THE STATE OF KARNATAKA vs CHERANDA MOHAN

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R
RD
DATED THIS THE 3 DAY OF SEPTEMBER, 2026


PRESENT

THE HON'BLE MR. JUSTICE H.P.SANDESH

AND


THE HON'BLE MR. JUSTICE B.PRAMOD

CRIMINAL APPEAL NO.795 OF 2019

BETWEEN:


THE STATE OF KARNATAKA
BY CIRCLE POLICE INSPECTOR
GONIKOPPAL CIRCLE
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
…APPELLANT

(BY SRI. SUHAS GOWDA M, HCGP)
AND:

CHERANDA MOHAN
S/O LATE KUSHALAPPA
AGED ABOUT 32 YEARS
FARMER, KUTTANDI VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT-571218.
…RESPONDENT

(BY SRI. ABHISHEK JANARDHAN &
SRI. KARTHIK N, ADVOCATES)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED
30.11.2018 PASSED IN S.C.NO.92/2015 ON THE FILE OF II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU,
MADIKERI, SITTING AT VIRAJPET, THEREBY ACQUITTING THE








Digitally signed
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA

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ACCUSED/RESPONDENT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC AND SECTIONS 3 AND 25 OF
INDIAN ARMS ACT.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.08.2026, THIS DAY , THE COURT
PRONOUNCED THE FOLLOWING:


CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE B.PRAMOD

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

This appeal is filed by the State questioning the judgment
of acquittal dated 30.11.2018 passed in S.C.No.92/2015 on the
file of II Additional District and Sessions Judge, Kodagu,
Madikeri (sitting at Virajpet) for the offence under Section 302
of IPC and Section 3 read with 25 of the Indian Arms Act and
prayed this Court to set aside the said judgment and convict
and sentence the accused for the offences.

2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of case of the prosecution before
the Trial Court that on 07.09.2015 at about 08.00 a.m., the
deceased-Sabu Nanaiah was returning to his house on his two

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wheeler bearing No. KA12-K-369 who has gone to summon the
workers to work in his coffee estate. When deceased was in his
estate road, the accused who has having rivalry against the
deceased in connection with getting the katha of the property
in his name, concealed himself beneath silver oak tree in the
coffee estate of deceased-Sabu Nanaiah by holding SBBL gun
has fired on the face, rib of the deceased for 3 rounds with an
intention to kill the deceased and the deceased has succumbed
to the bullet injuries sustained. Thereby, accused has
committed the offence under Section 302 of IPC and Section 3
and 25 of the Indian Arms Act.
4. Based on the complaint of wife of the deceased, the
police have registered the case and conducted investigation in
the matter. Accused went and surrendered himself with gun
and the same was seized and recovery was made at his
instance. IO who conducted the investigation, collected the
material and filed the charge sheet. Having filed the charge
sheet, matter was committed to Sessions Court. The accused
appeared before the Court and he was enlarged on bail and
thereafter he did not plead guilty and claims the trial.

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5. In order to prove the case, the prosecution has
examined the witnesses as PW1 to PW34 and got marked the
documents at Ex.P1 to P91 so also, marked the material
objects at MO1 to MO23. The accused was subjected to 313
statement and he made the submission that he has no defence
evidence and marked the documents at Ex.D1 to D8.
6. The Trial Court having considered the material on
record comes to the conclusion that it is a case of homicidal of
the deceased. However, comes to the conclusion that the
prosecution fails to prove the charges levelled against the
accused for both the offences under Section 302 of IPC and
also Section 3 read with 25 of the Indian Arms Act and gave
the benefit of doubt in favour of the accused on appreciation of
evidence of both oral and documentary evidence placed on
record and acquitted the accused.
7. Being aggrieved by the judgment of acquittal by the
Trial Court, the present appeal is filed by the State before this
Court.
8. The learned High Court Government Pleader
appearing for the State would vehemently contend that the
Trial Court failed to consider the evidence available on record in

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a proper perspective which has resulted in miscarriage of
justice. The counsel would contend that Trial Court comes to
the wrong conclusion that there is no material evidence to
connect the accused with the crime. The judgment of the Trial
Court is bereft of any reasoning. While passing the judgment,
Trial Court has not at all appreciated the evidence on record
and no sound reasons are assigned. The counsel would contend
that Trial Court, except discussing the evidence led, has not at
all appreciated the evidence on record and absolutely there is
no deliberation and discussion on the evidence. The Trial Court
fails to consider the material on record and has reached a
wrong conclusion that case is rest upon the circumstantial
evidence and prosecution has failed to prove the guilt of the
accused and proceeded only on hypothesis.
9. The counsel further would vehemently contend that
the Trial Court has failed to consider the evidence of PW4, who
is none other than the wife of the deceased since the evidence
of PW4 is very accurate and consistent that the accused made
the confession statement with her that he had taught a lesson
to her husband and PW4 immediately informed the same to the
police and police came and inspected the spot. Based on her
complaint, the case was registered. The counsel would contend

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that Trial Court also failed to consider the evidence of ballistic
expert i.e., PW33 who has examined the SBBL gun and the
cartridges and opined in his report at Ex.P73 that bullets found
on the body of the deceased and also at the spot matched with
the gun and empty cartridges found at the spot was fired from
MO1. The MO1 was seized at the instance of the accused in the
presence of PW21 and PW21 has supported the case of seizure
of gun and so also the empty cartridges were seized where he
had thrown the same after the incident and both the articles
were also recovered. The counsel would contend that the FSL
report and evidence of PW33 is very clear that those empty
cartridges are fired from the said SBBL gun and injuries found
on the dead body is also on account of usage of said cartridges.
Thus, the Trial Court failed to consider the evidence of PW33
and nothing is discussed in the judgment with regard to the
ballistic expert evidence and report. The counsel would contend
that Trial Court has committed an error in appreciating the
evidence since the prosecution has proved the motive and
recovery of the weapon which was used at the instance of the
accused and there is a corroborative evidence of both scientific
and medical and fails to take note of all the chain of
circumstances against the accused which point out the very act

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of the accused. The counsel also contend that Trial Court has
glorified the minor discrepancies which do not go to the very
root of the case of the prosecution and committed all error in
acquitting the accused.
10. The learned High Court Government Pleader
appearing for the State in his arguments also vehemently
contend that the usage of single SBBL gun is not in dispute and
also shot the deceased in the same gun is not in dispute. The
only defence which was taken by the accused is that he had not
committed the offence of murder. The Trial Court fails to
consider the evidence of PW4 who has categorically deposed
that accused only confessed with her that he taught a lesson to
her husband. The expert i.e.,PW33 evidence is very clear that
the very same SBBL gun was used in the alleged incident. The
counsel would contend that it is not in dispute that MO1 is a
single barrel gun and the same was subjected to use gunshot.
PW4 also identified the gun which accused was carrying
immediately after he shot her husband and PW21 also supports
the case of prosecution for recovery of the gun at the instance
of the accused and accused himself went along with gun to the
police station and surrendered himself and produced the gun
was seized and PW21 also deposes with regard to the recovery

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of empty cartridges which were thrown by the accused and
accused only pointed out the same. The counsel further
contend that accused voluntarily surrendered before the police
on the very same day at 03.15 p.m. and gun was seized. The
counsel would contend that there was a motive to commit the
murder as there was a dispute with regard to the change of
katha.
11. The counsel brought to notice of this Court the
voluntary statement of accused at Ex.P79 and portion of the
same was marked with regard to handing over the weapon and
recovery of empty cartridges at the instance of the accused.
The FSL report at Ex.P72 is very clear with regard to usage of
MO1 in the incident and the evidence of the doctor-PW1 who
conducted the PM also very clear with regard to the nature of
the injuries which the deceased has sustained and both the
scientific and medical evidence supports the case of the
prosecution. The mahazar was drawn with regard to the seizure
of the weapon at the police station and recovery also made. All
these materials clearly disclose that accused only done the act
of murder of his senior uncle in view of the dispute with regard
to the change of katha of the property. But the Trial Court
committed an error in not relying upon these evidences. Hence,

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prayed this Court to convict the accused based on the material
available on record.
12. Per contra, the learned counsel appearing for the
respondent in his arguments would vehemently contend that
there is no chain of circumstances in the case and the same is
not established. The counsel would vehemently contend that
there are contradictions in the evidence of PW4, PW7, PW8,
PW9 and PW16. Though FSL report is marked as Ex.P72, the
same will not helpful to the prosecution since the expert says
that ‘MO1 may be used’ as per the evidence of PW33 and there
is no positive evidence before the Court. The counsel would
contend that even though the gun belongs to accused, no need
to explain the same under Section 313 statement of
incriminating evidence. The counsel would contend that his gun
was stolen. But fairly admits that no complaint was given for
having stolen his gun. The counsel would contend that there is
no any legal evidence and this accused has not fired on the
deceased. The counsel would contend that there is no any basis
for conviction and the recoveries also not proved by a positive
evidence. Hence, there cannot be a conviction based on the
suspicion.

