- 1 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF JULY, 2025 PRESENT THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO.100490 OF 2023 (C) BETWEEN: 1. DAVALSAB S/O. SHARIFASAB MELLAGATTI, AGE: 30 YEARS, OCC. BUSINESS, R/O. DEVIHOSUR, HAVERI TALUK AND DISTRICT, PIN-581110. (NOW IN CENTRAL PRISON DHARWAD) 2. FATIMABANU W/O. DAVALSAB, AGE: 28 YEARS, OCC. HOUSEHOLD, R/O. DEVIHOSUR, HAVERI TALUK AND DISTRICT, PIN-581110. (NOW IN CENTRAL PRISON DHARWAD) …APPELLANTS (BY SRI. T.R. PATIL, AMICUS CURIAE) AND: THE STATE BY HAVERI RURAL POLICE STATION, HAVERI, R/BY. PUBLIC PROSECUTOR, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 HIGH COURT BUILDING, DHARWAD-580001. …RESPONDENT (BY SRI. A.M. GUNDAWADE, ADDITIONAL SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED 20.07.2023 CONVICTING THE APPELLANTS IN S.C.NO. 37/2018, BY THE I ADDL. DISTRICT AND SESSIONS JUDGE AT HAVERI FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF IPC, 201 READ WITH SECTION 34 OF IPC AND UNDER SECTION 120(B) READ WITH SECTION 34 OF IPC AND SENTENCED LIFE IMPRISONMENT AND ALSO SENTENCED SEVEN YEARS AND 6 MONTHS RESPECTIVELY FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 201 AND 120(B) OF IPC AND IMPOSING THE FINE AND ORDERING ALL THE SENTENCES SHALL RUN CONCURRENTLY AND TO SET ASIDE THE SAME. THIS APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K - 3 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) This appeal is directed against the judgment of conviction and order of sentence dated 20.07.2023 passed in S.C. No.37/2018 by the I Addl. District and Sessions Judge at Haveri (hereinafter referred to as 'the learned Sessions Judge’), whereby the accused were convicted for the offences punishable under Sections 302, 201, 120-B r/w Section 34 of IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 r/w Section 34 of IPC. They were further sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.10,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 201 r/w Section 34 of IPC. They were also sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.2,000/- each, in default of payment of fine, to undergo simple imprisonment for - 4 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 a period of two months for the offence punishable under Section 120(B) r/w Section 34 of IPC. It was ordered that all the substantive sentence shall run concurrently. 2. Briefly stated, the case of the prosecution was as follows: The accused No.1-Davalsab and deceased- Mohammadjafar were friends. The accused No.1 availed a sum of Rs.10,000/- from deceased for his business. However, he failed to repay the said amount to the deceased. As such, the deceased was insisting accused No.1 to repay the amount by calling him on his mobile phone. Hence, the accused used to leave his mobile in his house while going to work. Whenever the deceased Mahammadjafar called the mobile of accused No.1, his wife namely accused No.2 was answering. Later, they both developed intimacy which turned into an illicit relationship. The same came to the knowledge of accused No.1 through his call details. On 15.09.2017, accused No.1 informed his wife i.e., accused No.2 that he was going to Kumta for vegetable business. The accused No.2 informed this to the deceased. However, accused No.1 returned home and noticed that deceased had called his mobile phone. Immediately, accused - 5 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 No.1 insisted accused No.2 to call the deceased and to invite him home and planned to murder him. Later, accused No.2 continuously contacted the deceased and forced him to go to her house. As such, the deceased went to the house of accused at 11.28 p.m. After he entered the house, he laid down on a bed. At that time, accused No.1 assaulted him with a hammer on the right side of his head and murdered him. Thereafter, both the accused disposed the dead body of deceased in a thorny bush at about 220 meters away from the house in order to wipe off the offence. 3. On 25.09.2017 the mother of deceased lodged a missing complaint-Ex.P4 before the respondent-Police alleging that her son was missing from 15.09.2017. Based on the same, FIR was registered in Crime No.216/2017 dated 25.09.2017 as per Ex.P3. Thereafter, the Investigation Officer-PW.25 conducted investigation and seized the motorbike of deceased on 10.10.2017 near Devihosur village panchayat. Later, the Investigation officer obtained CDR and SDR of the mobile of deceased and came to know that the SIM card of accused No.1 was active in the mobile phone of deceased and accused No.1 was using the same. Hence, accused No.1 was arrested on - 6 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 12.11.2017 and his voluntary statement was recorded. In the voluntary statement he revealed that he and his wife murdered the deceased on 