- 1 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO. 103160 OF 2024 [439(Cr.PC)/483(BNSS)] BETWEEN: SUBHASH S/O. BHAURAJ TERADAL, AGE: 33 YEARS, OCC. AGRICULTURE, R/O. POLICE PATIL 1 MALA, AT: KHAJANWADI, TERADAL THOT, TAL. JATH, DIST. SANGLI-416404. … PETITIONER (BY SRI JAGADISH PATIL, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH AIGALI POLICE STATION, REP. BY ITS STATE PUBLIC PROSECUTOR , HIGH COURT OF KARNATAKA, BENCH AT DHARWAD-08. … RESPONDENT (BY SMT. GIRIJA S.HIREMATH, HCGP) THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C. (U/S. 483 OF BNSS, 2023) SEEKING TO ALLOW THE PETITION AND THE PETITIONER/ACCUSED MAY BE ENLARGED ON BAIL IN CONNECTION WITH AIGALI POLICE STATION CRIME NO.73/2024 DATED 06.05.2024 FOR THE OFFENCES P/U/SEC. 302, 201 AND 109 R/W. 34 OF IPC. WITH RESPECT TO THE PETITIONER/ACCUSED NO.1. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE FOLLOWING: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.05 11:04:01 +0530 - 2 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 CAV ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) for grant of regular bail in Crime no.73/2024 by Aigali Police Station for offences punishable under Sections 302, 201 and 109 read with Section 34 of Indian Penal Code (for short, ‘IPC’) by accused no.1 (Petitioner). 2. Sri Jagadish Patil, learned counsel for petitioner submitted case of prosecution was that Smt.Shaila Terdal was married to Basappa @ Basavaraj Terdal (victim) and she was residing with victim, their two children, parents-in-law, brother- in-law and his wife together at Khojanawadi village. And since one year, victim had brought one married woman Smt.Susheela Bannatti and kept her in their house. And that victim owned Motorcycle for his own use. 3. On evening of 05.05.2024, her brother-in-law went to Gulbarga with a load of grapes in his pickup vehicle. And that one of her relative Ramesh Guruning Benade visited them. At that time, victim informed Ramesh that he was going to drop his sister – Kavitha to her matrimonial home on his motorcycle - 3 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 and that Ramesh also accompanied them. But, when victim did not return and had left his Mobile phone at home, she called Ramesh at 2:30 a.m. And that Ramesh informed her, after dropping Kavitha, victim had said that he would visit Raju Subhash Terdal. And when she called Raju, he did not receive call, therefore she called Subhash Terdal, who told her that victim had not come to his house. Therefore, her father-in-law and brother Sangamesh went in search and came back at 8:20 a.m. without finding him. At 10:00 a.m., her brother went out to search once again and returned at 11:00 a.m. with information that victim was killed and his body was lying with his motorcycle near Wind Mills. Suspecting that some had killed her husband by hitting him on his head with some weapon, she filed complaint at about 5:30 p.m. on 06.05.2024 for taking action. Complaint was registered as Crime no.73/2024 for offences under Sections 302 and 201 of IPC. 4. It was submitted, as per complainant, complaint was filed after discussion with brother giving room for afterthought. It was submitted, after completion of investigation, Police had filed charge-sheet on 03.08.2024 and contents of column no.17, showed that there were no eye- witnesses and that prosecution case almost entirely depended - 4 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 on confessional statement of accused no.2 before Police, while being in custody. Only overt act with reference to petitioner was on instigation of accused no.2, petitioner had committed offences alleged. It was submitted, confession was extra judicial confession (‘EJC’) and which as per Sections 25 to 27 of Evidence Act, would not be acceptable, by referring to Randeep Singh @ Rana and Anr. v. State of Haryana, reported in 2024 SCC OnLine SC 3383. 5. Thus, when prosecution case was based on circumstantial evidence and prosecution was required to prove all circumstances beyond reasonable doubt during trial. Since petitioner was arrested on 12.05.2024 and was in custody until filing of charge sheet, he would not be required for custodial interrogation. Besides, petitioner was law abiding citizen and permanent resident of Khojanawadi village and also possessed both movable and immovable properties. It was also submitted, there no criminal antecedents. On above grounds, learned counsel sought for allowing petition by imposing conditions. 6. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent – State opposed petition. It was submitted petitioner was accused no.1 charged with - 5 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 commission of murder and destruction of evidence. Said offences were heinous in nature and punishable with death or imprisonment for life. Though, prosecution case was dependent on circumstantial evidence, it had sufficient material to sustain charges. Insofar as first circumstance, CW-13 – Ramappa @ Ramesh stating that on 05.05.2024, victim had come to drop his sister Kavita and met him at 7:00 p.m., used his Mobile phone to call Subhash Terdal and thereafter left saying that he would meet Raju Terdal on way. Next morning, Kavitha and Dundappa met him to enquire about victim and at 11:00 a.m. he came to know about murder. 7. Next circumstance is victim being last seen alive with petitioner, which was stated by CW-20 – Raju Terdal. In his statement recorded by Investigation Officer (‘I.O.’) as well as one recorded under Section 164 of Code of Criminal Procedure, 1973 (‘CrPC’), he stated that three months earlier, when he was in Shed at Devakarna’s land, petitioner came there and asked if he’d go to get Wind Mill cable. He refused. Petitioner left after arrival of victim. And when they left, he saw petitioner carrying beer bottle and iron angle rod. At 4:00 a.m. when he was asleep, he received missed call from Kadesh and at 6:00 a.m., father of victim came to enquire about victim. - 6 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 And at 11:00 a.m. he heard about victim’s murder. Next day Devakar informed him that petitioner had murdered victim. 8. Apart from above, prosecution was also relying on petitioner’s confession before CW-3 - Bhimrao Madhukar. He stated that at about 11:15 a.m. on 05.05.2024, when he was with CW-20 near Kottalagi, he heard petitioner had murdered victim. When he went there, petitioner admitted it and told him he had committed mistake and asked for his help. 9. It was submitted during course of investigation, petitioner was arrested and murder weapon recovered at his instance and while recording his statement, petitioner had in fact confessed to commission of offence. 