- 1 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO. 50 OF 2019 (C) BETWEEN: UMESHA B N S/O LATE NANJAPPA AGED ABOUT 30 YEARS, R/AT BANASANDRA PALYA DANDINASIRA HOBLI TURUVEKERE TALUK TUMUKURU DISTRICT - 560 056. …APPELLANT (BY SRI. PRATHEEP K C., ADVOCATE) AND: THE STATE OF KARNATAKA BY CHANDRASHEKARAPURA POLICE TUMKURU DISTRICT (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) HIGH COURT OF KARNATAKA BENGALURU - 560 001. …RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE SPP-II) R Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 19.11.2018 AND ORDER OF SENTENCE DATED 22.11.2018, PASSED BY THE PRINCIPAL SESSIONS JUDGE AT TUMKUR IN S.C.NO.48/2015, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND ETC. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE M.G.S. KAMAL) This appeal is against the judgment and order dated 19.11.2018 passed in S.C.No.48/2015 on the file of Principal District and Sessions Judge, Tumakuru (hereinafter referred to as 'trial Court' for short) by which trial Court has convicted the appellant/accused for the offence punishable under Section 302 of Indian Penal Code and has sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.1,00,000/- and in default of payment of fine, the appellant/accused has been directed to undergo further simple imprisonment for about 2 years. The trial Court has further directed that the appellant/accused must serve minimum sentence of 20 years in - 3 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 jail without remission before consideration of his case for premature release. 2. Case of the prosecution: That the victim-Sudha, maternal aunt of the appellant/accused was residing in Vadavanaghatta Village along with her husband. That appellant/accused was regularly visiting her house. That on 18.12.2014 appellant/accused had approached victim-Sudha requesting financial assistance as he intended to marry a Muslim girl, assuring her of repayment of the same after some days. That since the victim had refused, the appellant/accused killed her by slitting her neck with a knife, took away gold ornaments from the body of the victim and thereafter he sold the same to one Chinnu Jewellers at Shivamogga. 3. Upon a complaint filed by PW.4/husband of the victim, initially a case in Crime No.84/2014 came to be registered for the offence punishable under Section 302 of Indian Penal Code against unknown person. After the investigation, charge sheet was filed against the appellant/accused for the offence - 4 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 punishable under Section 302 of Indian Penal Code. Appellant/accused pleaded not guilty and claimed to be tried. 4. Prosecution examined 19 witnesses as PW.1 to PW.19 and marked 36 documents as Exs.P1 to Ex.P.36 and 17 material objects as MOs.1 to 17. Appellant/accused has denied the incriminating evidence produced against him in his statement recorded under Section 313 of Cr.PC. 5. The trial Court framed the following points for its consideration: "A. Whether the prosecution proves beyond all reasonable doubt that, on 18-12-2014 between 10-30 am., and 11-15 am., in the morning, in Vadavanaghatta village within the jurisdiction of C.S. Pura police station, in the house of the deceased Sudha, the accused demanded financial assistance from the deceased Sudha and when she refused, he attacked her by knife and slit her neck causing her death and robbed golden ornaments in her possession, which were subsequently sold to Chinnu Jewellers in Shivamogga and thereby committed an offence punishable U/sec.302 of Indian Penal Code? B. What Order?" On appreciation of evidence answered the same in the affirmative, convicting and sentencing the appellant/accused for the offence punishable under Section 302 of IPC, as noted - 5 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 above. Being aggrieved by the same, appellant/accused is before this Court. 6. Submissions of Sri Pratheep K.C., learned counsel for appellant/accused: (a) That the entire case is based on the circumstantial evidence. That initially complaint was given by PW.4-husband of the victim against unknown person as per Ex.P1. That the alleged incident had taken place on 18.12.2014 and the appellant/accused was arrested on 20.01.2015 i.e. after lapse of 32 days of the alleged incident and the prosecution has not placed any material before the Court as to the basis on which the appellant/accused was apprehended. (b) PW.1 who claimed to have last seen the appellant/accused coming out of the house of the complainant on the date of the alleged incident has not whispered anything about the same until his statement was recorded on 21.01.2015 after the arrest of the appellant/accused. Thus, the theory of last seen propagated by the prosecution cannot be trusted. - 6 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 (c) That upon the alleged confession of the guilt by appellant/accused, blood stained knife, blood stained clothes and jewellery were purportedly recovered. The FSL report produced by the prosecution cannot be believed as the authenticity of the same has not been established in the manner known to law. That mere finding of the blood stains on the clothes would not be of any avail without the prosecution producing precise medical evidence establishing the specific blood group of the victim matching with the blood stained clothes of the appellant/accused. That mode of sending of the blood stained clothes has not been to the satisfaction of the requirement of law. The chain of custody of material objects till the same was sent to FSL have not been established. That the FSL officer has not been examined. (d) That while recording the statement under Section 313 of Cr.P.C. the appellant/accused has not been asked anything regarding the FSL report purportedly opining the matching of human blood 'B' group with the blood stains allegedly found on the knife and clothes of the appellant/accused. Thus there is no compliance of mandatory - 7 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 requirement of law enuring to the benefit of the appellant/accused. (e) That the process of extracting and taking footprint and fingerprint from the spot is not in compliance with the guidelines provided under the Karnataka Police Manual Volume- 2, Chapter XXXVII. In that alleged footprint and fingerprint were purportedly taken from the spot of the incident on 18.12.2014 without conducting mahazar in the presence of any independent witness. As such, the report relied upon by the prosecution in this regard is unacceptable and inadmissible. (f) The recovery of the jewellery at the instance of the appellant/accused is also doubtful inasmuch as the investigating officer has not recovered any receipt or counter file from PW.11 to whom the appellant/accused had allegedly sold the same. (g) That no electronic evidence can be accepted in the absence of certificate mandatorily required to be issued under Section 65B of Indian Evidence Act. As such, the CD which was - 8 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 produced as MO.17 by the prosecution could not have been relied upon by the trial Court. (h). The conviction based on the evidence of Shama R.- PW.19 which was recorded on 23.10.2018 while the accused was arrested on 20.01.2015 is unreliable. (i) Relies upon the following decisions in support of his submissions: 1. Mohd. Aman and another Vs State of Rajasthan reported in (1997) 10 SCC 44. 2. Karandeep Sharma @ Razia @ Raju Vs State of Uttarakhand reported in 2025 SCC Online SC 773 3. Vikramjit Singh @ Vicky Vs State of Punjab reported in (2006) 12 SCC 306. 4. Tara Singh Vs State reported in 1951 SCC 903. 5. State of H.P Vs Jai Lal and ors reported in (1999) 7 SCC 280. 6. Debapriya pal Vs State of West Bengal reported in (2017) 11 SCC 31. 