- 1 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF OCTOBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.1129 OF 2019 (C) BETWEEN: A. SHANKAR S/O. ARMUGAM AGED ABOUT 40 YEARS RESIDING AT NO.508 EDGER MIXED BLOCK MARIKUPPAM, K.G.F-563 172. …APPELLANT (BY SRI Dr. J.S. HALASHETTI, ADVOCATE) AND: STATE OF KARNATAKA THROUGH MARIKUPPAM POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001. …RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, SPP-II) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 19-11-2018 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR (SITTING AT K.G.F.) IN S.C.NO.39 OF 2018 - CONVICTING THE Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 201 OF IPC. THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE VENKATESH NAIK T) The accused has preferred this appeal challenging the judgment and order of conviction and sentence in S.C.No.39 of 2018 passed against him by the III Additional District and Sessions Judge, Kolar sitting at K.G.F. (for short, 'trial Court') for the offences punishable under Sections 302 and 201 of Indian Penal Code, 1860 (for brevity, 'IPC'). 2. The appellant was the accused in SC No.39 of 2018 before the trial Court. For the purpose of convenience, the parties are referred to henceforth as per their ranks before the trial Court. - 3 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 3. The case of the prosecution is as follows: (i) Accused - A. Shankar and his wife Geetha (hereinafter referred to as 'victim') and two minor children-Ajay Raghavan (PW.6) and Kumari Janani (C.W.3) were residing in a rented house situated at No.508, Edger Mixed Block, Marikuppam, K.G.F. The accused and Geetha were running a tailoring shop in the portion of the said house. Their children were studying in Joseph Convent School. The accused was often quarrelling with the victim by abusing her for spending more time on watching television and attending phone calls and also suspecting her fidelity. Thus, he developed ill-will against her. On 21-10-2017, at about 4:30 a.m., when victim and accused were sleeping in the house, the accused picked up quarrel with her objecting she watching television and phoning others and he assaulted on her head 3-4 times with a cement coated brick (M.O.2). She sustained grievous injuries on head and died on the spot. (ii) The neighbour Smt. Nagamma (PW.1) lodged complaint regarding the incident as per Ex.P1 before Sri Sameeulla (PW.18), the ASI of Marikuppam Police Station, - 4 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 K.G.F. Based on the complaint, F.I.R. was registered in Crime No.94 of 2017 for the offences punishable under Sections 302 and 201 of IPC, which led to investigation. (iii) On 22-10-2017, the accused was apprehended by Lokesh (PW.15), CW.15-T. Shivaiah and CW.36-Jabeer Pasha and they produced him before Mushtaq Pasha, Investigating Officer (PW.19). The Investigating Officer arrested the accused, interrogated him and recorded his voluntary statement as per Ex.P24. On the basis of such voluntary statement of the accused, the Investigating Officer recovered a motorcycle bearing Registration No.KA 08/K 571 (MO.15) and bloodstained cement brick (MO.2) from the accused under seizure mahazars as per Exs.P.9 and 3 respectively. (iv) The Investigating Officer recorded the statements of the witnesses and after completing the investigation, filed the charge sheet against the accused for the offences punishable under Sections 302 and 201 of IPC. 4. On committal of the case, the Sessions Judge, on hearing the parties, framed charges against the accused for the - 5 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 offences punishable under Sections 302 and 201 of IPC. The accused pleaded not guilty and claimed trial. 5. In order to prove the charges against the accused, the prosecution in all examined 21 witnesses as PWs.1 to 21 and got marked 27 documents as per Exs.P1 to P27 and 18 material objects as MOs.1 to 18. 6. On completion of evidence of the prosecution, the accused was examined under Section 313 of Cr.P.C. with reference to incriminatory evidence. The accused denied all the incriminating material appearing against him. The case of the accused was of total denial. 7. Learned Sessions Judge on hearing the parties by the impugned judgment and order held that the prosecution has proved the circumstances of motive, last seen together, recovery of subject matter of crime i.e., motorcycle and bloodstained cement brick, extra-judicial confession, evidence of witness (PW.6) and the conduct of the accused and held that the charges against the accused are proved beyond reasonable doubt. Trial Court convicted him for the offences punishable under Sections 302 and 201 of IPC and sentenced him to life - 6 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 imprisonment and imprisonment of two years, fine of Rs.10,000/- and Rs.2,000/- for the aforesaid offences respectively. 8. Aggrieved by the said judgment and order of conviction and sentence, the accused has preferred this appeal. 9. We heard Sri Dr. J.S. Halashetti, learned counsel for the appellant/accused and Sri Vijayakumar Majage, learned SPP-II, for respondent-State. 