- 1 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.961/2018 (C) BETWEEN: HEMANTH KUMAR @ HEMANTH S/O NAGARAJAIAH AGED ABOUT 29 YEARS R/AT SEEGEPALYA GRAMA KOLALA HOBLI, KORATAGERE TALUK TUMAKURU DISTRICT – 572 101 …APPELLANT (BY SRI.M.SHASHIDHARA, ADVOCATE) AND: STATE OF KARNATAKA REPRESENTED BY KORA POLICE TUMAKURU DISTRICT – 572 101 (REPRESENTED BY PUBLIC PROSECUTOR) …RESPONDENT (BY SMT.RASHMI JADHAV, ADDITIONAL SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.02.2018 AND SENTENCE DATED 08.02.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, TUMAKURU IN S.C.NO.73/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. 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 VENKATESH NAIK T Digitally signed by K S RENUKAMBA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) Challenging the judgment and order of conviction and sentence passed against him, the accused in SC No.73/2015 on the file of Principal District and Sessions Judge, Tumakuru has preferred this appeal. 2. The appellant was the sole accused in S.C.No.73/2015 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. 3. The appellant was tried in S.C.No.73/2015 on the charge that with an intention to rob his distant relatives Gangadharaiah and his wife Gangamma, residents of Beladhara Village, during the intervening night of 07.06.2015/08.06.2015 he stayed in their house. At 01.30 a.m. he assaulted the victims with hammer, pickaxe and sickle on their face, head and all over the body and committed their murder. Then he escaped from the house robbing their gold and silver jewellery worth Rs.1,47,000/- and cellphone of victim Gangadharaiah. - 3 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 4. Regarding the incident, on the complaint Ex.P1 filed by PW.1/son of victim couple, FIR/Ex.P10 was registered in Crime No.80/2015 of Kora Police Station, Tumkur Rural Police Circle. During investigation, accused was arrested. On conducting the investigation, charge sheet was filed against him for the offence punishable under Section 302 of IPC. 5. The trial Court, on hearing the parties, framed the charge against the accused for the offence punishable under Section 302 IPC. As he denied the charge and claimed trial, trial was conducted. In support of the case of the prosecution, PWs.1 to 17 were examined, Exs.P1 to P38 and MOs.1 to 29 were marked. After his examination under Section 313 Cr.P.C, accused did not lead defence evidence. 6. The trial Court on hearing the parties by the impugned judgment and order held that though the case is based on circumstantial evidence, the circumstances set up against the accused were proved by the prosecution, convicted him for the offence punishable under Section 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs.50,000/-. - 4 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 7. Heard both side. Submissions of Sri M.Shashidhara, learned counsel for the accused: 8. The case was based solely on circumstantial evidence. The evidence of PW.3 regarding last seen circumstance did not satisfy the legal compliance of such circumstance. The evidence regarding fingerprints of the accused matching with chance fingerprints consisted of material contradictions regarding the date of collection of such fingerprints of the suspect. Further, the alleged collection of the fingerprints was not in accordance with the mandate in the Karnataka Police Manual. Thus the same was not acceptable in evidence. The recovery of the weapons, bloodstained clothes of the accused, the jewellery of the victim, mobile phone allegedly robbed by the accused is surrounded with material contradictions and suspicion. No independent witnesses was examined for such mahazar. The mahazars Exs.P2 and P3 did not conform to Guideline 1287 of Karnataka Police Manual. The daughters, daughter-in-law, and other children of the victims were not examined to show that these jewellery belonged to the victims. The recovery of motorcycle allegedly used by the accused in the commission of offence was wholly unacceptable. - 5 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 The presence of the accused at the scene of offence during the alleged time of offence was not established. Trial Court, without judicious appreciation of the evidence, has reached the wrong conclusion. Therefore, the impugned judgment and order of conviction and sentence is liable to be set aside. 9. In support of his submissions, he relies on the following judgments: i) Thippeswamy @ Kunta Thippaga vs. State by Challakere Police1 ii) Prakash vs. State of Karnataka2 Submissions of Smt Rashmi Jadhav, learned Additional SPP for the respondent-State: 10. The accused has not disputed that he was relative of the victims. His presence at the scene of offence was spoken by PW.3. The evidence of PW.3 was not discredited regarding last seen circumstance. The evidence of fingerprint expert shows that the fingerprints of the accused matched with the chance fingerprints lifted from the scene of offence. The accused failed to explain the same. The recovery of incriminating materials under the mahazars Exs.P2 and P3 were supported by the mahazar witnesses PWs.4 and 5. Merely 1 2022 SCC OnLine Kar 1650 2 (2014) 12 SCC 133 - 6 