7. State of U.P. Vs Sathish reported in (2005) 3 SCC 114. 8. Prakash Vs State of Karnataka reported in (2014) 12 SCC 133. 9. Rajesh and another Vs State of Madhya Pradesh reported in (2023) 15 SCC 521. - 9 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 10. Hari Om @ Heor Vs State of U.P. reported in (2021) 4 SCC 345. 11. Ajay Vs State of Maharashtra reported in (2007) 12 SCC 341. 12. Biju Kumar S/o Sreedharan Nadar Vs State of Kerala reported in 2022 1 KHC 463: 2021 KLT (Online) 1234. 7. Submissions of Sri. Vijayakumar Majage, learned SPP -II: (a) That merely because the Investigation Officer has not given the details regarding the basis of he suspecting and arresting the appellant/accused would not affect the case of prosecution as the Investigation Officer has a prerogative not to divulge the information if it is not prejudicial to the case of the appellant/accused. (b) That the motive of murder was for gain which has been proved and established by the recovery of the jewellery marked as MOs.7 to 10 based on the voluntary statement of the appellant/accused. This circumstance is corroborated by the evidence of PW.11-Banker to whom the appellant/accused sold the jewellery on 20.12.2014 and from whom he purchased a thali and pair of toe rings and also received a sum of - 10 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 Rs.19,000/- being balance sale proceeds. This has been further established beyond doubt in the light of the evidence of Shama-PW.19, wife of the appellant/accused, who has fully supported the case of the prosecution. (c) The conduct of the appellant/accused has to be read in the light of the deposition of PW.11 and PW.19, which leaves no doubt that the accused had indeed committed the offence to meet his financial requirement for marrying PW.19-Shama. (d) That the Fingerprint Expert-PW.16 has spoken about the manner in which the footprint and the fingerprint found at the spot of the incident have been taken and verified. That the presence of the appellant/accused at the spot of the incident has not been disputed. The same is corroborated by the evidence of PW.1 a relative of the complainant and victim and who has spoken about he having last seen the appellant/accused on the date of incident. (e) That the report of PW.16 regarding matching of the footprint and the fingerprints of the appellant/accused with the - 11 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 one extracted and examined by him is strong circumstance proving the guilt of the appellant/accused. (f) That though no panchas were present while taking the footprint and the fingerprints from the spot, the same would not be of any significance considering the other circumstances of the matter, more particularly, the recovery of the jewellery at the instance of the appellant/accused having been proved and established. (g) That articles-MOs.1, 11 to 16, were seized on 22.01.2015. PW.9 is a witness to Ex.P5-the spot mahazar as shown by the appellant/accused. He is also witness to seizure mahazar Ex.P6 under which blood stained jeans pant, grey T- shirt and school bag, MOs.11, 12 and 13 respectively were seized. He is also witness to Ex.P7 which is a seizure mahazar drawn while recovering and seizing knife-MO.1 and newspaper MO.14 by which the knife-MO.1 was wrapped. He is also witness to seizure mahazar-Ex.P8 under which blood stained jerkin was recovered from the tank. He is also witness to Ex.P9-mahazar drawn while seizing the helmet-MO.16. That the evidence of this witness has remained unimpeached. - 12 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 Articles that were seized on 22.01.2015 were sent for verification on 28.01.2015, which were received by the FSL on 29.01.2015, certificate of examination has been given on 05.05.2015 as per Ex.P35. (h) That non-examination of FSL officer cannot be considered as fatal to the case of the prosecution inasmuch as, the acceptance of the scientific evidence is provided under Section 293 of Cr.P.C. (i) That the appellant/accused is required to explain the circumstances of recovery of blood stained clothes, knife wrapped in a newspaper and the recovery of blood stained jerkin found in the tank which has not been disputed by the appellant/accused. (j) That PW.14 is a witness to Ex.P20 under which MOs.7 to 10 have been recovered. (k) Learned SPP-II relies upon the following judgments: 1. Rahul Vs State (NCT of Delhi) reported in (2023) 1 SCC 83. 2. Aejaz Ahmad Sheikh Vs State of Uttar Pradesh and another reported in 2025 SCC online SC 913. - 13 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 3. Nar Singh Vs State of Haryana reported in (2015) 1 SCC 496. 4. Chetan C. Shetty Vs State of Karnataka - Crl.A.No.933/2012. 8. Heard both side and perused the records. 9. The point that arises for consideration is: "Whether on the facts and in the circumstance of the case trial Court is justified in convicting and sentencing the accused for the offence punishable under Section 302 of IPC?" Order of the Trial Court: 10. The trial Court based its Judgment and order on the following evidence of: (a) PW.1 who claimed to have seen the appellant/accused coming out of the house of the victim between 11.00 a.m. and 11.30 a.m., on 18.12.2014; (b) PW.9 who is a witness to Ex.P5-spot mahazar and seizure mahazars-Exs.P6 to Ex.P9 under which blood stained jeans pant-MO.11, grey T-shirt-MO.12, College bag-MO.13, knife-MO.1, newspaper-MO.14, blood stained jerkin-MO.15 and helmet-MO.16 were seized; - 14 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 (c) PW.11, PW.14 and PW.19 with regard to recovery of gold ornaments as per MOs.7 to 10; (d) PW.16 with regard to his report on footprint and fingerprints as per Ex.P31; (e) evidence in the nature of CCTV footage produced at MO.17 reflecting appellant/accused selling MOs.7 to 10 to PW.11 along with PW.19; (f) FSL report as per Ex.P35 with respect to MOs.1, 11 to 15 being stained with human 'B' blood group; The trial Court has held that the chain of circumstances, namely, motive, presence of appellant/accused at the spot of incident, discovery and recovery of material objects have been clearly established and proved by the prosecution pointing towards the guilt of the appellant/accused which is further strengthened by conduct and non-explanation of the incriminating circumstances by the appellant/accused and accordingly, concluded that the appellant/accused being guilty of the commission of offence under Section 302 of IPC. Position of law: 11. The present case is based on the circumstantial evidence. The law governing the cases involving circumstantial - 15 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 evidences is well settled by catena of judgments of the Hon'ble Apex Court. Suffice to refer to the following judgments in this regard: (a). In the case of Sharad Birdhichand Sarda Vs State of Maharashtra reported in (1984) 4 SCC 116 the Apex Court at paragraph No.153 has laid down the following five tests to be satisfied in a case based on circumstantial evidence, which are extracted as under: -----“(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established; (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” - 16 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 (b) In the case of Aftab Ahmad Anasari Vs State of Uttaranchal reported in (2010) 2 SCC 583 the Hon'ble Apex Court in paragraph No.13 has emphasised that: ''13. ….. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved fact each one of which reinforces the conclusion of the guilt. If the combined effect of all the fact taken together is the conclusion in establishing the guilt of the accused, the conviction would be justified even though it may be that one of more of these facts, by itself/themselves is/are not decisive.'' 