Ramappa @ Ramesh Kenchappa Bastawade vs State Of Karnataka

S.R. Krishna Kumar, J

This appeal by the accused No.2 in Sessions Case No.168/2020, is directed against the impugned judgment dated 12.03.2025 passed by the VII Additional Sessions Judge, Belagavi sitting at Chikkodi (for short, ‘the Trial Court’), whereby the Trial Court convicted the appellant/accused No.2 for the offences punishable under Section 109 of Indian Penal Code, 1860 (for short, ‘IPC’), for abetting the murder committed by accused No.1 who was convicted for the offences punishable under Sections 302 and 201 of IPC.

The brief facts giving rise to the present appeal are as under;

(a) PW1-the complainant Channappa Siddappa Karigar filed a complaint on 13.12.2019, alleging that his wife Smt. Bhagyashree was murdered by accused No.1, sister of the deceased, during the midnight of 08.12.2019, and that the accused No.1 was guilty for the offences punishable under Sections 302 and 201 of IPC. In pursuance of the aforesaid complaint filed by PW1 before the respondent-police authorities at 07.30 p.m. on 13.12.2019, the police authorities registered an FIR in Crime No.139/2019 against the accused Nos.1 and 2 for the alleged offences punishable under Sections 302, 201 and 109 of IPC.

(b) Subsequently, after investigation, the police authorities filed a charge sheet on 14.02.2022 by arraying the appellant herein as accused No.2 and the said proceedings were initiated in SC No.168/2020 before the Trial Court. While the accused No.1 was alleged to have committed offence under Sections 302 and 201 of IPC, the appellant/accused No.2 was alleged to have committed the offence of abetment to murder as contemplated under Section 109 of IPC.

It is a matter of record that accused No.1 and appellant/accused No.2 were arrested on 14.12.2019 and the appellant/accused No.2 was enlarged on bail on 02.07.2021 while the accused No.1 continued to remain in custody.

The prosecution examined 21 witnesses as PW1 to PW21 and documentary evidence at Ex.P1 to P40 were marked, as well as the material objects at MO1 to MO23 were marked. The appellant/accused No.2 as well as the accused No.1 did not adduce any oral or documentary evidence on their behalf. After hearing the parties, the Trial Court came to the conclusion that the accused No.1 was guilty for the offences punishable under Sections 302 and 201 of IPC, while the appellant/accused No.2 was guilty for the offences punishable under Section 109 of IPC. Accordingly the Trial Court passed order on sentence, which reads as under:

“Accused No. 1 and 2 are hereby sentenced to undergo the Rigorous Imprisonment for Life and to pay the fine of ₹1,00,000/- each for the offence punishable U/Sec. 302 and 109 of Indian Penal Code respectively. In default of fine, the accused no.1 and 2 shall undergo further simple imprisonment for a period of one year.

Accused No. 1 is further sentenced to undergo the Simple Imprisonment for one year and to pay the fine of ₹10,000/- for the offence punishable U/Sec. 201 of Indian Penal Code. In default of fine, the accused no.1 shall undergo further simple imprisonment for a period of fifteen days.

Out of total fine amount of ₹2,10,000/-imposed on the accused no.1 and the amount of ₹2,00,000/- shall be paid to C.W.1 by way of compensation U/Sec. 357 Cr. P. C, and the remaining amount of ₹10,000/- shall go to the state exchequer towards public cause.

All sentences shall run consecutively.

The period of detention of accused no.1 & 2 in judicial custody be "set off" as against the sentence imposed on him U/Sec. 428 Cr. P. C.

MO.6 shall be released in favour of complainant and MO.7 shall be confiscated to state after expiry of appeal period.

M. O. 1 to 5 and 8 to 22 being worthless are ordered to be destroyed subject to appeal after expiry of appeal period.

Office is hereby directed to send the copy of this "Judgment of Conviction and Order of Sentence" to the District Magistrate, Belagavi as per Sec. 365 of Cr. P. C.

Office is hereby further directed to furnish the free copy of the Judgment and Order to accused no.1 and 2 immediately.

Office to issue conviction warrant accordingly.”

Aggrieved by the impugned judgment insofar as it relates to him, appellant/accused No.2 is before this Court by way of the present appeal.

Learned counsel for the appellant and learned Addl. SPP submit that to the best of their knowledge, the accused No.1 has not preferred any appeal and continues to remain in custody.

The said submission is placed on record.

Heard the learned counsel for the appellant/accused No.2 and learned Addl. SPP for respondent-State and perused the material on record.

Learned counsel for the appellant/accused No.2 reiterates the various contentions urged in the memorandum of appeal and invited our attention to the impugned judgment in order to point out that, without there being any legal or acceptable evidence or proof to establish that the appellant/accused No.2 was guilty for the offence of abetment of murder, as contemplated under Section 109 of IPC, the Trial Court committed an error in convicting the appellant for the aforesaid offence.