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 because PW.5 was the official witness, his evidence shall not be disbelieved. The scientific evidence shows that the bloodstains found on the weapons of the offence, clothes of the accused and clothes of the victims matched with each other. The accused failed to explain the said circumstance. The trial Court relying on the circumstance of recovery of the jewellery of the victims from the accused and the other evidence has rightly held that the material circumstance against the accused have been established. Therefore, the impugned judgment and order of conviction and sentence does not warrant any interference. The judgment in Prakash’s case referred to supra relied on by learned counsel for the accused is not applicable to the facts of the present case. 11. On hearing both side and on examining the material on record, the question that arises for consideration is “whether the impugned judgment and order of conviction and sentence is sustainable?” Analysis 12. Some of the admitted facts of the case are as follows: That victim/Gangadharaiah and his wife Gangamma were aged 80 and 75 years respectively. They had eight children, out - 7 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 of which one elder daughter and younger son Yogananda had predeceased them. Sujatha/CW.7 was the wife of Yogananda. Till about one and half years prior to the incident, she was living along with the victims in separate portion of the house where the incident took place, then she had shifted from that house to Tumkur. In the morning hours of 08.06.2015, Gangadharaiah and Gangamma were found dead in their house of Beladhara due to homicidal injuries. The accused was the distant relative of the victims. 13. The case of the prosecution in brief is as follows: (i) Since the victims’ children were living separately from them in Bengaluru, Tumkur etc., the accused who was their relative and doing grocery business in the nearby village used to supply groceries to them. He used to visit their house and victims had reposed trust in him. Before the incident the accused had incurred huge loan for drilling borewell and also due to his addiction to alcohol and gambling. To overcome his financial stress, he planned to commit murder of the victims. In execution of such plan, on 07.06.2015, he went to the house of the victims on motorcycle bearing No.KA-06/ED-6034. At 10.30 - 8 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 p.m., PW.3 was near the temple and witnessed the accused going to the house of the victims. (ii) Accused stayed in the house of the victims. During that night at about 01.00 a.m., he assaulted the victims with sickle, pickaxe and hammer and committed their murder. After committing their murder, the accused robbed the gold finger ring of Gangadharaiah, one ear stud and mangalya chain of the victim Gangamma. Then he broke open the lock of the locker where he could get only silver bowl and gold wire. He took the mobile phone of Gangadharaiah which was lying on the cot. Then he sped away from the house on his TVS motorcycle. On his way, he disposed of his bloodstained shirt. (iii) The neighbours/PW.2 and CW.14 on the next morning found the victims dead. CW.14 informed PW.1 about the incident. PW.1 visited the spot and filed complaint/Ex.P1 initially against unknown persons, based on which, PW.12 registered FIR as per Ex.P10. PW.12 visited scene of offence and handed over investigation to PW.14/in-charge CPI of Tumkur Rural Police Circle. (iv) PW.14 visited the spot. On his requisition, the dog squad and fingerprint experts visited scene of offence and - 9 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 collected fingerprints. PWs.14 and 12 conducted the inquest mahazars on the dead bodies. During the inquest, PW.14 seized the bloodstained scrapings from the scene of offence, black and grey hair found in the right fist of victim Gangamma and bloodstained bed sheet. He sent the dead bodies for post- mortem examination and seized the clothes found on the dead bodies of the victims which were collected by the constable from the hospital and produced before him. Then he handed over further investigation to PW.15/Circle Police Inspector of Tumkur Rural circle. (v) PW.15 deputed PW.12 for apprehending the accused. PW.12 apprehended the accused on 20.06.2015 and produced him before PW.15. PW.15 arrested him. Based on the voluntary statement of the accused, PW.15 conducted the mahazars/Exs.P2 and P3 whereunder weapons, belongings and phone of the victims were seized at the instance of the accused. He recorded the statement of the witnesses, collected the call records etc and filed the charge sheet. 