- 1 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH 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.1456/2018 (C) BETWEEN: NARASIMHAPPA @ NARASIMHA S/O VENKATESHAPPA AGED ABOUT 31 YEARS R/AT SHIVANARAHALLI VILLAGE MULBAGAL TALUK KOLAR DISTRICT - 563 131 …APPELLANT (BY SRI M.R.NANJUNDA GOWDA, ADVOCATE) AND: STATE OF KARNATAKA BY MULBAGAL RURAL POLICE STATION REPT. BY PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE …RESPONDENT (BY SMT.SOWMYA R, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 20.04.2018 AND SENTENCE DATED 21.04.2018 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, KOLAR IN S.C.NO.59/2017 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC ETC. THIS CRIMINAL APPEAL COMING ON FOR FINAL 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 Digitally signed by K S RENUKAMBA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) Challenging the judgment and order of conviction and sentence passed against him in S.C.No.59/2017 on the file of I Additional Sessions Judge, Kolar, the accused has preferred this appeal. 2. The appellant was tried in S.C.No.59/2017 for the charge for the offence punishable under Section 302 of IPC on the basis of the charge sheet filed by Mulbagal Police in Crime No.45/2016 of their police station. For the purpose of convenience, the parties are referred to henceforth according to the ranks before the trial Court. 3. Undisputed facts of the case are that the accused and deceased Shilpa were married since 11 years prior to 23.12.2016. They were living in a house situated in Shivanarahalli Village in Mulabagal Taluk. Couple had no children. Accused, deceased, father and younger brother of the accused were residing together in the said house. PWs.1 and 2 were neighbours of the deceased and accused. PW.4 is the elder brother of the deceased and the complainant. PWs.3 and 5 are the relatives. PW.7 is the father of the deceased. PW.3 - 3 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 and PW.13 were the relatives of the deceased. In the morning of 24.12.2016 Shilpa was found dead in the house of the accused. 4. The prosecution case is that the accused was constructing house in Shivanarahalli Village and for that purpose he had borrowed loan from several persons, but he has not repaid the same. In his absence creditors used to visit his house and pester the victim for repayment of loan. Hence, there used to be quarrels between accused and deceased. Similarly on 23.12.2016 at 11.30 P.M. when the victim started insisting the accused to repay the loan, quarrel ensued between them and accused committed her murder by throttling her neck. 5. Regarding the incident PW.4/elder brother of the deceased said to have filed complaint as per Ex.P3. Based on that, PW.10 registered FIR as per Ex.P12 and handed over investigation to PW.12. On conducting the investigation, PW.12 filed charge sheet against the accused for the offence punishable under Section 302 IPC. - 4 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 6. There are no eyewitnesses to the incident. The case of the prosecution was based solely on circumstantial evidence. The circumstances relied upon by the prosecution are as follows: i. Motive - That there used to be disputes between accused and deceased regarding repayment of the loan borrowed by the accused for construction of the house. ii. Death was homicidal one and that was in the house of the accused. iii. Soon after the incident accused was found missing from the house. iv. The accused failed to explain and rebut the presumption under Section 106 of the Indian Evidence Act. 7. The trial Court by impugned Judgment and order held that the death being homicidal is proved by evidence of PW8/Medical officer. It was further held that the accused failed to establish his plea of alibi. Motive circumstance was proved by the evidence of complainant and other relatives of the deceased. Hence convicted and sentenced the accused. - 5 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 8. It is needless to state that when the case is based on circumstantial evidence, all circumstances relied should be proved beyond reasonable doubt and chain circumstances must be so complete to lead to hypothesis of only the guilt of the accused. 9. The Hon’ble Supreme Court in para 152 of the judgment in the case of Sharad Birdichand Sarda Vs State of Maharashtra1 has summarised the law regarding the appreciation of circumstantial evidence as follows: “152……… The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. Stat of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra): "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 1 (1984) 4 SCC 116 - 6 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) 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, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” (Emphasis supplied) - 7 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 10. Reading of the above Judgment goes to show that in a case based on circumstantial evidence however strong suspicion may be that does not take place of proof. It is not sufficient to show that accused may be guilty of the offence but evidence should be of such a sound quality that it must lead to conclusion that the accused must be the culprit. 11. Insofar as presumption under Section 106 of the Indian Evidence Act (for short ‘the Act’), the Hon’ble Supreme Court in the case of Vikramjit Singh Alias Vicky Vs State of Punjab2 has held that Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond reasonable doubt. It is held that only on the prosecution discharging its initial burden of proving, the burden shifts to accused to rebut the presumption contemplated under Section 106 of the Act. 12. The evidence in this case has to be analysed in the light of the ratio of the above Judgment. It is no doubt true that the death has taken place in the house of the accused and accused has not explained, did not assert death was accidental or suicidal etc. But the prosecution itself at one stretch says 2 (2006) 12 SCC 306 - 8 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 that death was due to throttling and at another stretch they seized M.O.4 -plastic thread indicating that death was due to strangulation. 