It was submitted that the impugned judgment entirely focuses on the alleged offences committed by accused No.1 and the appellant/accused No.2 has been convicted on the basis of a sole confessional/ voluntary statement of accused No.1, which is impermissible in law and except the said factor/circumstance, there is no other evidence to incriminate the appellant/accused No.2 for the alleged offence. It was therefore submitted that the impugned judgment passed by the Trial Court convicting the appellant/accused No.2 for the offence punishable under Section 109 of IPC, deserves to be set aside and the appellant/ accused No.2 be acquitted for the alleged offence.

Per contra, the learned Addl. SPP would support the impugned judgment and submits that there is no merit to the appeal and the same is liable to be dismissed.

We have given our careful consideration to the rival submissions of the learned counsel for the parties and perused the material on record.

A perusal of the material on record will indicate that the incident resulting in the murder of the deceased-Smt. Bhagyashree, is said to have occurred during the midnight of 08.12.2019. It is an undisputed fact that the complaint was lodged after a period of 5 days from the date of the incident. While coming to the conclusion that the accused No.1, who was none other than the sister of the deceased was guilty of the offences punishable under Sections 302 and 201 of IPC, the Trial Court places reliance upon the evidence of witnesses who are said to have seen the accused No.1 at the place of the incident on the night of the murder and has also considered the material on record including the Forensic Lab Reports, Post Mortem Report and DNA Report which indicates that the hair of the accused No.1 was found at the place of the incident, in order to come to the conclusion that the accused No.1 was not only present at the spot when the incident took place but was also guilty of the alleged offences as contemplate under Sections 302 and 201 of IPC.

The Trial Court also took into account the material or record which indicate that the demise of the deceased was a homicidal death and there was sufficient material to link the accused No.1 to the homicidal death of the deceased, and that the accused No.1 was guilty of committing murder and also notices that as on the date of the incident which occurred in the house of the deceased, only the accused No.1 and deceased were present and their presence was spoken to by the witnesses in their testimonies. Under these circumstances, the Trial Court came to the conclusion that the accused No.1 was guilty of the offences alleged against her and passed an order of conviction and sentenced the accused No.1 for the offences punishable under Sections 302 and 201 of IPC.

However, when it came to appellant/accused No.2, the Trial Court places reliance on the sole confessional/voluntary statement of accused No.1, which is marked at Ex.P23, in order to come to the conclusion that the appellant/accused No.2 was guilty of the offence of abetment to murder as contemplated under Section 109 of IPC. The Trial Court also noticed the allegation that the appellant/accused No.2 was said to be having an illicit relationship with the accused No.1 and since, the deceased warned the accused No.1 about this extramarital/illicit affair between the accused No.1 and accused No.2, the appellant/accused No.2, abetted the accused No.1 for committing the murder of the deceased.

In this context, it is pertinent to note that except the aforesaid two circumstances, there is absolutely no other material either produced or considered or appreciated by the Trial Court for the purpose of recording or finding that the appellant/accused No.2 was guilty of the offence of abetment of murder. In fact, two witnesses i.e., PW4 who is a pancha and PW7 who is the complainant turned partially hostile and did not support the case of the prosecution insofar as murder was concerned. So also, the Investigating Officer who was examined as PW18 admits that he did not collect any material nor placed the same before the Trial Court to evidence the alleged illicit relationship between the accused No.1 and accused No.2. As stated supra, the Trial Court places reliance upon the sole confessional/voluntary statement of accused No.1, for the purpose of recording the finding that the appellant accused No.2 was guilty of the offence abetment to murder as contemplated under Section 109 of IPC, which is impermissible in law as held by the Hon’ble Apex Court and this Court in various judgments including the judgment of the Hon’ble Apex Court in the case of Kalinga Alias Kushal Vs. State of Karnataka (2024) 4 SCC 735, wherein it is held as under;

“15. The conviction of the appellant is largely based on the extra-judicial confession allegedly made by him before PW 1. So far as an extra-judicial confession is concerned, it is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to the other evidence on record. In Chandrapal v. State of Chhattisgarh, this Court reiterated the evidentiary value of an extra-judicial confession in the following words : (SCC OnLine SC para 11)

“11. At this juncture, it may be noted that as per Section 30 of the Evidence Act, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. However, this court has consistently held that an extra-judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra-judicial confession. As held in State of M.P. v. Paltan Mallah, the extra-judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra-judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra-judicial confession of the co-accused.”

It is no more res integra that an extra-judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra-judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra-judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra-judicial confession.”

A perusal of the impugned judgment of the Trial Court in relation to convicting the appellant/accused No.2 for the offence of abetment to murder is as under;