14. It is already noticed that the case is based solely on circumstantial evidence. While laying down the principle governing the cases which are based only on the circumstantial - 10 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 evidence, the Hon’ble Supreme Court in para 153 of the judgment in Sharad Birdhichand Sarda v. State of Maharashtra3 held as follows: "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 v. State of Maharashtra [(1973) 2 SCC 793] where the 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, 3 (1984) 4 SCC 116 - 11 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 (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." (Emphasis supplied) 15. From the above reading, it is clear that when the prosecution relies on circumstantial evidence, it has to establish each of the circumstances by cogent and consistent evidence. If there is any break in the chain of circumstances, the benefit of doubt shall go to the accused. Therefore, this Court has to re- appreciate the evidence adduced by the prosecution in the light of the aforesaid principles of law to find out whether the impugned judgment and order of sentence is sustainable. 16. The prosecution to bring home the guilt of the accused relied on the following circumstances: i. Motive-that accused was in need of money and therefore, he intended to commit murder of the victims and rob them. - 12 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 ii. The accused was sighted near the house of the victims and thereafter, they were found dead with homicidal injuries; iii. The evidence of fingerprint experts; iv. Recovery of MOs.19 and 20-broken lock and sickle used for commission of the offence on the basis of voluntary statement of the accused under mahazar-Ex.P2; v. Recovery of cell phone of the victim and jewellery of the victims i.e. MOs.11 to 18 from the house of the accused, broken SIM card pieces of the victim-MOs.22 to 24, vehicle used in the commission of the offence and bloodstained shirt of the accused on the basis of his voluntary statement; vi. FSL evidence; and vii. Evidence of the official witnesses. Reg. Motive: 17. According to the prosecution, the accused had incurred loan for drilling borewell and to repay the said loan, he was in need of money. But regarding such financial stress of the accused, except his voluntary statement-Ex.P17, which was inadmissible, no evidence was adduced. That was not even - 13 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 spoken to by any of the witnesses. Other evidence relied to prove such motive was the alleged recovery of jewellery of the victims at the instance of the accused, which is found unacceptable as discussed in the later part of this judgment. Reg. Last seen circumstance: 18. The incident took place in the limits of Beladhara Village, Tumakuru District. Admittedly, the accused was not a resident of the said Village and he was the resident of Seegepalya Village in Koratagere Taluk. He was running grocery business in the said Village. He was the distant relative of the victims, i.e., who were aged couple and he used to visit their house and supply them groceries. According to the prosecution, on 07.06.2015 at around 10.30 p.m. PW.3 sighted the accused near the house of the victims. It is settled principle of law that the circumstance of last seen is a weak piece of evidence. There should be proximity of time and place of such last sighting and time and place of death. 19. PW.3 in his chief-examination states that on 07.06.2015 at 10.30 p.m., after dinner he had been to his Village Temple, at that time, he found the accused proceeding on his motorcycle towards the house of victim Gangadharaiah. - 14 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 Fifteen days thereafter, he saw the accused when the Police had brought him to the Village and the Police enquired him and recorded his statement. He does not even state what was the distance between the said temple and the house of the victims or his house and the temple and that temple was on which direction of the house of the victims. It is not his case that he saw the accused entering the house of the victims. It is not even elicited in his evidence that the said temple was adjacent to the house of the victims or close to the house of the victims. 20. According to the prosecution, the victims were found dead by PW.1 and others on 08.06.2015 at around 09.30 a.m. Even that evidence is not consistent. PW.1/son of the victims, says that on 08.06.2015 at 09.30 a.m., when he was preparing to go to the Court to his work, he received phone call from CW.14-Prashant to the effect that the door of the house of his parents is open, but they have not come out and he should come immediately. Therefore, he came to the said village at around 10.00 to 10.15 a.m. and found the main gate open and he opened the door of the hall and found the victims dead with homicidal injuries. - 15 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 21. PW.2 the neighbour of the house, deposed that during the intervening night of 07/08.06.2015 at 1:30 a.m., she heard some commotion from the house of the victims and she informed the same to her landlord, but the landlord asked her to sleep quietly and next morning at 8:00 a.m., she did not hear anything from the house of the victims and therefore, she asked somebody to enquire and then, she came to know about the death of the victims. 