12. In the light of above principles of law the evidence in instant case needs to be reappreciated as to whether each of the circumstantial evidence so produced has been fully and individually proved and established by the prosecution? and whether the cumulative effect of all these proved facts reinforces the conclusion of the guilt of the appellant/accused of he committing the crime? 13. While re-appreciating and ascertaining the evidence as noted above, it shall also be borne in mind the degree of proof which is required to be established by the prosecution. Appropriate for this purpose to refer paragraphs 23 and 24 of - 17 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 the Judgment in the case of Iqbal Moosa Patel Vs State of Gujarat (2011) 2 SCC 198 which read as under: "23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions (1947) 2 ALL ER 372: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence `of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt.... "88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land." 24. Reference may also be made to the decision of this Court in Sucha Singh v. State of Punjab (2003) 7 SCC 643 where this Court has reiterated the principle in the following words: "20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape - 18 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused….. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish." Genesis of the case: 14. PW.4-Chandrakumar husband of the victim has filed the complaint as per Ex.P1 stating that: He and his wife were residing at Vadavanaghatta village and whenever he was on his work only his wife used to stay at home. That his two sons are residing at Bengaluru. That he was working as a primary school teacher and every day he was going to his work morning at 9.30 a.m., and was returning home at 5.30 p.m. That on 18.12.2014 he left home for his work at 9.20 a.m. and when he returned at 5.20 p.m., there was no response from his wife and the main door was latched from outside. He went inside and found his wife lying on the floor of the hall with injuries on her neck and other - 19 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 parts of the body with blood spilled all over. He found the doors of his Almerah kept inside the room were opened and all the things scattered on the cot. Immediately he sought for help. One Jayamma and Parvathamma came. He called his brother Jayanna- PW.10 over phone and also informed the police who arrived at the spot at 7.00 p.m. That he suspected some one had murdered his wife hence sought for necessary action in the matter. 15. In his evidence apart from reiterating the contents of Ex.P1, PW.4 has deposed that Mangalya thali and Lakshmi thali with 20 golden beads and a pair of earrings-maati which his wife was wearing were missing. That there were tea and water cups on the Teapoy and the Dinning table. That the police had summoned dog squad and fingerprint expert. There were footprints in the house. There were also blood stained fingerprints on the Almerah. The police drawn the mahazar and obtained his signature, which is as per Ex.P2. The police also had seized the three cups which are marked as MOs.2. to 4. That the police after the post mortem handed over the body on 19.12.2014 for final rites. He has identified the clothes worn by the victim marked as MOs.5 and 6. - 20 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 16. He has further deposed that thereafter on 21.01.2015 the police brought the appellant/accused to his house. That he informed the police about his acquaintance with appellant/accused. That thereafter police informed him that the appellant/accused being desirous of marrying a Muslim girl was in need of money because of which he had killed his wife. That the police had thereafter called him to the police station and showed him a pair of maati, a thali, a Lakshmi thali with 20 golden beads recovered from the appellant/ accused which he has identified to be of his wife. The said items were marked as MOs.7 to 10. 17. PW6- Ramaiah is a witness to spot mahazar- Ex.P2. He has spoken about the police conducting the mahazar seizing the cups MOs.2 to 4. Medical and Scientific Evidence: 18. PW.12-Dr.S.Rudramurthy, who conducted the post mortem examination of the dead body of the victim has given the details of the external injuries that are found on the body of the victim which are as under: - 21 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 "1. Deep incised wound measuring 25x6cmx cervical vertebra deep present over right side of neck exposing underlying muscles, vessels, and nerves and bones. 2. Deep incised wound measuring 13 x 4 cm x muscle deep present over left side of neck with thyroid cartilage cut. 3. Incised wound measuring 4 x 1 cm x muscle deep present below previous injury. 4. Bevelled incised wound present over palmar aspect of distal half of right thumb measuring 2 x 1 cm with flap hanging downwards - defence wounds. 5. Incised wounds present over palmar aspect of left little finger, ring finger, middle finger, and index finger at its middle measuring 1 cm, 1.5 cm., 1.5 cm, and 2 cm. respectively-defence wounds. 6. Incised wound measuring 2.5 cm present over web space between left thumb and index finger. 7. Incised wounds measuring 1.5 cm x 0.5 cm, 1.5 x 0.1 cm and 2 x 0.1 cm present over left forearm near wrist. 8. Incised stab wound present over left side of upper chest near axillary fold measuring 6 x 1 cm. x 6 cm deep into left pleural cavity with inner end blunt and outer end sharp. 9. Stab wound present over right mammary region measuring 2.5 cms 0.5 cms x pleural cavity deep with one end sharp and other end blunt. 10. Stab wound present over right side of abdomen 8 cm away umbilicus measuring 2.5 cm x 0.5 cm x peritoneal cavity deep with one end sharp and other end blunt." He has opined that the injuries were ante mortem but he cannot give his opinion regarding cause of death, as the body was kept in the cold storage. - 22 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 19. PW.10-Jayanna a witness to the seizing of clothes worn by the victim as per mahazar -Ex.P19, which are marked as MOs.5 and 6 respectively. 20. From the above evidence of PW.4 and PW.12, there is no dispute that the death of the victim-Sudha was a homicidal and that the appellant/accused is related to the victim. The incident has taken place on 18.12.2014. The police arrested the appellant-accused on 20.01.2015. Evidence of Investigation Officers: 21. PW.18-Vasanth H.T., PSI, has spoken about he receiving the information at 6.30 p.m., on 18.12.2014 regarding the incident and he visiting the spot. He has received complaint filed by PW.1-Chandrakumar and registering the same in Crime No.84/2014. In the cross-examination, the witness has stated that when he visited the spot, complainant and 2 to 3 persons were present in the hall. 22. PW.17- A Venkataramanaiah, the Police Inspector, has spoken about he having taken over the investigation from PW18 on 18.12.2014. He has spoken about conducting the - 23 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 spot mahazar, inquest report, seizing of the material objects, summoning the fingerprint experts, recording of the statements of the witnesses, arresting of the appellant/accused on 20.01.2015 and recording of the voluntary statement of the appellant/accused leading to recovery of blood stained clothes, knife, Jewellery, collecting of CCTV footages, drawing up of seizure mahazars. In the cross examination, the said witness has stated that when he went to the spot, complainant, PSI and the son of the victim were present. That he has not taken photograph of the footprints found in the hall and that the same were taken by the fingerprint expert. He has also not taken the photograph of the dead body and also the blood stains found on the walls. He has stated that he had taken finger and footprints of the appellant/accused alone. 