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13. The counsel for the respondent in support of his
arguments, relies upon the judgment of the Apex Court
reported in (2003) 12 SCC 377 in the case of MOUSAM
SINGHA ROY AND OTHERS vs STATE OF W.B. and brought
to notice of this Court paragraph 27 wherein the Apex Court
discussed that the burden of proof in a criminal trial never
shifts on the accused and it is always the burden of the
prosecution to prove its case beyond reasonable doubt on the
basis of acceptable evidence. The counsel referring this
judgment vehemently contented that law does not permit the
Court to punish the accused on the basis of suspicion alone.
14. In reply to this arguments, the counsel appearing
for the State would contend that the evidence of PW1-doctor
who conducted the PM tallies with the evidence of PW33 who is
the ballistic expert. The Trial Court has not considered the
ballistic report as well as the evidence of PW33. Both medical
evidence and ballistic expert’s scientific evidence matches with
each other. Accused also has not explained how his SBBL gun
was missing and how other person had used his gun for
committing the murder of the deceased. The counsel would
contend that motive is very clear that there was a dispute prior

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to this incident with regard to the change of katha as the
deceased has not given consent for change of khata.
15. Having heard the learned High Court Government
Pleader appearing for the State as well as the learned counsel
appearing for the respondent and reanalysing both oral and
documentary evidence placed on record, the Point that would
arise for consideration of this appeal before this Court is:
1. Whether the Trial Court has committed an error
in acquitting the accused for the offence
committed under Section 302 of IPC and Section
3 and 25 of the Indian Arms Act and whether the
appreciation of evidence available on record by
the Trail Court is perverse which leads to
miscarriage of justice and whether this Court can
convert the judgment of acquittal into a
conviction considering the material on record?
2. What order?
Point No.1:

16. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on
record, it discloses that the prosecution has mainly relies upon
the evidence of PW1 to PW34 and documentary evidence of

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Ex.P1 to P91 and also the material objects. Before considering
both oral and documentary evidence on record, this Court
would like analyse that whether it is a case of homicidal or not.
The Trial Court considered the evidence of PW1-doctor who
conducted the post mortem and the document of Ex.P1-PM
report wherein, opinion is given that due to hemorrhagic shock
as a result of injury to vital organs, he died. However, kept
pending final opinion till the FSL report. The doctor on perusal
of post mortem finding and also the State Forensic Science
Laboratory report, given the final opinion that cause of death is
an account of due to shock and haemorrhage as a result of
injury to vital organ, i.e., an account of gunshot injury
sustained from a close range. The final report is also marked as
Ex.P1(b) and P1(c) through PW1 and his signature is also
marked as Ex.P1(d). The Trial Court while answering Point
No.1, also taken note of this evidence and there is no serious
dispute with regard to the fact that the deceased died on
account of the gunshot injury. While answering Point No.1, Trail
Court taken note of the evidence of PW1 as well as FSL report.
When there is no serious dispute with regard to the cause of
death is concerned as a result of haemorrhage and shock to the
vital organs like liver, lungs of the deceased, this Court also

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affirms the finding of the Trial Court with regard to the fact that
it was a case of homicidal of the deceased.
17. Now, this Court has to consider the material
available on record to comes to the conclusion that whether
accused has committed the offence or not and whether the Trial
Court has committed an error in appreciating both oral and
documentary evidence placed on record or not.
Analysis of both oral and documentary evidence
available on record and discussion:
18. The Court has to analyse and appreciate both oral
and documentary evidence available on record. The prosecution
in order to prove its case mainly relies upon the evidence of
PW1 to PW34. However, the evidence available before the
Court is PW1, PW4, PW21 to PW23 and also other official
witnesses who are the part of investigation and recovery and
also the expert evidence particularly the evidence of PW33 and
PW34.
Law set in motion.
19. PW4 who is the wife of the deceased has given the
complaint in writing as per Ex.P3. It is also her case that having
heard the firing sound on three times, she rushed to the spot

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where she heard the sound and immediately she noticed the
accused who was coming with SBBL gun and having met the
accused, he confessed with her that he taught a lesson to her
husband. Having heard the statement of the accused, she
proceeded further and found the dead body of her husband and
also the motorcycle in which the deceased was proceeded. In
the complaint at Ex.P3, PW4 stated about the motive to commit
the murder that her husband was Pattadhar of the land and
there was also a partition. But with regard to the change of
katha is concerned, her husband has refused to give consent
for the same since the accused was having an intention to sell
the property. Hence, accused was declaring in the village that
he is going to take away the life and her husband informed the
same to her. PW4 further stated in her complaint at Ex.P3 that
as a routine, her husband went to summon the labours in his
two wheeler at 07.00 a.m. and he used to come at around
08.30 a.m. That on 07.09.2015, when she was in the house, at
08.00 a.m. she heard the firing sound three times and
immediately, she rushed towards her plantation land and found
the accused who was coming with the gun and having
witnessed her, he confessed that he taught a lesson to her
husband, go and see and she went towards the plantation and

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saw that her husband was lying and scooter was also lying
there and he was pooled with blood and found the injuries on
the face and her husband has already lost his life. Immediately
she got the neighbours and they also witnessed the same. It is
her statement that due to motive, accused had fired her
husband. PW4 gave the written complaint at 09.30 a.m. to the
police and the same was forwarded to the police station and
case was registered in Crime No.95/2015. PW4 reiterated
corollary to the contents of the complaint at Ex.P3. Thus, the
Court has to take note of the evidence of PW4.
20. Apart from this, she has deposed that Manu and
Shanthi came to the spot. Immediately, she rushed to the
house and informed the police over the phone and again she
came back to the spot. By that time, people also gathered. The
Circle Inspector and Sub Inspector came to the spot at around
09.00 a.m. and she gave the written complaint in terms of
Ex.P3 and she identified the signature in Ex.P3. The police have
conducted the inquest. At the spot, vehicle two wheeler was
also lying. Thereafter, body was shifted to the hospital for post
mortem. PW4 also identifies the MO1-SBBL gun which was in
the hands of the accused and she also identifies the cloth of the
deceased at MO2 to MO7 and also the damaged scooty meter

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board and vehicle and drawing of mahazar and photographs at
Ex.P6 to P17 and both stained and non-stained mud at the
spot. It is also her evidence that empty cartridge was also
found at the spot and identifies the same as MO9. It is also her
evidence that she came to know that the accused took two
empty cartridges and had thrown the same in different places.
PW4 also identifies the application which was pending before
the Tahsildar Office wherein, the next date was fixed as
03.10.2015. Instead of waiting till that date, accused
committed the murder of her husband. PW4 also identifies her
signature in Ex.P18 mahazar. PW4 is also a signatory to the
mahazar for having seized the documents. This witness also
speaks about the other documents of Ex.P20 to 24.
21. This witness was subjected to cross-examination. In
the cross-examination, she admits that there was already a
division in the family properties. The witness also admits that in
the partition, some extent of property is standing in the name
of deceased as well as the father of the accused. PW4 also
admits that the katha was not changed in the revenue records
and the same is got elicited from the mouth of PW4 by making
the suggestion by the defence itself. The witness also admits
that earlier, a case was registered against her husband in

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Crime No.3/1992 in the police station of Gonikoppa. It is also
admitted that there was a division in the year 1990 itself and in
respect of division is concerned there was no dispute between
her husband and also the brother of her husband. It is also
elicited making the suggestion that in the Tahsildar office, in
respect of changing of katha concerned, there was a matter
and the same is pending and this suggestion is made by the
defence itself and got elicited the evidence. Hence, it is very
clear that there was a dispute between the deceased and
accused before the office of Tahsildar and case was pending.
Hence, it is very clear that there was a motive to commit
murder. But it is the contention of the defence that in view of
the said proceedings, accused has been falsely implicated in
this case. But it is the case of the prosecution that in view of
the dispute regarding change of katha, accused committed the
murder of the deceased.
22. The Court has to take note that there was a dispute
between the family of the deceased and accused. It is not in
dispute that the husband of the deceased is the Pattadhar and
without his consent, RTC will not be transferred and the same
is elicited in the cross-examination of PW4.

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23. The law was set in motion at the instance of PW4 as
the evidence of PW4 is with regard to the confession made by
the accused with her and immediately she rushed to the spot.
PW4 categorically admits that the distance between her house
and the place where her husband's body was lying is only 5
minutes walk and fristly, she heard the firing sound at 08.00
a.m. and within 2 seconds, she heard second firing sound and
within 4 seconds, third firing sound was heard. This evidence
supports the fact that there were three times gunshot. It is also
her evidence that when she found the dead body of her
husband, she called Manu and Shanthi and asked them to be
there at the spot and she went to home and informed the police
and one Appacchan called the neighbours. The evidence of PW4
is consistent with regard to having heard the gunshot and she
rushed to the spot and found the accused and accused made
the confession statement and immediately she called Manu and
Shanti and also she went and informed the police and police
also came to the spot and further procedure was made. Thus,
the evidence of PW4 is very clear with regard to setting of law
in motion by registering the case.

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24. In order to prove that law was set in motion, this
Court has to consider the evidence of PW30-PSI wherein he
deposed that he has received the phone call from PW4 and
immediately he went to crime spot along with his staff i.e.,
Kushalappa, ASI-Nagaraju and HC-Ganapathi and found the
dead body and PW4 gave the written complaint and the same
was received and sent to the police station through
Kushalappa. He identifies his signature at Ex.P3 as Ex.P3(d). it
discloses that the evidence of PW30 is only for the limited
purpose as he having received the phone call from PW4, went
to the spot along with his staff and having received Ex.P3, sent
it to the police station with Kushalappa. But in the cross
examination, he categorically says that when he had been to
the spot, PW4 was already written the complaint and the same
was received by PW30. PW30 deposed in the cross-examination
that he had received the phone call at 8.20 a.m. and he went
to the spot. The evidence of PW30 is that the distance between
the Gonikoppa and the place where incident has taken place
that is Kuttandhi Village is 18 to 20 kilometers. It is also his
evidence that when he went to the spot, he found labours and
also the villagers at around 20 in number. The distance
between the house of PW4 and to the incident spot is one k.m.

