose petition. It was submitted as per charge-sheet, petitioners committed offences punishable under Sections 143, 147, 148, 120B, 364, 302, 201 read with 149 of under Section 302 of IPC. It was submitted, allegations against accused included supari murder i.e., contract killing attracting highest punishment of death or - 7 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 imprisonment for life. Further motive for murder i.e., purely for monitory gain would require to be taken into account. It was submitted during course of investigation, prosecution had collected sufficient material to substantiate charges. Statements of CWs-27 and 28 who were eye-witnesses to kidnapping would implicate petitioners. Confessional statement of accused no.1 was duly corroborated by confessional statement of CW-21. Recovery of amount of Rs.38,000/- from petitioners would also corroborate charge of supari murder. It was lastly contended, in case of release on bail, petitioners were likely to commit similar offences or flee from justice. On above grounds, sought for rejection of bail. 10. Heard learned counsel and perused material on record. 11. From above, point that arises for consideration is: “Whether petitioners are entitled for regular bail on conditions?” 12. This petition for regular bail is by accused no.3 to 5 in Crime no.112/2024 by Harugeri Police Station for offences punishable under Sections 143, 147, 148, 120B, 364, 302, 201 - 8 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 read with 149 of IPC. Offences alleged are forming unlawful assembly under Section 143 of IPC punishable with imprisonment upto six months; rioting under Section 147 of IPC punishable with imprisonment upto two years; rioting, armed with deadly weapon under Section 148 of IPC punishable with imprisonment upto three years; kidnapping with intention to murder under Section 364 of IPC punishable with imprisonment for life or rigorous imprisonment upto ten years; murder under Section 302 of IPC punishable with death or imprisonment for life; along with Criminal conspiracy under Section 120B of IPC; destruction of evidence under Section 201 of IPC; and every member of unlawful assembly guilty of offence committed in furtherance of common object under Section 149 of IPC punishable equally as main offence. Thus nature of offences alleged would be heinous. 13. But, at outset, there are no eye-witnesses for murder. Although, prosecution claims CWs-27 and 28 to be eye-witnesses for kidnap, names of petitioners were not included in FIR. Thus prosecution case against petitioners would appear to be circumstantial. Recovery of mere sum of Rs.38,000/- from accused no.4, as against supari amount of - 9 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 Rs.14 lakhs. Further, contradiction between PMR and charge- sheet i.e. while accused are charged with murdering victim by strangulation and by causing injury on his testicles, opinion as to cause of death in PMR does not include/mention strangulation. As also recovery of body about 8 days after date of incident, after it was lying in Krishna River, would require consideration. 14. And though, it was contended on behalf of prosecution, that accused no.1 had admitted to commission of murder, in his statement recorded under Section 161 of CrPC as well as his confession before CW-21, Hon'ble Supreme Court in Ratnu Yadav v. State of Chhattisgarh, reported in 2024 SCC OnLine SC 1667 and Randeep Singh @ Rana and Anr. v. State of Haryana, reported in 2024 SCC OnLine SC 3383, explained circumstances under which extra judicial confessions could be relied as follows: RELIANCE ON INADMISSIBLE EVIDENCE “14. The evidence of PW-27 is relevant for different reasons. It is material to state how his evidence has been recorded. In the examination-in-chief, he has stated thus: “.. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. . .. .. . - 10 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 I interrogated accused Randeep Rana and Rajesh @ Don. Both the accused persons admitted about the crime (objected to). Thereafter, they both brought to the police station and were lodged in the lock-up. On 10.7.2013, I interrogated accused Randeep @ Rana and Rajesh @ Don while in police custody one by one, who suffered disclosure statements Ex.P55 and Ex.P56 respectively. Said statements were signed by the respective accused and were witnessed by ASI Dharamvir and HC Sultan Singh. Accused Randeep @ Rana while admitting his involvement in the present case, had disclosed that about 13-14 years back his uncle was murdered by the family member of complainant. Due to that revenge they have hatched a conspiracy and after making planning with co-accused had abducted Gurpal and committed his murder that he could identify the place from where Gurpal was abducted, where he was murdered and where his body was thrown. He had also disclosed that Kaka @ Kanch in whose office the murder of Gurpal was committed was having the knowledge about all the conspiracy as he was the party of the conspiracy. He also disclosed that accused Chaman was also present in the said office. He also disclosed about the role played by accused Naini, Prabhjot, Rajesh @ Don, Vicky @ Kali, Parveen @ Kala, Mohit @ Kaga in the commission of crime of murder of Gurpal (object to being inadmissible). Similarly, accused Rajesh @ Don admitting his involvement in the commission of crime of the present case, has disclosed about the conspiracy of committing murder of Gurpal and he also disclosed about the vehicle used in the crime. He had also disclosed that Kaka @ Kanch in whose office the murder of Gurpal was committed was - 11 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 having the knowledge about all the conspiracy as he was the party of the conspiracy and that accused Chaman Lal was also present in the said office. He also disclosed about the role played by accused Naini, Prabhjot, Randeep Rana, Vicky @ Kali, Parveen @ Kala, Mohit @ Kaga in the commission of crime of murder of Gurpal. The accused also disclosed about the place where they had left the car of Gurpal. He also offered to get the aforesaid place of occurrence identified. The aforesaid disclosure statements of the accused were reduced into writing as per their version, which were attested by ASI Dharamvir and HC Sultan Singh as witnesses (objected to being inadmissible). .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .” (emphasis added) 15. Sections 25 to 27 of the Evidence Act read thus: “25. Confession to police-officer not to be proved.— No confession made to a police-officer, shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him.— 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 such person. Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882). - 12 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 27. How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered inconsequence 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.” 