15.09.2017 about 12:15 a.m. in their house and thereafter disposed the body of deceased in a thorny bush near their house. Thereafter, the body of deceased was recovered at the instance of accused by the Investigation Officer and a mahazar was drawn as per Ex.P9. On the following day i.e., on 13.11.2017 accused No.2 was also arrested. Thereafter, by receiving the suo moto complaint of PW.20, FIR was registered in Crime NO.242/2017 against the accused for the offences punishable under Sections 302, 201 and 111 r/w Section 34 of IPC as per Ex.P2 dated 12.11.2017. Later, PW.25 drew relevant mahazars, recorded the statement of witnesses and on obtaining necessary documents from the concerned authorities, laid charge-sheet against the accused before the committal Court for the offences punishable under Sections 302, 201 and 120-B r/w Section 34 of IPC. 4. After committal of the case before the Sessions Court, the learned Sessions Judge framed charges against the accused for the aforementioned offences and the same was - 7 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 read over to them. However, the accused denied the charges leveled against them and claimed to be tried. 5. In order to prove the charges leveled against the accused, the prosecution examined 25 witnesses as PW.1 to PW.25, marked 87 documents as Ex.P1 to Ex.P87 and identified 26 material objects as M.O.1 to M.O.26. The incriminating evidence was read over to the accused, who denied them. 6. After assessing the oral and documentary evidence placed before the Sessions Court, the learned Sessions Judge convicted the appellants /accused Nos.1 and 2 for the charges leveled against them and sentenced them as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal. 7. We have heard the learned Amicus Curiae Sri. T.R. Patil for the appellants and learned Addl. State Public Prosecutor A.M. Gundawade for the respondent-State. 8. The primary contention of the learned Amicus Curiae for the appellants is that the judgment of conviction and order of sentence passed by the learned Sessions Judge suffers - 8 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 from perversity and illegality. The learned Sessions Judge has grossly erred in convicting the appellants without duly appreciating the evidence and documents on record. He contended that the case of the prosecution totally rests on circumstantial evidence and the prosecution failed to connect the link in the chain of circumstances to point out the guilt of accused Nos.1 and 2. According to the counsel, the deceased was missing from 15.09.2017 and the accused was arrested on 12.11.2017, only based on the SDR and CDR of the deceased’s mobile. However, the Investigation Officer - PW.25 has clearly admitted in his evidence that he did not seize the mobile phone of deceased at the instance of accused No.1. Except the memory card-M.O.9 which allegedly belongs to the deceased, no incriminating information collected to implicate the accused in the alleged offence. Hence, the arrest of accused No.1 is totally baseless and the subsequent evidence i.e., recording of voluntary statement of accused and the recovery of body and other incriminating materials at the instance of accused is doubtful. He also contended, the body of deceased was totally decomposed and the skeletal remains was recovered and the same was identified by PWs.4 and 5 only based on the clothes - 9 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 of deceased that too after lapse of two months. In Ex.P4-the missing complaint it is stated that the deceased was wearing red shirt and black trouser along with a jerkin at the time of missing. However, the clothes found on the dead body were not in an identifiable condition. Additionally, the prosecution failed to obtain the DNA report to prove that the dead body is of the deceased. He further contended that the prosecution also failed to prove the motive for the alleged incident since the missing complaint-Ex.P4 reveals that the deceased left the house for the reason, his wife did not return to the matrimonial home after delivering a child. The learned counsel also contended, the prosecution totally failed to place any iota of evidence against accused No.2 except the voluntary statement of accused No.1. Admittedly she was arrested on 13.11.2017 i.e., the day after arrest of accused No.1. Though the prosecution relied on Ex.P87-the CDR and the conversation allegedly held between deceased and accused No.2, both the documents did not prima facie reveal the involvement of accused No.2 in the offence. In such circumstance, the prosecution utterly failed to prove the charges leveled against accused No.2. Accordingly, he prays to allow the appeal. - 10 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 9. Per contra, the learned Addl. SPP for the