23. PW.13- K.G. Krishna Naik is the Assistant Engineer of Gubbi Public Works Department. He has spoken about preparing rough sketch of the spot. - 24 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 Regarding Motive: 24. According to prosecution, the instant case falls under the category of "murder for gain". The prosecution has relied upon the deposition of PW.19-Shama, PW.5-Suvarnamma, and PW.11- Arun P. Shet in this regard. 25. PW.19-Shama R in her deposition stated that appellant/accused present before the Court is her husband and they got married on 21.12.2014 in Dharmasthala. That she became acquainted with the appellant/accused while she was visiting his mobile shop. That their relationship developed and they decided to marry. That on 20.12.2014 she went to Turuvekere upon the instruction of the appellant/accused and thereafter they went to Chinnu Jewellers at Shivamogga belonging to PW11 between 5.30 p.m. and 6.00 p.m. The appellant/accused sold pair of maati, a thali, a Lakshmi thali with 20 golden beads marked as MOs.7 to 10 and purchased one thali and a pair of toe rings. That when she enquired about the jewels he was selling, appellate/accused had informed her that they belong to her mother. She had also spoken about appellant/accused having received the additional money from - 25 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 PW.11, but she did not remember the amount. She has further deposed that on the following day they went to Dharamasthala and married in a temple. That the brother of the appellant/accused Nijaguna had informed the appellant/accused over phone that her father had registered a missing complaint in Dandhishivara Police Station. Thereafter, the brother of the appellant/accused and his friends came to Dharamstala and took them to Bengaluru where they went to Arya Samaja and got married again. Thereafter they went to Dandhishivara Police Station and upon her statement, the complaint filed by her father was withdrawn. After 5-6 days of their return, the Gubbi Police took appellant/accused and his footprints and fingerprints were taken in the police station. That she identified the CCTV footage as per M.O.17, her signature on seizure mahazar -Ex.P20 under which M.Os.7 to 10 were seized. The said witness has supported the case of the prosecution. 26. Prosecution had examined PW.5-Suvarnamma, who is the aunt of the appellant/accused. She has deposed that when she returned home after the funeral of the victim, 15 days thereafter appellant/ accused had come to her house along with - 26 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 a girl and stayed there for a night. While leaving home he had informed her that the relatives of the said girl had filed a complaint against him. 27. PW.11- Arun P. Shet has deposed about appellant/accused visiting his shop along with PW.19 on 20.12.2014 and offering to sell jewellery M.Os.7 to 10. He has also deposed about the appellant/accused having purchased a thali and a pair of toe rings and having received ₹19,000/-. He also spoken about 3 months later the police enquiring him and thereafter he having learnt that the appellant-accused had sold him the said jewellery after committing murder of the victim. He has spoken about he handing over M.Os.7 to 10 to the police, which was seized as per mahazar-Ex.P20. He has also spoken about he having fixed a CCTV camera and supplying CCTV footage to the police, which was seized as per mahazar at Ex.P21. In the cross-examination, the said witness has stated that he has not received any identification or address proof documents from the appellant/accused. He has also stated that he would not purchase jewellery from an unknown person. He has also stated that his shop would be open between - 27 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 10.30 a.m. and 8.30 p.m., he is not the only person who conducts the business and that he would not be in a position to give the information as to who all had come to his shop on the said date. In the further examination, he has identified the CCTV footage marked as MO.17. In the further cross- examination, the said witness has admitted that he has not issued any receipt regarding he having received jewellery from the appellant/accused. However, he has stated that he has issued a receipt for the jewellery which he has sold to the appellant/accused. 28. PW.14- B.K. Narayanamurthy has spoken about he being witness to Ex.P20 under which jewellery at MOs.7 to 10 were seized. PW.15-H.S. Prakash has spoken about seizure of CCTV footage as per M.O.17 under mahazar Ex.P21. 29. Though PW.11 in his deposition has stated that he has installed CCTV camera in his shop and upon the instruction of the Police on 03.03.2015 he handed over CCTV footage as per mahazar Ex.P21 and that said CCTV footage is marked as MO.17. No certificate as mandatorily required under Section 65B(4) of the Indian Evidence Act has been produced. - 28 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 30. The Apex Court in the case of ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO GORANTYAL, reported in (2020) 7 SCC 1 at paragraphs 33 and 34 has held as under: "33. The non obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65-B, which is a special provision in this behalf — Sections 62 to 65 being irrelevant for this purpose. However, Section 65-B(1) clearly differentiates between the “original” document — which would be the original “electronic record” contained in the “computer” in which the original information is first stored — and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that Section 65-B differentiates between the original information contained in the “computer” itself and copies made therefrom — the former being primary evidence, and the latter being secondary evidence. 34. Quite obviously, the requisite certificate in sub- section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where “the computer”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4)…….." - 29 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 31. Thus, since no certificate as mandatorily required under Section 65B(4) of the Indian Evidence Act is produced, this circumstance cannot be accepted and relied upon for want of proof in the manner known to law. 32. Also relevant to note even if oral evidence of PW.19 and PW.11 is accepted it would only indicate appellant/accused selling jewels M.Os.7 to 10 and purchasing a thali and a pair of toe rings and nothing beyond. Further though PW.4 - Chandrakumar has claimed that M.Os.7 to 10 belongs to his wife no satisfactory identification process is undertaken by the prosecution to establish the fact that the same belongs to the victim. This amounts to material omission on the part of the investigation as held by the Apex Court in the case of Thammaraya and anr Vs State of Karnataka reported in (2025) 3 SCC 590. Merely because the appellant/accused has not claimed the articles cannot be a ground to conclude that he had committed the crime for gain. - 30 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 Regarding last seen: 33. The prosecution relied upon the evidence of PW.1 - Chethan Kumar who claimed to have "last seen" appellant/accused coming out of the house of the complainant on 18.12.2014 between 11.00 a.m. and 11.30 a.m. while he was passing by the house of the complainant on his two wheeler. He had apparently seen the appellant/accused "coming out of the house" "wearing black colored helmet" and "going away on a bike". He identified the appellant/accused in the Court. In the cross-examination the said witness has deposed that on 18.12.2014 itself he had informed the police about appellant/accused coming out of the house of the complainant while he was passing by their house on his two wheeler. Though the said witness is stated to be a relative of the complainant nothing on record to indicate that he was acquainted with the appellant/accused. The statement of the said witness has been recorded on 21.01.2015 which is after the arrest of the appellant-accused and 33 days subsequent to the date of the incident. Necessary to note that the said witness has not stated that he had seen the appellant/accused - 31 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 along with the victim being alive. There is no explanation for the delay in recording the statement of this witness or with regard to his whereabouts for 33 days. 34. The prosecution has not established the precise time of the death of the victim. PW.4 had left the home at 9.20 a.m. and found the victim dead at 5.30 p.m. PW.1 claimed to have seen the accused between 11.00 a.m. and 11.30 a.m. As already noted he has not seen the appellant/accused and the victim together while she was alive. 