Bangalore District Court
Cbi/Acb/Blr vs A1 Basavaraj on 17 April, 2026
1 Spl.CC No.565/2021
KABC010080542021
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82)
PRESENT
Sri. Santhosh Gajanan Bhat, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to elected former and sitting MPs/MLAs in the State of
Karnataka)
Dated this the 15th day of April, 2026
Spl.CC. No. 565/2021
COMPLAINANT : State by Central Bureau of
Investigation, ACB, Bengaluru.
V/s
ACCUSED : 2. Vikram Ballari
S/o Udaykumar Ballari,
Aged about 30 years,
R/o 6th Cross, Maratha Colony,
Dharwad, Hubballi - Dharwad
City, Karnataka.
3. Kirtikumar Basavaraj Kurahatti
S/o Basavaraj T. Kurahatti,
Aged about 29 years,
R/o Itigatti Village and Post,
Dharwad, Karnataka.
2 Spl.CC No.565/2021
4. Sandeep Saudatti
S/o Somashekar
Aged about 33 years
R/o Maratha Colony,
Malapur Road, Near Ganesh
Temple, Dharwad,
Hubballi-Dharwad City,
Karnataka.
5. Vinayak Katagi
S/o Basavaraj Ningappa
Katagi, Aged about 38 years
R/o Bhusappa Chouk
Karubar Oni, Hubballi-Dharwad
City, Karnataka.
6. Mahabaleshwar Hongal @ Mudaka
S/o Mallappa Hongal,
Aged about 35 years,
R/o Govanakoppa village,
Dharwad, Hubballi-Dharwad
City, Karnataka.
7. Santosh Savadatti
S/o Somashekar Savadatti,
Aged about 34 years,
R/o Maratha Colony,
Malapur Road, Near Ganesh
Temple, Dharwad, Hubballi-
Dharwad City, Karnataka.
8. Dinesh.M
S/o Late.Mariyappa
Aged about 44 years
R/o No.4S, Ijoor, Venkatappa
3 Spl.CC No.565/2021
Layout Badavane, Ramanagar
Taluk & District.
9. Ashwath.S.
S/o Shivanna Gowda
Aged about 34 years,
R/o No.66, 1st Main, D Group
Layout, Nagarabhavi,
Bangalore - 560 078.
10. Sunil K.S.
S/o Shivanna
Aged about 38 years,
R/o Kalahalli, 1st Main,
1st Cross, Near Someshwara
Gowda Samudaya Bhavan,
(Land Mark - Near Graveyard)
Mandya City.
11. Nazeer Ahmed
S/o Basheer Ahmed,
Aged about 29 years,
R/o 12th Cross, Sonnenahalli
Basthi, Near Sonnenahalli Bus-
Stop, Bengaluru.
12. Shanawaz
S/o Sardar
Aged about 41 years,
R/o No.1/2, 4th Cross,
1st Main Road, Azad Nagar,
Near Cambridge School,
Land Mark: Near Bismillah Tea
Hotel, Bengaluru-560 026.
4 Spl.CC No.565/2021
13. Nutan. K
S/o K.N.Krishnappa,
Aged about 35 years,
R/o No.146, Gubbalala
Subramanyapura Post,
Near Manjunatha Floor Mill,
Subramanyapura,
Bengaluru-560 061
14. Harshith C.
S/o Chinnagiri
Aged about 30 years,
R/o No.55/1, Janata Colony,
Somawarpet, Kodagu District,
Karnataka.
15. Vinay Rajashekharappa Kulkarni
S/o Late,Rajashekarappa
Kulkarni,
Aged about 52 years,
R/o Barakoti, Shivagiri,
Dharwad - 580 007.
16. Chandrashekar Indi @ Chandu
Mama
S/o Sharanabasappa Indi,
Aged about 59 years,
R/o No.27, Shankeshwar Villa,
II Cross, Athani Road,
Vijayapura, Karnataka-586 108
18. Vikas Kalburgi
S/o Ramesh Kalburgi
Aged about 33 years,
R/o 6th Cross, Maratha Colony,
Dharwad, Hubballi-Dharwad
City, Karnataka.
5 Spl.CC No.565/2021
19. Chennakeshava B. Tingarikar
S/o Late Basavaraja,
Aged about 42 years,
R/o Basava Nilaya,
2nd Cross, 2nd Main,
Malaprabha Nagar,
Near Gramin P.S., Dharwad
Karnataka.
20. Vasudev Rama Nilekani
ACP, ACB, KSP, Gadag
Karnataka.
S/o Sh.Rama,
Aged about 55 years,
R/o Shambhavi Colony,
3rd Cross, Gandhinagar
Dharwad, Karnataka.
21. Somashekar Basappa
Nyamagouda
S/o Basappa,
Aged about 53 years,
R/o Kadakol Village & Post
Jamakhandi Taluk.
Bagalkot District, Karnataka.
Date of offence 15.06.2016
Date of report of offence 15.06.2016
Name of the complainant Smt.Mallavva Gouda Goudar
Date of commencement of 15.07.2024
recording of evidence
Date of closing of evidence 07.02.2026
Offences complained of Sec.120(B) r/w Sec.143,
147, 148, 149, 302, 201,
6 Spl.CC No.565/2021
218 of IPC and under
Sec.7, 13(1)(d) r/w
Sec.13(2) of Prevention of
Corruption Act, 1988 and
under Sec.3, 5, 8 and 29 of
Arms Act, 1959.
Opinion of the Judge Accused No. 2 to 16, 18, 19
are held to be guilty.
Accused No.20 and 21 are
acquitted.
State represented by By Sri.Surya Prakash V
Raju, learned ASG
and Special Public
Prosecutor along with Smt.
Hema, Sri. Shivananda
Perla and Sri. Gangadhara
Shetty.
Accused represented by Accused No.2 to 6 by Sri. C.
Parameshwarappa, Advocate.
Accused No.7 by Sri. Sunil
Kumar, Advocate.
Accused No.8 to 14 by Sri.
S.Shankarappa, Advocate.
Accused No.15 by
Sri.C.V.Nagesh, learned Senior
Counsel on behalf of Sri.
S.Sunil Kumar, Advocate.
Accused No.16 by
Sri.M.S.Shyamsundar, learned
Senior Counsel on behalf of
Dr.Vandana P.L., Advocate.
Accused No.18 by Sri.
7 Spl.CC No.565/2021
B.Siddeshwara, Advocate.
Accused No.19 by Sri.
S.Balakrishna, Advocate.
Accused No.20 by
Sri.K.B.K.Swamy, Advocate.
Accused No.21 by Sri.Nithin
Ramesh, Advocate)
INDEX
CHAPTER HEADING PAGE Nos.
I FACTS OF THE CASE 11 to 19
II COMPARISON OF CHARGES AT IV 20 to 44
ADDL. DISTRICT AND SESSIONS
JUDGE COURT AT DHARWAD AND THE
PRESENT CASE OF PROSECUTION
AFTER FILING OF SUPPLEMENTARY
REPORTS BY CBI
III RECORDING OF STATEMENT UNDER 44 to 47
Sec.313 OF Cr.P.C. OF ACCUSED No.2
TO 16 AND 18 TO 21
IV ARGUMENTS ADDRESSED BY 47 to 131
PROSECUTION AND DEFENCE
V POINTS WHICH WOULD ARISE FOR 131 to 139
CONSIDERATION
VI APPRECIATION OF EVIDENCE 139 to 190
VII WHETHER INVESTIGATION BY CBI CAN 191 to 217
BE CLASSIFIED AS FURTHER
INVESTIGATION OR RE INVESTIGATION
OR FRESH INVESTIGATION
VIII MOTIVE AND INTENTION TO COMMIT 217 TO 260
THE MURDER:
IX HATCHING OF CONSPIRACY TO 261 TO 281
8 Spl.CC No.565/2021
COMMIT THE OFFENCE VIS-À-VIS THE
EVIDENTIARY VALUE OF APPROVER
X ADMISSIBILITY AND EVIDENTIARY 281 TO 339
VALUE OF THE EVIDENCE OF THE
APPROVER COMPARED WITH THE
SETTLED PRINCIPLES OF LAW
XI EVIDENCE OF HANDWRITING EXPERT 339 TO 361
AND APPRECIATION OF EVIDENCE VIS-
A- VIS ADMISSION BY THE APPROVER
XII IDENTIFICATION OF THE 361 TO 416
ACCUSED/ASSAILANTS AND SILENT
WITNESS THEORY
XIII TEST OF IDENTIFICATION PARADE AND 416 TO 425
ITS RELEVANCE:
XIV TAMPERING OF THE EVIDENCE BY 425 TO 469
THE POLICE OFFICER IN CONNIVANCE
WITH THE CONSPIRACY ENTERED
BETWEEN THE ACCUSED PERSONS
XV ALIBI 470 TO 474
XVI RECOVERY OF PISTOLS AND 474 TO 483
ALLEGATION OF COMMISSION OF
OFFENCE UNDER INDIAN ARMS ACT
XVII THE CONSEQUENCES OF TENDERING 484 TO 511
FALSE STATEMENT UNDER OATH AT
THE TIME OF RECORDING THE
STATEMENT UNDER SEC.164(5) OF
CR.PC.
XVIII APPROVER TURNING HOSTILE 511 TO 516
XX CONTENTIONS URGED AGAINST THE 516 TO 529
INVESTIGATING OFFICER OF CBI
9 Spl.CC No.565/2021
SUMMATION 529 TO 531
JUDGMENT
“Justice is not a cloistered virtue; it must be allowed to
suffer the scrutiny and respectful, even though outspoken,
comments of ordinary men.” — Lord Atkin
The brutal murder of Yogesh Goudar in the
otherwise tranquil environs of Dharwad did not merely
set the criminal law in motion–it sent ripples across
the political and social fabric of the region, stirring the
collective conscience of its citizenry. What began as a
routine investigation by the Dharwad Sub-Urban
Police, culminating in a charge-sheet against six
accused, soon unfolded into a far more complex and
unsettling narrative.
2. As the trial progressed before the learned 4th
Additional District and Sessions Judge at Dharwad,
10 Spl.CC No.565/2021
the family members of the deceased, driven by a deep-
seated quest for truth, approached the corridors of
justice seeking an independent and impartial probe by
the Central Bureau of Investigation. Their plea
resonated, and the State Government, acknowledging
the gravity of the matter, entrusted the investigation to
the CBI.
3. What followed was nothing short of a dramatic
unravelling. The further investigation claimed to have
unearthed startling revelations that turned the earlier
narrative on its head. Beneath the surface lay a
sinister interplay of muscle power intertwined with
political might, pointing towards a calculated act
rooted in political rivalry. The shadows deepened with
the alleged involvement of influential figures, including
Vinay Kulkarni, the then District In-charge Minister,
alongside certain members of the law enforcement
machinery themselves. The case began to reflect a grim
portrait of the criminalization of politics, where the
11 Spl.CC No.565/2021
guardians of law were, allegedly, entangled in its
breach.
4. In the wake of these revelations, the
investigative net widened, bringing within its fold
additional accused, including high-ranking police
officials, all of whom were placed before the majesty of
law.
CHAPTER-I:
FACTS OF THE CASE:
5. It is the case of the prosecution that due to the
political rivalry which was entertained by Vinay
Kulkarni against Yogesh Goudar, the commission of
his murder was planned. The prosecution contends
that the main motive and intention for commission of
murder was the quarrel that had taken-place on
23.04.2016 at the premises of Zilla Panchayath
wherein Yogesh Goudar had tried to divert the
attention of Vinay Kulkarni in a drought meeting
convened by the then Minister Vinay Kulkarni. It is
12 Spl.CC No.565/2021
contended by the prosecution that in the said meeting
a verbal altercation had taken-place and thereafter
accused No.15 Vinay Kulkarni had called upon
accused No.1 Basavaraj Muttagi to his Vinay Dairy at
Dharwad and had stated that day by day the
arrogance of Yogesh Goudar had increased and as
such he should be eliminated. Accordingly, he had
requested accused No.1 Basavaraja Muttagi to
eliminate Yogesh Goudar by hatching conspiracy and
taking the help of his close aides in Dharwad, whom
the then Accused No.1 used to call as Dharwad Boys.
However, accused No.1 Basavaraja Muttagi had
discussed about the same with his close associates
i.e., accused No.2 Vikram Bellary, accused No.3
Kirtikumar, accused No.4 Sandeep Saudatti, accused
No.5 Vinayak Katagi and accused No.6 Mahabaleshwar
Hongal, who had refused to do so and the same was
convened to accused No.15 Vinay Kulkarni. However, it
is contended that he had not budged from his earlier
13 Spl.CC No.565/2021
stand and accordingly, Basavaraj Muttagi had visited
Bengaluru and by taking the help of Jaya Karnataka
Association, had met accused No.8 Dinesh and
accused No.9 Ashwath to discuss in this regard. It is
further contended by the prosecution that on
discussion, accused No.8 Dinesh had agreed to
eliminate Yogesh Goudar with a condition that they
would not surrender before the concerned Police nor
their name should appear anywhere. When it was once
again convened to Vinay Kulkarni, he had agreed to
pay a sum of Rs.20,00,000/- and had requested
Muttagi to convince accused No.2 to 6 to surrender in
the place of real assailants. The prosecution
contention also indicates that thereafter the accused
No.2 to 6 were convinced to get surrender in place of
prior assailants i.e., accused No.7 to 14 and
subsequently murder was committed.