10. It was submitted as per opinion of doctor who conducted Post Mortem Examination, cause of death was stated to be due to brutal injuries on victim. Thus prosecution had sufficient material to establish chain of events against petitioner for committing murder of victim. And as nature of offence was heinous, petitioner was not entitled for bail and prayed for rejection of petition. - 7 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 11. Heard learned counsel and perused material on record. 12. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail on conditions?” 13. This is petition for regular bail is accused no.1 in Crime no.73/2024 by Aigali Police Station for offences punishable under Sections 302, 201 and 109 read with Section 34 of IPC, which are not only heinous and grave but also carry maximum sentence of death or imprisonment for life. 14. Admittedly, deceased was found dead with traumatic injuries. Contents of complaint filed by wife of victim include particulars about motive that victim had objected to petitioner speaking with wife of victim. It is seen, there were no eye-witnesses. Though, prosecution has some material to support motive and last seen theory, insofar as commission of murder, it depends on confessional statement of petitioner and recovery of murder weapon. Prima facie, it would appear confessional statement would be major part in chain of circumstances. - 8 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 15. Insofar as reliability of confessional statements, Hon'ble Supreme Court in Ratnu Yadav v. State of Chhattisgarh, reported in 2024 SCC OnLine SC 1667, held follows: “9. As regards the evidentiary value of an extra- judicial confession, a bench of three Hon'ble Judges of this Court in the case of Devi Lal v. State of Rajasthan1, in Paragraph 11, this Court held thus: “11. It is true that an extra-judicial confession is used against its maker but as a matter of caution, advisable for the court to look for a corroboration with the other evidence on record. In Gopal Sah v. State of Bihar [Gopal Sah v. State of Bihar, (2008) 17 SCC 128 : (2010) 4 SCC (Cri) 466], this Court while dealing with extra-judicial confession held that extra-judicial confession is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent circumstances, to rely on it, for the purpose of recording a conviction. In the instant case, it may be noticed that there are no additional cogent circumstances on record to rely on it. At the same time, Shambhu Singh (PW 3), while recording his statement under Section 164 CrPC, has not made such statement of extra-judicial confession (Ext. D-5) made by accused Babu Lal. In addition, no other circumstances are on record to support it.” (emphasis added) - 9 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 In paragraph 16 of the decision of this Court in the case of Nikhil Chandra Mondal v. State of West Bengal2, this Court held thus: “16. It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence.” (emphasis added) 16. Said view is also emphasized by three judges in Randeep Singh’s case (supra) 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: “.. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. . .. .. . I interrogated accused Randeep Rana and Rajesh @ Don. Both the accused persons admitted about the crime (objected to). - 10 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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 @ - 11 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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 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 - 12 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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). 27. How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered inconsequence of - 13 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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 - 14 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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 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 - 15 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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 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 - 16 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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 - 17 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 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 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 - 18 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 of its decision in the case of Subhash Chand v. State of Rajasthan4. It reads as follows: “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)” - 19 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 17. Prima facie at this stage, reliance on confessional statement would appear to be weak link. However, whether prosecution would establish all circumstances beyond reasonable doubt based on admissible evidence would be a matter that can be considered only after conclusion of trial. Until then accused would be entitled to claim innocence and seek protection from deprivation of liberty as undertrial. Thus, point for consideration is answered in affirmative. Consequently, following: ORDER Petition is allowed. Petitioner/accused no.1 is ordered to be released on bail in Crime no.73/2024 by Aigali Police Station for offences punishable under Sections 302, 201 and 109 read with Section 34 of IPC, subject to following conditions: a) He shall execute a personal bond in a sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of Court. b) He shall mark his attendance on last Sunday of every month between 9:00 a.m. and 5:00 p.m. before Investigating Officer. - 20 - NC: 2025:KHC-D:2146 CRL.P No. 103160 of 2024 c) He shall not threaten, tamper with or influence prosecution witnesses, either directly or indirectly. d) He shall be regular in attending Court proceedings. e) He shall not indulge in any criminal activities. f) It is clarified that views expressed herein are prima facie at this stage and shall not influence final outcome after trial. SD/- (RAVI V.HOSMANI) JUDGE GRD CT:PA List No.: 1 Sl No.: 45