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and near the incident spot there are labourers line houses, but
this lines are not visible from the house of PW4.
25. Now, this Court has to consider the evidence of
PW28-Mr. U.T. Madaiah who registered the case having
received the written complaint of PW4 which was given at the
spot at 09.30 to PSI-PW30 which was brought by Kushalappa
and he also identifies his signature at Ex.P3 and he registered
the FIR in terms of Ex.P2 and his signature is also identifies at
Ex.P2(a). The evidence of PW28 is very clear that FIR was sent
to the Court through PC-214 and entrusted the papers to PSI.
In the cross-examination, he admits that PW4 did not visit the
police station. Except this answer, nothing is elicited. But his
evidence is very clear that the FIR was registered in between
the timings of 10.30 a.m. to 11.00 a.m and also deposes that
PSI has sent the complaint. The case of prosecution is also that
complaint was given at the spot by PW4 to PW30 and PW30, in
turn, forwarded the same to his staff PW28 and he registered
the FIR. Thus, law was set in motion by registering the FIR and
timing mentioned in the FIR is also very clear that after
receiving the information, went to spot and in the FIR it is
clearly mentioned that incident was at 08.00 a.m. and FIR was
registered at 10.30 a.m. and Magistrate received the FIR at

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04.45 p.m. on the same day through PC-311 of Gonikoppa
police station. Having considered all these material evidence it
is clear that the law was set in motion and there was no any
delay in lodging the complaint and registering the case. Hence,
the law was set in motion and could be accepted as against the
accused.
Motive:
26. The second circumstance is with regard to motive.
Having perused the complaint which came immediately after
the incident in terms of Ex.P3, it is very clear that there was a
dispute between the accused and her husband and accused
used to quarrel with her husband in respect of change of katha
and accused was forcing him for the same as he intended to
sell the property but her husband was not agreed to do the
same.
27. In this regard, this Court also would like to rely
upon the document of Ex.P19. This document is very clear that
the deceased being a Pattadhar gave the objection in respect of
issuance of coffee land holding certificate in favour of the
accused and the same was given on 11.06.2015. So also the
document of Ex.P20 is the letter which was given by the

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accused as well as other two brothers and the document of
Ex.P21 is the letter dated 15.11.2001 by the accused
addressing the same to his senior uncle and so also produced
the document of Ex.P22 to show that there was a partition
between the very same family and also the document of Ex.P23
– Partition Deed. The evidence of the Shirestedar of the Taluk
office who has been examined is very clear that there was a
dispute in respect of the change of katha. The Shirestedar also
deposed that he gave the documents to the police in respect of
accused as well as the deceased with regard to mutation copy
and documents are marked as Ex.P60 to P62.
28. The Court has to take note of the suggestion made
to PW4 wherein also the defence categorically admitted with
regard to the dispute in respect of change of katha is concerned
and the deceased being the Pattadhar, objecting for the same.
These are the answers elicited from the mouth of PW4 when
defence itself suggesting the same to PW4 in respect of the
extent of land standing in the name of both the deceased
family and accused family. The answer is elicited from the
mouth of PW4 that in respect of transfer of revenue documents
from the name of her husband to his brother's name, her
husband has not allowed and there was a partition in the year

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1990. But there was no dispute to that effect. The only dispute
is in respect of change of katha. It is elicited in paragraph 26
that there was a case in the office of Tahsildar which is pending
in the respect of change of katha since her husband objected
for the same. The land of Kushalappa was standing in the name
of her husband and he is the Pattadhar. Without the permission
or consent of the Pattadhar, RTC will not be changed.
29. Having taken note of this evidence available on the
record, it is very clear that there was a motive to commit the
murder. Other circumstances for committing the murder is also
proved through the suggestion made to PW4 by the defence
itself as well as the evidence available on record. The Court has
to consider the evidence of PW4 in keeping the provisions of
Section 6 of Evidence Act and also Section 134 of Evidence Act.
30. This Court also would like to rely upon judgment of
the Apex Court in GENTELA VIJAYAVARDHAN RAO AND
ANOTHER v. STATE OF A.P. reported in (1996) 6 SCC 241
regarding application of principle res gestae. The principle of
law embodied in Section 6 of the Evidence Act is usually known
as the rule of res gestae recognized in English law. The essence
of the doctrine is that a fact which, though not in issue, is so

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connected with the fact in issue “as to form part of the same
transaction” becomes relevant by itself. This rule is, roughly
speaking, an exception to the general rule that hearsay
evidence is not admissible. The rationale in making certain
statement or fact admissible under Section 6 of the Evidence
Act is on account of the spontaneity and immediacy of such
statement or fact in relation to the fact in issue. But it is
necessary that such fact or statement must be a part of the
same transaction. In other words, such statement must have
been made contemporaneous with the acts which constitute the
offence or at least immediately thereafter. Having taken note
of this principle, it is very clear that though deceased has not
made any statement, but P.W.4, who is the wife of the
accused, who suddenly came to the spot found the accused and
the accused made such statement. Hence, Section 6 of the
Evidence Act comes to the rescue of the prosecution when such
contemporaneous statement was made by the accused himself
with P.W.4.
31. This Court also would like to rely upon judgment of
the Apex Court in SUKHAR v. STATE OF U.P. reported in
(1999) 9 SCC 507, wherein the Apex Court discussed in detail
the scope of Section 6 and in paragraph Nos.6, 7 and 8 of the

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judgment discussed the meaning and principle of res gestae,
which reads as follows:
“6. Section 6 of the Evidence Act is an
exception to the general rule whereunder the
hearsay evidence becomes admissible. But for
bringing such hearsay evidence within the
provisions of Section 6, what is required to be
established is that it must be almost
contemporaneous with the acts and there should
not be an interval which would allow fabrication.
The statements sought to be admitted, therefore,
as forming part of res gestae, must have been
made contemporaneously with the acts or
immediately thereafter. The aforesaid rule as it is
stated in Wigmore's Evidence Act reads thus:
“Under the present exception [to hearsay] and
utterance is by hypothesis, offered as an assertion
to evidence the fact asserted (for example that a
car brake was set or not set), and the only
condition is that it shall have been made
spontaneously, i.e. as the natural effusion of a state
of excitement. Now this state of excitement may
well continue to exist after the exciting fact has
ended. The declaration, therefore, may be
admissible even though subsequent to the
occurrence, provided it is near enough in time to

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allow the assumption that the exciting influence
continued.”
7. Sarkar on Evidence (15th Edn.) summarises
the law relating to applicability of Section 6 of the
Evidence Act thus:
“1. The declarations (oral or written)
must relate to the act which is in issue
or relevant thereto; they are not
admissible merely because they
accompany an act. Moreover the
declarations must relate to and explain
the fact they accompany, and not
independent facts previous or
subsequent thereto unless such facts
are part of a transaction which is
continuous.
2. The declarations must be
substantially contemporaneous with the
fact and not merely the narrative of a
past.
3. The declaration and the act may be
by the same person, or they may be by
different persons, e.g., the declarations
of the victim, assailant and bystanders.
In conspiracy, riot & c the declarations
of all concerned in the common object
are admissible.

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4. Though admissible to explain or
corroborate, or to understand the
significance of the act, declarations are
not evidence of the truth of the matters
stated.”
8. This Court in Gentela Vijayavardhan Rao v.
State of A.P. [(1996) 6 SCC 241 : 1996 SCC (Cri)
1290] considering the law embodied in Section 6 of
the Evidence Act held thus: (SCC pp. 246-47, para
15)
“15. The principle of law embodied in Section 6 of
the Evidence Act is usually known as the rule of res
gestae recognised in English law. The essence of
the doctrine is that a fact which, though not in
issue, is so connected with the fact in issue ‘as to
form part of the same transaction’ that it becomes
relevant by itself. This rule is, roughly speaking, an
exception to the general rule that hearsay evidence
is not admissible. The rationale in making certain
statement or fact admissible under Section 6 of the
Evidence Act is on account of the spontaneity and
immediacy of such statement or fact in relation to
the fact in issue. But it is necessary that such fact
or statement must be a part of the same
transaction. In other words, such statement must
have been made contemporaneous with the acts
which constitute the offence or at least immediately
thereafter. But if there was an interval, however

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slight it may be, which was sufficient enough for
fabrication then the statement is not part of res
gestae.”
32. Even in paragraph No.9 of Sukhar’s case,
considered the judgment of RATTAN SINGH v. STATE OF
H.P. reported in (1997) 4 SCC 161, wherein the Apex Court
gave an example that A is accused of a murder of B by beating
him. Whatever was said or done by A or B or the bystanders at
the beating, or so shortly before or after it as to form part of
the transaction, is a relevant fact and held that the act of the
assailant intruding into the courtyard during dead of the night,
victim's identification of the assailant, her pronouncement that
appellant was standing with a gun and his firing the gun at her,
are all circumstances so intertwined with each other by
proximity of time and space that the statement of the deceased
became part of the same transaction. In the case on hand,
though victim has not made the statement, the victim went to
the spot and found the accused with a gun and there is a
proximity to the incident and statement made by the accused.
33. This Court also would like to rely upon judgment of
the Apex Court in DHAL SINGH DEWANGAN v. STATE OF
CHHATTISGARH reported in (2016) 16 SCC 701, wherein

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the Apex Court discussed with regard to Section 6 and Rule of
res gestae as exception to general rule that hearsay evidence
was not admissible and rationale behind rule of res gestae, key
expressions and requirements are explained.
34. This Court would like to rely upon the judgment of
the Apex Court in the case of STATE OF MAHARASHTRA v.
KAMAL AHMED MOHAMMED VAKIL ANSARI AND OTHERS
reported in (2013) 12 SCC 17, wherein in paragraph No.36 it
is observed that if the accused persons had made such
confessional statements immediately after the occurrence of
the bomb blasts, as a natural reaction in immediate proximity
of the occurrence, so as to constitute a part of the occurrence
itself, there may have been a live link between the blasts and
the confessional statements, and such confessional statements,
may have been perceived as a part of the same, and therefore,
may (in such eventuality) have been admissible under Section
6 of the Evidence Act. The Madras High Court in the case of
VENKATESAN v. STATE reported in 1997 Cri.L.J. 3854, held
that, in a murder case where the accused who had assaulted
the deceased had made a statement about the assault to the
brother of the deceased within half an hour of the act, the
evidence of the brother was held to be “res gestae”, and

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therefore, admissible under Section 6 of the Evidence Act.
Paragraph Nos.17 and 18 of the said judgment reads as under:
“17. The above proposition of law has been laid down by
the Apex Court and the same followed by other Courts. We
have to see whether there is an interval or time-lag between
the act committed by the accused and the time of statement
given to the witnesses and was it a long one so as to give
time or opportunity for fabrication. In the instant case the
occurrence took place at 11.30 p.m., and the statement made
by the appellant to P.W.1 at 12 mid night i.e. half an hour
later. In the light of the facts of this case, it cannot be stated
that there is a long interval so as to given opportunity for any
fabrication. After the occurrence was over, P.W.2 and P.W.3
informed to P.W.1 and immediately on receipt of the
information rushed to the house of the appellant where the
appellant was found standing near the victim. Therefore, as
per illustration (a) to Section 6 of the Evidence Act-
“Whatever was said by the accused to the witness shortly
after the occurrence also would form part of the transaction
and so it has to be considered to be the relevant facts and
circumstances of the case.”
18. Therefore we hold that the statement made by
appellant to P.W. 1 immediately after the occurrence without
any long time lag would be admissible under Section 6 of the
Evidence Act.”
35. Now, the Court has to consider whether the
quantity of evidence or quality of evidence is required that is
important in the case on hand. Having perused the evidence
available on record, the evidence of prosecution witnesses is

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very clear that the Court has to see the quality of evidence. The
evidence of P.W.4, who rushed to the spot found the accused
and the accused though not went to the police station
immediately, but at 3.15 which was spoken by P.W.33, the gun
was seized when he went along with gun to the police station.
The evidence of P.W.21 is very clear and the expert evidence is
also very clear that the gun belonging to the accused was only
used for committing the murder and the same is not disputed
except the evidence that the gun was stolen. To that effect, no
material available on record and the Court has to see the
quality of evidence.
36. This Court would like to rely upon judgment of the
Apex Court in NAMDEO v. STATE OF MAHARASHTRA
reported in (2007) 14 SCC 150, wherein the Apex Court held
that it is no doubt true that there is only one eyewitness who is
also a close relative of the deceased, it is the quality and not
the quantity of evidence which is necessary for proving or
disproving a fact and also discussed the scope of Section 134 of
the Evidence Act and held that neither the legislature nor the
judiciary mandates that there must be a particular number of
witnesses to record an order of conviction against the accused.