respondent-State contended that, judgment under this appeal neither suffers from perversity nor illegality as the learned Sessions Judge has meticulously examined the evidence on record and passed a well-reasoned judgment which does not call for any interference. He submitted that the prosecution has proved the chain of circumstances against both the accused by placing cogent evidence. According to him, the arrest of accused No.1 was based on the call detail records and that, accused No.1 was using mobile phone of deceased by inserting his SIM. Later, he volunteered before Investigation Officer that he and accused No.2 had murdered the deceased and the body of deceased was recovered at his instance in a thorny bush as per Ex.P9 in the presence of PW.2-the panch witness. Later, the Investigation Officer conducted inquest panchanama-Ex.P29, recovered mobile phone of accused as per Ex.P30 and also recovered the weapon and clothes of accused as per Ex.P34 in the presence of PW.2 who supported the case of prosecution. Additionally, PW.4 the brother of deceased, PW.5 the mother of deceased also deposed about the motive for the incident. He also contended that the prosecution has produced the voice - 11 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 recording of accused No.2 as per Ex.P66 which reveals that on the date of incident, the accused No.2 called the deceased and insisted him to visit her house to execute the plan of herself and her husband i.e., accused No.1 to murder the deceased. Further, the Doctor-PW.18 after examining the skeleton of deceased opined that the deceased had sustained ante-mortem injury on his head as per the final opinion-Ex.P76. Accordingly, the prosecution has proved all the circumstances against accused Nos.1 and 2 beyond all reasonable doubt and the learned Sessions Judge rightly appreciated the evidence and passed the impugned judgment. Accordingly, he prays to dismiss the appeal. 10. Having heard the learned counsel for the respective parties and also on perusing the entire evidence on record including the impugned judgment, the following points arises for our consideration: 1. Whether the judgment under this appeal suffers from either perversity or illegality? 2. Whether the learned Sessions Judge is justified in convicting the - 12 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 appellants/accused Nos.1 and 2 for the offence punishable under Section 302, 201 and 120B r/w Section 34 of IPC? 11. On careful examination of the evidence available on record, in order to prove the charges leveled against the accused the prosecution relied on the following circumstance: Missing of deceased-Mohammadjafar from 15.09.2017. 12. The mother of deceased PW.5 lodged a missing complaint on 25.09.2017 as per Ex.P4 about the missing of her son from 15.09.2017 at about 08:30 p.m. It is stated in the complaint that on 15.09.2017 at about 08:30 p.m. after dinner, the deceased went from the house in motorcycle bearing Regn. No.KA-27-V-3226. It is also stated that the deceased was using 2 mobile phones i.e., 9632175594 and 9972092765. Based on the said complaint, the Police registered FIR for a missing man as per Ex.P3 on 25.09.2017 in Crime No.216/2017. Thereafter, PW.1 the PSI of respondent-Police received the information about the abandoned motorcycle of deceased near village panchayat, Devihosur. PW.1 the PSI of respondent-Police - 13 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 seized the same under a mahazar Ex.P6 on 10.10.2017 in Crime No.216/2017. The CDR of accused and deceased mobile number and arrest of accused No.1 on 12.11.2017. 13. After registering FIR in Crime No.216/2017, during the course of investigation, PW.1 secured the SDR and CDR of the mobile of deceased as per Ex.P87. The same revealed that accused No.1 was using the mobile of deceased by inserting his SIM. Hence, PW.1 deputed PWs.7 and 9-the Police constables to secure accused No.1. Accordingly they arrested accused No.1 on 12.11.2017. During the course of interrogation, accused No.1 volunteered as per Ex.P85 that on 15.09.2017 himself and his wife murdered the deceased as he developed an illicit intimacy with his wife-accused No.2. Ex.P87 the CDR of the mobile phones bearing No.9632175594, 9972092765, 9945749567, 7907674042 and 9742534392 reveals that accused Nos.1 and 2 called the deceased from their mobile bearing No.8150825691 on 15.09.2017 at about 11:28:55 p.m. Before that, several calls were made by accused to deceased. After 11:28:55 p.m., the mobile of the deceased was not used. - 14 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 In such circumstance, it could be gathered that the accused Nos.1 and 2 called the deceased and made him to visit their house on 15.09.2017 in the night hours. Recovery of the body/skeleton of deceased at the instance of accused and identification of the same by the family members of deceased. 