6. The prosecution also contends that as per the
assurance given by Vinay Kulkarni, he had convened a
14 Spl.CC No.565/2021
meeting of the then Police Commissioner Sri.
M.H.Rane, Deputy Commissioner of Police Vasudev
Rama Nilkeni and Police Inspector Chandrashekar
Tingarikar, who was the Investigating Officer at
Dharwad Sub-Urban Police Station. The meeting was
convened at Vinay Diary of Vinay Kulkarni and even
there some ill words were spoken about Yogesh
Goudar. On completion of the murder, accused No.1 to
8 had initially visited Haveri and had taken shelter by
opting to stay at M/s Hema Resorts with the help of
PW.49 Raghavendra and thereafter Muttagi had
returned back to Bengaluru and had met Vinay
Kulkarni on the intervening night of 15/16.06.2016 at
about 01.30 a.m. near Sanky Tank, Sadashivanagara
and immediately on the next day he was given
Rs.5,00,000/- by accused No.21 Somashekar Basappa
Nyamagouda, who was the personal assistant of Vinay
Kulkarni and thereafter the accused had surrendered
before the Deputy Commissioner of Police Vasudev
15 Spl.CC No.565/2021
Rama Nilekani at Hubli. It is also contended by the
prosecution that the Investigating Officer
Chennakeshava Tingarikar had destroyed the original
weapons which were used for the commission of
murder and in that place some other weapons came to
be planted which was brought by PW.24 Shivananda
Chalavadi and subsequently some mahazars were
drawn by accused No.19 Chennakeshava Tingarikar
through the Constable PW.51 Ramesh
Mudukanagouda, depicting it to be the recovery being
made at the hands of present accused No.1 to 6.
Finally, Chennakeshava Tingarikar had conducted
majority of the investigation and later the investigation
papers were transferred to PW.107 Motilal Pawar, who
had completed the investigation and had filed charge-
sheet against accused No.1 to 6 by holding that the
motive and intention to commit the offence was
prevailing land dispute between the then Accused No.1
Basavaraj Muttagi and deceased Yogesh Goudar.
16 Spl.CC No.565/2021
7. On submission of the Final Report before the
Court, the Court had taken necessary cognizance of
the offence alleged by the prosecution and thereafter
the case came to be committed to the Sessions court at
Dharwad. On committal proceedings being completed
the case was made over to 4th Additional District and
Sessions Judge Court at Dharwad, wherein the court
after completing the statutory bound obligations had
framed necessary charges against Accused No.1 to 6
and the trial had commenced. The prosecution therein
had examined totally 61 witnesses on their behalf and
thereafter the statement of Accused No.1 to 6 came to
be recorded as contemplated under sec 313 of Cr.P.C.
8. During the course of trial itself the family
members of the deceased had expressed their
displeasure with the manner of investigation being
conducted by the Dharwad Sub-Urban Police and the
mother of the deceased had knocked the doors of the
17 Spl.CC No.565/2021
Hon’ble High court of Karnataka seeking to entrust the
case for investigation by CBI. During the interregnum,
they had even filed an application under Sec.319 of
Cr.P.C to bring on record the additional accused
persons. However, the said application was also
rejected by the Hon’ble High court and later on the
State Government had taken a decision to entrust the
above case for further investigation to CBI and
accordingly, the case was handed over for further
investigation. The CBI during the course of their
investigation had filed three supplementary final
reports and had arraigned Accused No.7 to 21 as
additional Accused persons. It was further contended
that the real motive and intention to commit the
offence was not the land dispute but was the political
rivalry which was prevailing between deceased Yogesh
Goudar and Accused No.15 Vinay Kulkarni and also it
was submitted that the real assailants were accused
No.7 to 14 and in their place the Accused No.1 to 6
18 Spl.CC No.565/2021
had surrendered before the jurisdictional police and
with the aid and support of Accused No.19
Chennakeshava Tingarikar, the first Investigating
Officer and Accused No.20 Vasudev Rama Nilekani, the
then ACP. Accordingly, the final report was filed before
this court.
9. The record also indicates that during the
interregnum, the accused No.17 Shivananda Shrishail
Biradar had filed an application seeking for pardon
from this Court. However, my predecessor-in-office
had rejected the same and later on he had approached
the Hon’ble High Court of Karnataka by challenging
the order passed by this Court. The Hon’ble High
Court of Karnataka by its kind orders in Crl. Petition
No.8369/2022 dated 24.03.2023 had granted pardon
to him and he was considered as approver by imposing
condition that he was required to disclose the true and
correct facts which were within his knowledge with
19 Spl.CC No.565/2021
respect to the above case. At the same point of time,
the accused No.1 Basavaraja Muttagi had also filed an
application seeking to grant pardon to him. However,
his application was initially resisted by the CBI on the
ground that the same do not disclose any materials
which he intended to disclose. By considering the said
aspects, my predecessor in office had rejected the
same. Thereafter, a detailed hearing had taken place
with respect to the discharge applications which were
filed by the accused persons and on considering the
same and also on perusing the materials on record, the
applications which were filed seeking discharge came
to be rejected by holding that there are sufficient
materials to frame charges against the accused
persons herein.
CHAPTER-II:
COMPARISON OF CHARGES AT IV ADDL. DISTRICT AND
SESSIONS JUDGE COURT AT DHARWAD AND THE
20 Spl.CC No.565/2021PRESENT CASE OF PROSECUTION AFTER FILING OF
SUPPLEMENTARY REPORTS BY CBI:
10. As noticed from the records, the above case
is having a checkered history wherein it does indicate
that initially the investigation was conducted by
Dharwad Sub-Urban Police Station which had
culminated in filing of charge-sheet and later on it was
committed to the Sessions Court at Dharwad and
numbered as SC No.50/2017 and totally 61 witnesses
were examined and even the statement of accused
came to be recorded. At that juncture, the
investigation was entrusted to CBI by the orders
passed by the State Government to conduct further
investigation. Admittedly, in the above case, no specific
orders were passed to conduct a de-nova investigation
or trial. Accordingly, an opportunity was given to the
accused persons to make their submissions in this
regard and after hearing both the parties on record, it
was found that new trial was required to be conducted
21 Spl.CC No.565/2021
as contemplated under Sec.216(4) of Cr.P.C., since the
charges which were framed at the earlier instance by
the 4th Additional District and Sessions Judge Court at
Dharwad was with respect to accused No.1 to 6,
wherein the motive for commission of the offence was
held to be the prevailing land dispute between accused
No.1 Basavaraja Muttagi and deceased Yogesh Goudar.
However, on culmination of the investigation by the
CBI, the motive and intention had also changed and as
does the role of accused No.1 to 6. In the
supplementary reports filed by CBI, it was contended
that the real assailants of Yogesh Goudar were accused
No.7 to 14 and in their place accused No.1 to 6 had
surrendered to screen out accused No.7 to 14 as
assailants in the above case in furtherance of larger
conspiracy. It is further contended that such an act
was committed in furtherance of the criminal
conspiracy which they had entered into with accused
No.15 Vinay R. Kulkarni prior to commission of the
22 Spl.CC No.565/2021
offence. The materials which were now brought on
record was not reflected in the earlier chargesheet filed
by the Dharwad Sub Urban Police station and that
apart it is also noticed that only accused No.1 to 6 had
faced the trail before the Sessions court at Dharwad
and whereas the trial was conducted in the absence of
accused No.7 to 21 who were now charge sheeted by
the CBI on the basis of further investigation. Under
these circumstances, new charges were required to be
framed and accordingly new charges came to be
framed under Sec.216(4) of Cr.P.C., vide order dated
08.12.2023.
11. For the sake of brevity, the charge which was
framed by the then 4th Addl. District and Sessions
Judge at Dharwad against accused No.1 to 6 is
herewith extracted and reads as follows:
1. That on 15.06.2016 at about 7.30
a.m. to 7.45 a.m. on Saptapur road at
Uday Health and Fitness Center,
Saptapur Dharwad, situated within
23 Spl.CC No.565/2021the limits of Suburban P.S. Dharwad,
you accused 1 to 6 being the members
of an unlawful assembly came with a
common object by holding deadly
weapons on the motor cycle bearing
No.KA 31/Q-8755, ΚΑ 25/EU-2609 and
KA 25/X-535, with an intent to commit
murder of deceased Yogishgowda as
there was a dispute between accused
No.1 and deceased pertaining to land
measuring 25 acres 8 guntas of
Belligatti village belongs to C.W.32
Nagendra Todkar, for which accused
No.1 entered into an agreement of sale
with the owner of the land i.e. C.W.32
and thereby you all accused have
committed an offence punishable
U/s.143 R/w.Sec. 149 of I.P.C. and
within the cognizance of this Court.
2. That on the above said date, time
and place, you all accused 1 to 6,
being the members of an unlawful
assembly came with a common object
as stated above, indulged in rioting
and thereby you all accused have
committed an offence of rioting
punishable U/s.147 R/w.Sec.149 of IPC
24 Spl.CC No.565/2021and within the cognizance of this
Court.
3. That on the above said date, time
and place, you all accused, being the
members of an unlawful assembly
came with a common object as stated
above, by holding deadly weapons i.e.
Jambe, Koyata, rod, sticks, long which
were used as a weapon of offence was
likely to cause death of deceased
Yogishgouda and thereby you all
accused have committed an offence
punishable U/s.148 R/w.Sec. 149 of
I.P.C. and within the cognizance of
this Court.
4. That on the above said date, time
and place, you all accused, being the
members of an unlawful assembly
came with a common object with
deadly weapons as stated above, when
deceased Yogishgouda came to his
GYM named above, you all accused 1
to 6 came with an intention to murder
that you accused No.5 splashed
(poured) chilly powder on the face of
deceased Yogishgouda, you accused
No.2 stabbed the deceased on several
25 Spl.CC No.565/2021occasions with Jambe (knife) on his
stomach, you accused No.3 assaulted
with koyata on his head, you accused
No.4 assaulted with rod on his head,
you accused No.1 assaulted with stick
and you accused No.6 assaulted with
long on his head and also other parts
of the body of the deceased and
caused the death of deceased
Yogishgouda and thereby you all
accused have committed an offence
punishable U/s.302 R/w. Sec.149 of
I.P.C. and within the cognizance of
this Court.
5. That prior to the above incident, i.e.
on 14/6/2016, evening at KCD college
ground Dharwad, you all accused,
being the members of an unlawful
assembly, you accused No.1 hatched a
criminal conspiracy with accused 2 to
6 at KCD college ground Dharwad,
that you accused No.1 believing that
deceased Yogishgouda may eliminate
you, as there was life threat relating
to the land under agreement as stated
above, under that threat, you A.1
wanted to eliminate Yogishgouda and
thereby you all accused have
committed an offence punishable
26 Spl.CC No.565/2021U/s.120-B R/w.Sec.149 of I.P.C. and
within the cognizance of this Court.
6. That on the above said date, time
and place, you all accused, after
committing the murder of deceased
Yogishgouda as stated above, went on
respective motor cycles as stated
above, and thrown the deadly weapons
which are used for commission of
offence on the road side bush of the
trees near Yarikoppa, Dharwad and
also the clothes which were worn by
you in Tungabhadra river near
Harihar, with an intention to causing
disappearance of evidence of an
offence committed and thereby you all
accused have committed an offence
punishable U/s.201 R/w.Sec. 149 of
I.P.C. and within the cognizance of
this Court.
12. For the sake of comparison, the charges
which were framed by this Court against the accused
No.1 to 16, 18 to 21 are as follows;
That you accused No.15 Vinay
Rajashekarappa Kulkarni, the then in-
charge Minister of Dharwad District,
27 Spl.CC No.565/2021
during April and May 2016 had entered
in to criminal conspiracy with accused
No.1 Basavaraj Muttagi and accused
No.16 Chandrashekar Indi to execute the
murder of Yogesh Goudar, the then Zilla
Panchayath Member from Dharwad, who
was also running a Gym by name
M/s.Uday Gym and Fitness Center at
Saptapur, within the jurisdiction of
Dharwad Upanagara Police Station and
in pursuance of the same, you accused
No.1 conspired with your associates i.e.,
accused No.2 to 6 and you accused No.1
decided to bring your associates from
outside of Dharwad and also had
conspired to surrender yourself along
with accused No.2 to 6 before local police
in the place of real assailants.