22. PW.4 another neighbour of the victims, states that about 3 years prior to his evidence during night he heard some commotion from the house of the victims, but as he was sleepy, he did not pay attention to the same and next morning, he left to his land at 6:00 a.m. and did not find any movements in front of the house of the victims. He returned at 07.30 a.m. and by that time, complainant had come and the victims were found dead. 23. The evidence of PWs.2 and 4 go to show that the house of the victims was surrounded by many other houses. PWs.2 and 4 do not speak about they finding the accused in and around of the house of the victims. Further, the spot mahazar is drawn to show that adjacent to the house of the - 16 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 victims, the temple mentioned by PW.3 is situated. Thus, the evidence adduced by the prosecution regarding last seen circumstance did not conform to the principles laid down by Padman Bibhar v. State of Odisha4 and other Supreme Court judgments relied on in the said judgment. Hence, the trial Court was in error in accepting the evidence of PW.3 regarding the last seen circumstance. Reg. Fingerprints: 24. According to the prosecution, after learning about the incident, PW.12-PSI of Kora Police Station visited the spot and at the spot, PW.1 submitted the complaint as per Ex.P1. Based on that, PW.12-PSI registered FIR-Ex.P10 against unknown persons. On the requisition of the Police, PWs.13 and 16-Fingerprint experts visited the scene of offence on 08.06.2015 and collected the articles seen at the scene of offence and fingerprints found there. PW.16 submitted his report as per Ex.P35 and PW.13 collected the fingerprints found at the scene of offence by using cello tape. PW.13 states that while examining the fingerprints on steel vessel, he found a chance fingerprint and collected the same. 4 2025 SCC OnLine SC 1190 - 17 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 25. According to the prosecution, on arrest of the accused, the fingerprints of the accused were sent for comparison and they matched with Q1-the chance fingerprint and thus, the accused was connected to the crime. But there are several material contradictions in the evidence of PW.13 and PW.15/Investigating Officer regarding the collection of the suspect’s fingerprint. PW.13-Fingerprint expert says that he collected the chance fingerprint on 08.06.2015, but Kora Police sent the suspect’s fingerprint i.e., fingerprint of the accused, on 17.06.2015 and they found them matching. Whereas PW.15/Investigating Officer says that on his instructions, PW.12 apprehended the accused on 20.06.2015 and produced the accused before him and he collected the fingerprints of the accused on 21.06.2015 and sent them to the fingerprint experts for comparison. Till 22.06.2015, neither the accused was summoned to the Police Station on suspicion nor the fingerprints taken, nor he was arrested. Nobody speaks how his fingerprints were sent to PW.13 on 17.06.2015 itself. Even on 21.06.2015, for collecting the fingerprints of the accused, no mahazar was drawn. - 18 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 26. Hon'ble Supreme Court in Prakash’s case referred to supra while holding that the fingerprints of the suspect's, even if he is not in custody, has to be collected before the Magistrate to lend assurance to such fingerprints, held as follows: "28. Assuming Prakash's fingerprint was in fact obtained by D'Souza, it was clearly not given voluntarily, but perhaps unwittingly and in what seems to be a deceitful manner. To avoid any suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the investigating officer was to approach the Magistrate for necessary orders in accordance with Section 5 of the Identification of Prisoners Act, 1920. In Mohd. Aman v. State of Rajasthan this Court referred to the possibility of the police fabricating evidence and to avoid an allegation of such a nature, it would be eminently desirable that fingerprints were taken under the orders of a Magistrate. We may add that this would equally apply to the creating evidence against a suspect. This is what this Court had to say: "8. 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 - 19 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 desirable that they were taken before or under the order of a Magistrate." 29. The Karnataka High Court has taken the view that it is not incumbent upon a police officer to take the assistance of a Magistrate to obtain the fingerprints of an accused and that the provisions of the Identification of Prisoners Act are not mandatory in this regard. However, the issue is not one of the provisions being mandatory or not - the issue is whether the manner of taking fingerprints is suspicious or not. In this case, we do not know if Prakash's fingerprint was taken on 07.11.1990 as alleged by him or later as contended by the investigating officer, or the circumstances in which it was taken or even the manner in which it was taken. It is to obviate any such suspicion that this Court has held it to be eminently desirable that fingerprints are taken before or under the order of a Magistrate. As far as this case is concerned, the entire exercise of Prakash's fingerprint identification is shrouded in mystery and we cannot give any credence to it." (Emphasis supplied) 27. In the present case, neither the fingerprints of the accused were collected in the presence of the Magistrate, nor was mahazar drawn for the same. Further, as per Volume II, Chapter XXIX, Guideline