13. Motive alleged was that accused borrowed loan for construction of the house but he had not repaid that, as the creditors pestered the victim in the absence of accused she in turn was insisting the accused to clear the loan. Therefore there used to be quarrels between them. PW1 and PW2 are stated to be neighbours of the deceased and the accused but they do not whisper anything about the quarrel between accused and deceased. PW4 the complainant, PWs 3, 5, and 6 though say that the accused had borrowed hand loan there used to be quarrels regarding payment of same. They do not state when the loan was borrowed, when the default was committed, who were the lenders, when the quarrel started between accused and deceased. But all the above said witnesses categorically state that accused and deceased were living cordially. Further PW4 in his cross examination admits that the accused, his father and younger brother and deceased were living together in the same house. Again he tries to explain saying that they were dining together, but were - 9 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 sleeping in different places. The Investigation officer conveniently suppressing the fact of aforesaid four persons living together does not record the statement of father and younger brother of the deceased nor implicates them in the case. He tried to say that they were dining together and sleeping at difference places. However in his further cross examination he admits that all four of them were living together. PW4 in the cross examination says that accused borrowed loan from Mahila Sangha through one Sujathamma but nobody from said Mahila Sangha nor Sujathamma were examined by the investigation officer. 14. PW5 in the cross examination states that he does not know in which year the accused demolished his old house and started construction. He says that he used to come to Shivanarahalli once in three or six months. He says he does not know from whom the loan was borrowed. That shows that he was not a frequent visitor to the house of the accused and deceased. 15. Such particulars regarding lenders, when the loan was lent, when those lenders started insisting are conspicuously absent in the evidence of other witnesses also. PW12 the - 10 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 investigation officer in the cross examination unequivocally admits that during the investigation nothing was surfaced regarding the accused borrowing the loan and he has not enquired anybody about the accused borrowing hand loan. He further admits in his cross examination that he has not even conducted any investigation about Shilpa/the deceased borrowing any loan. Absolutely no evidence is produced to show that accused owned a house and he had demolished that and started reconstruction. Therefore the foundational fact i.e., motive itself was not proved beyond reasonable doubt. 16. The evidence of PW8/Medical officer who conducted post mortem examination states that death was due to cardio- respiratory arrest due to asphyxia secondary to throttling. He does not conclusively say that death was due to throttling. 17. Though it was claimed that MO.4 - the plastic thread was seized from the scene of offence since it is not the case of the prosecution itself that death was due to strangulation by said thread, such seizure that does not advance the case of the prosecution. So far as the other incriminating objects that is clothes of the deceased, there is nothing incriminating like bloodstain on the clothes of the deceased to connect accused to - 11 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 the crime. When the initial burden of proving the fact that death was due to homicidal act of the accused driven by the motive alleged and evidence available was not brought on record by the investigation officer namely, evidence regarding borrowing of loan and recording statement of other inmates of the house, it cannot be said that all the links in the chain of circumstances were complete. Unless the chain of circumstances was complete, the presumption under Section 106 of the Act does not arise. 18. The trial Court has failed to notice the missing links as aforesaid and was in error not shifting the burden to the accused to rebut the presumption under Section 106 of the Act. Therefore the findings of the trial Court and Judgment and order of conviction and sentence are contrary to the law laid down by the Hon’ble Supreme Court in the Judgment of Vikramjit Singh’s case and Sharad Birdichand Sarda’s case referred to supra. When the chain of circumstances was not complete, the accused is entitled to be acquitted on the benefit of doubt. Therefore, the impugned Judgment and order of conviction and sentence is liable to be set aside. - 12 - HC-KAR NC: 2025:KHC:31731-DB CRL.A No.1456/2018 Hence, the following: ORDER (i) The appeal is allowed. (ii) The impugned judgment and order of conviction and sentence in S.C.No.59/2017 passed by I-Additional Sessions Judge, Kolar is hereby set aside. (iii) Appellant/accused is acquitted of the charge for the offence punishable under Section 302 of IPC. (iv) He shall be set at liberty forthwith, if his detention is not required in any other case. (v) Trial Court shall remit the fine amount to the accused, if already deposited. (vi) Order of the trial Court with regard to disposal of the properties is maintained. (vii) Communicate copy of this order to the Trial Court and concerned prison forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE KSR,SBN List No.: 1 Sl No.: 20