35. The Apex Court in the case of STATE OF U.P. VS SATHISH reported in (2005) SCC 114 at paragraph 22 has stated as under: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased 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 deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases……….." (Emphasis supplied) - 32 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 36. The evidence of PW.1 apart from not evincing credibility, does not even meet the requirement of law regarding last seen theory. In the light of the aforesaid facts regarding last seen theory and the principles of law, evidence of PW.1 becomes unacceptable. Regarding recovery of material objects namely, Knife- MO.1, blood stained jeans pant-MO.11, grey T-shirt- MO.12, College bag-MO.13, newspaper-MO.14, blood stained jerkin-MO.15 and helmet-MO.16: 37. The police arrested the appellant/accused on 20.01.2015. Based on his purported voluntary statement, the police recovered the material objects namely Knife-MO.1, blood stained jeans pant-MO.11, grey T-shirt-MO.12, college bag- MO.13, newspaper-MO.14, blood stained jerkin-MO.15 and helmet-MO.16 and jewels as per M.Os.7 to 10. 38. PW.9-Bhakthavatsala, a Village Accountant is a witness to the recovery of M.Os.1 and 11 to 16. He has deposed that on 21.01.2015, the appellant/accused had taken the police in their jeep to the house of victim-Sudha and shown the place of the incident where he killed her. A spot mahazar in this regard was drawn as per Ex.P5. He has further stated - 33 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 that on the following day i.e., 22.01.2015 appellant/accused accompanied the police to his house at Balesoppupalya, from where they recovered blood stained jeans pant-MO.11, grey colour T-shirt-MO.12 (no blood stain) and bag-MO.13 as per seizure Mahazar-Ex.P6. That the appellant/accused thereafter, took them to his mobile shop situated Banasandra from where the appellant/accused presented the knife-MO.1 wrapped with the newspaper-MO.14 kept in a showcase as per seizure mahazar-Ex.P7. That thereafter the appellant/accused had led them to Aremaranahalli Katte and shown that the spot where he had thrown his jerkin which he wore at the time of incident. That upon the search made by one of the police constables they found the jerkin-MO.15, which was seized as per seizure- Ex.P8. That thereafter the appellant/accused had taken them to SIT extension of Tumakuru and shown the Pulsar two wheeler used by him bearing No.KA-64-H-333. He also presented the helmet-MO.16 belonging to his friend Pramod, which was seized under mahazar in Ex.P9. He has identified photographs- Ex.P10 to Ex.P18 taken while seizing aforesaid articles. - 34 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 39. PW.2-Manjamma has spoken about the appellant/accused taking her shop on rent and running a mobile shop on a monthly rent of Rs.1,500/-. 40. PW.3-Harish has deposed that he was running a shop selling plastic items in Srirampura, Bengaluru. That about 4 years ago, appellant/accused had purchased a plastic handle knife and a bathing brush. He identified the knife-MO.1. In the cross-examination he admitted that he is not able to clearly state as to the date and the time at which each of the customers had come to his shop. He also admitted that though he was issuing receipts for every purchase, he had not issued any such receipts while the appellant/accused purchased the knife and the bathing brush. He has also admitted that since knives like MO.1 are many in his shop, he is not able to specifically state which of the knives was purchased by which of the customers. He has also admitted that he is not able to specifically state that MO.1 was purchased only from his shop. 41. The blood stained clothes of victim-Sudha marked as MOs.5 and 6, blood stained knife M.O.1 and the blood stained clothes of the appellant/accused as per M.Os.11 and 12 and - 35 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 The jerkin at M.O.15 have been sent for FSL examination on 28.01.2015 received by FSL on 29.01.2015. Nothing on record to indicate as to where these material objects were kept and preserved till they were sent for FSL examination. FSL Report: 42. Ex.P35 is a report issued by Forensic Science Laboratory. Contents of which read as under: CERTIFICATE OF EXAMINATION The Articles sent in Cr. No. 0084/2014 of Chandrashekarpura PS, U/S IPC 1860 U/s 302, were received in the Laboratory for examination on 29-Jan-2015 through KRISHNE GOWDA 24-PC. The seals found on the article/s were intact and tallied with sample seal. The description found on the article/s correspond to that of those present in the invoice. MATERIALS EXAMINED SL.No. Description of Article/s I.O Marking 1 One Nighty 1 2 One Petticoat 2 3 One Jeans Pant 3 4 One T-shirt 4 5 One Knife 5 6 One jerkin 6 7 Vaginal Swab 7 - 36 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 METHOD OF ANALYSIS Cuttings and scrapings from the suspected areas were tested for blood using presumptive test such as Benzidene and Phenolphthalein tests. The presence of blood stain was further confirmed by conducting Takayama test. The extent of stains and their size and location were also noted. The details of the examination of exhibits are furnished below. Sl. No. Stained/Not St Extent of Stains Size (Appro) Location 1. Stained Moderate Large Here and there 2. Stained Moderate Large Here and there 3. Stained Few 0.1-4 cm In front below knee portion 4. Not Stained ---- ---- --- 5. Stained Few 0.1-1 cm On both surface of blade 6. Stained Few 0.1-1 cm Here and there The cuttings and scrapings of the blood stained exhibits were subjected to serological analysis. The origin was determined by the gel diffusion method, cross over electrophoresis and the blood grouping was determined by the absorption elution method. The results of the serological examination below. The suspected stains were observed for their colour, texture and appearance under ultra violet light and the cuttings from the suspected areas were tested using Acid Phosphatase and Florence test. Further haematoxyline - Eosine test was conducted for the detection of spermatozoa. The result of the examinations are furnished below. OPINION 1. Presence of blood stains was detected in item Nos.1, 2, 3, 5 and 6. - 37 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 2. Presence of blood stains was not detected in item No4. 3. Item No.1, 2, 3, 5 and 6 were stained with human blood. 4. Item No.1, 2, 3, 5 and 6 were stained with `B' Group blood. 5. Presence of seminal stain was not detected in item No.7. 43. The Hon'ble Apex Court in the case Karandeep Sharma @ Razia @ Raju vs. State of Uttarakhand reported in 2025 Online SC 773 has held that mere exhibiting document would not prove its content. That no witness from FSL was examined by the prosecution to prove that the articles were received in a sealed condition. Even in the instant case though Ex.P35 refers to the items mentioned there having been sent through one Krishnegowda-24 PC neither the said witness has been examined nor the scientific officer has been examined in this regard. 