No.1287(4) of the Karnataka Police Manual, if latent fingerprints are found on a portable item, they have to be seized. In the present case, the vessel on which chance fingerprint was found was not seized. It is not even the - 20 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 case of the prosecution that the fingerprints lifted under Q1 were sufficient and therefore, the vessel was not seized. Therefore, that circumstance also militates against the prosecution. Considering such facts, the trial Court also did not rely on the fingerprints evidence. Reg. seizure of broken lock and sickle-MOs.19 and 20, respectively under Ex.P2: 28. According to PW.15-Investigating Officer, on the arrest of the accused, he was interrogated and the accused volunteered to show the scene of offence where he had disposed MO.20-sickle, led the Police and panchas to the house of the victims and produced MO.19- broken lock and MO.20- sickle. PW.15 seized the same under the mahazar Ex.P2 in the presence of PWs.4, 5 and CW.16-T.C. Rajashekar. To prove the circumstance, the prosecution relied on the evidence of PWs.4 and 5-mahazar witnesses, and PW.15-Investigating Officer. 29. PW.15 states that the mahazar was drawn on 20.06.2015 between 6.30 p.m. and 7.30 p.m. in the house of the victims. It further states that the accused revealed that after committing the murder of the victims, he entered the pooja room of the house and broke open the lock of the locker - 21 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 to rob valuables and dropped MO.19-broken lock in the house and he showed the same. Then he led the Police and panchas to a room in the house and produced MO.20-sickle which was kept behind the bags containing coconuts and they were seized under the said mahazar. 30. How recovery must be effected under Section 27 of the Indian Evidence Act, 1872, (for short, 'Evidence Act'), is expounded by the Larger Bench of the Hon’ble Supreme Court in para 56 of the judgment in Ramanand @ Nandlal Bharti v. State of Uttar Pradesh5 which reads as follows: "56. If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his bloodstained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody 5 (2023) 16 SCC 510 - 22 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the - 23 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 same is deficient in all the aforesaid relevant aspects of the matter. (Emphasis supplied) 31. Reading of the above paragraph shows that to effect recovery under Section 27 of the Evidence Act, the Investigating Officer has to secure two independent witnesses at the Police Station and in their presence, the accused should be asked to make his statement and exact words uttered by the accused have to be incorporated in the mahazar. The procedure of recording the statement of the accused in the presence of mahazar witnesses was insisted to lend credence to the statement of the accused leading to discovery. It was held that only after recording such statement, the panchas and the Police shall proceed to the place of discovery. 32. PWs.4 and 5 both did not speak that the accused had made statements leading to such discovery. PW.4 says in his chief-examination that one week after the incident, the Police had brought the accused, the Police opened the door of the house, showed the spot in the house, locker in the pooja room and a lock. He did not speak in the chief-examination about the Police seizing MO.20-sickle. Therefore, he was treated as hostile witness. Only during cross-examination by - 24 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 the Public Prosecutor, he stated about the seizure of MO.20- sickle. PW.4 in his cross-examination states that the key of the house was with the Police. He further states that except Police taking his signature on the mahazar, he has not given any statement. 33. When PW.4 says that the key of the house was with the Police, PW.5/another mahazar witness, states that key of the house was with Nagaraju-PW.4 who informed the same to the Police and opened the door of the house and then on entering the house accused showed the broken lock, thereafter, he produced MO.20-sickle and regarding that mahazar Ex.P2 was drawn. Even this witness does not speak about the accused making statement before him under Section 27 of the Evidence Act. 34. It is material to note that incident had taken place on 08.06.2015. The alleged recovery or discovery was on 20.06.2015. By that time, many people had gathered including PW.1 and other children of the victims. Victims’ last rites were conducted. There was no material to show that the scene of offence/the house was kept under lock and nobody had accessed the same. Under such circumstance, it is difficult to - 25 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 accept the evidence of the prosecution that MOs.19 and 20 were discovered for the first time under the mahazar Ex.P2 and other persons had not seen them though they had moved around in that place. At the cost of repetition, it is to be noted that the evidence of PWs.4 & 5 regarding the possession of the key was not consistent. So far as the discovery of the scene of offence, according to the prosecution itself, that was within the