10. Learned counsel for the appellant/accused assails the judgment and order of conviction and sentence on the ground that the case is based on circumstantial evidence and there were no eye witnesses to the incident. It is contended that, the trial Court was in error in accepting the evidence of PWs.1 to 3 and 6 with respect to last seen theory, even PWs.1 to 3 never stated about the accused and victim being last seen together prior to the death of the victim. The oral testimony of PW.6 regarding last seen theory is not reliable, as his statement was not recorded by the Police, on the date of the incident. Further, the post-mortem examination was conducted - 7 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 on the dead body of the victim Geetha, on the basis of UDR report. Thus, it appears that First Information Report is created for the purpose of this case and consequently, the alleged last seen theory of prosecution, is doubtful. The alleged recovery as stated by the prosecution is not proved as required under Section 27 of the Indian Evidence Act, 1872. Hence, the accused cannot be held guilty of the alleged offences. The seizure mahazar witnesses-PWs.11 and 12, relating to recovery of two wheeler, turned hostile to the case of the prosecution. PWs.3 to 10, were interested and planted witnesses, their testimonies are full of omissions and contradictions. Further, the reasons assigned by the learned Sessions Judge are not sufficient to base the conviction against the accused. Unless it is conclusively established that the accused is the only person who committed the murder of the victim Geetha and the prosecution proves the motive, last seen theory, extra-judicial confession, and recovery of articles etc., he cannot be convicted. 11. It is contended that mere recovery of the articles from the possession of the accused does not connect the - 8 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 accused to the crime, when the procedure according to the law has not been followed by the Investigating Officer. The head injury on the victim could not have been caused by the cement brick, which was allegedly recovered from the accused. 12. It is contended that, the trial Court has failed to appreciate the legal position and evidence in right perspective and has erroneously convicted the accused, which requires to be set-aside. Hence, learned counsel prayed to allow the appeal. 13. Per-contra, Sri.Vijayakumar Majage, learned Addl. S.P.P.-II appearing for respondent-State justifying the impugned judgment and order submits that trial Court has considered the evidence of PW.1-Nagamma, complainant, PW.2 Marathamma, PW.3 Ramakrishna, circumstantial witness and neighbour of the accused and victim, PW.4 Prabhavathi, maternal aunt of accused, PW.5 Kalavathi, the aunt of accused, PW.6 Ajay Raghavan, the son of accused and victim and other circumstantial witnesses such as PW.7 Saraswathi, PW.8 Palani, younger brother of victim, PW.9 Parvathi, mother of victim, PW.10 Kalaivani, the mahazar witness and other seizure - 9 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 mahazar witnesses and official witnesses. He submits that trial Court considered the oral testimony of PW.6-Ajay Raghavan, the son of victim and the accused, who was residing with them in the same house, at the relevant point of time, who has stated that on the preceding night of the incident they were sleeping in the house and in the morning, the accused sent him and CW.3 outside for playing bicycle, thereafter, the accused took them to various places including hotel, did not allow them to enter the house and he kept the main door under lock and key was with him, and also kept PW.6 and CW.3 in tailoring shop, on a false promise that their mother was sleeping in the house by locking the door and thus, he behaved in a suspicious manner. Soon after the death of the victim, PWs.1 to 10 suspected the accused and they came to the conclusion that he must have committed the murder. 14. Further, it is contended that PWs.1 and 6 deposed about the motive for commission of murder being grouse of accused regarding victim watching television and engaging herself on mobile phone. The accused has given extra-judicial confession before PWs.1, 2, 4 and 5. - 10 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 15. It is contended that the Investigating Officer seized incriminating articles under Exs.P3 and 9-seizure mahazars. 