REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 495  OF 2006

Ningappa Yallappa Hosamani and Ors. …Appellants

Versus

State of Karnataka and Ors. …Respondents

With Criminal Appeal No. 496 OF 2006

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the order passed by a Division Bench  

of the Karnataka High Court. The High Court by the impugned judgment  

allowed the appeal and set aside the conviction of  appellants 3, 4 and 5  

(accused No.3-Sri Giriyappa @ Gireppa, A-4 Sri Yallappa S/o Arujunappa  

Yaraddi, A-5 Sri  Vithal S/o Kalakappa)  before it.  The compensation of  

Rs.50,000/- awarded to Girijabai (PW-4) was reduced to Rs.20,000/-. The  

present appeal is by A1, A6 and A7.

2. Seven  accused  persons  had  faced  trial  for  alleged  commission  of  

offences punishable under Sections 143, 148, 341, 109, 302 and  Section 201  

read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’).  

The  occurrence  took  place  in  the  intervening  night  of  31.1.2005  around  

midnight.  

3. Prosecution version in a nutshell is as follows:

Namadev  Muralidhar  Huvvannavar  (the  deceased)  resided  in  

Bommanabudni  village along with his wife-Girijabai  (PW.1) and his five  

children, out of whom Panduranga (PW.5) is one. He was in politics and due  

to his activities, he had incurred enmity of many persons. He was an accused  

in a session case on the allegation of having committed about ten years prior  

to 2005, the murder of Arjunappa Yaraddi (father of accused No.4) having  

set on fire the sugarcane crop of Yallappa Yaraddi. He was later acquitted in  

the said case.  Due to that,  he had enmity towards accused No.4, and for  

certain other reasons towards other accused also. On 30.1.2005 he left for  

Mudhol at about 4.00 p.m., on his CD Don motorcycle bearing Reg.No.KA-

48/E-1688 (M.0.15). In Mudhol, he met Kallanagouda Timmanagouda Patil  

of Utturu (P.W.12) at about 8.00 p.m.,  and told that he was returning to  

Bommanabudni  via  Halki.  Later  at  9.00  p.m.  he  was  seen  at  Halki  by  

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Gyaneshwar Ramappa Manemmi (P.W.11) going on the motorcycle towards  

Bommanbudni. He did not return home on that day and on the next day as  

well.  Therefore,  Girijabai  (P.W.1)  and  Panduranga.  (P-W.5)  started  the  

search for help. They traced the movement of Namadev till he left Halki and  

thereafter they could not get any trace  of Namadev.  In the meantime, they  

learnt  that  there  were  certain  motorcycle  marks  in  the  land  of  Vijaya  

Mandandappa Sutar of Mingapura and when they went there,  they found  

certain tyre marks of a motor cycle corresponding with the tyre marks of  

Namadev's  motor  cycle.  Therefore  suspecting  possible  abduction  of  

Namadev, P.W.1 lodged a complaint against Yallappa Arjunappa Yaraddi  

(accused No.4) and Vital Kalakappa Navi (accused No.5). That complaint  

was received by Sri Malakappa, P.S.I. of Lokapur Police Station (P.W.21),  

who registered a case at Crime No.16/2005 and forwarded F.I.R. (Ex.P.27)  

to  the  JMFC,  Mudhol.  He  went  to  the  place  i.e.,  the  land  of  Vijaya  

Manadappa Sutar as shown by P.W.1 and conducted the spot mahazar as per  

Ex.P.2. He also collected information in the neighbouring villages. He learnt  

that on that night i.e., at 8.00 p.m. of 30.1.2005, P.W.10-Vishnu Tulasigeri  

had seen the accused Nos.1, 2 and 4 to 7 near Bommanabudni bus stand  

talking to each other and later P.W.16-Laxmappa Mullauru having seen the  

accused No.2 and 7 going on one motor  cycle and accused Nos.1 and 6  

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going on another motor cycle towards Belgaum road. He also learnt that at  

that time the accused No.7 was on the motorcycle with a gunny bag and  

when P.W.16 had asked him about the same, the accused No.7 had replied  

that it contained a jaggery block intended to be given to his relative. The  

police also learnt that on the same night i.e., at about 3.00 a.m. on 30.1.2005,  

the accused Nos.1, 2, 6 and 7 had been seen by P.W.7-Hanamath Gouda  

Patil  near  the  canal  and two motor  cycles  parked on the road.  That  was  

further confirmed by the information given by P.W.8-Bhimappa Maleguddi.  