knowledge of the Police and other witnesses on the date of filing of the complaint itself. Therefore, by no measure that can be called as discovery under Section 27 of the Evidence Act. Reg. recovery of cell phone-MO.11, jewellery-MOs.12 to 17, broken SIM card pieces-MOs.22 to 24, vehicle bearing Registration No.KA-06-ED-6034 and bloodstained shirt – MO.21: 35. According to the Investigating Officer and other witnesses of the prosecution, accused disclosed that he had taken away MO.11- the cell phone of victim Gangadharaiah and jewellery-MOs.12 to 17 and had handed over the cell phone to his sister-in-law/CW.19-Nandini. He led them to his house in Seegepalya and upon Police asking CW.19, she produced MO.11 and the accused produced MOs.12 to 17 from his room in the house. The accused further revealed that he had broken the SIM card of the victim which was in MO.11 and disposed - 26 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 those SIM card pieces in the backyard of his house. He showed TVS motorcycle bearing Registration No.KA-06/ED-6034 as the one used in the commission of the offence and produced that. Further, he led the Police and panch witnesses near the land of one Shivalingappa and took out his bloodstained shirt from the bushes and produced the same. They were all seized under Ex.P3 in the presence of PW.5 and CW.16. 36. Out of the two mahazar witnesses, only PW.5 was examined. So far as this recovery also, PW.5 did not speak about the accused making statement in his presence or making such revelations under Section 27 of the Evidence Act. To show that MO.11 and MOs.22 to 24 belonged to victim Gangadharaiah, no evidence was adduced. CW.19-Nandini was not examined to establish that the accused had handed over the said phone to her. So far as MOs.12 to 17-jewellery, in Ex.P1-complaint, it was only stated that the culprits have robbed the jewellery from the persons of his parents and cash, jewellery and silver plate from the locker to establish that MOs.12 to 17/jewellery were in the possession of the victims, except PW.1, the other children of the victims, more particularly, CW.7-Sujatha/daughter-in-law of the victims who - 27 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 resided with them and had allegedly left their company around 1½ years prior to the incident was not examined. 37. PW.5 had not supported the recovery of SIM card under Ex.P3. Therefore, he was treated as hostile witness. Only during his cross-examination by the Public Prosecutor, he deposed to the said fact. At the relevant time, PW.5 was the Village Accountant of Saraswathipuram, Tumakuru Hobli. He was not from Seegepalya Village or the places where Ex.P3 was drawn. PW.15 in his cross-examination admits that at the time of the alleged drawing of the mahazar-Ex.P3, many other persons were available to act as panchas, but he says that he deliberately called the Government Servant as mahazar witness. What was the reason for calling particularly the Government Servant as mahazar witness is not explained. He does not even say that he was apprehensive about private witnesses turning hostile, therefore he employed one Government Servant as mahazar witness. 38. Further, though as per PW.15 and the mahazar the accused had volunteered to produce the jewellery, no appraiser was taken to the spot. PW.15 in his cross-examination admits that while going for seizure of those articles, he did not take - 28 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 appraiser with him. The accused contended that Exs.P2 and P3 were concocted by collecting the jewellery from PW.1 and no such voluntary statement or recovery was effected as alleged. 39. So far as the seizure of the shirt of the accused, PW.15 admits that he has not collected any record to show that the place from which the shirt was seized, was the land of one Shivalingappa. He does not even cite Shivalingappa as a charge sheet witness nor makes him a witness to the mahazar. 40. Next interesting aspect is that as per Ex.P3, accused produced TVS heavy duty motorcycle bearing Registration No.KA-06/ED-6034, saying that he had purchased that vehicle from PW.9/Ramachandrappa, he used the same to commit murder of the victims and that was seized. To prove that fact, PW.9 was examined. He says that he was the registered owner of the said vehicle and he had sold that vehicle to the accused about four years back. PW.9 could not even identify the number of the vehicle. Basically, no document was produced to show that PW.9 was the registered owner of the vehicle bearing Registration No.KA-06/ED-6034. - 29 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 41. To prove the seizure of the said vehicle under Ex.P3, the prosecution relied on the photographs-Exs.P18 to 25. Out of that, Ex.P22 is the only photograph, where the vehicle is depicted. Even in that, registration number plate of the vehicle is not seen. The photograph is taken in such a way that the number plate is not visible. The trial Court records show that the Investigating Officer had produced in the charge- sheet, the copies of the registration certificate of one TVS Moped bearing registration No.KA-06/ED-6034 and copies of Form Nos.29 and 30. That vehicle was standing in the name of PW.9-Ramachandrappa. But PW.9 could not even say that he owned that vehicle. In mahazar-Ex.P3, it is not claimed that the vehicle bearing registration No.KA-06/ED-6034 was seized. Probably to avoid such inconsistency, copies of registration certificate and Form Nos.29 and 30 were not marked during the evidence. 