16. It is contended that the prosecution by evidence of PWs.1 to 10 has proved the circumstance of motive. It is contended that the prosecution proved the homicidal death of the victim and in this regard, the prosecution examined PW.14- Dr. Devaraj Poongan and his oral evidence is supported by post mortem examination report as per Ex-P11 and the oral evidence and medical evidence is also supported by FSL reports as per Exs.P26 and 27. As per the FSL reports, the bedsheet, one cement coated brick piece, one nighty were stained with 'O' group blood which belonged to victim Geetha, but the accused has not explained as to how the cement brick was stained with 'O' group blood. Further, the murder has taken place in the house of accused, wherein the victim, accused and their two minor children were residing and on 21-10-2017, the dead body of victim Geetha was found in the said house. Hence, the burden was on the accused to explain the circumstances, as to how she died in the house. - 11 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 17. Learned SPP-II submits that the trial court considering the last seen theory, motive, evidence of seizure mahazar witnesses, medical evidence, FSL reports, extra- judicial confession of the accused and the evidence of the official witnesses has rightly convicted the accused. Hence, he prayed for dismissal of the appeal. 18. On hearing both side and examining the materials on record, the following points arise for our consideration: i. Whether the prosecution has proved beyond reasonable doubt that, on 21.10.2017 at about 4:30 a.m., in B.G.M.L Quarters No.508, Edge mixed block, Marikuppam, K.G.F., the accused committed murder of his wife Smt. Geetha by assaulting her with cement coated brick-MO.2 and hid the bloodstained cement coated brick in the heap of sand with an intention to escape from the legal punishment. Thus, committed the offence punishable under Sections 302 and 201 of IPC? ii. Whether the judgment and order of conviction and sentence passed by the trial Court requires interference of this Court, as contended by the appellant/accused? ANALYSIS 19. Admittedly, the case is based on circumstantial evidence. In a case based on circumstantial evidence, the - 12 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 prosecution has to prove that the chain of circumstances from which the conclusion of the guilt has to be drawn should be fully established. It is a primary principle that the accused 'must be' and not merely 'may be' guilty before a Court to convict him. The Hon'ble Apex Court in the case of BOBY vs. STATE OF KERALA, reported in 2023 LIVELAW(SC) 50, has held that, there is not only grammatical but a legal distinction between 'may be proved' and 'must be or should be proved', and it has been held that, the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty and the chain of evidence must be so complete as not to leave any reasonable ground to the conclusion consistent with the innocence of the accused and must show that in all human probabilities, the act must have been done by the accused. In the light of these guiding principles, we have to examine the present case. 20. According to the prosecution, the accused lived in rented house No.508, BGML quarters, Marikuppam, KGF with his wife and his two minor children. The accused was running a - 13 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 tailoring shop in the portion of said rented house and his wife, Geetha was assisting him. His two children by name, Ajay Raghavan (PW.6) and Kumari Janani (C.W.3) were minors and they were studying in St. Joseph's convent. Two months prior to death of victim, she met PW1-Nagamma and disclosed that her husband/the accused is abusive and quarrels with her suspecting her fidelity and saying that she always watches television and uses mobile phone, thus the victim requested PW.1 to advice her husband in that regard. Accordingly, PW.1 advised the accused to lead cordial life with his wife and children. On 21.10.2017, at about 9:30 a.m., PW.1 had seen the accused, who went outside in his two wheeler with his two children, however, she did not see him returning back to his house on that day. On the same day, at about 7:00 p.m., somebody told PW.1 that Smt. Geetha, victim, did not come outside the house since morning. Therefore, PW.1 called PW.2- Marathamma, who was a resident of BGML QUARTER No.510 and they went to the house of the accused, where minor children of the accused were in the tailoring shop (a small portion of the said house). Hence, PWs.1 and 2 enquired those children as to the whereabouts of their mother, in turn, they - 14 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 told PWs.1 and 2 that their mother did not wake up from bed since morning. 21. In order to prove this aspect, burden was on the prosecution to prove that the accused committed murder of victim Geetha. In order to establish this aspect, the prosecution relied on circumstantial evidence. 22. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified till all the incriminating facts and circumstances are found incompatible with the innocence of the accused. To prove the charges, the prosecution relied upon the following circumstances:- a. Nature of death of victim-Geetha; b. Motive-Suspecting victim's fidelity c. Last seen circumstance-accused and victim were seen together soon before victim was found dead; d. Extra-judicial confession before PWs.1, 2 and 4; e. Recovery of articles; f. FSL reports, and g. Conduct of the accused-Section 106 of Indian Evidence Act. (Section 109 of the BSA 2023) - 15 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 Reg Point No.1 - Nature of death 23. So far as the death of victim Geetha, PW.1-Smt. Nagamma, PW.2-Smt.Marathamma,), PW.3- Ramakrishna, PW.6 Ajay Raghavan, son of victim, PW.10 Kalaivani, deposed that on 21.10.2017 in the evening, they visited the scene of offence and saw the dead body of the victim in the house of the accused and they also found injuries on the body of the victim. PW.9 Parvathi, mother of the victim has stated that, soon after the incident, she came to the house of the accused and found injuries on the body of the victim. Thus, police conducted inquest mahazar-Ex.P6 in her presence. PW.10 Smt. Kalaivani has stated that she visited scene of offence, saw the dead body of the victim and found visible injuries on the person of victim, thus, the Police conducted spot mahazar (Ex.P2) and inquest mahazar (Ex.P6). 