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Even one credible witness outweighs the testimony of a number
of other witnesses of indifferent character.
37. This Court would like to rely upon judgment of the
Apex Court in KUNJU ALIAS BALACHANDRAN v. STATE OF
TAMIL NADU reported in (2008) 2 SCC 151, wherein the
Apex Court discussed with regard to Section 134 of Evidence
Act and in paragraph No.8, relied upon the judgment in
VADIVELU THEVAR V. STATE OF MADRAS, wherein it had
gone into the controversy and held that it is well-established
rule of law that the court is concerned with the quality and not
with the quantity of the evidence necessary for proving or
disproving a fact, whether it is wholly reliable, wholly
unreliable, neither wholly reliable nor wholly unreliable. In the
above judgment also held that as a general rule the court can
and may act on the testimony of a single witness provided he is
wholly reliable. There is no legal impediment in convicting a
person on the sole testimony of a single witness. But, in the
case on hand, P.W.1 immediately rushed to the spot and found
the accused with gun and he had confessed that he only taught
a lesson to her husband.

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38. This Court also would like to rely upon judgment of
the Apex Court in BIPIN KUMAR MONDAI v. STATE OF
WEST BENGAL reported in (2010) 12 SCC 91, wherein the
Apex Court has held that in cases of circumstantial evidence,
motive is significant. Evidence about motive forms chain of
event in circumstantial evidence. Even if motive is strong,
accused cannot be convicted if evidence is not convincing and
the Court has to see the motive as well as quality of evidence
and it is not the quantity, but quality of evidence that is
material.
39. This Court would like to rely upon judgment of the
Apex Court in VADIVELU THEVAR v. STATE OF MADRAS
reported in (1957) 1 SCC 700, wherein also scope of Section
134 with regard to sole eyewitness is concerned, held that as a
general rule, a Court can and may act on the testimony of a
single witness though uncorroborated. No doubt, in the case on
hand, though P.W.1 has not witnessed the firing, but
immediately she rushed to the spot having heard sound and
found the accused, who is coming along with gun and also
made the statement that he had taught a lesson and it is very
clear that there was an ill-will between the deceased and the
accused and there was a dispute with regard to change of

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khata and the matter was pending before the office of
Tahsildar.
40. This Court also would like to rely upon judgment of
the Apex Court in GULAM SARBAR v. STATE OF BIHAR
reported in (2014) 3 SCC 401, wherein the Apex Court
referring Section 134 of Evidence Act held that there is no
requirement under law of evidence that any particular number
of witnesses is to be examined to prove/disprove a fact. It is
not the number of witnesses but quality of their evidence which
is important.
41. This Court would like to rely upon judgment of the
Apex Court in VEER SINGH AND OTHERS v. STATE OF
UTTAR PRADESH reported in (2014) 2 SCC 455, wherein the
Apex Court discussed with regard to Section 134 of Evidence
Act and testimony of single witness, the Court can and may act
upon, provided witness is wholly reliable and held that legal
system has laid emphasis on value, weight and quality of
evidence rather than on quantity.
42. This Court would like to rely upon judgment of the
Apex Court in MITESH @ T.V. VAGHELA v. THE STATE OF
GUJARAT in CRL.A.NO.212/2012 dated 11.05.2026,

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wherein the Apex Court has held that it is the quality of the
evidence and not the quantity and it is settled principle of
criminal jurisprudence that it is the quality and not the quantity
of evidence which is determinative.
43. This Court also would like to rely upon judgment of
the Apex Court in YANOB SHEIH ALIAS GAGU v. STATE OF
WEST BENGAL reported in (2013) 6 SCC 428, wherein also
the Apex Court held that it is not always the quantity but the
quality of the prosecution evidence that weighs with the court
in determining the guilt of the accused or otherwise. In order to
prove its case beyond reasonable doubt, the evidence produced
by the prosecution has to be qualitative and may not be
quantitative in nature.
The use of MO1-SBBL gun:
44. The MO1 - SBBL gun is the weapon which used to
take away the life of deceased. The evidence of PW1-doctor is
very clear with regard to nature of injuries and the cause of
death. As per the PM report at Ex.P1, the death was due to
shock and haemorrhage as a result of injury to vital organ i.e.,
liver and lung with the gunshot. The evidence of PW33 and his
report at Ex.P72 is clear that death was an account of injuries

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sustained by the victim. Thus, the medical evidence and also
the opinion of the expert is very clear that injuries present in
skin piece in Article No.18 and 19 are caused due to impact and
passage of lead projectiles and which could have been fired
through the SBBL gun in Article No.1. The wad and lead shots
in Article No.20 are the component of a 12 bore cartridge and
which could have been fired through the SBBL gun in Article
No.1. Hence, it is very clear that the MO1 gun was used for
firing. The opinion number 8 is also very clear that wad in
Article No.12 are the component of a 12 bore cartridge and
which could have been fired through the SBBL gun in Article
No.1 and the holes present on the muffler in Article No.23 are
caused due to impact and passage of lead projectiles and which
could have been fired through the SPL BBL gun in Article No.1
i.e. the muffler belongs to the deceased and so also the holes
present on the right side chest region, left side chest region
and left sleeve of the shirt in Article No.24 are caused due to
impact and passage of lead projectiles and which could have
been fired through the SBBL gun in Article No.1. The range of
firing with respect to the hole present on the right side of the
chest region of the shirt in Article No.24 is from contact shot
range. So also holes present on the right side chest region of

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the banion in Article No.26 are caused due to impact and
passage of lead projectiles which could have been fired through
the SBBL gun in Article No.1.
45. These are the opinions read with the evidence of
PW33 abd the same is very clear that he conducted the
examination of MO1 and method of examination and reasons
furnished is also set out in the opinion in respect of each of the
articles along with report at Ex.P72. Nothing is elicited from the
mouth of PW33 that this weapon was not used for firing.
Hence, it is very clear that gunshot was made by using MO1 on
the deceased and the same is also not disputed by the accused
and only defence is that he did not shot him.
46. It is unfortunate to say that the Trial Court fails to
discuss the expert evidence of PW33 and nowhere in the
judgment discussed with regard to the use of MO1 for firing and
also the nature of injuries which was spoken by PW1-doctor
and also the FSL report. The Trial Court also not discussed
anything about Ex.P1-P.M. report, nature of injuries and also
the Ex.P73 wherein signature of PW33 is also identified. The
same is not disputed. Except the defence of this accused that
he has not caused the gunshot injuries on the deceased, he has

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not led defence evidence and only a general defence was taken
that he did not use the same and the Trial Court accepted the
said defence without looking to the material on record.
Gun SBL MO1 belongs to accused
47. Now, this Court has to examine that whether the
gun belongs to the accused or not. No dispute to the fact that
the gun belongs to the accused and accused never disputed
that the said gun is not belongs to him. But the counsel for the
respondent, during the course of arguments, would submit that
the said gun was stolen. But in order to prove the same, no
complaint was given and also there is no explanation that how
this gun gone to the hands of third party who have caused the
gunshot on the deceased. The prosecution also obtained the
document of exemption certificate issued by the concerned
authority to show that the accused being a Kodava and having
Jamma property, he was exempted to have the licence. The
said document is marked as Ex.P46 through PW20 and the
same stands in the name of the accused only and exemption
certificate is issued subject to the provisions as laid down in
Karnataka Wildlife Protection Act, 1992 and the exemption
certificate holder shall obey the rules there. It is not disputed

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in the argument that this exemption certificate was not issued
in favour of accused. Hence, accused was having the gun and
exemption certificate was issued to accused is not in dispute.
48. The other circumstances which connect the accused
to prove that the gun belongs to him and also he had obtained
the exemption certificate from the concerned authority is the
evidence of PW32. To prove the same, examined the witness-
PW32 who is a retired Deputy Commissioner who gave the
sanction to file the charge sheet under the Arms Act and issued
the permission in terms of document of Ex.P68 and identifies
the signature at Ex.P68 and so also exemption certificate in
terms of Ex.P46. In the cross-examination, except eliciting that
exemption certificate to be issued only to the Kodava who is
having the Jamma properties, nothing is elicited from the
mouth of this witness-PW32 in respect of both the documents
are concerned. Thus, the other circumstance is also proved
against the accused and established the chain of circumstances.
Seizure of Gun as well as recovering of empty cartridges:
49. Now, the question before this Court is with regard
to involvement of the accused in committing the crime and also
with regard to the recovery of empty cartridges at the instance

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of the accused so also seizure of gun from the accused. The
case of the prosecution is that the accused has surrendered
before the police at 03.15 p.m. and the same is spoken by
PW34 who conducted the further investigation in the matter.
50. This Court would like to consider the evidence of
Investigating Officer P.W.34 with regard to seizure of gun as
well as empty cartridges coupled with the evidence of P.W.21,
who is the witness to seizure of gun as well as empty cartridges
at the instance of the accused. P.W.34, the Investigating
Officer in his evidence says that having received the
information, he took up further investigation in the matter from
P.S.I-Mahesh, who conducted inquest in the presence of panch
witnesses and saw the nature of injuries sustained by the
victim and instructed to seize the clothes of the deceased after
inquest. It is his evidence that he witnessed the damages
caused to the two wheeler found at the spot and the same was
seized. It is also his evidence that mahazar was drawn in the
spot as per Ex.P55 and found empty cartridges at the spot and
the same was seized. It is also his evidence that accused
surrendered before Gonikappa Police Station at 3.15 and arrest
process was done and recorded his voluntary statement. In his
voluntary statement i.e., Ex.P79, he volunteers to state that he