As such, you accused No.1 had
visited Bengaluru several times in the
month of April and May 2016 to meet
accused No.8 Dinesh, accused No.9
Ashwath, who were associates of you
accused No.1 in Jaya Karnataka
Organisation and they agreed to assist
you in the execution of murder of Yogesh
Goudar and you accused No.10 Sunil,
accused No.11 Nazeer Ahmed, accused
No.12 Shanawaz, accused No.13 Nuthan
28 Spl.CC No.565/2021
and accused No.14 Harshith had agreed
to come to Dharwad to commit the
murder of Yogesh Goudar and as such,
you accused No.16 Chandrashekar Indi
had arranged three country made pistols
through you accused No.17 Shivanand
Srishail Biradar and delivered to you
accused No.1. Though, you accused No.8
to 14 came to Dharwad on two occasions
in the month of June 2016 and stayed in
an old house bearing CTS No.4/39/L
measuring 14 guntas situated at No.17,
Sarswathpur, Dharwad and hatched
further conspiracy towards the execution
of your earlier conspiracy to eliminate
Yogesh Goudar and even a futile attempt
was made on 14.6.2016, you accused
No.7 to 14 decided complete the said
task on the next day i.e., on 15.6.2016
and in furtherance of the same, you
accused No.7 to 14 reached Uday Gym
and committed the murder of Yogesh
Goudar and there afterwards, as part of
your conspiracy, you accused No.15,
accused No.18 Vikas Kalburgi assisted
the accused No.7 to 14 by providing
logistic support to hide vehicles used in
the commission of said crime; and you
accused No.21 Somashekar Basappa
29 Spl.CC No.565/2021
Nyamagouda, Personal Secretary of
Accused No.15, having knowledge of
criminal conspiracy, had actively
assisted accused No.15, by carrying out
his instructions by passing on the
message to accused No.1 Basavaraj
Muttagi towards commission of offence
and further, you accused No.21 had
accompanied with accused No.16 and
met accused No.1 at Bengaluru on the
night of 15.6.2016 and 16.06.2016 and
handed over the money to accused No.1
and thereby you accused No.1 to 18 and
21 have conspired with each other in all
stages of the crime with common object
to commit the murder of Yogesh Goudar
and thereby committed an offence
punishable under Sec.120-B R/w Sec.149
of IPC, within my cognizance.
Secondly, in furtherance of common
object to commit murder of Yogesh
Goudar and in furtherance of criminal
conspiracy with accused No.15, you
accused No.1 to 14 formed into an
unlawful assembly on 15.06.2016 at
about 7.00 a.m. and were members of
said unlawful assembly and thereby you
accused No.1 to 14 committed an offence
30 Spl.CC No.565/2021
punishable under Sec.143 R/w Sec.120-B
and 149 of IPC, within my cognizance.
Thirdly, in furtherance of common
object to commit murder of Yogesh
Goudar and in furtherance of criminal
conspiracy with accused No.15, you
accused No.1 to 14 formed into an
unlawful assembly on 15.06.2016 at
about 7.00 a.m. and being members of
said unlawful assembly and in
prosecution of the common object of the
said unlawful assembly, you accused
No.1 to 14 had committed offence of
rioting, punishable under Sec.147 R/w
Sec.120-B and 149 of IPC, within my
cognizance.
Fourthly, in furtherance of common
object to commit murder of Yogesh
Goudar and in furtherance of criminal
conspiracy with accused No.15, you
accused No.1 to 14 formed into an
unlawful assembly on 15.06.2016 at
about 7.00 a.m. and being members of
said unlawful assembly, you were armed
with deadly weapons such as three
country made pistols, daggers, long
machet, wooden stick, iron rod, and
other sharp and deadly weapons, which
31 Spl.CC No.565/2021
used as a weapon of offence, were likely
to cause death and thereby you accused
No.1 to 14 committed an offence
punishable under Sec.148 R/w Sec.120-B
and 149 of IPC, and within my
cognizance.
Fifthly, you accused No.15 Vinay
Rajashekarappa Kulkarni, the then in-
charge Minister of Dharwad District,
conspired with accused No.1 Basavaraj
Muttagi and accused No.16
Chandrashekar Indi, with common object
to commit the murder of Yogesh Goudar,
due to personal and political reasons
and in pursuance of the same, you
accused No.1 conspired with you accused
No.2 to 14 and in pursuance of the same,
you accused No.8 to 14 came to Dharwad
on two occasions in the month of June-
2016 and stayed in the old house at
Sarswathpur and hatched conspiracy
with accused No.1 to 7 for commission of
the murder of Yogesh Goudar and in
pursuance of the same, you accused No.1
to 14 made an unsuccessful attempt to
commit the murder of Yogesh Goudar on
14.6.2016. After the unsuccessful
attempt, you accused No.1 to 14 decided
to complete the task on the next day.
32 Spl.CC No.565/2021
Accordingly, on 15.6.2016, you accused
No.7 and 9 reached Uday Gym by 6.46
a.m. in a Hero Honda Splendor motor
cycle bearing No.KA-25-EA-6230, you
accused No.13 and 8 reached Uday Gym
in white colour scooter bearing
Regn.No.KA-25-EU-2609 by 7.29 a.m. and
you accused No.10, 11, 12 and 14
reached the area in a white Tavera Car
bearing Regn.No.KA-25-D-0420 driven by
you accused No.4 and all of you accused
waited for arrival of Yogesh Goudar to
Uday Gym to attack and when he
reached the said Uday Gym in his Silver
Colour Innova Car at 7.36 a.m. you
accused No.7 who was waiting on the
stairs of the building thrown chilli
powder in the eyes of Yogesh Goudar and
stabbed him on his neck with a dragger
and unsettled him, you accused No.9
seated on the wall close to the Gym by
hiding your face in newspaper, attacked
Yogesh Goudar on his head with long
machete and you accused No.8, 10, 11,
12, 13 and 14 rushed to the Gym and
dragged Yogesh Goudar to the Gym and
assaulted him on his head and other
parts of the body with long machete and
other sharp with an intention to kill him
33 Spl.CC No.565/2021
and inflicted deadly wounds all over his
body, with a knowledge that such
injuries in ordinary course would cause
the death of the injured and Yogesh
Goudar succumbed to said injuries and
thereby you accused No.1 to 6 played a
passive role towards commission of the
offence in furtherance of the criminal
conspiracy and you accused No.7 to 14
being the real assailants who had
carried forward the common object of the
commission of murder of the deceased
Yogesh Goudar at the instance of you
accused No.15 Vinay Rajashekharappa
Kulkarni and you accused No.16
Chandrashekar Indi by supplying weapon
for the commission of offence in
furtherance of the common object and
criminal conspiracy hatched by you and
you accused No.18 Vikas Kalburgi
assisted the accused persons to hide the
vehicles and also by giving information
about the movement of the deceased
Yogesh Goudar and you accused No.21
Somashekara Basappa Nyamagouda,
being the Personal Secretary of accused
No.15 had taken a active part in
furtherance of criminal conspiracy and
thereby you accused No.1 to 16, accused
34 Spl.CC No.565/2021
No.18 and 21 have committed the offence
punishable under Sec.302 r/w Sec.120-B
and 149 of IPC within my cognizance.
Sixthly, in furtherance of criminal
conspiracy with accused No.15 Vinay
Rajashekarappa Kulkarni, the then in-
charge Minister of Dharwad District,
accused No.16 Chandrashekar Indi and
accused No.1 Basavaraj Muttagi, after
commission of murder of Yogesh Goudar
on 15.6.2016 at about 7.36 a.m. at Uday
Gym, you accused No.1 to 3 and 5 to 14
assembled near the Tavera Car parked
near the 1st Cross Road, where you
accused No.4 was waiting and you
accused No.7 to 14 escaped from the
place in said Tavera Car which was
driven by you accused No.7 and
proceeded towards Harihar. Later, you
accused No.1 along with you accused
No.3, 5 and 18 reached the spot in a
Chevorlet car bearing Regn.No.KA-25-P-
8526 by 7.42 a.m. to confirm the
execution of the murder of the deceased
and you accused No.1, 3, 5 and 18 also
proceeded to Harihar where you accused
persons met accused No.7 to 14. You
accused No.4 drove the Splendor bike
used by your brother accused No.7 and
35 Spl.CC No.565/2021
left it near NTTF and joined accused No.2
who was waiting on CBZ bike bearing No.
KA-31-Q-8755 and met accused No.1 and
other accused at Haveri. You accused
No.7 also joined them in your vehicle.
Thereafter, accused No.8 to 14 were
dropped at Harihar Bus-stand from there
you left to your respective places of stay.
You accused No.1 to 7 and 18 proceeded
to Hospete in white Tavera and Black
Chevrolet vehicles and you accused No.2
to 7 and 18 stayed in M/s. Hema Guest
House at Hampi on the night of
15.06.2016, whereas you accused No.1
left to Chitradurga and later to
Bengaluru to meet accused No.15 and 21.
On 16.06.2016 you accused No.2 to 7 and
18 left Hampi and stayed in Panchavati
Hotel, located at NH4, Munavalli,
Shiggoan Taluk, Haveri where you were
joined by accused No.1 on 16.06.2016
after returning from Bengaluru and
accused No.1 arranged for hiding the
black Chevrolet car at Shiggaon through
you accused No.7 and 18. In furtherance
of criminal conspiracy, to mislead the
investigation and to screen the real
assailants, you accused No.1 to 5 got
surrendered before police on 17.06.2016
36 Spl.CC No.565/2021
morning and you accused No.6
surrendered on 20.06.2016. Further, as a
part of the larger criminal conspiracy
with accused No.15, you accused No.19-
Chennakeshava Tingarikar being the
Investigation Officer of the case in Crime
No.135/2015 of Sub-Urban P.S. Dharwad
and you accused No.20 Sri Vasudev
Rama Nilekani, being the immediate
Supervisory Officer to accused No.19,
had carried out defective investigation by
recording the arrest of implanted
accused No.1 to 6 as assailants, effecting
recovery of implanted weapons from
them by creating false mahazar, by not
bringing on record the actual weapons
found near the scene of crime, caused
destruction of certain evidence connected
with the offence of murder of Yogesh
Goudar with an intention to screen the
real assailants from legal punishment
and thereby you accused No.1 to 16, 18,
19 and 20 committed offence an
punishable under Sec.201 R/w Sec.120-B
and 149 of IPC within my cognizance.
Seventhly, in furtherance of
common object to screen the real
offenders, you accused No.19-
Chennakeshava Tingarikar being the
37 Spl.CC No.565/2021
Investigation Officer of the case in Crime
No.135/2015 of Sub-Urban P.S. Dharwad,
and you accused No.20 Sri Vasudev
Rama Nilekani, being the immediate
Supervisory Officer to accused No.19,
being public servants, had carried out
defective investigation (1) by recording
the arrest of implanted accused No.1 to 6
as assailants who used weapons, (2) by
effecting recovery of implanted weapons
from them by creating false mahazar, (3)
by not bringing the actual weapons on
record found near the scene of crime and
thereby destructed the evidence and (4)
by not arresting the real assailants who
committed the crime. Subsequently, as a
part of the larger criminal conspiracy,
accused No.1 to 6 surrendered in the
place of accused No.7 to 14 and you
accused No.19 and 20 being public
servants having the responsibility to
prepare the charge sheet, you accused
No.19 had prepared such charge sheet
under the supervision of accused No.20
in a manner which you knew to be
incorrect, with the intention to screen the
accused No.7 to 18 and 21 from legal
punishment for committing murder of
Yogesh Goudar on 15.6.2016 and thereby
38 Spl.CC No.565/2021
you accused No.19 and 20 have
committed offence punishable under
Sec.218 R/W Sec.120-B and 149 of IPC,
within my cognizance.
Eighthly, you accused No.19- Chennakeshava Tingarikar being the
Investigation Officer of the case in Crime
No.135/2015 of Sub-Urban P.S. Dharwad,
and you accused No.20 Sri Vasudev
Rama Nilekani, being the immediate
Supervisory Officer to accused No.19,
had carried out defective investigation by
recording the arrest of implanted
accused No.1 to 6 as assailants who used
weapons, effecting recovery of implanted
weapons from them by creating false
mahazar, by not bringing the actual
weapons found near the scene of crime
on record, destructing the evidence and
by not arresting the real assailants and
you accused No.19 and 20 had obtained
illegal gratification to scuttle the
investigation and these acts were
committed by you accused No.19 and 20
as part of the criminal conspiracy to
shield the other accused and weaken the
case of prosecution and thereby you
accused No.19 and 20 being public
servants committed criminal misconduct
39 Spl.CC No.565/2021
punishable under Sec.7, 13(1)(d) R/w
Sec.13(2) of the Prevention of Corruption
Act, 1988 within my cognizance.
Lastly, you accused No.15 Vinay
Rajashekarappa Kulkarni, then then
Minister in-charge of Dharwad District
conspired with accused No.1 Basavaraj
Muttagi and accused No.16
Chandrashekar Indi with common object
to execute the murder of Yogesh Goudar
due to personal and political reasons
and in pursuance of the same you
accused No.16 Chandrashekar Indi
arranged three country made pistols
through you accused No.17 Shivanand
Shrishail Biradar and arranged to
deliver the same to accused No.1
Basavaraj Muttagi and thereby you
accused No.1, 15, 16 and 17 have
committed offence punishable under
Sec.25 R/w Sec.3, 5, 8 and Sec.29 of
Arms Act, 1959 R/w Sec.120-B and 149 of
IPC, within my cognizance.
13. The accused persons had pleaded not guilty
and claimed to be tried on 06.12.2023. Immediately
thereafter an application came to be filed by the then
40 Spl.CC No.565/2021
accused No.1 Basavaraja Muttagi under Sec.231(2) of
Cr.P.C., requesting the Court to continue with the
evidence of witnesses in the same chronological
manner which was conducted before the 4 th Addl.