14. According to PW.1 the PSI and the Investigation Officer-PW.25, after arrest of the accused No.1 on 12.11.2017, he revealed the commission of murder of deceased and disposal of the body near his house in a thorny bush. Later, he led the PW.2-Panch witness, PWs.4 and 5 i.e., the brother and mother of deceased and PW.25-Investigation Officer to the place where he disposed the dead body of the deceased and shown the same to them. The body was totally decomposed. The body of deceased was identified PWs.4 and 5 based on the clothes worn by the deceased at the time of missing. Thereafter, PW.25 drawn a mahazar in the said spot as per Ex.P9 and recovered the skeleton/remaining parts of the body, clothes and other belongings-M.Os.18 to 23. PW.25 also drew a inquest panchanama in the said spot as per Ex.P29. PW.4 while - 15 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 lodging missing complaint has stated that the deceased was worn red colour shirt and black trouser and black jerkin. On perusal of the photographs taken by the Investigation Officer at the time of recovery of body as per Exs.P16 and 18, the same depicts, the deceased was wearing a red color shirt and jerkin. Hence, the prosecution proved the circumstance of recovery of body of deceased at the instance of accused No.1 and identification of the same by the family members. Homicidal death of the deceased. 15. After recovery of the body of deceased at the instance of accused No.1, the same was sent for postmortem examination before PW.18-Doctor. PW.18 conducted autopsy on the body of deceased on 12.11.2017 and issued postmortem report as per Ex.P75 and gave his opinion as to cause of death is due to “traumatic brain injury”. He also noticed a single large fracture visible on right temporal region of the skull. Additionally, the prosecution relied the inquest panchanama drawn on the body of deceased by PW.25 as per Ex.P29 at the place where the body was shown by the accused No.1. PW.22- the Scientific Officer examined the soil in the place where the - 16 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 dead body was found and gave an opinion that there is no poisonous substance found in the soil where the body was decomposed. Hence, on perusal of these evidence, we are of the view that the prosecution also proved the homicidal death deceased. Recovery of M.Os.10 to 17 i.e., the weapon, clothes of accused worn at the time of incident and the blood stained mat and blanket at the instance of accused No.1. 16. After commission of the murder of deceased, the weapon, clothes worn by the accused, the blood stained blanket and mat was disposed by accused Nos.1 and 2 in a gunny bag into the sanitary near APMC market, Byadagi. The said aspect was disclosed by the accused in his admissible portion of voluntary statement as per Ex.P85(a). Later the accused No.1 led the panchas-PWs.2 and CW.3 along with PW.25 to the said place and shown the body to them. A mahazar was drawn in the said spot as per Ex.P34 and PW.25 recovered the said articles as M.Os.10 to 17. Later, M.Os.10 to 17 were sent to FSL for chemical examination and the FSL Officer-PW.23 examined those articles and issued report as per Ex.P80 and gave his opinion that M.O.10-hammer, M.O.11-mat - 17 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 and M.Os.12 and 13 the shirt and pant of accused and on M.O.17-gunny bag were stained with human blood. Hence, the prosecution also proved this circumstance. Motive for commission of the offence. 17. As per the prosecution, the motive for the commission of offence by accused was, accused No.1 was owing Rs.10,000/- to deceased and he was insisting him to repay the same by calling accused No.1. Hence accused No.1 started to keep his mobile phone in his house while going to work. At that time, the deceased was calling to the mobile of accused No.1, which was answered by accused No.2, thereby the deceased developed intimacy with her. The said fact came to the knowledge of accused No.1 and he decided to eliminate the deceased. To substantiate this motive, the prosecution relied on the call details-Ex.P87 and the voice samples of accused No.2 as per Ex.P66 and CD-Ex.P67 along with the certificate under Section 65B of the Indian Evidence Act as per Ex.P69. In such circumstance we are of the view that the prosecution proved the motive for the incident. - 18 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 18. On careful analysis of the above circumstance, the prosecution has proved all the above circumstance which formed a chain link pointing the guilt of accused No.1 beyond all reasonable doubt. Though the case rests on circumstantial evidence, it is settled position of law by the Hon’ble Apex Court and this Court, that if the circumstances from which the conclusion of guilt is to be drawn is fully established consistent only with the hypothesis of the guilt of the accused and the same are conclusive nature, the same can be relied to prove the charges against the accused. As discussed supra, the recovery of dead body at the instance of accused No.1 and also the recovery of mobile phone at the instance of accused No.1 are the major circumstance along with other circumstance proved against the accused No.1 by pointing out the guilt of accused No.1. In such circumstance, we are of the view that the prosecution has successfully proved the guilt of accused No.1 beyond all reasonable doubt. 