In furtherance of the same, the police suspected the accused Nos.1, 2 6 and 7  

in the matter and launched a search for them. The accused Nos.1 and 2 were  

apprehended  on  3.2.2005.  On  interrogation  by  P.W.20-Basavareddi  

Lingadal, C.P.I. of Mudhol circle (investigating officer), the accused Nos.1  

and 2 volunteered information to show the place where Namadev had been  

murdered  and  also  the  place  where  his  dead  body  had  been  buried.  In  

furtherance of that information, police officer in-charge went to the place  

near the land of Vijaya Manandappa Sutar and later to a place as shown by  

accused Nos.1 and 2. There the place near the canal shown by the accused  

Nos.1 and 2 was dug up resulting in the discovery of a gunny bag (M.0.9),  

which contained a dead body. That dead body was identified by Namadeva's  

wife-P.W.1-Smt.Girijabai  and Namadev's  son-Sri Pandurganga (P.W.5) as  

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that  of  Namadeva.  In  furtherance  of  the  information  furnished  by  the  

accused Nos.1 and 2 regarding involvement of other accused, a search was  

launched and accused Nos.4 and 5 were arrested on 7.2.2005. In furtherance  

of  the  voluntary  information  furnished  by  them,  sticks  M.Os.11  and  12  

allegedly used by them to beat Namadev were recovered. The accused No.6  

was arrested on 11.2.2005. The interrogation of accused No.6 resulted in  

leading them to the river and showing the place where, according to him,  

they had drowned the motorcycle (M-0.13) of Namadev after his murder. A  

swimmer-Lavappa Laxmappa Nagaral (P.W.15) was sent to that place, who  

brought  up  the  said  motorcycle  (M.0.13).  That  was  recovered  under  

panchanama.  Later  the  accused  No.7  was  arrested  on  26.2.2005  at  

Panchagavi village and in furtherance  of the information furnished by him,  

the  pick-axe  (M.0.14)  allegedly  used  for  burying  the  dead  body  was  

recovered. After further investigation, a charge sheet was placed against the  

accused.

The  accused  pleaded  not  guilty  and  claimed  to  be  tried.  The  

prosecution  examined  23  witnesses  and  closed  its  case.  About  the  

deceased having been seen by the persons for the last time, the prosecution  

examined  the  deceased’s  wife  (PW.1),  the  deceased's  son  (P.W.5)  and  

P.W.s 10, 11 and 12.  About the movements of the accused to connect  

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them with the murder of Namadev, prosecution has examined P.Ws.10, 13  

and 16.  Though P.W.13 has not  supported the prosecution and P.W.16  

only partially supported, the evidence of these two witnesses shows the  

movement of the accused Nos. 1, 2, 6 and 7. As regards the motive for  

murder,  P.Ws 6, 17 and 18 have been examined.  P.Ws. 2, 3 and 4 are  

panchas. P.W.14 dug up the land from where the gunny bag containing the  

dead body of Namadev was recovered. According to the prosecution, extra  

judicial confession had been made by the accused before P.W.9 and the  

drowned motorcycle was recovered after P.W.15 went down into the river  

and brought up the motorcycle. P.W.18 is the junior engineer, who has  

drawn the sketch of scene of the offence. Post mortem examination on the  

dead body was done by P.W.19 doctor. P.Ws. 20 to 23 are police officers.

The  trial  Court  on  the  basis  of  the  cumulative  effect  of  the  

circumstantial  evidence concluded that  the prosecution had proved that it  

was  the  accused  who  had  committed  the  murder  of  Namadev  and  had  

disposed of the dead body by putting it in a gunny bag and burying it  near  

the canal of Chickakhandi village  and throwing motor cycle in the river.  In  

appeal, conviction of A-3 to A-5 was set aside as noted above. A-6 and  A-7  

were  acquitted  of  all  charges  relating  to  Section  302 and 109 read  with  

Section 149 IPC. The conviction of A-1 and  A-3 under Sections 302 and  

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109 read with  Section 149 IPC was converted  to  Section  302 read  with  

Section 34 IPC.  The conviction of A-1, A-2, A-6 and A-7   under Section  

201 read with Section 149 IPC was converted to under Section 201 read with  

Section 34 IPC while the sentence is maintained.  

4. Learned   counsel  for  the  accused  appellants  submitted  that  the  

circumstances relied on clearly established the accusations and the only case  

is recovery under Section 27 of  Indian Evidence Act, 1872 (in short the  

‘Evidence Act’).  The present  appellants   are A-1, A-6 and A-7 so far as  

these appeals are concerned.  

5. The  basic  challenge  is  that  on  the  basis  of  statement  made  under  

Section 27 of the Evidence Act the conviction cannot be maintained because  

it cannot be said that the circumstances have been established.  