24. Thus, their testimonies stand corroborated by the evidence of inquest mahazar witnesses and evidence of Investigating Officer. They have narrated the external injuries found on the person of the victim, which determined the nature of death of the victim. - 16 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 25. So far as medical evidence, prosecution relied on the testimony of PW.14 Dr. Devaraj Poongan, who has stated that on 22.10.2017 between 9.30 a.m. to 12.00 noon, he conducted post mortem examination on the dead body of the victim and found following external injuries:- 1. Irregular lacerated wound at right occipital region, scalp laceration, bone deep with ante mortem blood clot. 2. Irregular lacerated wound at temporo parietal region 3 inch away lateral to right ear, bone deep with anti mortem blood clot. 3. Incised wound above right ear 2 inches x 1 1/2 inches scalp deep. 4. Lacerated wound above right ear at right parietal region, bone deep. 5. Ante mortem contusion right thenar muscle of right hand. The Doctor also examined internal injuries viz., 1. Blood clot at sub scapula region at right temporo parietal region. 2. Fracture at right temporo parietal bone joint with underline blood clot. 3. Massive blood clot at base of the brain. - 17 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 Hence, he issued post-mortem examination report vide Ex.P11. As per the opinion of the Doctor, the cause of death of victim-Geetha was due to injury to vital organ brain and skull. He further opined that, injuries mentioned in post-mortem report could be caused by MO.2 cement brick. 26. The oral evidence of PW.14 and the contents of Ex.P11 post mortem examination report reveals that death of Geetha was due to crush injury sustained. Hence, the evidence of doctor, who conducted the autopsy and the evidence of the inquest mahazar witnesses goes to show that the cause of death of victim Geetha was due to antemortem head injury. Thus the oral evidence of the prosecution witnesses is corroborated by the medical evidence as to the cause of death of victim. Hence, the homicidal death of victim Geetha stands proved. Reg Point No.II-Motive 27. As per the prosecution, the relationship of victim and the accused was not cordial. The victim used to be engaged on her mobile phone interacting with some people, thus, he suspected her fidelity and also abused her that she - 18 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 always watches television. In this regard, the accused developed ill-will and committed her murder. The prosecution relied on the evidence of PW.1 the neighbour of accused and victim, who has stated that, two months prior to the death of Geetha-victim, she met PW.1 and stated that, the accused suspects her fidelity and for watching television, thus, he often abused her, she requested PW.1 to advise the accused. In this regard, she advised the accused to lead cordial life with victim Geetha. She had further stated that, on the day of incident, the accused took his minor children in his motorcycle from the house but, she did not observe about their arrival to the house and on the same day, in the evening she came to know about the death of victim Geetha and absence of the accused. 28. PW.6 - Ajay Raghavan, the son of accused and victim has stated that, there were frequent quarrels between his father and mother in respect of interaction of his mother with others over mobile phone and watching television. He further states that once the accused snatched the mobile phone of victim Geetha and damaged it by throwing on the stone and later, his mother Geetha purchased another phone and was - 19 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 engaged in conversation with others. Hence, the accused often quarreled with victim Geetha. 29. PW.8 - Palani, the brother of victim, PW.9 - Parvathi, the mother of victim also reiterated the testimonies of PWs.1 and 6. 