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will produce the gun as well as unused cartridge. So also, he
made the statement that, if he is taken, he will produce two
empty cartridges, where he had thrown the same and the
signature of the accused was marked as Ex.P79(a). It is his
evidence that in the presence of panch, seized the gun as well
as cartridge and mahazar was drawn in terms of Ex.P48 and his
signature is identified as Ex.P48(b). It is also his evidence that
the accused took him and also the panch witnesses to Kuttandi
Village and instructed to stop the vehicle near Kundachappa
temple road and he had pointed out two used empty cartridges
and the same were also seized by drawing mahazar in the
presence of panch witnesses, who accompanied them in terms
of mahazar Ex.P51 and he identifies his signature as Ex.P51(b)
and identifies M.O.11 and photos were taken in terms of Ex.P52
and Ex.P53. It is also his evidence that spot mahazar drawn at
the spot which was shown by the accused is marked as Ex.P55
and his signature is identified as Ex.P55(b) and also drawn the
spot sketch in terms of Ex.P56 and his signature is identified as
Ex.P56(b).
51. In the cross-examination of this witness with regard
to recovery of gun and empty cartridges at the spot where the
same was pointed out by the accused, he admits that when the

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mahazar was drawn in terms of Ex.P48 and Ex.P51, the relative
of P.W.1 was present and he had signed the same and except
eliciting this answer regarding seizure is concerned, nothing is
elicited. It is also suggested that in Ex.P16, when the scooter
was seized, headlight doom was damaged and two holes were
found and witness says that there were three holes and five
small holes and not two holes when the suggestion was made
to him and nothing is elicited with regard to seizure of gun in
the police station and not disputed the same that the accused
has not produced the same in the police station and no such
mahazar was drawn.
52. This Court has to consider the evidence of P.W.21,
who is also a part of seizure of gun and empty cartridges when
the accused took all of them and pointed out the same. The
Court has to take note of evidence of P.W.21 and he says that
when he went along with one Achaiah to Gonikoppa Hospital to
see the dead body. He also categorically says that both of them
were asked to come to police station and accordingly, they
went to police station and accused was there in the police
station. The accused gave the gun and also unused cartridge to
the Inspector and himself and Achaiah signed the mahazar
Ex.P48 and his signature is identified as Ex.P48(a) and also

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identifies the photos which were taken while sizing the gun and
the cartridge as Exs.P49 and P50. It is also his evidence that
accused led them to spot, since he made the statement that he
will show the place where he had thrown the empty cartridges
and he himself produced empty cartridges near the drainage of
Kundachappa temple, the same was seized and mahazar was
drawn in terms of Ex.P51 and his signature is identified as
Ex.P51(a) and he identifies the photographs Exs.P52, P53 and
P54. It is also his evidence that accused took all of them near
plantation and he had pointed out the place where he had
gunshot the deceased and mahazar was drawn in terms of
Ex.P55 and identifies his signature as Ex.P55(a). The spot
sketch was also prepared as per Ex.P56 and his signature is
identified as Ex.P56(a).
53. This witness was cross-examined and he admits
that he directly went to Gonikoppa Hospital from Boyikeri along
with Achaiah and he cannot tell at what time, body was shifted.
But, he says that cremation was done at 7.30. He admits that
while seizing the gun and cartridge, he had signed the
mahazar. He had put two signatures near the temple and also
put his signature when the spot was shown by the accused and
also made many number of signatures. He also says that when

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they went to spot, scooter was also there at the spot and
admits the photograph Ex.P50. He denies the photo which was
shown to him with regard to scooter is concerned. But, he says
that in that photo while producing the gun, he is not there and
he categorically says that he was sitting by that time. He also
admits when the suggestion was made that photo was taken
while producing the unused cartridge and Ex.D6 is marked and
the same was confronted and he was not there in that photo
and except eliciting the answer that he is not found in the
photo, nothing is elicited and no answer is elicited from the
mouth of this witness that he was not present while seizing the
gun, unused cartridge as well as empty cartridges from the
place where both the cartridges are seized and there is no
serious dispute with regard to seizure of the same.
54. Having considered the evidence of P.W.34, the
Investigating Officer as well as the evidence of P.W.21, it is
very clear with regard to conducting of spot mahazar and
seizure of gun as well as seizure of used cartridges at the spot
as well as two used cartridges which were recovered at the
instance of the accused where he pointed out the same. The
evidence of P.W.34 and P.W.21 is consistent, except the
answer elicited from the mouth of P.W.34 that he is the relative

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of the deceased and the evidence of P.W.21 is consistent and
so also the evidence of P.W.34. Though other witnesses are not
examined, but evidence of P.W.21 is consistent with regard to
seizure of gun and also the cartridges.
55. This Court would like to rely upon judgment of the
Apex Court in STATE, GOVT. OF NCT OF DELHI v. SUNIL
AND ANOTHER reported in (2001) 1 SCC 652, wherein the
Apex Court held that mere absence of independent witness
when investigating officer recorded the statement of the
accused and the article was recovered pursuant thereto is not
sufficient ground to discard the evidence. The evidence of
police officer regarding the recovery at the instance of the
accused should ordinarily be believed. It is for the accused to
show that such evidence is unreliable. The official acts of police
should be presumed to be regularly performed, for example,
archaic notion to approach actions of police with initial distrust
should be discarded. In the case on hand, not only the evidence
of police witness is before the Court, but also the evidence of
independent witness, though he is a relative of deceased, who
has been examined as P.W.21, his evidence is consistent.

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56. This Court would like to rely upon the judgment of
the Apex Court in PRAMOD KUMAR v STATE (GOVERNMENT
OF NCT OF DELHI) reported in (2013) 6 SCC 588, wherein
the Apex Court held that appreciation of evidence of police
witness would depend upon veracity, credibility and
unimpeachability of their testimony. If testimony of police
official is found to be reliable and trustworthy, court can
definitely act upon the same. Whereas, if court finds evidence
of police officer as unreliable and untrustworthy, the court may
disbelieve him but it should not do so solely on the presumption
that a police witness should be viewed with distrust. The quality
of evidence weighs over quantity of evidence.
57. This Court also would like to rely upon judgment of
the Apex Court in AJMER SINGH v. STATE OF HARYANA
reported in (2010) 3 SCC 746 , wherein the Apex Court held
that arrest and recovery made by police, reliability of evidence,
testimony of official witnesses, even in the absence of its
corroboration by independent evidence, can form the basis of
conviction if court is satisfied, on careful and cautious
appreciation of evidence, that it is otherwise believable.

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58. This Court also would like to reply upon judgment of
the Apex Court in KASHMIRA SINGH v. STATE OF PUNJAB
reported in (1999) 1 SCC 130, wherein also the Apex Court
held that in the circumstances, absence of independent witness
to support the recovery not fatal, conviction on the basis of
evidence of police officials not bad.
59. This Court also would like to reply upon judgment of
the Apex Court in GIRIJA PRASAD (DEAD) BY LRS. v.
STATE OF M.P. reported in (2007) 7 SCC 625, wherein the
Apex Court held with regard to recording of conviction solely on
basis of testimony of police officials and discussed with regard
to permissibility of the same and held that can be recorded, if
on careful scrutiny of their evidence the same is found to be
reliable and trustworthy and not necessary to be corroborated
by independent evidence. In the case on hand, not only the
evidence of police witnesses is available before the Court and
even the evidence of P.W.21 is very clear regarding seizure of
gun and also empty cartridges which were found at the spot
and accused had showed the place where he had thrown the
same and there is recovery under Section 27 of the Evidence
Act in respect of seizure of empty cartridges.

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60. This Court would like to reply upon judgment of the
Apex Court with regard to evidence of ballistics expert and in
corollary to the evidence of Doctor, who has been examined as
P.W.1 with regard to injuries, wounds and weapons to connect
the accused in other circumstances.
61. This Court would like to rely upon judgment of the
Apex Court in PAWN KUMAR ALIAS MONU MITTAL v.
STATE OF UTTAR PRADESH AND ANOTHER reported in
(2015) 7 SCC 148, wherein the Apex Court held that when
the death is by gunshot and Ballistic expert evidence is
available, in every case of gun firing, it is not required that
each and every bullet should hit target. There may be attempts
by deceased or victim to save himself from raining bullets, and
in which case, bullets may not hit the target, when the victim
was shot dead and recovery of bullets from the accused along
with blood stained cloth allegedly used in cleaning murder spot
cumulatively establish the place of incident.
62. This Court also would like to rely upon judgment of
the Apex Court in KALUA v. STATE OF UTTAR PRADESH
reported in (1956) 2 SCC 630, wherein the Apex Court held
that Expert evidence i.e., Ballistic expert opinion is conclusive

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to prove that a cartridge was fired from a particular pistol and
in a criminal trial, Medical Jurisprudence/Evidence firearm
injury, proof of firing of cartridge from a particular pistol and
Expert evidence in this case shows that he had fired and test-
cached cartridges from the very same pistol and that itself is
enough and High Court was accordingly justified in coming to
the conclusion that cartridge found near the place of incident as
well as recovery is made and conviction is upheld.
63. This Court would like to rely upon judgment of the
Apex Court in STATE OF PUNJAB v. BHURA SINGH AND
OTHERS reported in (1985) 1 SCC 37, wherein the Apex
Court in paragraph No.3, taken note of the possibility of the
weapon having been planted was altogether excluded. The
owner of a licensed gun would normally keep it in a secure
place so that it is not used by unauthorised persons and so that
no mishap occurs on account of an accidental firing of the gun.
But, in the case on hand, the counsel during the course of
argument would submit that the gun was stolen, but to that
effect, there is no complaint or not explained the same in 313
statement how the gun gone to the hands of third person and
also not denied the fact that the very same gun was used.