42. Volume II, Chapter XXIX, Guideline No.1287(4) of the Karnataka Police Manual which governs the drawing of the panchanama reads as follows: "(4) The panchanama should begin with a mention of the full names, age, occupation and address of the panchayatdars followed by a preamble explaining the - 30 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 purpose, for which the panchanama is being held. It should contain full and accurate statements of the articles or other relevant circumstances found and the exact spots at which they were found. It should state clearly what articles, if any, were seized and from where they were seized. After it has been written up, it should be read over by or to the panchayatdars and they should be asked to sign it after they have admitted it to be a true account of what they observed. The name of the writer should be mentioned and his signature taken. The time when it was commenced and completed, the date and the place should also be mentioned in it." (Emphasis supplied) 43. The above paragraph shows that it is mandatory for the Investigating Officer to depict the names, age, occupation and address of the mahazar witnesses at the beginning of the mahazar and in the preamble, the Investigating Officer has to explain the purpose for which the panchanama was done, etc. Apparently in Exs.P2 and P3, such particulars are not forthcoming and there is no explanation by the Investigating Officer for the same. The evidence regarding the seizure of incriminating articles under Exs.P2 and P3 was legally not acceptable and the same did not conform the requirements of such seizure as laid down by the Hon’ble Supreme Court in Ramanand @ Nandlal Bharti's case referred to supra. Therefore - 31 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 trial Court committed error in accepting such evidence regarding the discovery of incriminating materials and connecting the accused to the crime based on that. Reg. Evidence of FSL and Official witnesses: 44. The other evidence relied on by the prosecution and the trial Court to connect the accused to the crime is Ex.P34/FSL report. Relying on Ex.P34, it was contented that the weapons of the offence and the bloodstained shirt of the accused seized at his instance, contained same blood group and the accused has failed to explain the same and therefore, the charge against him is proved. It is already held that discovery or recovery of the shirt of the accused and weapons of the offence was not proved in accordance with law. As per Ex.P34, in some of the articles, 'O' blood group was found and in some of the articles, 'B' blood group was found. The blood grouping of the victims were not done by collecting their blood samples. 45. The other evidence relied on by the prosecution was the call detail records/Ex.P36, to show that around the time of offence, there was exchange of phone calls between victim Gangadharaiah and the accused. According to the prosecution, to trace the mobile of the victim based on its IMEA number, the - 32 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 Investigating Officer made a phone call and as the accused had inserted his SIM card in that mobile, that could be located and the accused could be connected to the crime. However, the Certificate as required under Section 65B of the Evidence Act relating to those call detail records were not produced. Further, PW.17 was examined to prove those documents. He was the Nodal Officer of technical department of the Police Department and he was not the service provider of the mobile service companies. Therefore, that evidence was of no use to the prosecution to connect the accused to the crime. 46. Since the circumstances of last seen together and recovery of the incriminating materials, which were the prime circumstances, were not established by acceptable evidence. There was a break of chain of material circumstances. In such event, the accused is entitled to the benefit of doubt as contemplated in the judgment in Sharad Birdhichand Sarda's case referred to supra. The impugned judgment of conviction and order of sentence is liable to be set aside. Hence, the following: O R D E R i. The appeal is allowed. - 33 - HC-KAR NC: 2025:KHC:41037-DB CRL.A No.961/2018 ii. The impugned judgment and order of conviction and sentence in S.C. No.73 of 2015 passed by the Principal District and Sessions Judge, Tumakuru is hereby set aside. iii. Appellant/accused is acquitted of the charge for the offence punishable under Section 302 of IPC. Accused shall be set at liberty forthwith, if his detention is not required in any other cases. iv. The order of trial Court with regard to disposal of the material objects is maintained. v. Communicate copy of this order to the trial Court and the concerned Prison, forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VENKATESH NAIK T) JUDGE AKC, KVK List No.: 1 Sl No.: 18