30. PW.4-Smt. Prabhavathi stated that accused is her aunt's son and when she enquired the accused about the death of Geetha, he replied that the victim used to insult and scold him often, she used to quarrel with him and threaten him by saying, "you are orphan", "I have a big background, no one will come, if I kill you". Thus, she provoked the accused to assault her with a cement brick. These circumstances indicate the strained relationship between the accused and victim and the motive for the accused to commit murder of the victim. Reg Point No.III-Last seen theory 31. The third ground on which the prosecution has placed reliance is the last seen theory. The prosecution relies on the last seen theory asserting that the victim Geetha was last seen alive in the company of the accused in the morning of - 20 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 21.10.2017 when the accused left the house with his two minor children leaving the victim inside the house, thereafter, the victim was not seen alive by any person, and later on the same day, she was found dead inside the house with head injuries and the accused was the last person to be with the victim who had exclusive access to the premises. 32. The last seen theory comes into play when there is proximity of time and place of sighting the accused and the victim together soon before the victim was found dead, thereby the possibility of any person other than the accused being the author of the crime becomes impossible. 33. So far as the last seen theory, we may refer to the ratio laid down in the case of STATE OF U.P. V. SATISH reported in (2005) 3 SCC 114, wherein the Hon'ble Apex Court at para No.22 held as under: “22. The last seen theory comes into play where the time-gap between the point of time when the accused and the victim were last seen alive and when the victim is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the victim was last seen with the accused when there is a long gap and possibility of - 21 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the victim were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the victim and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW.2.” (Emphasis supplied) 34. In order to prove the aspect of last seen theory, the prosecution relies on the evidence of PW.1-Nagamma (neighbour), complainant and circumstantial witness, who had seen the dead body in sleeping position with bloodstains on the bed in the house of the accused. She has further stated that on the date of incident, in the morning at 9:00 a.m., the accused went outside along with two minor children on his motorcycle, but she did not observe the arrival of the accused back to the house, as she was engaged in work. On the same day at 5:00 p.m., she came to know from her neighbour that the victim Geetha was not seen outside the whole day. Thus, she enquired PW6-Ajay Raghavan and CW3-Janani (children of the accused and the victim), in turn, they informed that their mother did not wake up from the bed since morning and at that time, the accused was not present in the house. Hence, PW1 - 22 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 and others entered the house and saw the victim Geetha, who was in sleeping position on the bed and she saw bloodstains on the bed. Thus, she touched the person of the victim, her body was completely cold and she was dead. Hence, she called other neighbours and went to the Police Station, lodged the complaint vide Ex.P1. 35. To corroborate the oral testimony of PW1(complainant), PW2-Marathamma has also reiterated the oral testimony of PW1. 36. PW6-Ajay Raghavan, son of the accused and the victim, who was aged 13 years, has stated that there was holiday on 21.10.2017. Thus, on the same day at 6:00 a.m., the accused sent the children, i.e. himself and his sister. CW3-Janani, outside the house for cycling and they returned at 9:00 a.m. Again, the accused sent them outside the house for playing games. Thereafter, at about 9:30 a.m., when himself and his sister CW3 were standing in front of the house, the accused took them on his motorcycle to the hotel to have breakfast and thereafter, they went to BESCOM Office to pay electricity bill and during lunch hour, the accused took them to - 23 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 KGF town, where they had lunch in Robertsonpet Jain Mess and after lunch, they returned home, however the door was locked and key was with the accused. Hence, PW6 enquired the accused as to why his mother was locked into the house, the accused informed him that within couple of minutes, he would reveal the reasons. Thus, the children of the accused and the victim were sitting in the tailoring shop of the same house which had a separate door and the accused went outside. Later, the accused came with the police and he came to know that his mother was dead on account of head injuries. In the cross- examination, nothing has been elicited to discredit the testimony of this witness. 37. Though the learned counsel for the accused vehemently contended that the accused is not involved in the case, but, from perusal of statement of the accused recorded under Section 313 of Cr.P.C., the accused has not stated anything about the last seen as propounded by PWs.1, 2 and 6. 