“53. Coming back to the facts and circumstances of instant case, the learned counsel for defense all through out the case never disputed the presence of accused no.1 with deceased at the spot on the alleged date and time. Under the circumstances, in reliance with testimony of C.W.10 examined as P.W.7, it could be safely concluded that the prosecution is successful in establishing the actual presence of accused no.1 with deceased in the closed proximity of house, wherein, the accused no.1 alone had access as consistently deposed by each one of the close relatives of deceased and accused no.1. Consequently, the explanation offered by the accused no.1 to the effect that the deceased used to invite ghost and no body could be expected to stay with her cannot be acceptable one. Moreover, when the offence occur within the family, it is but quite natural that strangers may not be interested to come and depose before the Court. Under the circumstances, the testimony of close relatives shall have to be accepted for the simple reason that accused no.1 is also equally related to them. I, therefore, do not find any just cause to disbelieve the testimony of P. W. 7, 1, 8 and 9. Moreso, the cause of death as well as recovery including discovery stood well establish through examination of independent panchas and experts including the doctors and scientific officer. And the testimony of official witnesses is found to be consistent with story of prosecution. Indeed, the delay in lodging the complaint is properly explained and the nexus in between accused no.1 and 2 also stood well established. And this accused no.1 is also found to be convicted for the murder of her own son and for the very reason of illicit relationship with accused no.2 in S. C. No. 166/2020, giving sufficient corroboration to the case of prosecution with regard to motive of offence and actual abetment caused by accused no.2 to accused no.1, which one, further well established by the confessional statement.

In that view of the matter, this Court having had carefully appreciated the oral and documentary evidence including the material objects placed on record finds it appropriate to conclude that the prosecution is very much successful in establishing the guilt of accused no.1 and 2 beyond all reasonable doubts on the basis of unimpeached testimony. Consequently, the minor discrepancies which are bound to occur cannot be given much weightage.

In that regard, when the material placed on record is carefully appreciated, although, the learned legal aid counsel for accused no.1 through consistent suggestions made to each one of the close relatives attempted to establish that the relationship in between accused no.1 and deceased was very much cordial, and they used to live with peace. But the kind of overt act on the part of accused no.1 and 2 continuing in illicit relationship despite repeated warning by the victim is shown to have led to this consequence and therefore, it cannot be inferred that the accused no.1 and 2 never thought of murdering the victim. In fact, the guilty mind must be inferred from the conduct, which is very much explicit from the testimony of each one of the material witnesses examined on behalf of prosecution. Under the circumstances, the overt acts as complained of cannot be brought under any of the exceptions U/Sec. 300 of I. P. C, and intention of the accused no.1 & 2 could be readily inferred. And therefore, taking into consideration of the entire material placed on record and the case of prosecution as charge sheeted; this Court is of the further considered opinion that the prosecution is very much successful in establishing the intention as well as overt acts in furtherance of common intention, and prior abetment caused by accused no.2. It could, therefore, be safely concluded after careful appreciation of the entire material on record from the above mentioned discussion and reasoning that the prosecution has proved its case beyond all reasonable doubts to record an Order of conviction U/Sec. 302, 109, 201 of I. P. C. With the above observation and for the reasons stated supra, I am inclined to answer the Points No.2 to 4 in the affirmative.”

It is interesting to note that except the aforesaid findings recorded by the Trial Court, in the remaining part of the judgment there are no findings whatsoever recorded against the appellant/accused No.2 in relation to the alleged offence of abetment to murder, for which he was convicted by the Trial Court. In fact, even in the aforesaid paragraph Nos.53, 54 and 56, the sole ground on which the appellant/accused No.2 has been held to be guilty of the offence of abetment to murder as contemplated under Section 109 of IPC, is by placing reliance upon the alleged confessional/voluntary statement of accused No.1, which is inadmissible and impermissible and incapable of being relied upon by the prosecution, as erroneously held by the Trial Court.

It is also pertinent to note that nothing is recovered from the accused No.2 for the purpose of incriminating him for the alleged offences. So also, none of the prosecution witnesses speak about the presence of the accused No.2 at the time or before the time of the murder said to have taken place during the midnight of 08.12.2019. Further, none of the other witnesses, in their testimonies, have stated anything against the appellant/accused No.2, so as to incriminate him for the alleged offences.

Under these circumstances, we are of the considered opinion that the Trial Court completely misdirected itself in coming to the erroneous conclusion that the appellant/accused No.2 was guilty of the alleged offences punishable under Section 109 of IPC, without there being any legal or acceptable evidence in this regard so as to prove the guilt of the appellant/accused No.2 beyond reasonable doubt.

We are of the view that the impugned judgment passed by the Trial Court deserves to be set aside and the appellant/accused No.2 be acquitted of the charges leveled against him.

It is made clear that this order is passed only in relation to the accused No.2 and this order will not have any impact/bearing on any claim or any appeal put forth by the accused No.1 before any Court or forum including this Court and the present order is restricted only to accused No.2.

In the result, we pass the following:

ORDER

(i) The appeal is hereby allowed;

(ii) The impugned judgment dated 12.03.2025 in Sessions Case No.168/2020 passed by the VII Addl. Sessions Judge, Belagavi sitting at Chikkodi, insofar as it relates to convicting and sentencing the appellant/accused No.2 for the offence punishable under Section 109 of IPC is hereby set aside;

(iii) The appellant/accused No.2 is acquitted for all the offence punishable under Section 109 of IPC;

(iv) The respondent and the concerned jail authorities are directed to release/set at liberty the appellant/accused No.2 immediately upon receipt of this order, unless required in respect of any other case;

(v) The Registry is directed to communicate the operative portion of this order to the respondent and concerned jail authorities forthwith both telephonically and electronically;

(vi) Pending applications, if any, are disposed of accordingly.