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64. This Court would like to rely upon judgment of the
Apex Court in VINEET KUMAR CHAUHAN v. STATE OF
UTTAR PRADESH reported in (2007) 14 SCC 660. In this
judgment also, the Apex Court in paragraph No.8 held that it
was also obligatory on the part of the prosecution to send the
bullet, allegedly recovered from the body of the deceased, for
being examined by the ballistic expert, so as to connect the
recovered licensed revolver of the appellant's father with the
crime. The Apex Court also discussed in paragraph Nos.11 and
12 that where direct evidence is not available or that there is
some doubt as to whether the injuries could or could not have
been caused by a particular weapon, examination of an expert
would be desirable to cure an apparent inconsistency or for the
purpose of corroboration of oral evidence. But, in the case on
hand, it is very clear that Expert evidence is clear that very
same gun was used and P.W.4 also speaks that accused was
coming along with gun M.O.1 and so also, he confessed with
her stating that he has taught a lesson to her husband and the
evidence of P.W.4 and the expert evidence i.e., Ballistic report
and so also the evidence of the Doctor and medical evidence
supports the case of prosecution.

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65. This Court also would like to reply upon judgment of
the Apex Court in SUBHASH AGGARWAL v. STATE OF NCT
OF DELHI reported in (2025) 8 SCC 440, wherein the Apex
Court held that death by firearm and plea as to suppression of
evidence of gunshot residue in the hands of the deceased when
no material. In the case on hand, no doubt, no such residues
were found when the swab was collected. But, the fact is that
incident has taken place in the morning at 8.00 a.m. and
accused went to police station at 3.15 a.m. In the meanwhile,
he might have washed his hands also and there would be no
such swab of gunshot residue and the same is not doubtful. The
Apex Court also in paragraph No.13 held that evidence of the
ballistic expert coupled with that of the doctor clearly indicates
that the death was caused due to a gunshot injury sustained by
the deceased and that it could not have been a self-inflicted
injury.
66. Now this Court has to consider the explanation, if
any given by the accused with regard to the weapon which
belongs to him being used in committing the murder and the
same is not disputed. However, the accused has not given any
explanation and the same is not found in the case and scope of
Section 313 is very clear that examination of accused is not a

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mere formality. In the case on hand, it is total denial and no
explanation is offered.
67. This Court would like to refer to the judgment of the
Apex Court in the case of MUNNA KUMAR UPADHYAY ALIAS
MUNNA UPADHYAYA v. STATE OF ANDHRA PRADESH
THROUGH PUBLIC PROSECUTOR reported in 2012 (6) SCC
174, wherein it is held that in order to prove his innocence, the
accused ought to have given satisfactory explanation in his
examination under Section 313 of Cr.P.C when incriminatory
evidence goes against him. The very purpose of examination of
the accused under Section 313 of Cr.P.C. is to explain with
regard to the incriminating circumstances appearing against
him. Twin purpose of accused’s examination is to give an
opportunity to him to furnish explanation, and to draw adverse
inference where accused denies established facts. Accused's
silence or false explanation – such conduct, held, entitles Court
to tilt in favour of prosecution case invoking Section 106 and
Section 114(iii)(g) of the Evidence Act, 1872. The scope of
Section 313 of Cr.P.C. is in detail discussed by the Apex Court
in paragraph Nos.72, 73 and 74, referring the judgments of the
Apex Court in the case of ASRAF ALI v. STATE OF ASSAM
reported in (2008) 16 SCC 328 and in the case of MANU SAO

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v. STATE OF BIHAR reported in (2010) 12 SCC 310 . The
Court has been empowered to examine the accused but only
after the prosecution evidence has been concluded. It is a
mandatory obligation upon the Court and besides ensuring the
compliance therewith the Court has to keep in mind that the
accused gets a fair chance to explain his conduct. The option
lies with the accused to maintain silence coupled with
simpliciter denial or in the alternative to explain his version and
reasons for his alleged involvement in the commission of crime.
68. This Court also would like to rely upon judgment of
the Apex Court in the case of MUNISH MUBAR v. STATE OF
HARYANA reported in (2012) 10 SCC 464, wherein it is held
that when the case depends upon the circumstantial evidence
and also the material available on record showing incriminating
circumstances against the accused, the accused must explain
under Section 313 of Cr.P.C. It is obligatory on part of accused
while being examined under Section 313 of Cr.P.C. to furnish
some explanation with respect to incriminating circumstances
associated with him. The Court must take note of such
explanation, even in a case of circumstantial evidence, so as to
decide whether or not, the chain of circumstances is complete.

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69. This Court also would like to rely upon judgment of
the Apex Court in the case of SANJEEV v. STATE OF KERALA,
passed in Criminal Appeal No. 1134/2011 dated
09.11.2023. Paragraph No.41 of the said judgment reads as
under:
“41. Notably, no less than 627 questions/
circumstances were put to A10 and A11 each under
Section 313 of the Code of Criminal Procedure,
1973. This Court has clarified on numerous
occasions that in law, the accused has a duty to
furnish some explanation of an incriminating
circumstance, with the prosecution crossing the
threshold of proving its case beyond reasonable
doubt. However, no explanation, much less, a
plausible one, is put forth. In the event of
complete denial or silence, the Court is entitled to
draw an adverse inference against the accused.
Applying this to the case at hand, in the statements
under Section 313, the accused persons failed to
justify the incriminating circumstances appearing
against them.”


70. This Court also would like to rely upon judgment of
the Apex Court in the case of CHETAN v. STATE OF
KARNATAKA reported in (2025) 9 SCC 31. Paragraph
Nos.143, 144, 145 and 146 which reads as under:

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“143. In this regard, we may also refer to the decision in
this Court rendered in Triumukh Maroti Kirkan v. State of
Maharashtra (2006) 10 SCC 681 where it was held that where
the circumstantial evidence is the basis for any case, where
no eyewitness account is available, and when the
incriminating circumstances are put to the accused, if the
accused does offer any explanation or offers the explanation
that is found to be false, it provides an additional link to the
chain of circumstances as observed in para 21 of the aforesaid
decision which is reproduced herein below: (SCC p. 694)
“21. In a case based on circumstantial evidence
where no eyewitness account is available, there is
another principle of law which must be kept in mind.
The principle is that when an incriminating
circumstance is put to the accused and the said
accused either offers no explanation or offers an
explanation which is found to be untrue, then the
same becomes an additional link in the chain of
circumstances to make it complete. This view has
been taken in a catena of decisions of this Court.
[See State of T.N. v. Rajendran [(1999) 8 SCC 679 :
2000 SCC (Cri) 40] (SCC para 6); State of U.P. v.
Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992
SCC (Cri) 642 : AIR 1992 SC 2045] (SCC para 39);
State of Maharashtra v. Suresh [(2000) 1 SCC 471 :
2000 SCC (Cri) 263] (SCC para 27); Ganesh Lal v.
State of Rajasthan [(2002) 1 SCC 731 : 2002 SCC
(Cri) 247] (SCC para 15) and Gulab Chand v. State
of M.P. [(1995) 3 SCC 574 : 1995 SCC (Cri) 552]
(SCC para 4).]

144. We may not also lose sight of the significance of
the provision of Section 313 Cr.P.C. in the case. As a trial
comes to a conclusive phase and all the evidence are adduced
by the prosecution, the veracity and credibility of which are
tested with the tool of cross-examination and when a certain
clear picture emerges based on the incriminating materials on
evidence, as a procedural safeguard, the court draws the
attention of the accused to these incriminating evidence to

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enable the accused to explain these facts and circumstances
which point to his guilt. While the accused is not obligated to
answer the questions put to him and still can maintain his
silence or deny the evidence, yet silence or evasive or wrong
answers to the questions put by the court provides a
perspective to the court in properly evaluating the
incriminating materials which have been brought forth by the
prosecution by drawing necessary inference including an
adverse one. [See, Manu Sao v. State of Bihar, (2010) 12
SCC 310].
145. Examination of an accused under Section 313
Cr.P.C. is an important component of the process of judicial
scrutiny of the evidence sought to be relied upon by the
prosecution against an accused. At the time of indictment and
framing of charges against an accused, the untested evidence
marshalled by the investigating authority in the course of the
investigation is laid bare before the accused, who would have
an idea as to the nature of evidence and case being built up
against him by the prosecution. This is to enable the accused
to prepare and strategize his defence. He will have all the
opportunities to discredit any prosecution witness or question
any evidence through the tool of cross-examination. He will
thereafter have the opportunity to lead his defence evidence if
any. It is in this context that the answers given by an accused
assume great significance in assessing the evidence by the
court.
146. In the present case, despite the incriminating
evidence which has come up against him has been pointed
out to him by the Court, he has not explained any of these
but merely denied or feigned ignorance to which necessary
inference can be drawn against him.

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71. But in the case on hand, it is very clear that gun
was seized at the instance of accused and he went with weapon
to the police station and mahazar was also drawn. Even though
other witnesses have turned hostile, the evidence of P.W.4,
P.W.21, P.W.1-Doctor and medical evidence supports the case
of prosecution and so also, expert evidence i.e., P.W.33
supports the same and mahazars were drawn in terms of
Exs.P48, P51 and P55 which are very clear with regard to
seizure of gun and empty cartridges at the spot and also in the
spot where he had thrown the same after the incident and the
evidence is consistent. The Court has to take note of
circumstantial evidence of last seen theory that is spoken by
P.W.4 i.e., immediately when she thrice heard the gunshot
sound, she immediately rushed towards the spot, wherein she
found the accused and the accused also made confession
statement that he had taught a lesson to her husband. Within a
span of 5 minutes of firing, found the accused at the spot and
distance between the house of PW4 and place of incident is
hardy 1 k.m. as per the evidence of Investigating Officer.
immediately, informed police and complaint was given, case
was registered and accused voluntarily went and surrendered

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with gun and same was seized and also pointed out where he
had thrown the empty cartridges which were seized.
72. The Court also while weighing the material available
on record, even at the time of conducting the trial as well as
appreciating the evidence, should not be a mute spectator and
weigh the evidence available on record and find out the truth
and duty of the Court is to quest for truth. Unfortunate that in a
gunshot case the Trial Court even not discussed the evidence
PW33 ballistics expert evidence and not touched upon the same
while considering the material on record.
73. This Court would like to rely upon the judgment of
the Apex Court in the case of STATE OF RAJASTHAN v. ANI
ALIAS HANIF AND OTHERS reported in (1997) 6 SCC 162.
Paragraph Nos.12 and 13 of the judgment reads as follows:
“12. Reticence may be good in many circumstances, but a
judge remaining mute during trial is not an ideal situation. A
taciturn Judge may be the model caricatured in public mind.
But there is nothing wrong in his becoming active or dynamic
during trial so that criminal justice being the end could be
achieved. Criminal trial should not turn out to be a bout or
combat between two rival sides with the judge performing the
role only of a spectator or even an umpire to pronounce finally
who won the race. A judge is expected to actively participate
in the trial, elicit necessary materials from witnesses at the
appropriate context which he feels necessary for reaching the

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correct conclusion. There is nothing which inhibits his power
to put questions to the witnesses, either during chief
examination or cross-examination or even during re-
examination to elicit truth. The corollary of it is that if a judge
felt that a witness has committed an error or a slip it is the
duty of the judge to ascertain whether it was so, for, to err is
human and the chances of erring may accelerate under stress
of nervousness during cross-examination. Criminal justice is
not to be founded on erroneous answers spelled out by
witnesses during evidence collecting process. It is a useful
exercise for trial judge to remain active and alert so that
errors can be minimised.