44. Further, in the case of STATE OF H.P VS. JAI LAL reported in reported in (1999) 7 SCC 280 at paragraph 19 regarding admissibility of FSL report has held as under: 19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross-examination. This Court in the case of Hazi Mohammad Ekramul Haq v. State of W.B. [AIR 1959 SC 488 : 1959 Supp (1) SCR 922] concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert - 38 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 witness on the ground that his evidence was merely an opinion unsupported by any reasons. 45. Also extremely pertinent to note that no material evidence is placed on record by the prosecution to indicate the blood group of victim-Sudha. Since, the prosecution has relied upon FSL report which reads that item Nos.1, 2, 3, 5 and 6 were stained with human 'B' blood group to establish the link of the crime connecting to the appellant/accused by matching the blood group of victim- Sudha with that of the blood stained found on the appellant/accused it was incumbent upon the prosecution to first establish the blood group of victim -Sudha. 46. Relevant for this purpose to note that in the case of DEBAPRIYA PAL VS. STATE OF WEST BENGAL reported in (2017) 11 SCC 31 at paragraph Nos.7 to 9 adverting to matching of blood group on the blood stained clothes has held as under: 7. Insofar as other material/evidence, which is led against the appellant and can become the basis of his conviction is concerned, we find that there are three circumstances which weighed with the trial court to convict the appellant. These are: (i) Recovery of bloodstained clothes of the appellant from his house on his disclosure statement. - 39 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 (ii) Recovery of laptop belonging to the sister (PW 23) of the deceased Anusha Sarkar from the house of the appellant with cushion cover. (iii) Fingerprints of the appellant on the cellotape which was found in the house of the deceased. 8. As far as recovery of bloodstained clothes is concerned, two public witnesses were examined who, purportedly, were the witnesses to the seizure list of wearing apparels of the appellant. These are PW 12 and PW 13. According to their deposition, they saw the policemen along with the accused person going to the house of the appellant and they also joined the police party. It is how they became the witnesses and were associated with the recovery. 9. For the sake of argument, we are presuming that they were present at the time when the appellant brought bloodstained clothes from his house and gave the same to the police. What is material is the reliance on these bloodstained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these bloodstained clothes matched with the blood on the bedsheet on which the body of one of the deceased persons was found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bedsheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the appellant-accused thereof. Therefore, mere matching of the blood group on the bloodstained clothes, which was even on the bedsheet, would not lead to the conclusion that it is the appellant who had committed the crime. 47. Similarly, in the case of PRAKASH VS. STATE OF KARNATAKA reported in (2014) 12 SCC 133 at paragraph - 40 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 No.45 adverting to serological comparison of the blood of the victim and the accused has held as under: 45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were bloodstained and the stains bore the same blood group as that of Gangamma, the circumstance could be used against Prakash. A serological comparison of the blood of Gangamma and Prakash and the bloodstains on his clothes was necessary and that was absent from the evidence of the prosecution. Identification of knife-MO.1: 48. The deposition of PW3 with regard to he selling knife- M.O.1 is also not free from doubts. He himself has admitted that he is unable to precisely state the date and time and the person who had purportedly purchased the items from his shop. He also admitted that he cannot precisely state that MO.1 was purchased from his shop alone. In any event, the incident has taken place at Vadavanaghatta village, Tumakuru District. The evidence of PW.3 being unclear as to the circumstance of appellant/accused purchasing the knife-MO.1 from his shop at Srirampura, Bengaluru, this circumstance does not evince credibility. - 41 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 Regarding Footprints and Fingerprints: 49. PW.16-Gaurish A.C. has deposed that upon receiving a wireless message at 6 p.m. on 18.12.2014 he along with his staff, Shivram went to the spot at 7.45 p.m., where a woman was murdered and her body was lying in the hall. At that time C.S.Pura Police, Circle Inspector of Police, Gubbi were present at the spot and they had furnished him the information regarding the crime. He examined 20 material objects at the spot so as to secure the fingerprints. In the passage leading to the store to the back door, 3 blood stained footprints were traced. Out of the 3, 2 footprints were not extractable. Remaining footprints were photographed. Footprint is marked as F. In the room, a Nokia mobile was found. That 3 partial fingerprints with blood stains were also found. He had extracted them and marked them as Q, Q1 and Q2. Out of which Q1 and Q2 were not fit for examination. He had issued certificate regarding spot examination. Subsequently, Investigation Officer had sent fingerprints and footprints of the complainant Chandrashekhar, his brother Jayanna, victim-Sudha, and also of one Renukaradhya and B.T. Mahesh, but they did not tally - 42 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 with fingerprints and footprints taken from the spot as per Q and F. Thereafter on 10.01.2015 the Investigation Officer had sent for verification fingerprints and footprints of the suspected accused-B.M. Umesh which on examination matched with Q fingerprints and F footprint taken at the spot. Accordingly, he submitted the report in this regard, which is marked as Ex.P25. Footprint marked at F is taken at the spot and marked as Ex.P25. Enlarged portion of the same is marked as Ex.P26. Footprint of the suspected accused marked as B sent by the Investigation Officer is marked as Ex.P27 and enlarged portion is marked as Ex.P28. The chance fingerprint taken at the spot from Nokia mobile box marked as Q and enlarged photograph is marked as Ex.P29 and enlarged photo of the suspected fingerprint of the suspected accused is at Ex.P30. His detailed report is as per Ex.P31 which contains his report and reasoning. 