District and Sessions Judge Court at Dharwad. After
hearing both the parties on merits, this Court has
disposed off the said application by holding that
though it is a continuation of trial, it does not mandate
the prosecution to continue with the very same
material and the status of the witness since it is
contended by the present Investigating Agency that the
motive and intention for committing the murder was
entirely different from that of the earlier one. The
aforesaid order was challenged before the Hon’ble High
Court of Karnataka in Crl.Petition No.7467/2024 c/w
WP No.18539/2024 (GM-RES) dated 31.08.2024. The
Hon’ble High Court of Karnataka by its kind order had
rejected the same, which was once again challenged
before the Hon’ble Apex Court, wherein the Hon’ble
41 Spl.CC No.565/2021
Apex Court had also upheld the order passed by this
Court, as such the trial came to be fixed. Further it
was directed to this Court by the Hon’ble High Court to
conclude the trial within a fixed time frame of 3
months. When the trial was fixed initially and when
PW.1 Dattatreya Hanumantha Gudagunti was
examined partly in chief-examination, the accused
No.1 had filed an application under Sec.306 of Cr.P.C.,
seeking for pardon, as such counter was sought from
the CBI who had accepted the contention of accused
No.1 Basavaraja Muttagi and he had narrated in his
statement that for security reasons he was not
disclosing the facts which was within his specific
knowledge. Thereafter, this Court after hearing the
parties, had directed Basavaraja Muttagi to get his
statement recorded under Sec.164(4) of Cr.P.C and
thereafter the same came to be recorded. On perusal of
the said statement and on the basis of the counter
42 Spl.CC No.565/2021
submitted by the CBI, the Court had granted him with
pardon.
14. Once again, the granting of pardon was
challenged before the Hon’ble High Court of Karnataka
in Crl.P.No.12176/2024. The aforesaid criminal
Petition came to be allowed by the Hon’ble High Court
of Karnataka holding that granting of pardon on the
basis of the statement recorded under Sec.164(4) of
Cr.P.C. after commencement of trial is not proper.
However, the Hon’ble High Court had held that in the
event of fresh ground being pointed out, he will be at
liberty to file necessary application. By pointing out a
fresh ground, once again another application came to
be filed by accused No.1 Basavaraja Muttagi under
Sec.306 r/w 307 of Cr.P.C. After seeking the counter
and hearing the learned counsel for accused No.1 and
also other accused persons since they had contended
that even their rights were required to be protected
and also after following the guidelines laid down by the
43 Spl.CC No.565/2021
Hon’ble High court of Karnataka with respect to
considering the application and by appreciating the
materials available on record, this Court had
proceeded to pass an order to grant pardon to accused
No.1 Basavaraja Muttagi by imposing condition to
disclose all true and necessary facts in the above case.
Again, the said order was challenged before the
Hon’ble High Court of Karnataka in WP No.383/2025,
wherein the Hon’ble High Court after hearing both the
parties on merits was pleased to dismiss the
application confirming the order of pardon. Again, the
same was challenged before the Hon’ble Apex Court
wherein the order of this Court once again was upheld
by the Hon’ble Apex Court. During the pendency of the
same, the Hon’ble High Court of Karnataka had
directed to conduct the trial as expeditiously as
possible and conclude it within a period of four weeks.
15. Thereafter the trial had commenced and the
prosecution in order to prove their case had examined
44 Spl.CC No.565/2021
totally 113 witnesses as PW.1 to PW.113, Ex. P1 to Ex.
P.292 and MO.1 to 33 were identified and marked and
Ex.D1 to Ex.D38 were marked in the course of cross-
examination.
CHAPTER: III
RECORDING OF STATEMENT UNDER SEC.313 OF
Cr.P.C. OF ACCUSED No.2 TO 16 AND 18 TO 21:
16. On completion of the prosecution evidence,
necessary statement under Sec.313 of Cr.P.C., came to
be recorded by putting-forth separate incriminating
materials against the aforesaid accused persons. The
recording of the statement of accused person was
recorded by marshaling the evidence which was
recorded and by pointing out to the incriminating
materials which were available against the accused
person. The above case had a checkered history
wherein, on earlier occasion the approver PW.10
Basavaraja Muthagi along with accused No.2 to 6 had
faced the trial before the Sessions Court at Dharwad
45 Spl.CC No.565/2021
and even they had claimed of committing the murder
and thereafter the matter was entrusted to CBI for
investigation and final reports were filed including
accused No.7 to Accused No.21. As such the
incriminating materials alleged against the accused
persons drastically changes so as the evidence which
is placed before court. By pointing out to the said
incriminating materials, necessary statement of
accused came to be recorded under sec 313 of Cr.P.C.
The accused had answered all the questions and also,
they were permitted to file the written statement as
contemplated under Sec.313(5) of Cr.P.C. Particularly,
accused No.2 to 6 were put-forth the incriminating
materials which was alleged against them with respect
to the screening of evidence and standing in the place
of real assailants. The accused had denied all the
incriminating materials that were available and
likewise accused No.2 to 14 who were according to the
case of prosecution were the assailants also notified
46 Spl.CC No.565/2021
with respect to the incriminating materials available
against them. Even they have denied all the
incriminating materials. Accused No.15 who is said to
be the main conspirator as per the case of the
prosecution and accused No.16 Chandrashekar Indi @
Chandu Mama, who happens to be the maternal uncle
of accused No.15 were examined separately by
narrating the incriminating materials against them.
Even they have denied the circumstances and
incriminating materials available against them. The
other accused i.e., accused No.19 and 20, who were
the Police Officers who were pointed out with the
incriminating materials with respect to their alleged
role in the commission of murder by entering into
conspiracy separately with accused No.15 to take
forward the murder of Yogesh Goudar. Even they have
denied all the incriminating materials available against
them and likewise accused No.21 Somashekar
Basappa Nyamagouda, who was the Personal Assistant
47 Spl.CC No.565/2021
of Vinay R. Kulkarni was also examined in this manner
and he too has denied the incriminating materials
available against them.
17. On completion of recording of statement
under Sec.313 of Cr.P.C., the learned counsels for the
accused and also the accused persons have submitted
that there is no defence evidence on their side. And as
such the case was posted for arguments on merits.
CHAPTER : IV
ARGUMENTS ADDRESSED BY PROSECUTION
AND DEFENCE.
18. Heard the arguments of both the parties. The
learned Senior Public Prosecutor has vehemently
argued that the incident of murder had taken-place on
15.06.2016 between 07.00 a.m. to 07.30 a.m., at Uday
Gym situated at Sapthapura, Dharwad, wherein
Yogesh Goudar was murdered. It is argued by the
learned Senior Public Prosecutor that the main motive
and intention for the commission of murder was the
48 Spl.CC No.565/2021
conspiracy hatched by accused No.15 Vinay R.
Kulkarni, due to a political rivalry. It is further argued
that at the inception of the investigation by the
Dharwad Sub-Urban Police, the murder was projected
to be as a result of land dispute prevailing between the
then accused No.1 Basavaraja Muttagi and deceased
Yogesh Goudar with respect to a land situated at
Belligatti village of Dharwad Taluk. In order to
substantiate her contention, the learned Senior Public
Prosecutor has taken this Court with respect to the
evidence of PW.4 Shivananda Salagatti and PW.5
Gangappa Shivappa Kallagaudthi, who were the former
Member and Member of Village Panchayath of
Mundaragi village at relevant point of time. Though the
contention of the Dharwad Sub-Urban Police was that
the motive to commit the murder was a land dispute
wherein Basavaraja Muttagi had intended to purchase
the land of PW.6 Nagaraj Todkar, the same was not the
real motive or intention but it was only a projected one
49 Spl.CC No.565/2021
in order to escape from the wrath of justice. In this
regard, the contention of CBI is required to be
juxtaposed and examined with that of the contentions
or the findings arrived at by the Investigating Agency of
the State Police i.e., Dharwad Sub-Urban Police. At the
first instance, the evidence of PW.4 Shivananda
Salagatti is required to be examined. In his evidence he
has deposed that on 23.04.2016, a meeting was
convened at Dharwad Zilla Panchayath premises by
the then District In-charge Minister Vinay Kulkarni to
discuss about the famine situation and it is also
narrated that the meeting was to be attended by the
President and Vice President of Village Panchayath,
Taluk Panchayath, Zilla Panchayath, PDO and Taluk
Level Officials, KEO, District Commissioner,
Superintendent of Police of Dharwad. He has further
deposed that on that day even the public persons had
gathered in that meeting and at relevant point of time,
a verbal altercation has taken-place between the
50 Spl.CC No.565/2021
deceased Yogesh Goudar about drinking water supply
to the constituency of Yogesh Goudar at Hebballi
village. The aforesaid aspect has been seriously refuted
by the learned Counsel for the accused No.15 and the
prosecution mainly contends that in the said verbal
altercation that had taken place on 23.04.2016, Vinay
Kulkarni had threatened deceased Yogesh Goudar with
dire consequences and thereafter a conspiracy was
hatched by him to commit his murder. The learned
Senior Public Prosecutor has also pointed out to the
evidence of PW.5 Gangappa Shivappa Kallagaudthi,
wherein he has admitted that he was the Member of
Village Panchayath from Managundi Constituency and
he had succeeded PW.4 Shivananda Salagatti. He has
also deposed in the similar manner and during the
course of his cross-examination he was consulted by
the learned Counsel for the defence with respect to the
minutes which were recorded at that meeting. Since it
was admitted by the witness, the minutes got marked
51 Spl.CC No.565/2021
as Ex.D3 and whereas the invitation/notification
calling upon the meeting was marked through
confrontation as Ex.D2.
19. The learned Senior Public Prosecutor has
submitted before this Court that the prosecution is
successful in establishing their case with respect to
the allegations leveled by them. The learned Senior
Public Prosecutor has argued that the motive and
intention to commit the aforesaid offence was the
quarrel that had taken-place on 23.04.2016 between
accused No.15 Vinay Kulkarni and deceased Yogesh
Goudar in the meeting convened by Vinay Kulkarni at
Zilla Panchayath premises. It is submitted that PW.4
Shivananda Salagatti and PW.5 Gangappa
Kallagaudthi, who were also the Member of Village
Panchayath have deposed that the quarrel that had
taken-place between them and also the aforesaid
aspect was reported in a Newspaper which was also
established by the prosecution by examining PW.103
52 Spl.CC No.565/2021
Jagadish Burlabaddi who has produced the
Newspaper. The learned Senior Public Prosecutor has
vehemently argued that immediately after the incident,
accused No.15 had hatched a conspiracy and in
furtherance of the same he has assigned the work to
eliminate the deceased to accused No.1 Basavaraja
Muttagi, who had availed the help of accused No.7 to
14, who had agreed to commit the murder by receiving
a sum of Rs.20,00,000/- and with a condition that
they would not be arrested nor made to surrender. As
such, accused No.2 to 6 had agreed to stand in place
of the real assailants. The aforesaid aspect was
deposed by PW.2 Gurunath Goudar who had also
produced the unanimous letter at Ex.P.7 wherein it
was warned the deceased about the incident prior to
his death and also it was proved during the evidence
that the same was written by PW.10 Basavaraja
Muttagi who had turned approver later on. The learned
Senior Public Prosecutor has vehemently argued that
53 Spl.CC No.565/2021
the entire case of the prosecution rests upon the
circumstantial evidence and it is her submission that
initially the complainant who is none other than the
wife of deceased Yogesh Goudar had given a public
interview and had repeatedly stated that the reason for
murder of Yogesh Goudar was accused No.15 Vinay
Kulkarni and later had joined the hands of Vinay
Kulkarni himself. The learned Public Prosecutor has
requested the Court to appreciate the evidence of
PW.50 Mallavva Yogesh Goudar with that of PW.11
Anjana Basavaraj, who is none other than the sister-
in-law of accused No.15 Vinay Kulkarni, who deposed
that they have all traveled together to Sirsi and in the
midst of the same, Mallavva Goudar had contacted
Vinay Kulkarni at Vaishnavi Lodge. With respect to
hatching of conspiracy, the learned Senior Public
Prosecutor has argued that they had proved beyond
reasonable doubt with respect to the conspiracy
hatched between PW.10 and accused No.15 and in
54 Spl.CC No.565/2021
turn with that of other accused persons were fully
established by the prosecution by producing the CDR’s
which would indicate that accused No.7 to 14 were
present at Dharwad and more particularly in front of
Uday Gym on 14.06.2016 as well as on 15.06.2016
and likewise the tower location of other accused
persons co-related with the then accused No.1
Basavaraja Muttagi. It is her submission that when the
evidence of PW.10 Basavaraja Muttagi is compared and
appreciated with the other materials, it would clearly
indicate the presence of accused persons near Uday
Gym on the relevant date. The above said aspect is
further justified by looking into the CCTV footage
which would clearly indicate and fortify the case of the
prosecution.