13. In this context it is apposite to quote the observations
of Chinnappa Reddy, J. in Ram Chander v. The State of
Haryana (AIR 1981 SC 1036):
"The adversary system of trial being what it is,
there is an unfortunate tendency for a judge presiding
over a trial to assume the role of a referee or an
umpire and to allow the trial to develop into a contest
between the prosecution and the defence with the
inevitable distortions flowing from combative and
competitive elements entering the trial procedure. If a
Criminal Court is to be an effective instrument in
dispensing justice, the presiding judge must cease to
be a spectator and a mere recording machine. He must
become a participant in the trial by evincing intelligent
active interest by putting questions to witnesses in
order to ascertain the truth."

We respectfully concur with the aforesaid observations.
We find no wrong in the trial court interjecting during cross-
examination of PW-3 with a view to ascertain the correct
position.”

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74. This Court would also like to rely upon the
judgment of the Apex Court in the case of BABLU KUMAR
AND OTHERS v. STATE OF BIHAR AND ANOTHER reported
in (2015) 8 SCC 787. Paragraph No.22 of the said judgment
reads as follows:
“22. Keeping in view the concept of fair trial, the
obligation of the prosecution, the interest of the
community and the duty of the Court, it can
irrefragably be stated that the Court cannot be a
silent spectator or a mute observer when it presides
over a trial. It is the duty of the Court to see that
neither the prosecution nor the accused play
truancy with the criminal trial or corrode the
sanctity of the proceeding. They cannot expropriate
or highjack the community interest by conducting
themselves in such a manner as a consequence of
which the trial becomes a farcical one. Law does
not countenance a “mock trial”. It is a serious
concern of the society. Every member of the
collective has an inherent interest in such a trial. No
one can be allowed to create a dent in the same.
The Court is duty bound to see that neither the
prosecution nor the defence takes unnecessary
adjournments and take the trial under their control.
The Court is under the legal obligation to see that
the witnesses who have been cited by the
prosecution are produced by it or if summons are

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issued, they are actually served on the witnesses. If
the Court is of the opinion that the material
witnesses have not been examined, it should not
allow the prosecution to close the evidence. There
can be no doubt that the prosecution may not
examine all the material witnesses but that does
not necessarily mean that the prosecution can
choose not to examine any witness and convey to
the Court that it does not intend to cite the
witnesses. The Public Prosecutor who conducts the
trial, has a statutory duty to perform. He cannot
afford to take things in a light manner. The Court
also is not expected to accept the version of the
prosecution as if it is sacred. It has to apply its
mind on every occasion. Non-application of mind by
the trial court has the potentiality to lead to the
paralysis of the conception of fair trial.
75. This Court would like to rely upon the judgment of
the Apex Court in the case of DINESH KUMAR v. STATE OF
HARYANA reported in (2023) 20 SCC 49. The Apex Court in
this judgment referring Sections 165 and 45 of the Evidence
Act, 1872, held that, it is the duty of trial Judge to ask
pertinent questions. Paragraph Nos.22, 23, 24 and 25 of the
said judgment reads as follows:
“22. We are afraid that by pointing out the weakness in
the cross-examination of the defence the Presiding Judge
indirectly admits to the weakness in the trial itself. We say

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this for the reasons that under Section 165 of the Act, a trial
Judge has tremendous powers to “ask any question he
pleases, in any form, at any time, of any witness, or of the
parties about any fact relevant or irrelevant”. It is in fact the
duty of the Trial Judge to do so if it is felt that some important
and crucial question was left from being asked from a witness.
The purpose of the trial is after all to reach to the truth of the
matter.

23. Section 165 of the Act reads as under:
“165. Judge’s power to put questions or order
production.– The Judge may, in order to discover or to obtain
proper proof of relevant facts, ask any question he pleases, in
any form, at any time, of any witness, or of the parties about
any fact relevant or irrelevant; and may order the production
of any document or thing; and neither the parties nor their
agents shall be entitled to make any objection to any such
question or order, nor, without the leave of the Court, to
crossexamine any witness upon any answer given in reply to
any such question:
Provided that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any
Judge to compel any witness to answer any question, or to
produce any document which such witness would be entitled
to refuse to answer or produce under Sections 121 to 131,
both inclusive, if the question were asked or the document
were called for by the adverse party; nor shall the Judge ask
any question which it would be improper for any other person
to ask under Section 148 or 149; nor shall he dispense with
primary evidence of any document, except in the cases
hereinbefore excepted.”

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24. The powers of a Presiding Judge in a criminal trial
and his duty to get to the truth of the matter have been laid
down in a seminal judgement of this Court authored by O.
Chinnappa Reddy, J. which is Ram Chander v. State of
Haryana. O. Chinnappa Reddy, J. in the said judgment refers
to his earlier Judgment given by him as a Judge of the Andhra
Pradesh High Court, where it was said : (Intha Ramana Reddy
case, SCC Online AP para 2)
“2. …..Every criminal trial is a voyage of
discovery in which truth is the quest. It is the
duty of a Presiding Judge to explore every
avenue open to him in order to discover the
truth and to advance the cause of justice. For
that purpose he is expressly invested by Section
165 of the Evidence Act with the right to put
questions to witnesses. Indeed the right given
to a Judge is so wide that he may, ask any
question he pleases, in any form, at any time,
of any witness, or of the parties about any fact,
relevant or irrelevant. Section 172(2) of the
Code of Criminal Procedure enables the court to
send for the police diaries in a case and use
them to aid it in the trial. The record of the
proceedings of the Committing Magistrate may
also be perused by the Sessions Judge to
further aid him in the trial.”
25. The duty of the Presiding Judge of a criminal trial is
not to watch the proceedings as a spectator or a recording
machine but he has to participate in the trial “by evincing
intelligent active interest by putting questions to witnesses in
order to ascertain the truth.” While referring to a decision of
Lord Denning in Jones v. National Coal Board (1957) 2 WLR
760 (CA) the learned Judge had said that it is the duty of the
Judge to ask questions to the witnesses when it becomes
necessary to clear up any point that has been overlooked or
left obscure, then he goes on to say as under: (Ram Chander
v. State of Haryana (1981) 3 SCC 191) Scc p.194, para 3)

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“3. ….We may go further than Lord Denning
and say that it is the duty of a Judge to
discover the truth and for that purpose he may
"ask any question, in any form, at any time, of
any witness, or of the parties, about any fact,
relevant or irrelevant" (Section 165, Evidence
Act). But this he must do, without unduly
trespassing upon the functions of the Public
Prosecutor and the defence counsel, without
any hint of partisanship and without appearing
to frighten or bully witnesses. He must take the
prosecution and the defence with him. The
Court, the prosecution and the defence must
work as a team whose goal is justice, a team
whose captain is the judge. The Judge, 'like the
conductor of a choir, must, by force of
personality, induce his team to work in
harmony; subdue the raucous, encourage the
timid, conspire with the young, flatter and (sic
the) old'.”

Conclusion
76. The case of the prosecution is that the accused has
committed the murder and in order to prove the same, relies
upon both oral and documentary evidence. The incident of
gunshot was taken place at 8.00 a.m. According to the
prosecution, the accused has done the same. The evidence of
P.W.4, who is the wife of the deceased, is very clear that
having heard the gunshot sound thrice, she rushed towards the
place i.e., towards her property. While proceeding she found
the accused, who was coming along with SBBL gun, which is
marked as M.O.1. The same is identified during the course of

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evidence by P.W.4. It is also her statement that the accused
made a confessional statement within a span of five minutes of
gunshot that he had taught a lesson to her husband. The said
statement made by the accused and deposed by P.W.4 comes
within the purview of the principles of “res gestae” under
Section 6 of the Evidence Act. This Court also taken note of
scope of Section 134 of Evidence Act with regard to solitary
witness to the incident. Though P.W.4 is not an eye witness to
the firing, but she immediately rushed the spot on hearing
gunshot sound and found the accused along with the gun and
he made the statement regarding confession made by the
accused. But circumstance is very clear that the accused only
shot her husband and confessed. This Court taken note of
quality of evidence and not the quantity while relying upon the
evidence of P.W.4 and also the scope of Section 134 of
Evidence Act. This Court also taken note of that immediately
she had called the police at 8.20 a.m. making phone call and
the same is spoken by the person who has received the phone
call in the station. The police came to spot on information given
by P.W.4 and thereafter, law was set in motion without any
delay by registering the case based on the written complaint
given by P.W.4 at the spot. The same is spoken by the witness

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who has received the written complaint at the spot and also
sent the same to the police station to register the case though
his staff and accordingly, the Station House Officer registered
the FIR and dispatched the same to the Court. The police have
also conducted the spot mahazar and seized the articles at the
spot. This Court also relies upon the evidence of P.W.21, who
categorically deposes that accused was very much present in
the police station and the same was also spoken by P.W.34,
Investigating Officer in who’s presence accused was
surrendered with gun and who took the further investigation in
the case. He says that accused came to the police station at
3.15 p.m. along with gun with unused cartridges. The evidence
of P.W.34 and evidence of P.W.21 is very clear that gun was
seized in the police station and thereafter, the accused made
the statement that he would take them to the place where he
had thrown the empty cartridges which were used to shoot the
victim and accordingly, he took them and recovery is made at
the instance of the accused under Section 27 of Evidence Act.
The evidence of P.W.21 and P.W.34 is consistent and there is a
recovery under Section 27 of the Evidence Act, since the same
was within the exclusive knowledge of the accused, where he
had thrown the empty cartridges, which were used for gunshot.