50. Thus the prosecution has relied upon the report of PW16 as per Ex.P31 regarding fingerprints and footprints purportedly found at the spot of the incident matching with that of the appellant-accused. Admittedly no mahazar has been drawn in the presence of independent witnesses while - 43 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 extracting/lifting the chance finger prints and foot prints. Guidelines regarding preservation, extracting/lifting chance fingerprints and footprints are provided under Chapter XXXVIII Volume 2 of Karnataka Police Manual. Relevant guidelines are as under: GUIDELINES REGARDING CHANCE FINGER AND FOOT PRINTS: 1543. The opinion of the finger print expert is of paramount importance in the investigation of various crimes. The following instructions should be followed regarding chance finger and foot prints and their developments, preservation of the scene, method of packing and other matters: PRESERVATION OF THE SCENE 1544. (i) The Police Officer on his arrival at the spot should see that any latent prints left by the perpetrators of the crime are not meddled with or disturbed until they are inspected, developed and photographed by an expert: (ii) If on inspection of the scene of crime, the IO finds that the services of a FP expert should be availed, he should immediately send a message to the Superintendent of Police, FPB Bangalore. (iii) The requisition need not be sent in every case as a matter of routine. He should use his discretion and make such requisition only when he feels that the services of an expert are necessary and will be of material advantage for the case. (iv) If latent prints are found on portable articles they should be seized under a detailed panchanama duly packed and labelled and sent to the Finger Print Bureau with a police officer with instructions regarding the care of the package during the journey. - 44 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 (v) In sending the articles containing latent prints to the Bureau, proper attention must be given to their package. The following essential points should be borne in mind: (i) It should be ensured that no portion of the article where prints may be found should get into contact with anything else and (ii) The articles should be securely packed in a suitable container. FOOT PRINTS 1548. (a) Foot prints left by the criminal at the scene of crime are generally of great value and under favorable condition may furnish strong evidence. They are often found in the open space and the first precautionary measure to be taken is to protect them from damage or destruction. This can be done by covering them with a hollow box and constructing a mud barrier around the box to prevent rain water from flowing into the impression. b) There are two classes of Foot Prints. (1) Surface Print (2) Sunken Foot Print. Surface print is usually found on hard surface and sunken foot print in loose soil. Both the surface and sunken prints should first be photographed with a scale placed alongside them. Surface prints can be preserved by: (a) Keeping the original impression intact if it is found on a portable object such as mat, slab, plank, cardboard or box. (b) Tracing on a glass sheet or a celluloid plate or tracing paper. (c) Taking the impression into a photographic bromide paper using a paper exposed, developed and fixed or a paper unexposed but fixed according to the background - 45 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 which comes to light or dark (this method should be adopted whenever it is felt difficult to photograph a foot print found on a background which is dark or coloured). (d) Lifting with a lifting tape or foil or a photographic negative film fixed in hypo, washed in water and dried. Sunken prints are preserved by taking casts or mould with a mixture of resin and paraffin wax or with plaster of paris and water. Whatever the manner in which a foot impression is preserved, the details of the case should be furnished. (i) The name of the Police Station. (ii) The crime number and section of law. (iii) Whether right or left foot impression (iv) Medium on which the impression was found (v) Brief particulars of the place and the exact spot where the impression was found (vi) Date and hour of recording the print should be written on the record of the print. Signature of the officer recording and signature of one or more panchayatdars should also be affixed on the record of the print. 51. Division Bench of this Court in the case of CHETHAN C SHETTY VS STATE OF KARNATAKA disposed of on 10.01.2018 adverting to the aforesaid guidelines at paragraph 27 (d) has held as under: 27 (d). On considering the contentions, we are unable to accept the plea of the learned State Public Prosecutor. The presence of panchas at the scene of offence has no nexus with they seeing the lifting of the fingerprints from the cupboard. The guideline would clearly indicate that panchayatdars have to be present when lifting the - 46 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 fingerprints from an article which is not portable. Since, admittedly, there are no panchayatdars, when the fingerprints were lifted, so far as the cupboard is concerned, the plea of the defence on this ground requires to be accepted. Therefore, the evidence, so far as it relates to the fingerprints on the cupboard is concerned, being taken in a faulty manner, the same cannot be accepted. Therefore, such an evidence would not come to the aid of prosecution in support of its case. 52. Also useful to refer to the judgment of the Apex Court in the case of MOHAMMED AMAN AND OTHER VS. STATE OF RAJASTHAN reported in (1997) 10 SCC 44, wherein adverting to the manner of taking finger prints and foot prints of the accused at paragraphs 8 and 9 has held as under: 8. After careful perusal of the evidence adduced in proof of the above circumstance we notice a glaring missing link, in that, the prosecution has failed to establish that the seized articles were not — or could not be — tampered with before they reached the Bureau for examination. Though evidence was led to prove that after seizure the articles were packaged and then sealed, no evidence was led to indicate what was the mark given in the seals and whether the Bureau received the packages with the marked seals intact. Indeed, even the contemporaneous letters exchanged between them (Exts. P-59 and P-60) do not throw any light on this aspect of the matter. Rather, other circumstances appearing on record make the prosecution case doubtful in this regard: first, the articles were kept in the police station for five days without any justifiable reason, secondly the investigating officer (PW 20) admitted that the seal, mark of which was put on the articles, was with him since the time of seizure and lastly his letter (Ext. P-59) forwarding the seized articles to the Bureau contains admittedly, an overwriting as regards the date of its - 47 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 writing/despatch and no satisfactory explanation is forthcoming for the same. Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also casts a serious mistrust as to genuineness of the evidence. Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial — for reasons best known to the prosecution and unknown to the court. For the foregoing discussion we are unable to sustain the convictions of Mohd. Aman. 9. To prove the role of Mohd. Yusuf (the other appellant in Criminal Appeal No. 1749 of 1996) the prosecution relied upon the find of his fingerprint on a glass tumbler and his footprints in the house of the appellant (sic deceased), recoveries of four silver rings belonging to the wife of the deceased and a knife pursuant to his statement. It is rather surprising that even though the investigating agency claimed to have made a searching examination of the house of the deceased on 14-4-1983 and, to have seized on that day sixteen articles, four of which contained fingerprints, the glass tumbler containing the fingerprints was seized and the footprints were noticed on 24-4-1983. When considered in the context of the fact that he was in custody of the police at that time the possibility of fabrication of evidence to implicate him as contended by him, cannot be altogether ruled out. This apart, some of the reasons which weighed with us for not accepting the evidence regarding the find of fingerprints, namely that there is a missing link between the identity of the articles seized and identity of the articles examined by the Fingerprint Bureau and non-production of the glass tumbler during trial also persuade us not to accept the evidence - 48 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 adduced in proof of the above circumstance. So far as the