20. The learned Senior Public Prosecutor has also
vehemently canvassed that in order to prove the
entering of conspiracy necessary electronic records
have been produced by the prosecution in the form of
55 Spl.CC No.565/2021
CDR and in order to justify the same she has pointed
out to the evidence of PW.106 G.Prakash who is he
Nodal Officer of Vodafone India Pvt. Ltd., PW.109
Johnson Tom who had produced the CDR’s at Ex.P249
and also the evidence of PW.95 Ravi Norohna, Officer
of the Vodafone and PW.10 Basavaraj Muttagi’s
evidence is required to be considered along with the
aforesaid electronic records. It is submitted that at
relevant point of time, the tower locations of the
accused persons were all seen together and also, they
were together immediately after the commission of
alleged murder by them. By pointing out to the same,
it is submitted by the learned Senior Public Prosecutor
that the prosecution has established the entering of
conspiracy between the accused persons. It is also
submitted that since the question of conspiracy will
always be based on circumstantial materials and it is
not hatched in darkness, the prosecution will have to
rely upon the materials which indicate through
56 Spl.CC No.565/2021
circumstances. That apart, the learned Public
Prosecutor has taken this Court through Ex. P80,
which is the CCTV footage which indicates of the
involvement of accused persons in the above case. The
CCTV footage which indicates of the involvement of
accused persons in the above case. The CCTV footage
was displayed in the Court and as per the submissions
made by the learned Senior Public Prosecutor, it is
argued that the face of the assailants was clearly
visible and the same was identified categorically by the
eye-witnesses in the instant case. In order to justify
the said contention, the learned Senior Public
Prosecutor has taken through the evidence of PW.1
Dr.Dattatreya, PW.32 Anand Irappa Uddannavar,
PW.33 Vinayak Binjiyaker, PW.34 Mohan Yethrappa
Mumutal, PW.30 Lakshmi Benakatti and PW36
Shwetha Kulkarni. Out of the aforesaid witnesses, only
PW.30 Lakshmi Benakatti had supported the case of
prosecution and rest of the witnesses mentioned above
57 Spl.CC No.565/2021
had turned hostile. However, it is argued that during
the course of their cross-examination, they have
categorically admitted the presence of assailants and
also their presence and when corroborated with the
evidence of PW.10 Basavaraja Muttagi, the same would
justify the case of prosecution.
21. The learned Senior Public Prosecutor has also
argued that the Court can always rely upon the
evidence of the approver provided it inspires the
confidence. It is submitted by the learned Senior
Public Prosecutor that though the evidence of approver
is considered as weak evidence and also his evidence is
not believable at the inception, the Court can always
ascertain and examine its veracity by looking into the
facts and circumstances. It is her submission that the
evidence of the approver though is considered as
weaker evidence, it can still be relied upon by the
Court to join the missing links when the case is based
on circumstantial evidence. By pointing out to the
58 Spl.CC No.565/2021
same, the learned Senior Public Prosecutor has taken
this Court through the evidence of PW.10 Basavaraja
Muttagi, wherein he had specifically deposed about the
manner in which the conspiracy was hatched at the
inception which was immediately after 23.04.2016 at
Vinay Dairy, Dharwad. It is her submission that there
cannot be any direct materials to indicate the manner
in which the conspiracy was hatched and as such the
said evidence can be looked into for the purpose of
joining the links when appreciated with another eye-
witness to the incident. By pointing out to the same,
she has argued that the tower location of Basavaraja
Muttagi immediately after commission of the murder
on 15.06.2016 is required to be considered with that of
tower location of other accused persons who had
allegedly assembled near Sanky Tank,
Sadashivanagar, Bengaluru. The tower location of
Basavaraja Muttagi would clearly indicate of his
presence and whereas as per the statement rendered
59 Spl.CC No.565/2021
by Basavaraja Muttagi, accused No.15 Vinay Kulkarni
had got his mobile phone switched off at Hotel Mourya
prior to going to meet him at Sadashivanagar. The
learned Senior Public Prosecutor has pointed out to
the CDR, which would indicate the last tower location
on 15.06.2016 of accused No.15 Vinay Kulkarni was
near legislature’s home at Bengaluru and thereafter
the mobile came to be switched off. That apart, she
has also argued that when the mobile numbers of
other persons who were present at that point of time is
verified and in particularly with that of Vijay Kulkarni,
it would indicate his presence at Sanky Tank at
Bengaluru, which once again retract back and
corroborates the evidence of Basavaraja Muttagi. Even
otherwise, the learned SPP has taken this Court to the
evidence of PW.56 Mallavva Yogesh Gouda Goudar who
is none other than the wife of deceased Yogesh Goudar.
It is her submission that the criminal law was set into
motion on the basis of the written information which
60 Spl.CC No.565/2021
came to be filed at her behest as per Ex. P1 before the
Dharwad Court and in fact she had openly stated that
it was due to the political rivalry her husband Vinay
Kulkarni was murdered. The aforesaid fact was
corroborated when compared with the evidence of
PW.2 Gurunath Goudar, PW.10 Basavaraja Muttagi,
PW.11 Anjana Basavaraj Dollin and PW.12 Suma
Subhash Goudar. The aforesaid witnesses have spoken
about the ill-will and rivalry that was prevailing
between them and in fact the evidence of PW.11
Anjana Basavaraj Dollin also indicates that
subsequently after the murder, in the month of
December 2017 Smt.Mallavva had intended to take
treatment at Sirsi and on their way to Sirsi they had
stayed at M/s Vaishnavi Lodge, wherein she had met a
political leader and also Vinay Kulkarni and at that
point of time the CCTV footage came to be switched off
for the reason that Vinay Kulkarni was intending to
visit the place. By pointing to the aforesaid
61 Spl.CC No.565/2021
circumstances and by comparing with the public
interview which Smt. Mallavva Goudar had given prior
to the commencement of investigation by the CBI in a
public rally that Vinay Kulkarni was mainly
responsible for the murder of her husband. The
prosecution has pointed out to the ill-will and also
winning over of the witness by exercising power by
accused No.15 Vinay Kulkarni. The learned Senior
Public Prosecutor has also pointed out to the test of
identification parade which was carried out by the
Assistant Commissioner and Sub-Divisional Magistrate
at Dharwad who was examined before the Court at
PW.79 Mohammed Zubair. It is her submission that
the witnesses were made to identify the suspected
persons and in fact as per the evidence of the aforesaid
witnesses he had followed all the procedures as
contemplated under law to conduct Test Identification
Parade and in that particularly PW.30 Lakshmi
Benakatti had identified accused No.9 Ashwath and
62 Spl.CC No.565/2021
likewise PW.34 Mohan Yethrappa Mulmuttal and also
PW.33 Vinayak Binjiyakar had identified the accused
persons which were marked as Ex.C.3 and Ex.P85 to
89. By pointing out to the aforesaid aspects, though
the witnesses had turned hostile, the Court can always
place reliance on the evidence of PW.30 Lakshmi
Benakatti, who had specifically identified the
suspected person at that point of time and also his
identification before the Court. Lastly, it is argued by
the learned Senior Public Prosecutor that the
statement of the accused persons was recorded as
contemplated under law under Sec.164(1) of Cr.P.C.,
wherein they had confessed and admitted of
committing the offence. It is her submission that the
judicial confession which was recorded before the
Magistrate can always be believed into since the same
stands on different footing than that of any other
statement which is recorded. She has also pointed out
to the Court that the learned Magistrate had given
63 Spl.CC No.565/2021
sufficient period of time for retraction and also, he had
explained the consequences to the accused persons of
tendering such a statement. Since the witness
themselves had volunteered, the statements came to
be recorded. It is her submission that the said
confession statement was not seriously disputed by
the accused person and only a stray suggestion was
put-forth that the submissions were recorded due to
the pressure exerted by CBI to the Investigating Officer
PW.113 Rakesh Ranjan. She has also taken this Court
with respect to the statement of the witnesses which
was also recorded under oath under Sec.164(5) of
Cr.P.C. In particularly she has pointed out to the
evidence of PW.24 Shivanand Chalavadi, the then
Police Inspector of Dharwad Town Police Station who
was instrumental in planting the weapons at the
behest of accused No.19 Chennakeshava Tingarikar,
who was the then Investigating Officer at Dharwad
Sub-Urban Police Station. By pointing out to the same,
64 Spl.CC No.565/2021
the prosecution has sought for conviction of the
aforesaid accused persons.
22. The learned counsel for accused No.2 to 6
Sri.C.Parameshwar has taken this court through the
entire materials which are available on record. It is his
submission that the contention of the prosecution is
not established with the facts and circumstances of
the case. It is also been submitted that the alleged
confessional statements of accused No.3 Keerti Kumar
and accused No.6 Mahabaleshwara Hongal is not
justified under the eyes of law. It is submitted that on
16.12.2020, the learned Magistrate before whom they
were produced was pleased to send them back for
reflection for a period of 48 hours and accordingly they
were produced before the Magistrate on 18.12.2020 on
which date the statement was not recorded and again
they were directed to appear before him after 48 hours.
It is further submitted that on 22.12.2020 the accused
No.3 was produced before the learned Magistrate and
65 Spl.CC No.565/2021
whereas the accused No.6 was produced on
23.12.2020 for getting the confessional statement
recorded under Sec.164(5) of Cr.P.C. It is submitted
that the CBI investigating officer Mr. Rakesh Ranjan
had not recorded the statement of accused No.3 and 6
in writing during the course of investigation at any
point of time and as such producing them before the
Court at the first instance would definitely indicate
that the process of recording the statement was
tainted. Even otherwise it is argued that the
confessional statement did not indicate of any
questions being put-forth by the Magistrate and they
were recorded directly by the Magistrate would clearly
indicate that the statement which was recorded was
not a voluntary one. It is also contended that though
the aforesaid accused were on bail, were taken into
custody and kept under illegal detention by the CBI for
the purpose of recording their statement. Further it is
also submitted that as per the confession statement, it
66 Spl.CC No.565/2021
was projected that accused No.1 was an innocent
person who was allegedly forced to commit the crime.
Further it is submitted that actually it was the mind
game of accused No.1 Basavaraja Muttagi who was
involved with the Investigating Officer from the day one
of his investigation which would indicate that he
wanted to give a clean chit to the accused No.1 which
was rather a conspiracy of accused No.1 to get record
the alleged confession statement to suit his benefit.
The learned counsel has relied upon the judgment of
the Hon’ble Apex Court reported in AIR 1957 SC 216
(Balbir Singh Vs. State of Punjab) and also another
judgment of the Hon’ble Apex Court reported in AIR
1963 SC 1094 (Pyarelal Bhargava Vs. State of Rajasthan)
and has submitted that the statement which is
recorded by the Magistrate is not in accordance with
law and it does not have any value under the eyes of
law. He has also contended that the prosecution
which have produced CDR’s along with certificates
67 Spl.CC No.565/2021
under Sec.65(B) of Indian Evidence Act was admissible
in evidence which would indicate the CDR analysis
report revealing that the accused No.2 to 6 were in
different locations so as that of the then accused No.1
Basavaraja Muttagi who had turned approver later on.
It is the submission of the learned counsel for accused
No.2 that the prosecution had failed to establish the
motive for committing the offence was the land dispute
and in fact the evidence of PW.13 was not indicating of
any such materials. That apart it is also submitted
that accused No.5 was not proved to be in possession
of the house at Sapthapura, Dharwad and the evidence
of PW.10 Basavaraja Muttagi was not corroborated in
any manner by the evidence of Usha Deshpande or any
other persons who were examined before the Court. It
is also submitted by him that the tower location of the
aforesaid accused persons on the alleged date of
incident did not indicate of their presence at the time
of commission of murder but it was showing the
68 Spl.CC No.565/2021
location at some other place which was not explained
properly by the prosecution. When the presence of
accused No.2 to 6 could not be pointed out at or near
Uday Gym, the contention of the prosecution to rely
upon the statement of Basavaraja Muttagi was not
proper.
23. The learned counsel for the accused No.2 to 6
has also submitted that the prosecution has utterly
failed to prove the recovery of the vehicles which were
allegedly used by the accused persons at the time of
the incident. It is their contention that the vehicles
were not used at the time of alleged incident by the
aforesaid accused persons and even otherwise the
ownership documents which were produced before the
Court does not indicate of being used or standing in
the name of accused No.2 to 6. By pointing out to the
aforesaid aspects, it is his submission that solely on
the basis of the statement of accused No.1 Basavaraja
Muttagi who was later on granted with pardon, the
69 Spl.CC No.565/2021
Court cannot proceed to accept the contention of the
prosecution of proving their case beyond reasonable
doubt. Accordingly, he has sought for acquittal of
accused No.2 to 6. In order to substantiate his
contention, the learned counsel has relied upon the
following authorities which are as follows;
a) AIR 1957 SC 216 (Balbir Singh Vs.
State of Punjab)
b) AIR 1963 SC 1094 (Pyare Lal Bhargawa
Vs. State of Rajasthan)
c) (1977)1 SCC 731 (Pyare Lal Vs. State of
Madhya Pradesh)
d) (2001)9 SC 578 (Abdul Rashid Vs. State
of Bihar)
24. The learned counsel for accused No.7 Sri.
Sunil Kumar.S, has endorsed the arguments of
accused No.15 submitted by the learned Senior
Counsel and with respect to the overt-act of accused
No.7 he has filed a separate written arguments under
various heads. Firstly, it is submitted that the evidence
of eye-witnesses against accused No.7 with respect to
his participation in the act of assault was not
70 Spl.CC No.565/2021
established by way of evidence and the accused No.7
for the first time was identified by PW.30 Lakshmi
Benakatti during the course of her chief-examination
by pointing out that he was the one who had thrown
chili powder to deceased Yogesh Goudar. It is his
submission that without any iota of identification prior
to the one that had taken place in the Court was not
having any value under the eyes of law and in order to
buttress the same he has relied upon the judgment of
the Hon’ble Apex Court reported in (1979)4 SCC 312
(Chonnampara Chelappan Vs. State of Kerala). That
apart, it is his contention that the conduct of PW.30
Lakshmi Benakatti was required to be appreciated by
the Court as she had not divulged or explained about
the identity of accused No.7 before the previous
proceedings nor she had deposed anything in this
regard when she was afforded with an opportunity
before the learned Sessions Court at Dharwad in SC
No.50/2017. It is his submission that before the said
71 Spl.CC No.565/2021
Court she has feigned her ignorance with respect to
the identity of any of the accused persons and had
specifically deposed that she was not in a position to
identify any of the assailants. It is also submitted that
the prosecution without following the procedure of Test
of Identification Parade (TIP in short) at the earliest
instance and directly examining such witness before
the Court was not in consonance with the settled
principles of law. It is also submitted that her presence
itself was not proved by the prosecution since many of
the witnesses had deposed that she was not attending
the Gym at the relevant point of time. The learned
counsel has also argued that even otherwise if her
evidence before the Sessions Court at Dharwad is
appreciated, it would indicate that she herself had
deposed under oath that she was not at all present at
the place of incident and in fact she had joined the
Gym about couple of days earlier to the incident and
that too in the evening batch.