16. A perusal of the deposition of PW-27, which we have quoted above, shows that he attempted to prove the confessions allegedly made by the accused to a police officer when they were in Police custody. There is a complete prohibition on even proving such confessions. The learned Trial Judge has completely lost sight of Sections 25 and 26 of the Evidence Act and has allowed PW- 27 to prove the confessions allegedly made by the accused while they were in police custody. PW-27 stated that the appellant “suffered disclosure statement at Exhibits ‘P55’ and ‘P56’ respectively”. Obviously, he is referring to disclosure of the information under Section 27 of the Evidence Act. The law on disclosure under Section 27 is well settled right from the classic decision of the Privy Council in the case of Pulukuri Kotayya v. King-Emperor2. In the case of K. Chinnaswamy Reddy v. State of A.P.3, this Court relied upon the decision of the Privy Council and in paragraph 9 held thus: “9. Let us then turn to the question whether the statement of the appellant to the effect that “he had hidden them (the ornaments)” and “would point out the place” where they were, is wholly admissible in evidence under Section 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. The Sessions - 13 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 Judge in this connection relied on Pulukuri Kotayya v. King-Emperor [(1946-47) 74 IA 65] where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In that case the Judicial Committee considered Section 27 of the Indian Evidence Act, which is in these terms: “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.” This section is an exception to Sections 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police “whether it amounts to a confession or not” which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under Section 27 and laid stress on the words “so much of such information…as relates distinctly to the fact thereby discovered” in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that “the fact discovered embraces the place from which the object is produced and the knowledge of the - 14 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 accused as to this, and the information given must relate distinctly to this fact”. It was further observed that— “Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.” This was exemplified further by the Judicial Committee by observing— “Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If however to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (emphasis added) Section 27 is an exception to Sections 25 and 26. It permits certain parts of the statement made by the accused to a police officer while in custody to be proved. Under Section 27, only that part of the statement made by the accused is admissible, which distinctly relates to the discovery. It becomes admissible when a fact is discovered as a consequence of the information received from the accused. What is admissible is only such information furnished by the accused as relates distinctly to the facts thereby discovered. No other part is admissible. By Exhibits ‘P55’ and ‘P56’, it is alleged that the accused showed the places where - 15 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 the deceased was abducted, where he was murdered and where his body was thrown. In this case, even the inadmissible part of the statement under Section 27 of the Evidence Act has been incorporated in the examination-in-chief of PW-27. The learned trial judge should not have recorded an inadmissible confession in the deposition. A confessional statement made by the accused to a police officer while in custody is not admissible in the evidence except to the extent to which Section 27 is applicable. If such inadmissible confessions are made part of the depositions of the prosecution witnesses, then there is every possibility that the Trial Courts may get influenced by it. THE GRAVITY OF THE OFFENCE 17. It is true that this is a case of a brutal murder. The brutality of the offence does not dispense with the legal requirement of proof beyond a reasonable doubt. In this case, there is no legal evidence to prove the involvement of the accused. The Courts can convict an accused only if his guilt is proved beyond a reasonable doubt on the basis of legally admissible evidence. There cannot be a moral conviction. We are tempted to quote what this Court observed in paragraph 24 of its decision in the case of Subhash Chand v. State of Rajasthan4. It reads as follows: - 16 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 “24. Thus, none of the pieces of evidence relied on as incriminating, by the trial court and the High Court, can be treated as incriminating pieces of circumstantial evidence against the accused. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal Dixit case [(1981) 2 SCC 35 : 1981 SCC (Cri) 315 : AIR 1981 SC 765] this Court cautioned — “human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions” (SCC p. 44, para 33). This Court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict.” (emphasis in original)” 15. Apart from above, even lack of specific description of vehicle used for kidnapping in statement of CWs-27 and 28 except general description as ‘Silver Coloured Innova’ would also required to be considered. Though it would neither be possible to give any definite findings about involvement of petitioners in offences alleged on prima facie view of material available upto this stage, not would it be appropriate or desirable at this stage, fact that petitioners were arrested on 15.06.2024, and investigation has been completed while they - 17 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 were in custody and charge-sheet filed on 10.09.2024, their presence for further custodial interrogation would not appear necessary. Hon'ble Supreme Court has held in case of Deshraj @ Musa v. State of Rajasthan reported in 2024 SCC OnLine SC 2709 and Sanjay Chandra v. Central Bureau of Investigation reported in 2012 (1) SCC 49, purpose of bail was to secure appearance of accused at trial and it was neither punitive nor preventative. And deprivation of liberty must be considered a punishment and that punishment begins only after conviction, until which every accused would be deemed to be innocent. 16. Besides, concerns prosecution contentions about petitioners tampering with prosecution witnesses, or fleeing justice can be secured by adding specific conditions. Under above circumstances, by clarifying that views expressed herein are prima facie for purposes of this order and shall not influence final outcome after trial, point for consideration is answered in affirmative. Hence, following: ORDER Petition is allowed. Petitioners i.e. accused no.3 to 5 are ordered to be released on bail in - 18 - NC: 2025:KHC-D:3664 CRL.P No. 100288 of 2025 Crime no.112/2024 by Harugeri Police Station for offences punishable under Sections 143, 147, 148, 120B, 364, 302, 201 read with 149 of IPC, subject to following conditions: a) Each of accused no.3 to 5 shall execute personal bonds in a sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of Court. b) They shall not threaten, tamper with or influence prosecution witnesses, either directly or indirectly. c) They shall be regular in attending Court proceedings. d) They shall not indulge in any criminal activities. SD/- (RAVI V.HOSMANI) JUDGE GRD CT:PA List No.: 1 Sl No.: 19