19. However, the participation of accused No.2 in the commission of offence is concerned, the prosecution has not placed any cogent or reliable evidence to prove her active role - 19 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 in the incident. Except the call details-P87 and the voice samples as per Ex.P67-CD, absolutely no other evidence available on record to connect accused No.2 in the offence. Though the prosecution examined PW.4-the panch witness for voice recording of Accused No.2, he turned hostile to the prosecution case. Moreover though it is claimed by the prosecution that the accused No.2 called the deceased on the date of incident invited him to her house, but the prosecution failed to prove that the said SIM Card stands in her name. It is argued by the learned SPP that accused No.2 also helped to dispose the body of deceased. However, except the voluntary statement of accused No.1, no other corroborative evidence placed by the prosecution to prove the circumstance that accused No.2 assisted accused No.1 to dispose the body of deceased. Moreover, on perusal of the evidence on record, the body of deceased disposed in a distance of 220 meters from the house of accused by covering with thorn bush. In such circumstance, it cannot be concluded that accused No.2 also participated in disposing the body of deceased. Further, it is the specific case of the prosecution that till the date of incident the accused No.2 and the deceased were in relationship and - 20 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 she had neither any intention nor preparation to commit the murder of deceased. On the date of incident, the accused No.1 insisted her to call the deceased through his mobile and after the deceased came to the house, accused No.1 alone committed his murder. There is no participation of accused No.2 in the murder of deceased. Since the case rests on circumstantial evidence, mere relying on the call register without any other corroborative circumstance, conviction cannot be sustained against accused No.2. On careful examination of the entire evidence, the prosecution has failed to prove that accused No.2 shared the common intention for the act committed by accused No.1 in the same manner as if it was done by her alone. Hence, Section 34 of IPC does not attract against her. In that view of the matter, we are of the view that the prosecution failed to prove the charges leveled against the accused No.2 beyond all reasonable doubt. Hence, interference is required in the impugned judgment passed by the learned Sessions Judge in respect of accused No.2. Accordingly, we answer the point No.1 raised above in the ‘negative’ and point No.2 in the ‘partly affirmative’ and proceed to pass the following. - 21 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 ORDER 1. The Criminal Appeal No.100490/2023 is allowed in part. 2. The judgment of conviction and order of sentence dated 20.07.2023 passed in S.C.No.37/2018 by the I Addl. District and Sessions Judge, Haveri, is hereby confirmed in respect of appellant No.1-Davalsab i.e., accused No.1. 3. The judgment of conviction and order of sentence dated 20.07.2023 passed in S.C.No.37/2018 by the I Addl. District and Sessions Judge, Haveri, is hereby set-aside in respect of appellant No.2-Fathimabanu i.e., accused No.2 and she is acquitted for the offences punishable under Sections 302 and 201, 120-B r/w Section 34 of IPC. 4. The fine amount, if any, deposited by the accused No.2-appellant No.2 shall be refunded to her on due identification. 5. Registry is directed to intimate the concerned Jail Authorities to release the accused No.2-appellant No.2, if she is not required in any other case. - 22 - HC-KAR NC: 2025:KHC-D:9215-DB CRL.A No. 100490 of 2023 6. The Karnataka State Legal Services Authority is directed to pay Rs.20,000/- to Sri. T. R. Patil, learned Amicus Curiae for the appellants, who has assisted the Court in this matter. 7. Registry is directed to send back the Trial Court Records along with a copy of this judgment to the concerned Trial Court, forthwith. Sd/- (R.NATARAJ) JUDGE Sd/- (RAJESH RAI K) JUDGE HKV CT:PA LIST NO.: 2 SL NO.: 1