72 Spl.CC No.565/2021
25. The other limb of arguments which is
canvassed by the learned counsel is that the
conspiracy and arrest of accused No.7 was not duly
proved by the prosecution. Admittedly, the prosecution
had not produced the CAF of mobile number
9035575321 and the Investigating Officer who was
examined as PW.113 had feigned his ignorance during
the course of his evidence by stating that he was
unable to recall of collecting CAF from Somashekar
Saudatti. The learned counsel for accused No.7 has
submitted by pointing out to the evidence of PW.82
who was none other than the brother of accused No.7
who was using the mobile number 9035575321 and
has stated that during the cross-examination no
incriminating materials were elucidated from him by
the prosecution. The allegations of the prosecution
that accused No.7 was using Mobile Number
8050891607 was evident from Ex.P.234 which could
be looked into from the evidence of PW.113, the
73 Spl.CC No.565/2021
Investigating Officer. The investigation referred appears
to be incomplete concerning the mobile devices
allegedly used during the crime and when the
prosecution relies on tower location data or call detail
records to implicate a suspect it would be imperative
that the Investigating Officer verifies which mobile
devices were actively used at relevant point of time and
also it should have the basis on IMEI and IMSI.
However, no such aspects were forthcoming in the
evidence. It is also submitted that during the course of
cross-examination and in particularly at Para No.131,
the I.O had admitted of not obtaining IMEI Number of
all the mobile numbers during the course of his
investigation nor the Nodal Officer who was examined
by the prosecution as per PW.106 categorically
admitted that the I.O had not requested to provide the
aforesaid details.
26. The other limb of arguments which is
submitted by the learned counsel for accused No.7 is
74 Spl.CC No.565/2021
that the prosecution relies upon CDR and tower
locations. However, CDRs are considered as secondary
evidence and therefore in criminal trials the
prosecution must establish the authenticity of such
evidence for which the I.O is responsible for obtaining
necessary certificate under Sec.65(B) of Indian
Evidence Act at the time of generating the document
for its presentation. The Nodal Officer PW.106
Prakash.G has categorically admitted of not following
the aforesaid principles which was fortified by the
evidence of PW.109 Johnson Tom, who was also the
Nodal Officer. The learned counsel has relied upon the
call detail records and has submitted that the last and
final piece of circumstantial evidence relied upon by
the prosecution to bring home the charges against the
appellant pertains to CDR which was also established
as per the settled law laid down by the Hon’ble Apex
Court in its various dictum and in particularly in the
dictum laid down by the Hon’ble Apex Court in Arjun
75 Spl.CC No.565/2021
Pandith Rao Khotkar Vs. Kailash Kushan Rao
Gorantyal.
27. The learned counsel for accused No.7 has
also argued that the non-seizure of mobile and SIM
Cards was also fatal to the case of prosecution. Last
but not the least, the learned counsel has taken this
court through the evidence of PW.10 Basavaraja
Muttagi who had turned approver in the above case.
The evidence provided by PW.10 was unreliable and
unfounded which indicates of numerous omissions
and contradictions, undermining its credibility. He has
also argued that the conduct of the approver was
crucial as he had not disclosed anything prior to filing
of his third application seeking for pardon, which
would indicate his falsehood and his version as
nothing but a tutored story of the prosecution. It is
also submitted that the case appears to be highly
politically motivated and the evidence against accused
No.7 should not be considered valid or reliable given
76 Spl.CC No.565/2021
the context and potential bias influencing the integrity
of the case. It is also argued that the learned Senior
Public Prosecutor at the time of her arguments had
submitted that the accused No.7 should have
explained certain aspects in the above case. It is
argued that the accused No.7 was having the right to
remain silent during the course of trial which was
guaranteed under the Constitution of India. In order to
buttress the same, he had relied upon the judgment of
the Hon’ble Apex Court reported in (2019)8 SCC 50
(Anand Ramachandra Chougule Vs. Sidarai Laxman
Chougula) in this regard. Hence, by pointing out to the
same and also by relying upon the authorities which
he had presented to the Court has requested the Court
to hold that he was an innocent person and charges
leveled against him stands negated. Accordingly, he
had sought for the acquittal. The learned counsel has
relied upon the following authorities:
77 Spl.CC No.565/2021
a) (1979)4 SCC 312 (Chonampara
Chellappan Vs. State of Kerala)
b) (2024)19 SCC 503 (Jafar Vs. State of
Kerala)
c) 2025 SCC OnLine SC 1203 (Agniraj and
others Vs. State)
d) 2026 SCC OnLine SC 9 (Anjani Singh Vs.
State of Uttar Pradesh)
e) 2026 SCC OnLine SC 344 (Pooranmal
Vs. The State of Rajasthan and another)
f) 2025 SCC OnLine SC 1481 (Rahil and
another Vs. State [Govt. of NCT of Delhi])
g) (2011)4 SCC 143 (Nilesh Dinkar
Paradkar Vs. State of Maharashtra)
h) (2019)8 SCC 50 (Anand Ramachandra
Chougule Vs. Sidarai Laxman Chougala)
28. The learned counsel for accused No.8 to 14
Sri.S.Shankarappa has submitted that the charge
came to be framed against accused No.1 to 21 by this
Court on 06.12.2023, wherein the first charge against
accused No.1 to 18 and 21 for the offences punishable
under Sec.120(B) r/w 149 of IPC and the second
charge was framed against accused No.1 to 14 and 15
for the offences punishable under Sec.143 r/w 120B
and Sec.149 of IPC and whereas the third charge was
78 Spl.CC No.565/2021
framed against accused No.1 to 14 and 15 for the
offences under Sec.147 r/w Sec.120B and Sec.149 of
IPC. It is further submitted that the fourth charge was
framed against accused No.1 to 14 for the offences
punishable under Sec.148 r/w 120B and Sec.149 of
IPC and whereas the fifth charge was framed against
accused No.1 to 16, 18 and 21 for the offences
punishable under Sec.302 r/w Sec.120B and Sec.149
of IPC. The sixth charge was framed against accused
No.1 to 16, 18, 19 and 20 for the offence punishable
under Sec.201 r/w Sec.120B and Sec.149 of IPC and
that apart charge was also framed against accused
No.1 to 15, 16 and 17 for the offences punishable
under Sec.25 r/w Sec.3, 5, 8 and Sec.29 of the Arms
Act. The learned counsel has also argued that out of
the total 113 witnesses examined before the Court,
PW.2 Gurunatha Goudar was the brother of the
deceased and whereas PW.50 Smt.Mallavva Goudar
was the complainant and the wife of the deceased. It is
79 Spl.CC No.565/2021
submitted that the majority of the eye witnesses who
were examined before the court as PW.1 Dr. Dattatreya
Hanumantha Gudaganti, PW.32 Ananda Uddannavar,
PW.33 Vinayak Binjiyavar, PW.34 Mohan Malmuttal,
PW.35 Vivekananda Dalawai, PW.36 Shwetha Kulkarni
had all turned hostile. It is his arguments that the
evidence of PW.30 Lakshmi Benakatti who though had
supported the case of prosecution was not inspiring
confidence. It is submitted by him that on assuming
the case files for further investigation by PW.113, the
entire case took a different turn and the records also
indicates the statements being recorded by the
Investigating Officer. It is his submission that the
prosecution has failed to produce any materials to
indicate the presence of PW.30 Lakshmi Benakatti at
the place of incident on 15.06.2016 at Uday Gym since
her evidence itself was not inspiring confidence when
compared to the evidence which she had tendered
before the Sessions Court at Dharwad.
80 Spl.CC No.565/2021
29. It is also submitted that the deposition of
PW.10 Basavaraja Muttagi who was accorded the
status of approver by this Court was also not inspiring
confidence and it is the submission of the learned
counsel for accused that though he claims to have
written a letter as per Ex.P6 and Ex.P7 warning the
deceased Yogesh Goudar about attempts being made
on his life, the same has not been established by the
prosecution in any manner during the course of trial.
The furnishing of the copy itself as contended by PW.2
Gurunath Goudar is doubtful since it is very much
contrary to the evidence of PW.50 Mallavva Goudar
who at the inception of the case had got a written
information filed before the then Dharwad Sub-Urban
Police Station. The learned Counsel has taken this
Court throughout the evidence of PW.10 Basavaraja
Muttagi and has pointed out the deficiencies in his
examination by comparing it with the cross-
examination. It is also argued by him that the
81 Spl.CC No.565/2021
Investigating Officer had falsely implicated accused
No.7 to 14 in the case by submitting that it was on the
basis of CDR and CCTV footage. The statements
recorded by the accused No.2 to 6 is very much akin to
confession statement of a co-accused which was totally
inadmissible under the provisions of law. The learned
counsel for accused has also disputed the date of
arrest and also non-assigning any reasons in the
materials which were produced before the Court. The
learned Counsel has also taken this Court through the
various provisions of law which would require the
mandatory provision of law to be followed and he has
pointed out to Sec.50 of Cr.P.C., in comparison with
Chapter-11.12 of CBI Manual. The learned Counsel
has also seriously disputed the TIP Parade which was
carried out by the Investigating Agency. It is his
submission that as per the provisions mentioned at
Chapter-11.39 and 11.40 of the CBI (Criminal Manual)
which was in addition to Sec.54A of Cr.PC., certain
82 Spl.CC No.565/2021
strict mandatory aspects were required to be followed
and at the time of arrest of the accused persons, their
face was required to be covered and a note to that
effect should have been made in the corresponding
Arrest Memo, Case Diary and the Remand Application.
Further it is argued that the suspects were required to
be placed amongst other similarly dressed persons and
of the same gait in the proportion of 8 or 9 such
persons to one suspect. Further it is his submission
that the Test of Identification Parade which was carried
out was not in accordance with law and the evidence of
the jurisdictional Sub-Divisional Magistrate PW.79
Mohammed Zubair would clearly indicate that he had
not followed the procedural aspects. It is his
submission that according to PW.30 who was the
solitary witness supporting the case of prosecution was
not corroborated by any other materials or witnesses.
The evidence of PW.113 sending the controlled CCTV
footage was also not in accordance with law and the
83 Spl.CC No.565/2021
evidence pointed out various lacuna which is not
helpful to the case of prosecution. The learned counsel
for accused has also argued that PW.10 Basavaraja
Muttagi in his entire evidence had not deposed about
giving Rs.20 lakhs to accused No.8 to 14 and he had
only deposed that he had given Rs.6 lakhs to
Bangalore Boys without specifically stating that to
whom he had given it. Further his evidence did not
disclose the mobile number of accused No.8 Dinesh
and accused No.9 Ashwath. The CDR and location
extract of accused No.8 was located in the vicinity
which was contrary to the case of prosecution. Under
the circumstances, it is his submission that the entire
case of prosecution was not backed by any proper
materials and they had utterly failed to prove the case
beyond reasonable doubt. Accordingly, he has sought
for acquittal of accused No.8 to 14. The learned
counsel has relied upon the following authorities
which are as follows:
84 Spl.CC No.565/2021
1. (2023)7 SCC 727 (Pritinder Singh Alias
Loverly Vs. State of Punjab)
2. (2019)9 SCC 738 (Gargi Vs. State of
Haryana)
3. (2014)12 SCC 133 (Prakash Vs. State of
Karnataka)
4. (2013)3 SCC 440 (Oma @ Omprakash
and another Vs. State of TN)
5. (2021)13 SC 716 (Jaikam Khan Vs. State
of UP)
6. AIR 1996 SC 2478 (Dhanna Etc. Vs.
State of MP)
7. (2011)2 SCC 715 (Subhash Vs. State of
Haryana)
8. (2016)16 SC 418 (Harbeer Singh Vs.
Sheeshpal and others)
9. (2013)12 SCC 406 (Sujit Biswas Vs. State
of Assam)
10. (2013)5 SCC 722 (Raj Kumar Singh Alias
Raju Alias Batya Vs. State of Rajasthan)
11. (2023)1 SCC 180 (Gireesan Nair and
others)
12. 2014 SCC Online Kar 10093
(Premakumar @ Kumar @ Vadda and
others Vs. State of Karnataka)
13. (1999)8 SCC 428 (Rajesh Govind Jagesha
Vs. State of Maharashtra)
14. (2006)12 SCC 306 (Vikramjit Singh Vs.