6. Learned counsel for the respondent-State on the other hand supported  

the judgment.  

7. As  regards  the  involvement  of  the  other  accused,  the  prosecution  

relied  on the  recovery  of  the  motorcycle  in  furtherance  of  the  voluntary  

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information furnished by the accused No.6. The said accused was arrested  

on  11.2.2005  and  as  spoken  to  by  P.W.20  investigating  officer,  in  

furtherance of the voluntary information furnished by him, they went to the  

river near Chickakhandi where a place in the river was shown by the accused  

No.6 as the place, where motor cycle had been drowned. P.W.15-Lavappa  

Laxmappa Nagaral had been taken there and he went into the river at the  

place shown by the accused No.6 and brought up the motorcycle M.0.15.  

The said motorcycle was later  identified as  that  of  Namadev.  The cross-

examination of P.W.15 does not show anything to doubt his version.

8. It  was  submitted  by  the  appellants  that  according  to  P.W.16,  the  

accused Nos.1 and 6 were seen in the police station on 3.2.2005 and this  

theory of the accused No.6 being arrested on 11.2.2005 and on his voluntary  

information furnished on that day, the motor cycle having been recovered in  

presence  of  P.W.15,  cannot  be believed.  Of  course P.W.16 in  the  cross-

examination says that when he went to the police station, he saw the accused  

Nos.  1  and  6.  It  was  submitted  by  the  State  that  perhaps  it  may  be  a  

typographical  mistake  and it  may be  the  accused  Nos.1  and 2  since  the  

records show that it is the accused Nos.1 and 2, who had been arrested on  

3.2.2005.  The  possibility  of  typographical  mistake  is  possible.  However,  

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even then taking into consideration the contention of the learned counsel for  

the appellants, at the most it may amount to an illegal custody by the police  

till 11.2.2005, thereafter recovering the motorcycle on 11.2.2005. That may  

create  some  doubt  regarding  the  claim  of  the  police  with  regard  to  the  

recovery.  But  considering  the  evidence  of  P.W.15,  we  find  that  this  

suspicion is unfounded. It is quite possible that the police detained accused  

no.6 unnecessarily from 3.2.2005 to 11.2.2005. We find no reason to discard  

the  alleged  recovery  of  motorcycle  in  furtherance  of  the  information  

furnished by accused No.6. As regards the accused No.2, the prosecution  

relies on the deposition of P.W.7 who saw the accused Nos.1, 2, 6 and 7 near  

the canal at about 3 a.m. of 31.1.2005. In addition P.W.12 saw the accused  

Nos.1, 2, 6 and 7 near the bridge. Earlier on 30.1.2005 at about 11.00 p.m.  

all  those four persons had been spotted by P.W.16. All  these depositions  

conclusively show that from 11.00 p.m. on 30.1.2005 till about 4.00 a.m. of  

31.1.2005, the accused Nos.1, 2, 6 and 7 were seen together. On complete  

perusal of the evidence, we find that on 30.1.2005 Namadev left his house at  

4.00 p.m. and went to Mudhol on his motorcycle bearing No.KA-28/A 1688  

(M.0.15).  He was seen at Inspection Bungalow, Mudhol, at  8.00 p.m. by  

P.W.12-Kallanagouda Patil of Utturu village. Namdeva told P.W.12 that he  

was returning to Bommanabudni  via Halki.  At 9.00 p.m. he was seen at  

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Halki  by  Jnaneshwara  (P.W.11)  going  on  the  motorcycle  towards  

Bommanabundi. Thereafter nobody saw him alive.

9. The accused Nos. l, 2 and 4 to 7 were seen by Bommanabudni bus  

stand at about 8.00 p.m. of 30.1.2005 by P.W.10 Vishnu Tulasigeri.  The  

evidence of P.W.16 Laxmappa Mullurur shows that the accused Nos.2 to 7  

were seen at 11.00 p.m. on that day on the motor cycle. That witness  also  

saw the accused Nos. 1 and 6 on  another  motorcycle along with other. His  

evidence  further  shows that  the  accused  No.7 was riding the  motorcycle  

along with the accused No.2 on that motorcycle and another motorcycle was  

driven  by  the  accused  No.6-Hanamant  Ramappa  Kivudi  on  which  the  

accused No.1-Ningappa Yallappa Hosamani was sitting with a gunny bag.  