38. We have perused the oral testimony of PW6, who is the son of the accused and the victim. He has deposed about the entire incident in a natural way and there is no - 24 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 exaggeration in his testimony and he has not seen any difficulty in comprehending the nature of occurrence and showed up any symptoms of tutoring. PW6/child witness found to be competent to testify. His evidence is found to be reliable, as he was in the company of his father and the role played by the accused and the manner of untruth stated by him to his own children on the day of the incident. He has also deposed about the death of his mother/victim in the house and accused keeping the house under lock. More importantly, the key was with the accused. Thus, the prosecution proved the last seen theory, as propounded by it, beyond reasonable doubt. Reg Point No.IV-Extrajudicial confession: 39. The prosecution relied upon the testimony of PW.4, the cousin of the accused. She has stated that, before six months prior to the alleged incident, the accused met her and informed her about the strained relationship with his wife, thus she advised him to maintain cordial relationship with his wife. She has further stated that, soon after the incident, she enquired with the accused as to why he committed murder of his wife, thus he disclosed that, his wife was always insulting - 25 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 him saying that he is an orphan and she would commit murder and no one would come forward to save him and she also told that she had a sound background, therefore he eliminated her. 40. To corroborate the testimony to the core, the prosecution relied upon the testimony of PW.5 - Kalavathi, who is none other than the aunt of the accused, who has reiterated the testimony of PW.4. 41. We have carefully gone through the oral testimonies of PWs.4 and 5. They have stated about extrajudicial confession made by the accused before them. Their evidence is cogent and consistent and got corroborated by evidence of other witnesses. We are satisfied that, the extrajudicial confession by the accused is without any inducement, or coercion and that he could repose trust and confidence in them. 42. The trial Court scrutinized the credibility of evidence of PWs.4 and 5, cousin and aunt of the accused and found that, they have no reason to state falsely and the circumstances of the confession supports their statements. Hence, the prosecution proved the aspect of extrajudicial confession. - 26 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 Reg Point No.V-Recovery of articles 43. So far as recovery of cement brick is concerned, the prosecution relied upon the evidence of PW.16-John Peter and PW.17-Peter Das. PW.16 has not supported the case of prosecution, hence, his testimony is not helpful to the case of prosecution. Sofar as PW.17, he has stated that he knows the accused and on 22.10.2017 at about 3 p.m., police came to the house of accused, the accused was in the custody of the police and in turn the accused showed the blood stained cement brick from the back of his house, which was kept in the heap of sand, the cement brick (MO 2) was blood stained, which was used for commission of murder of his wife. Thus, the police seized the same under Ex.P3-Seizure mahazar. In the cross-examination, nothing has been elicited to discredit the testimony of PW.17. 44. Further, PW.1 has also stated that, on 22.10.2017, the police came to the house of accused, at that time, the accused was in the custody of police, the accused showed the scene of offence to the police and also confessed that he committed murder of his wife with a cement brick by assaulting on her head and also showed MO.2 from a heap of sand behind - 27 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 his house and showed to the police, thus police seized MO.2 vide Ex.P3-Seizure Mahazar. 45. In order to corroborate the testimonies of PWs.1 and 17, the prosecution relied upon the evidence of Investigating Officer (PW.19). He has stated that, on 22.10.2017, he secured the accused through PW.15 and other police officials, arrested him, recorded his voluntary statement and pursuant to his voluntary statement as per Ex.P24, he seized motorcycle of the accused under Ex.P9 - seizure mahazar and on the same day, he seized MO.2 - cement brick in presence of PWs.16 and 17 in the hindside of the house of accused as per Ex.P3 - Seizure Mahazar and took photograph vide Ex.P21. 46. The evidence regarding recovery was cogent and consistent. Therefore, the trial Court was justified in holding that the said recovery was proved. 47. Hon'ble Privy Council in the judgment in PULUKURI KOTTAYYA AND OTHERS VS. KING EMPEROR's case reported in 1946 SCC ONLINE PC 47, has held as follows: - 28 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 “xxx xxx The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; xxx xxx "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact." 48. In this case, the accused during his police custody confessed regarding the place where the incriminating article namely MO.2 - blood stained cement brick was hidden, led the police and panchas to his house, produced the cement brick from a heap of sand (behind the house). That amounts to discovery of the fact which was within his special knowledge and the said fact discovered is very relevant. 49. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to that, and the information given must relate distinctly to the said fact. Having regard to the evidence discussed above, it - 29 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 goes to show that the circumstance of recovery of incriminating material is proved. Reg Point No.VI-FSL Evidence: 50. The Investigating Officer, PW-19 soon after seizure of articles under Ex-P3 and Ex-P9, sent the same to Forensic Science Laboratory for chemical examination and report. PW-20 Dr. Chayakumari, Assistant Director, RFSL, Davangere deposed that on 15.11.2017, she received in all 4 sealed articles from Investigating Officer/PW-19 pertaining to this case and she examined those articles and issued her report as per Ex-P26. As per Ex.P26, presence of blood was detected in item Nos.1 to 3 i.e., M.O.1 bed sheet, M.O.2 cement coated brick piece and one nighty M.O.3. Item No.4 the liquid blood sample was disintegrated. Item Nos.1 to 3 were stained with '0' group blood. It shows that the blood group of victim Geetha was '0' group. 51. M.O.2 cement coated brick piece was stained with '0' group blood. Therefore, the accused ought to have explained as to how M.O.2 was stained with '0' group blood, which was recovered at his instance. The accused has not offered any - 30 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 explanation as to how he came in possession of M.O.2 and how that was stained with 'O' group blood. The only inference that can be drawn is that the accused murdered the victim and fled away. Reg Point No.VII-Conduct of the accused 52. According to the prosecution, on committing the crime, the accused took his minor children to various places, he did not get them back to the house, did not open the door, his two minor children were made to stay in a small petty shop where he was running his tailoring shop. Later, he was arrested by the police, who brought him to the house. 53. The incident took place on 21.10.2017 and the accused was arrested on 22.10.2017. He gave his voluntary statement on the same day as per Ex-P24. Records show that after the incident, police apprehended the accused at the outskirts of Marikuppam Kamsamudhra Road, near Akkathangakarchi Church at 6.30 a.m. "Absconding" of accused is a tell-tale circumstance of a guilty mind. Unless, the accused can offer a reasonable explanation for his absence for a day at his normal place of residence or work or at places, where he - 31 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 ordinarily expected to be, that is also one link in the chain of evidence. 54. So far as, invoking section 106 of the Indian Evidence Act(Section 109 of Bharatiya Sakshya Adhiniyam 2023), the prosecution must first establish that there was some fact within the special knowledge of the accused. In a case of circumstantial evidence, the accused being the master of the crime alone knows the circumstances which led to death. This Section mandates that the facts that are within the exclusive knowledge of accused shall be explained by him alone. Non-explanation of incriminating circumstances leads to an inference that the accused and the accused alone is the author of the crime. 55. Once the prosecution discharged its burden of proof, then accused has to explain how his wife suffered homicidal injuries in his house, wherein he lived with her and how he came in possession of bloodstained brick, as those facts were exclusively within his knowledge. Whereas, in this case, the accused has not offered any explanation for the said - 32 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 circumstances and his failure to offer reasonable explanation itself provides an additional link to the chain of circumstance. 56. In the instant case, the circumstances proved by the prosecution, in our opinion, form a complete chain unerringly pointing to the guilt of the accused for the murder of the victim. It is established beyond pale of doubt that the accused picked up quarrel with the victim, assaulted on her head with cement coated brick and committed her murder. 57. On re-appreciation of evidence on record and facts and circumstances, we are of the considered opinion that the prosecution has proved the guilt of the accused beyond reasonable doubt for the offences punishable under sections 302 and 201 of IPC. The trial Court, therefore, was justified in convicting the accused for the aforesaid offences. We do not find any error or infirmity whatsoever in the findings recorded by the trial Court. Even on reconsideration of the material on record, we do not find any reason to deviate from the view taken by the trial Court. Hence, the following: - 33 - HC-KAR NC: 2025:KHC:43015-DB CRL.A No. 1129 of 2019 ORDER i. The appeal is dismissed. ii. The judgment and order of conviction and sentence in S.C.No.39/2018 passed by the III Additional District & Sessions Judge, Kolar (sitting at K.G.F.) for the offences punishable under Sections 302 and 201 of IPC is hereby confirmed. iii. In view of disposal of the main appeal, pending I.A.'s, if any, stand disposed of. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 18