State of Punjab)
15. JT 2006 (6) SC 597 = (2006)10 SCC 601
(Syed Ibrahim Vs. State of Andhra
Pradesh)
85 Spl.CC No.565/2021
16. (2024)19 SC 570 (Shailesh Kumar Vs.
State of Uttar Pradesh)
30. The learned Senior Counsel Sri C.V Nagesh,
appearing on behalf of the counsel for accused No.15
has taken this Court through the various facets of law
and has also highlighted about the evidentiary value of
the witnesses who were examined before the Court.
The learned Counsel for accused No.15 has also filed
brief written submissions in addition to the oral
arguments. The written submissions filed by accused
No.15 can be summarized as follows;
ï‚· The defense of the 15th accused centers on
the argument that his implication in the case
is a politically motivated afterthought. The
initial investigation by the local police and
the first Additional Report filed by the
Central Bureau of Investigation (CBI) did not
name A15 as an accused. It was only after a
change in the state administration and a
86 Spl.CC No.565/2021
second Additional Report that A15 was
“tagged on” to the case.
ï‚· The core of the prosecution’s case against
A15 is a projected motive of political rivalry,
alleging that A15 viewed the deceased as a
rising political obstacle. The defense
systematically dismantles this by providing
evidence of cordial relations between A15
and the deceased’s family, including
testimony from the deceased’s wife (PW50)
stating that A15 actually helped her husband
to become the President of the Taluk
Panchayath. Furthermore, the defense
provides official records (Ex.D.3) to prove
that during a Zilla Panchayat meeting where
a heated altercation supposedly occurred,
A15 was actually supporting the deceased’s
grievances and reprimanding officials for
ignoring them.
ï‚· The submission further challenges the
reliability of the prosecution’s witnesses.
Many key “eye-witnesses” (PW1, PW31 to 34,
87 Spl.CC No.565/2021
PW36) were treated as hostile, with some
alleging they were tutored, threatened, or
mentally tortured by the CBI to provide false
statements. The defense particularly attacks
the credibility of PW30 Lakshmi Benakatti,
labeling her a “hired witness” whose
testimony after an eight-year lapse
contradicts her earlier statements and is
belied by gym and hotel records.
ï‚· Finally, the defense refutes the physical
evidence and the testimony of the approver
(PW10). They argue that the weapons
produced are “planted” and do not match the
autopsy findings. The submission
characterizes the approver as an extortionist
and provides a transcript (Ex.D24) of an
alleged attempt by him to blackmail A15 for
money. Alleged conspiracy meetings are
further dismissed as they are not reflected in
official security registers.
88 Spl.CC No.565/2021
31. That apart, the other aspects which has been
highlighted by the learned counsel for accused No.15
when summarized are as follows;
A. Challenge to the Investigation and Motive :
ï‚· Late Implication: A15 was not named in the
original FIR or the first Final Report; his
involvement was only alleged in the CBI’s second
Additional Report after a change in the State
Government.
ï‚· Fabricated Political Rivalry: The prosecution’s
claim that A15 murdered the deceased over
political growth is characterized as an after-
thought to “wreck political malice”.
ï‚· Supportive Relationship: The deceased’s wife
(PW50) testified that A15 and the deceased were
on visiting terms and that A15’s support was
instrumental in the deceased becoming the
President of the Taluk Panchayath.
89 Spl.CC No.565/2021
ï‚· Debunked Meeting Altercation: Official Zilla
Panchayat proceedings (Ex.D.3) show that
instead of threatening the deceased, A15 took
officials to task for failing to attend to the
deceased’s constituency grievances.
ï‚· Concocted Witnesses: Witnesses who spoke of
altercations at the meeting (PW4 and PW5) were
not on the official attendance register (Ex.D.2)
and are described as “non-entity street goers”.
B. Discrediting Eye-Witness Testimony :
ï‚· Hostile Prosecution Witnesses: Numerous
witnesses (PW1, PW31, PW32, PW33, PW34,
PW36) denied seeing the assault or knowing the
assailants, leading the prosecution to treat them
as hostile.
ï‚· CBI Tutoring and Threats: PW1 and PW32 stated
in court that they were tutored and threatened by
90 Spl.CC No.565/2021
the CBI to give false statements before the
Magistrate.
ï‚· The “Hired” Witness (PW30): The defense argues
that Lakshmi Benakatti (PW30) was planted by
investigators. Her 2025 testimony identifying the
accused contradicts her 2017 statement where
she claimed to have seen nothing.
ï‚· Missing Corroboration for PW30: Gym records
(Ex.D.23) and hotel guest registers at “Rashi
Farms” fail to show PW30’s presence at the times
she claimed to be present in the relevant place.
ï‚· Flawed Identification: PW30 admitted that
investigators showed her CCTV footage and
photographs of the accused before she identified
them in the Test Identification Parade.
C. Refutation of Recovery and Physical Evidence :
ï‚· Planted Weapons: The defense contends that the
weapons (MO.1 to 25) were planted to frame the
91 Spl.CC No.565/2021initial accused (A1 to A6) and do not match the
injuries described in the autopsy report.
ï‚· Hostile Recovery Witnesses: Witnesses for the
recovery of weapons (PW12, PW13, PW19, PW22)
all denied witnessing the recoveries and claimed
they were forced to sign papers they did not
understand.
ï‚· Arms Act Discrepancies: Claims regarding
country-made pistols provided by A15 are
unsupported; the weapons were found without
bullets and were never used in the crime.
ï‚· Fabricated Letters: Incriminating letters (Ex.P.6
and Ex.P.7) allegedly sent to the deceased are
described as concocted documents produced by
the deceased’s brother (PW2) in collusion with the
approver.
D. POINTING OUT INFIRMITIES IN THE EVIDENCE OF
THE APPROVER (PW10):
92 Spl.CC No.565/2021
ï‚· Extortionist Character: The first accused turned
approver (PW10) is described as a black-mailer
with a history of extortionist activity.
ï‚· Blackmail Attempt: A transcript (Ex.D.24) exists
of a conversation where PW.10 allegedly
demanded an “unimaginable amount” from A15
to keep him safe in the case.
ï‚· No Record of Conspiracy Meetings: Security
registers at the Legislator’s Home (Ex.D.23) and
Vinay Dairy show no record of the alleged
conspiracy meetings described by PW10.
ï‚· Contradictory Statements: PW10’s testimony
regarding the authorship of the incriminating
letters is contradicted by his earlier statements
and an expert’s observation that the handwriting
did not match his specimen.
32. By pointing out to the aforesaid aspects and
also by relying upon the citations mentioned below, the
learned counsel for accused No.15 has sought for his
93 Spl.CC No.565/2021
acquittal in the above case. The learned counsel for
accused No.15 has relied upon the following
authorities which are as follows:
1. 2024 SCC Online SC 526 (Ravishankar
Tandon Vs. State of Chhattisgarh)
2. (2025)7 SCC 401 (Chandrabhan Sudam
Sanap Vs. State of Maharashtra)
3. 2024 SCC OnLine SC 3683 (Nusrat Parween
Vs. Sate of Jharkhand)
4. 2022(19) SCC 301 (Nandu Singh Vs. State of
Madhya Pradesh)
5. 2025 SCC OnLine SC 1459 (Baljinder Kumar
Alias Kala Vs. State of Punjab)
6. 2021 SCC OnLine SC 1184 (Praveen @ Sonu
Vs. State of Haryana)
7. (2012)9 SCC 696 (Baliya Alias Bal Kishan Vs.
State of Madhya Pradesh)
8. (2022) 16 SCC 166 (Ram Sharan Chaturvedi
Vs. State of Madhya Pradesh)
9. (2022)9 SCC 402 (Amrik Singh Vs. State of
Punjab)
10. 2023 SCC OnLine SC 1124 (Harilal etc., Vs.
State of Madhya Pradesh)
11. 2025 SCC OnLine SC 773 (Karandeep
Sharma Alias Razia Alias Raju Vs. State of
Uttarakhand)
12. 2025 SCC OnLine SC 1110 (Tukeesh Singh
and others Vs. State of Chhattisgarh)
94 Spl.CC No.565/2021
13. 2025 SCC Online SC 2337 (Nimai Ghosh and
others Vs. Sate of Bihar)
14. (2023)10 SCC 134 (Naresh alias Nehru Vs.
State of Haryana)
15. (2024)9 SCC 546 (Allarakha Habib Memon
and others Vs. State of Gujarat)
16. 2025 SCC OnLine SC 1074 (Renuka Prasad
Vs. State represented by Assistant
Superintendent of Police)
17. (2021)13 SCC 716 (Jaikam Khan Vs. State of
Uttar Pradesh)
18. 2025 SCC OnLine SC 2270 (Kannaiya Vs.
State of Madhya Pradesh)
19. (2024)4 SCC 208 (Ram Singh Vs. State of U.P)
20. 1949 SCC OnLine PC 12 (Bhuboni Sahu Vs.
The King)
21. 1994 Supp (2) SCC 73 (Rampal Pithwa
Rahidas and others Vs. State of Maharashtra)
22. 1995 Supp (1) SCC 80 (Suresh Chandra
Bahri Vs. State of Bihar)
23. (2023)13 SCC 705 (A.Srinivasulu Vs. State
Rep. By the Inspector of Police)
24. (2023)19 SCC 321 (Santosh Alias Bhure Vs.
State [G.N.C.T of Delhi]) )
25. (2025)7 SCC 401 (Chandrabhan Sudam
Sanap Vs. State of Maharashtra)
26. Crl.Appeal No.851/2008 (State of Tavarekere
PS Vs. Narasimhaiah and others) and
Crl.Appeal No.852/2008 (State of Tavarekere
PS Vs. K.Doddaiah and others)
27. 1971(2) SCC 42 (State of UP and another Vs.
Jaggo Alias Jagdish and others)
95 Spl.CC No.565/2021
28. (2024)3 SCC 544 (Mallappa and others Vs.
State of Karnataka)
29. (2001)4 SCC 9 (Dhananjaya Reddy Vs. State
of Karnataka)
30. (2011)2 SCC 385 (Alamelu and another Vs.
State represented by Inspector of Police)
31. (2024)12 SCC 224 (Alauddin and others Vs.
State of Assam and another)
32. 2025 SCC Online SC 1459 (Baljinder Kumar
alias Kala Vs. State of Punjab)
33. 2024 SCC Online SC 310 (Jafar Vs. State of
Kerala)
34. 2025 SCC Online SC 1439 (Kattavellai @
Devakar Vs. State of Tamilnadu)
35. (2022) 16 SCC 732 (Arvind Kumar alias
Nemichand and others Vs. State of
Rajasthan)
36. (2020)14 SCC 257 (Imrat Singh and others
Vs. State of Madhya Pradesh)
37. (2025)8 SCC 315 (Vaibhav Vs. State of
Maharashtra)
38. ILR 2020 KAR 5531 (Yankappa and another
Vs. The State of Karnataka, Rep. By Public
Prosecutor)
39. 2026 SCC Online SC 89 (Tulasareddi @
Mudakappa and another Vs. State of
Karnataka and others)
40. 2018 SCC Online Kar 4167 (N.Raghumurthy
Vs. State by Lokayuktha Police, Mysuru
District)
41. 2026 SCC Online SC 116 (Bernard Lyngdoh
Phawa Vs. State of Meghalaya)
96 Spl.CC No.565/2021
33. The learned counsel for accused No.16 who is
represented by learned Senior Counsel Sri.M.S.Shyam
Sundar, has vehemently argued that the entrustment
of the case to CBI itself a misconceived one. It is his
submission that the entrustment order and the
subsequent notification which came to be issued in
favour of CBI conducting the further investigation was
a defective one and the name of the victim herself was
not shown properly. It is also submitted by him that
the question of filing additional supplementary charge-
sheets which was totally against the earlier evidence
collected by the Dharwad Sub-Urban Police itself was a
farrago. It is his submission that under the guise of
further investigation, the entire case is made as topsy-
Turvey which is highly impermissible under the eyes of
law. He has filed the written arguments wherein he
has discussed about the trial that had taken place in
the instant case. In fact, he has discussed about the
aspects which were culled out in each of the additional
97 Spl.CC No.565/2021
charge-sheets which were filed by the Investigating
Agency. It is his submission that the prosecution
intended to prove the guilt of accused No.16 through
the evidence of accused No.17 who was granted
pardon and later on examined as PW.9 Shivananda
Shrishaila Biradar and also on the evidence of PW.10
Basavaraja Muttagi who was also granted pardon in
the above case. That apart, it is his submission that
PW.21 Manikanta Acharya, who was the owner of the
ammunition shop at Dharwad was examined by the
prosecution to prove their contention of Basavaraja
Muttagi visiting his shop to get his unlicensed Pistol
serviced. However, he had turned hostile and has
specifically stated that the approver Basavaraja
Muttagi had not approached him for the purpose of
cleaning the unlicensed weapon. That apart, the
prosecution has relied upon the evidence of CW.56
Nagappa Mallikarjuna Bhairagonde and PW.26 Suresh
Jagadev Hulle, who both had turned hostile and have
98 Spl.CC No.565/2021
deposed that they had not handed over any Gun to
PW.10 Basavaraj Muttagi. Likewise, the Senior
Counsel has taken this Court through the evidence of
PW.46 Suresh Ramegouda, PW.53 Vijay Kulkarni,
PW.71 Prabhu Shankar, PW.85 Harish Shetty, PW.86
Santhosh R. Jadhav, who had conducted the
Postmortem, PW.87 Dr.Kiran Kumar who had
conducted ballistic examination, PW.88 Firoz Khan
Jagirdar, PW.112 Kempegouda R. Patil, whom the
prosecution contends to be present near Sanky Tank
on the night of 15.06.2016. However, the majority of
the aforesaid witnesses have turned hostile and have
not supported any of the contention which were urged
by the prosecution. Accordingly, he has submitted that
the evidence collected by the prosecution was not in
accordance with law.