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77. The medical evidence of the doctor who has been
examined as P.W.1 is very clear regarding nature of injuries of
entry and exit ward and cause of death. The evidence of
P.W.33, ballistic expert who conducted the examination of the
weapon, matches with the medical evidence of P.W.1 that the
very same M.O.1 was used to gunshot which belongs to
accused. The evidence of P.W.33 is very clear that bullet
injuries, which have been sustained by the deceased are fired
with the very same gun of SBBL, which is marked as M.O.1.
The medical evidence as well as the ballistic expert evidence
also corroborates with the case of the prosecution. The motive
for committing the murder is also spoken by P.W.4 that there
was a dispute with regard to the change of khatha in respect of
the family of the accused and the deceased. The Shiresthedhar,
who has been examined before the Court also spoken about the
same that the issue of change of katha was pending in the
office of the Tahsildar and relevant documents are also marked
through him and hence, it is clear that there was a motive to
commit the murder. The accused has not given any explanation
under Section 313 of Cr.P.C. to explain the incriminating
circumstances when the gun belongs to the accused was used
for committing the murder. Though an attempt was made

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during the course of argument that the gun was stolen, to that
effect there is no any complaint or any explanation by the
accused. This Court considered the quality of evidence and not
the quantity and also the principles of res gestae as
contemplated under Sections 6, so also Section 134 and 27 of
the Evidence Act with regard to the recovery is concerned. The
medical evidence and expert evidence of ballistic also point out
the very role of the accused in taking away the life of the
deceased. The Trial Court committed an error in appreciating
all these materials and the same amounts to perversity and
also it leads to miscarriage of justice as the Trial Court did not
discuss the ballistics expert evidence and in view of the
judgment of the Apex Court in the case of MALLAPPA AND
OTHERS v. STATE OF KARNATAKA reported in (2024) 3
SCC 544, wherein principles are also relied upon to convert the
acquittal appeal into the conviction. Having considered all these
materials available on record, it is a fit case to reverse the
same and hence, we answer the point accordingly. When this
Court comes to the conclusion that accused only had done
away the life of the victim, this Court has to consider the
principles laid down in the judgment with regard to imposing of
sentence is concerned.

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78. In this regard, this Court would like to rely upon the
judgment of the Apex Court in the case of SURYAMOORTHI
AND ANOTHER v. GOVINDASWAMY AND OTHERS reported
in (1989) 3 SCC 24, wherein the Apex Court discussed the
very scope of Section 235(2) of Cr.P.C. The accused convicted
under Section 392 of IPC for the first time reversing the
judgment of the Trial Court and the High Court, hence accused
entitled to an opportunity of being heard on the question of
sentence in compliance with Section 235(2) of Cr.P.C. The
same is discussed in paragraph No.14.
79. This Court also would like to rely upon the
judgment of the Apex Court in the case of ALLAUDDIN MIAN
AND OTHERS, SHARIF MIAN AND ANOTHER v. STATE OF
BIHAR reported in (1989) 3 SCC 5 . The relevant portion of
paragraph No.10 of the said judgment reads as under:
“10. Even a casual glance at the provisions of the Penal
Code will show that the punishments have been carefully
graded corresponding with the gravity of offences; in grave
wrongs the punishments prescribed are strict whereas for
minor offences leniency is shown. Here again there is
considerable room for manoeuvre because the choice of the
punishment is left to the discretion of the Judge with only the
outer limits stated. There are only a few cases where a
minimum punishment is prescribed. The question then is what
procedure does the Judge follow for determining the

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punishment to be imposed in each case to fit the crime? The
choice has to be made after following the procedure set out in
sub-section (2) of Section 235 of the Code. That sub-section
reads as under:
"If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the
provisions of Section 360, hear the accused on the
question of sentence, and then pass sentence on
him according to law."
The requirement of hearing the accused is intended to
satisfy the rule of natural justice. It is a fundamental
requirement of fair play that the accused who was hitherto
concentrating on the prosecution evidence on the question of
guilt should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the question of
sentence. This is all the more necessary since the Courts are
generally required to make the choice from a wide range of
discretion in the matter of sentencing. To assist the Court in
determining the correct sentence to be imposed the
legislature introduced sub-section (2) to Section 235. The said
provision therefore satisfies a dual purpose; it satisfies the
rule of natural justice by according to the accused an
opportunity of being heard on the question of sentence and at
the same time helps the Court to choose the sentence to be
awarded. Since the provision is intended to give the accused
an opportunity to place before the Court all the relevant
material having a bearing on the question of sentence there
can be no doubt that the provision is salutary and must be
strictly followed. It is clearly mandatory and should not be
treated as a mere formality……………..”
80. This Court would like to rely upon the judgment of
the Apex Court in the case of MUKESH KUMAR YADAV v.
STATE (UT OF ANDAMAN AND NICOBAR ISLANDS) ETC.

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reported in 2026 SCC ONLINE SC 938. Paragraph No.11, 12,
13 and 16 of the said judgment reads as follows:
“11. One more judgment which requires mention in this
context is Dagdu v. State of Maharashtra (1977) 3 SCC 68,
wherein a question arose as to what if the convicting court
sentences the accused without hearing him on the sentence.
This Court held that the higher court can on confirming the
conviction, remedy the breach by giving a hearing to the
accused on the question of sentence. This Court held that the
Court may, in appropriate cases, adjourn the matter in order
to give to the accused sufficient time to produce necessary
data and to make his contentions on the question of sentence.
The Court went on to add that this procedure must inevitably
happen where the conviction is recorded for the first time by a
higher court. Para 79 reads as follows: -
“79. But we are unable to read the judgment in
Santa Singh as laying down that the failure on the
part of the Court, which convicts an accused, to
hear him on the question of sentence must
necessarily entail a remand to that Court in order
to afford to the accused an opportunity to be heard
on the question of sentence. The Court, on
convicting an accused, must unquestionably hear
him on the question of sentence. But if, for any
reason, it omits to do so and the accused
makes a grievance of it in the higher court, it
would be open to that Court to remedy the
breach by giving a hearing to the accused on
the question of sentence . That opportunity has
to be real and effective, which means that the
accused must be permitted to adduce before the
Court all the data which he desires to adduce on
the question of sentence. The accused may
exercise that right either by instructing his counsel
to make oral submissions to the Court or he may,
on affidavit or otherwise, place in writing before the
Court whatever he desires to place before it on the
question of sentence. The Court may, in
appropriate cases, have to adjourn the matter

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in order to give to the accused sufficient time
to produce the necessary data and to make
his contentions on the question of sentence.
That, perhaps, must inevitably happen where
the conviction is recorded for the first time by
a higher court.” [Emphasis
supplied]
12. Equally, situations may arise where the trial court
acquits the accused. In an acquittal, the question of hearing
on sentence will not arise. On appeal by the State or by the
victim/informant, what should be the position if the higher
court reverses the acquittal and for the first time convicts the
accused. To appreciate this position, a reference needs to be
made to Section 386, Cr.P.C. (equivalent to Section 427,
BNSS). Section 386(a), Cr.P.C., which is relevant for our
purpose reads as under:-
“386. Powers of the Appellate Court.—After
perusing such record and hearing the appellant or
his pleader, if he appears, and the Public
Prosecutor if he appears, and in case of an appeal
under section 377 or section 378, the accused, if
he appears, the Appellate Court may, if it considers
that there is no sufficient ground for interfering,
dismiss the appeal, or may—
(a) in an appeal from an order or acquittal,
reverse such order and direct that further inquiry
be made, or that the accused be re-tried or
committed for trial, as the case may be, or find him
guilty and pass sentence on him according to law;
……”
13. It can be seen from Section 386(a), Cr.P.C., that
where in an appeal from an order of acquittal, the court
hearing the appeal finds the accused guilty it is required to
pass a sentence on him according to law.
16. The appellate court which will include the High Court,
in a given scenario, while recording a conviction after
reversing the acquittal, should adjourn the matter to a

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suitable date, hear the convicts, and impose an appropriate
sentence itself.”


81. Though this Court is having conscious of the above
judgments, the punishment provided under Section 302 of IPC
is life imprisonment is minimum sentence and the case will not
come within the ambit of rarest of rare case considering the
mitigating circumstances and aggravating circumstances to
impose the death sentence and hence, no need to hear the
accused regarding sentence.
82. In view of the discussions made above, we pass the
following:
ORDER

(i) The appeal is allowed.

(ii) The impugned judgment of acquittal dated
30.11.2018 passed in S.C.No.92/2015 is set
aside.

(iii) The accused is convicted for the offence
punishable under Section 302 of IPC and
Section 27 of Indian Arms Act.

(iv) The accused is sentenced to life imprisonment
for the offence under Section 302 of IPC with
fine of Rs.1,00,000/- payable within 4 weeks.
On deposit, to pay the fine amount of

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Rs.90,000/- to P.W.4, on proper
identification. In default to pay fine, to
undergo further imprisonment for 6 months.

(v) The accused is sentenced to undergo
imprisonment for 3 years for the offence
under Section 27 of the Arms Act, 1959 and
to pay fine of Rs.10,000/- within 4 weeks and
in default, to undergo further 2 months
imprisonment.

(vi) The accused is directed to surrender before
the Trial Court within one week. If the
accused fails to surrender, the Trial Court is
directed to secure the accused and send him
to prison by issuing conviction warrant.

(vii) The sentence for both the offences shall run
concurrently.


Sd/-
(H.P.SANDESH)
JUDGE


Sd/-
(B.PRAMOD)
JUDGE


SN/ST/MD