footprints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample footprints were not taken before a Magistrate. This apart the science of identification of footprints is not a fully developed science and therefore if in a given case — unlike the present one — evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence." 53. Thus, in the light of aforesaid precedents and in the absence of compliance by the investigation officer with the guidelines provided under Chapter XXXVIII Volume 2 of the Karnataka Police Manual, the evidence of PW.16 and his report at Ex.P31 cannot be accepted. Irregularity/defect in recording statement under Section 313 of Cr.P.C: 54. Mere recovery of material objects without establishing the link with the commission of crime is of no consequences. The aforesaid material objects along with FSL report as per Ex.P35 has been relied upon by the prosecution to link appellant/accused to the commission of crime. As rightly pointed out by learned counsel for the appellant/accused perusal of statement of the appellant/accused recorded under Section 313 of Cr.PC does not indicate that this circumstance - 49 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 has been confronted/brought to the notice of the appellant/accused. 55. Learned counsel for the appellant/accused has cited several precedents with regard to importance of statement under Section 313 of Cr.PC. Suffice to refer to following citations: (a) The Apex Court in the case of TARA SINGH VS. STATE reported in (1951) SCC 903 emphasizing the requirement of accused to be given fair opportunity to explain any adverse evidence at paragraphs 23 and 24 has held as under: 23. Section 342 requires the accused to be examined for the purpose of enabling him "to explain any circumstances appearing in the evidence against him." Now it is evident that when the Sessions Court is required to make the examination under this section, the evidence referred to is the evidence in the Sessions Court and the circumstances which appear against the accused in that Court. It is not therefore enough to read over the questions and answers put in the Committing Magistrate's Court and ask the accused whether he has any- thing to say about them. In the present case, there was not even that. The appellant was not asked to explain the circumstances appearing in the evidence against him but was asked whether the statements made before the Committing Magistrate and his answers given there were correctly recorded. That does not comply with the requirements of the section. 24. There is also more than that in this case. The evidence recorded in the Committal Magistrate's Court is not as full and as complete as the evidence recorded in the trial before the - 50 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 Sessions Judge. Accordingly, it often happens that evidence is given in the Sessions Court and facts are disclosed which do not appear on the record of the Committing Magistrate. If the Judge intends to use these against the accused, it is clearly not enough to question him about matters which occurred in the Committal Court, for material of this kind will not be found in the committal record in these circumstances. That has happened here. (b) Similarly, the Apex Court in the case of Ajay Singh Vs State of Maharashtra reported in (2007) 12 SCC 341 adverting to purpose of 313 of Cr.PC at paragraphs 12, 13, 14 and 15 has held as under: 13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. The word “generally” in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's - 51 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 56. In the case of AEJAZ AHMED SHEIKH VS. STATE OF U.P. reported in (2025) SCC Online SC 913 the Apex Court at para 21 has clarified the manner of recording 313 statement which is as under: 21. Thus, the evidence of prosecution regarding the dying declaration was not put to the accused in his statement under Section 313 of Cr.P.C. The law on this aspect is well-settled. In the case of Raj Kumar v. State (NCT of Delhi)5, this Court has summarised the law on his aspect. Paragraph 22 of the said decision reads thus: “22. The law consistently laid down by this Court can be summarised as under: 22.1. It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction. 22.2. The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence. 22.3. The Court must ordinarily eschew material circumstances not put to the accused from - 52 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 consideration while dealing with the case of the particular accused. 22.4. The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused. 22.5. If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident. 22.6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him. 22.7. In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313 CrPC. 22.8. While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.” (emphasis in original) 57. In the instant case perusal of statement recorded under Section 313 Cr.P.C by the trial Court on 11.09.2018 and on 25.10.2018 does not indicate that the appellant/accused has been called upon to explain the case made against him in terms of Ex.P35- Certification of examination issued by State Forensic Science Laboratory regarding presence of blood stains with 'B' - 53 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 group blood on item Nos.1, 2, 3, 5 and 6. Since the prosecution has heavily relied upon this circumstance of recovery of MO.1, 2, 3, 5 and 6 to link the appellant/accused to the commission of crime it cannot be said that non compliance of the requirement of Section 313 of Cr.PC would not cause prejudice to the appellant/accused. This Court is therefore of the considered view that the said circumstance cannot be held against the appellant/accused merely because the appellant/accused did not provide the explanation regarding blood stain on his clothes and jerkin. Conclusion: 58. As already noted it is equally settled proposition of law that though prosecution is required to establish its case beyond reasonable doubt, but that does not mean that the degree of proof must be beyond shadow of doubt. In the instant case aforesaid analysis shows that circumstances set up against the accused were not proved beyond reasonable doubt and chain of circumstances set up was not so complete to point out the only hypothesis of guilt of accused. Merely based on the statement/deposition of PW.19 -Shama and the purported - 54 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 recovery of MOs.1, 11, 12, 13, 14, 15 and 16, the factum of commission of offence under Section 302 of IPC cannot be said to have been proved pointing out the guilt of the appellant/accused and ruling out any other possibility. 59. For the aforesaid reasons and analysis and in the light of the legal principles this Court is of the considered view that the trial Court has erred in convicting the appellant/accused for the offence punishable under Section 302 of IPC. 60. Hence, the following: ORDER The appeal is allowed. The impugned judgment and order of conviction and sentence dated 19/22.11.2018 in S.C.No.48/2015 passed by the Principal District & Sessions Judge, Tumakuru is hereby set aside. Appellant/accused is acquitted of the charge for the offence punishable under Section 302 of IPC. He shall be set at liberty forthwith, if his detention is not required in any other case. - 55 - HC-KAR NC: 2025:KHC:34346-DB CRL.A No. 50 of 2019 The order of the trial Court with regard to disposal of the properties is maintained. The matter is referred to District Legal Services Authority, Tumakuru for determination and payment of compensation to PW.4 under Section 357A of Cr.P.C. Communicate copy of this order to the trial Court and concerned prison forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE RU/RL/SBN List No.: 1 Sl No.: 9