When he enquired from the accused No.1, about the gunny bag, the accused  

No.1 is stated to have replied that it contained jaggery block, which was to  

be given to his relative's house. It is submitted by the appellants that even if  

this  is  accepted  as  true,  there  was  nothing  wrong in  Ningappa  Yallappa  

Hosamani (accused no.1) taking a jaggery block to his relative's house and  

that cannot fasten the liability of transporting the gunny bag containing dead  

body. The time on which this incident is stated to have happened is at about  

11 p.m. on 30.1.2005 and later the same persons were seen near the canal  

with both the motorcycles. Therefore the story of gunny bag containing the  

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jaggery block is not believable. As held by the Courts below it must have  

contained the dead body of Namadev. Taking into consideration this factor,  

we find that the prosecution has conclusively proved that the accused Nos.1,  

2, 6 and 7 had disposed of the dead body of Namadev by putting it in a  

gunny bag and burying it at a place near the canal, which was detected in  

furtherance of the voluntary information furnished by accused No.1 and 2. It  

is also proved that the motorcycle of Namadev was drowned in the river by  

the  accused,  which  was  later  recovered  in  furtherance  of  the  voluntary  

information furnished by accused No.6. As regards accused Nos.1 and 2,  

since  the  dead  body  of  Namadev  was  recovered  in  furtherance  of  the  

voluntary information furnished by them, the  natural  presumption,  in  the  

absence of explanation by them is that it was those two persons, who had  

murdered Namadev and had buried the dead body.

10. As regards recovery of the dead body is concerned, the High Court  

noted as follows:

As  regards  the  second  ground  urged  by  the  learned  counsel for the appellants, there also what has been stated  is that a rumour had been spread that four persons had  committed the murder of Namadeva and his dead body  had been buried near the canal and later he was called on  2.3.2005 by Lokapur police. The mahazars regarding the  place of offence of murder conducted on 3.2.2005 and  

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the place were the dead body of Namadev was recovered  were conducted in the early hours of morning of 3.2.2005  and it is not unlikely that information immediately spread  in the village and immediately Namadev's dead body had  been  placed  near  the  place  of  canal.  Therefore,  this  cannot be taken as indicating the  knowledge the people  about the burial of the dead body even before the dead  body  of  Namadev  was  detected  in  furtherance  of  the  voluntary  information  furnished  by  the  accused  Nos.1  and 2. For this reason, we do not accept the interpretation  put forth by the learned counsel for the appellants with  regard to the recovery of dead body of Namadev.

The evidence of P.W.20-investigating officer shows that  the  accused  Nos.1  and 2  were  arrested  on  3.2.2005 at  Mahalingapura  and  in  furtherance  of  the  interrogation,  they furnished information and police and panchas were  led by the accused Nos.1 and 2 to a place near the canal.  This  claim  of  P.W.20  has  been  corroborated  by  the  evidence of P.W.14-Basappa Ramappa Pujari, who says  that he had accompanied the police and panchas to the  place where the accused Nos.1 and 2 were taken and the  accused Nos.1 and 2 showed a place as a place of burial  of  Namdev’s body. Then,  his deposition further  shows  that he and C.Ws 22, 24 and 25  were asked to dig the  land and when they dug the land,  they found a gunny  bag. That gunny bag contained a dead body which was  later identified by PWs 1 and 5 as the body of Nadadev.  We  have  very  carefully  gone  through  the  evidence  of  PWs 14 and 20 in this  regard and find no material  to  disbelieve the version of PW-14 that the place was shown  by A-1 and A-2 and that when the place was dug up, they  found  a  gunny  bag  containing  Namadev’s  dead  body.  This evidence conclusively shows that the accused Nos. 1  and 2 had buried the said gunny bag containing the dead  body of Namadev and that it was detected in furtherance  of the voluntary information furnished by them.

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11. In  State  of  Maharashtra vs.  Suresh (2000  (1)  SCC  471)  it  was  

observed as follows:

"Three possibilities are there when an accused points out the  place  where  dead  body  or  an  incriminating  material  was  concealed without setting that it was concealed by him. One is  that  he  himself  would  have  concealed  it.  Second  is  that  he  would have seen somebody else concealing it. And the third is  that  he  would  have  been told  by  another  person that  it  was  concealed there. But if the accused declines to tell the criminal  court that his knowledge about the concealment was on account  of  one  of  the  last  two  possibilities  the  criminal  court  can  presume that it was concealed by the accused himself. This is  because  the  accused  is  the  only  person  who  car  offer  the  explanation  as  to  how  else  he  came  to  know  of  such  concealment and if he chooses to refrain from telling the court  as to how else he came to know of it, the presumption is a well- justified  course  to  be  adopted by  the  criminal  court  that  the  concealment was made by him. Such an interpretation is  not  inconsistent with the principle embodied in Section 27 of the  Evidence Act."

12. Above being the position, we find no merit in these appeals which are  

accordingly dismissed.  

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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