34. The learned Senior Counsel has also taken
this court through the various seizures which were
made by the prosecution. It is his submission that the
99 Spl.CC No.565/2021
prosecution had suppressed several material facts and
the same were glaringly forthcoming during the course
of trial. It is his submission that during the testimony
of PW.113 Rakesh Ranjan, the I.O had suppressed the
arrest of accused No.16 along with his team on
13.06.2020 at the residence of accused No.16 at
Bijapur at about 07.49 AM in the morning. Prior to his
arrest the CBI had not served with any notices and he
was straight away taken to Sub-Urban Police Station
at Dharwad and there he was served with a notice on
14.06.2020 and after that he was remanded to custody
for two days which would indicate of illegal detention
and procedures being followed by the Investigating
Agency. He has also argued that the prosecution has
failed to explain the reason for delay in sending MO.12
to 14 for the purpose of scientific examination of the
weapons which came to be seized on 08.11.2020.
Lastly it is submitted by the learned Senior Counsel
that the other allegation which was leveled against
100 Spl.CC No.565/2021
accused No.16 was of constantly watching the trial at
Dharwad Court by residing at Hotel Central Park and
Hotel Ankitha Residency. The guest registers of the
aforesaid Hotels were collected by the CBI and while
procuring the records, the Investigating Agency had
intentionally not collected materials prior to the
commencement of trial in SC No.50/2017 and had
submitted materials which would suit their needs.
35. The learned Senior Counsel has also racked
up legal issues and in that instance, it is his
submission that the validity of the sanction order
accorded by the Government of Karnataka dated
06.09.2019 bearing No. HD 48 PCB 2016 at Ex. P.259
was not proper. He has also argued that the question
of permissibility of further investigation at a stage
when the case was posted for arguments after
completion of the recording of statements under
Sec.313 of Cr.P.C., was also required to be considered.
In this regard, it is his submission that as per the ratio
101 Spl.CC No.565/2021
laid down by the Hon’ble Apex Court in the judgment
rendered in (2024)19 SCC 382 (K.Vadivel Vs. K.Shanthi
and others) it was not permissible to do fishing and
roving enquiry when the Police had already filed the
charge-sheet. It is his submission that in the present
case only one single investigation had necessarily
happened and the law is settled that there cannot be
any two set of evidence which are contradictory to each
other. In this regard he has relied upon the judgment
of the Hon’ble Apex Court reported in (2024)3 SCC 544
(Mallappa and others Vs. State of Karnataka). The learned
Senior Counsel has also touched upon the aspects of
the legality and also the credentials which can be
attached to the confessional statement of co-accused
persons. It is his submission that the evidence of co-
accused cannot be considered on a higher footing and
even otherwise the search and seizure procedures
followed by the Investigating Agency were not in
accordance with law. He has also argued that non-
102 Spl.CC No.565/2021
furnishing of mahazars and inventories to the learned
Magistrate at relevant point of time would negate the
materials if any collected by the Investigating Agency
which would in other words be considered as void-ab-
initio. Lastly, the learned Senior Counsel has argued
that the Investigating Agency has not complied with
the provisions of Cr.P.C., and in particularly the
provision of Sec.157, Sec.158 and Sec.173(3) of
Cr.P.C., wherein it was required to follow the search
and seizure procedures scrupulously. He has
submitted that no fresh FIR was registered and the
entire investigation happens only by virtue of existing
FIR and that too when the second additional final
report came to be filed against accused No.15 to 17
there was absolutely non-compliance of the report as
prescribed and mandated by the law. He has also
relied upon the judgment of the Hon’ble Apex Court
reported in (2026) SC 156 (Pramod Kumar and others Vs.
State of UP and others) and also in the judgment
103 Spl.CC No.565/2021
rendered in (2019)17 SCC 1 (Vinubhai Haribhai Malavia
and others Vs. State of Gujrath and another) . Further the
doctrine of sub-silentio was also argued by the learned
Senior Counsel and has submitted that no proper
materials were collected in order to point out the guilt
of accused No.16 Chandrashekar Indi @ Chandu
Mama in the above case and hence he has sought for
acquittal of the accused person. In order to butters his
contention, he has relied upon the following
authorities which are as follows:
1. (2000)6 Supreme Court Cases 359
(Kunhayammed and others Vs. State of
Kerala and another)2. (2024)19 Supreme Court Cases 382
(K.Vadivel Vs. K.Shanthi and others)
3. 2026 SCC OnLine SC 156 (Pramod Kumar
and others Vs. State of Uttar Pradesh and
others)
4. (2024)3 Supreme Court Cases 544
(Mallappa and others Vs. State of
Karnataka)5. (2024)6 Supreme Court Cases 799
(Chandan Vs. State [Delhi Admn])
104 Spl.CC No.565/2021
6. (2022)9 Supreme Court Cases 23 (Noor
Mohammed Vs. Khurram Pasha)
7. Privy Council (From the High Court of
Judicature at Lahore) (Nazir Ahmed Vs.
King – Emperor)
8. (2019)17 Supreme Court Cases 1
(Vinubhai Haribhai Malaviya and others
Vs. State of Gujarat and another)
9. (2000)5 Supreme Court Cases 488 (Arnit
Das Vs. State of Bihar)
36. The learned counsel for accused No.19 has
taken this Court with respect to the charges that were
framed by the Dharwad Court in SC No.50/2017 on
14.09.2017. It is submission that the different
investigation teams were formed by the then
Commissioner of Police on 15.06.2017 with respect to
tracing the accused persons, and also another
investigation team was formed apart from forming a
technical team. It is his contention that accused No.19
Chennakeshava Tingrikar was conducting the
investigation during the period 16.06.2016 to
08.07.2016 i.e., in all for a period of 22 days he was
105 Spl.CC No.565/2021entrusted with the investigation. It is also submitted
that PW.107 Motilal Pawar was the one who had filed
the final report on 27.07.2016. The learned counsel for
accused has taken this court through the evidence of
PW.113 Rakesh Ranjan, who was the Investigating
Officer of CBI. It is argued that as per the evidence
which is placed before the Court, the then IO who is
arraigned as accused No.19 had recorded the
statements, drawn the mahazars and recovered
material objects. In order to point out to the same, he
has pointed out to the evidence of PW.51 Ramesh
Mudukanagouda, PW.55 Chandrashekar Thippanna,
PW.58 Rajasab S. Gunjal. It is his contention that the
Investigating Agency had failed to give explanation that
why the statement of PW.54 were not referred or made
as part of second supplementary charge-sheet. The
learned counsel has also argued that the weapons at
MO.23 to 27 were contended by CBI to be planted and
fabricated one. It is his contention that in order to
106 Spl.CC No.565/2021prove the aforesaid aspect, the prosecution had
examined PW.51 Ramesh Mudukanagouda, PW.24
Shivananda Chalavadi, who was the then Inspector at
Dharwad Town Police Station, PW.58 Musthaq Ahmed,
PW.57 Raja Sab Gunjal, PW.54 S.B.Patil, PW.91
Basavaraj Mallappa, PW.97 Eshwarappa Kundikoppa,
PW.98 Hanumanth Gaddigappa and PW.99 Basavaraj
Thondikoppa. It is his submission that PW.56 Mushtaq
Ahmed who allegedly had furnished the planted
weapons had turned hostile and like-wise the evidence
of PW.58 Raja Sab S Gunjal was of not much relevance
to the case of the prosecution. It is also submitted that
PW.24 Shivananda Chalavadi was the one who had
allegedly produced the weapons to the Investigating
Officer. However, he had turned hostile and had not at
all supported the case of prosecution. Further it is
submitted that his statement recorded under Sec.164
of Cr.P.C., before the learned CJM at Dharwad was due
to the pressure exerted on him by the CBI to tender
107 Spl.CC No.565/2021the statement in a particular manner. The learned
counsel has also contended that the testimony of
PW.54 Shankaragouda Basanagouda Patil, the Head
Constable would also indicate that he had turned
hostile and had not supported the case of the
prosecution. With respect to the other seizures, the
evidence which was on record would indicate that he
had followed the due process of law.
37. The learned Counsel after adverting to the
aforesaid evidence, has taken this court through the
evidence of PW.107 Motilal Pawar, who has deposed
that during the course of investigation the Supervisory
Officer was ACP Vasudev Naik and DCP by name
Kanagavi. By adverting to the above, he has argued
vehemently that it was not the sole investigation being
carried out at the whims and fancies of the present
accused person but it was a team work which was
being monitored by the higher Police Officials. As such,
the present accused No.19 cannot be solely attributed
108 Spl.CC No.565/2021for committing any offences. The learned counsel for
accused has also taken this Court through the
testimony of PW.94 Dr. Santhosh Kumar, who was the
Medical Officer and conducted autopsy on the dead
body of deceased Yogesh Goudar. It is his contention
that his testimony would indicate that the then I.O i.e.,
the present accused No.19 had requested for collecting
blood samples to ascertain the blood group. Further
the weapons at MO.22 and 27 which were seized and
sealed on 17.06.2016 were subjected to the same PF
and was referred to the Serologist through the IO on
29.07.2016. The learned Counsel has pointed out the
scientific aspects with respect to clotting of blood
which was not at all explained by the prosecution.
38. Thereafter, the learned counsel for accused
has taken this Court with respect to the other facet of
the contention of commission of offence under Sec.7(1)
(d) r/w Sec.13(2) of Prevention of Corruption Act. It is
his contention that in order to prove the same, the
109 Spl.CC No.565/2021Court is required to appreciate the evidence of the
approver PW.10 Basavaraja Muttagi, PW.44 Babu
Katagi, PW.54 S.B.Patil, PW.55 Chandru, PW.64
Holabasaiah G Matapathi. It is his submission that the
testimony of PW.10 Basavaraja Muttagi is of a weak
character and no proper materials were produced in
order to prove the same. He has also referred to the
evidence of PW.54 Babu Katagi who had turned hostile
and infact had deposed that he was made to give such
a statement before the CBI on the basis of the pressure
exerted by them. The learned counsel has also relied
upon the evidence of PW.25 Chandrashekar Tippanna,
PW.64 Holabasavaiah G Matapathi and CW.101
Shivananda Kashinath Mankar and has submitted
that the prosecution has utterly failed to establish the
existence of the basic ingredients which are required to
be proved under Sec.7 and 13 of Prevention of
Corruption Act.
110 Spl.CC No.565/2021
39. He has also taken this court through the
materials which were collected by accused No.19
during the course of his investigation which indicated
that motive for commission of the offence was the land
dispute which was pointed out by PW.6 Nagaraj
Thodkar, PW.7 Amruthesh Byahatti and also from the
testimony of PW.50 Mallavva, the wife of the deceased.
He has also argued that during the course of his
investigation, there were no materials to indicate that
the alleged offences were committed due to political
rivalry between accused No.15 and PW.10 Basavaraja
Muttagi. With respect to the recovery of vehicle, he has
argued that no proper materials were presented by the
CBI to indicate any overt-act on the accused person.
The learned Counsel has argued that the CCTV
footages were promptly discovered and recovered by
accused No.19, which would indicate his presence of
mind and dispassionate investigation by him. The
learned counsel has also argued that non-arresting of
111 Spl.CC No.565/2021
accused No.7 and 18, though they were in contact with
accused No. 1 to 6 at the time of incident was not
correct and there were no lapses on his part. Though
the allegation of collusion with other accused persons
as part of conspiracy is alleged by the CBI, the same is
not justified with any materials. The learned counsel
has also adverted to the fact of allegation that the
accused No.19 had requested not to include the name
of Vinay Kulkarni in the complaint at the inception of
the case. It is his submission that except PW.2
Gurunath Goudar, whose evidence is otherwise found
not sustainable, is not backed by the evidence of any
other person and also by the complainant, the wife of
deceased Yogesh Goudar. With respect to the sanction,
it is submitted that a separate sanction order was
issued with respect to accused No.19 and also that of
accused No.20 which would only indicate that the
prosecution was required to consider the role of each
accused independently and separately and as such the
112 Spl.CC No.565/2021
explanation offered by PW.83 Rajesh S Sulikeri cannot
cure the fundamental defect which the competent
authority had bypassed. The learned counsel in order
to buttress his submission has relied upon the
judgment of the Hon’ble Apex Court reported in
(2015)14 SCC 186 (Nanjappa Vs. State of Karnataka),
(2007)11 SCC 273 (State of Karnataka Vs. Ameer Jan) and
another authority reported in AIR 2014 SC 827 (CBI Vs.
Ashok Kumar Agarwal). By pointing to the aforesaid
aspects and also by contending that the evidence of
PW.10 Basavaraja Muttagi cannot be relied upon as it
is of weak character, the learned counsel has
submitted that the prosecution has utterly failed to
prove their case beyond reasonable doubt and hence
he has submitted that the present accused No.19 may
be acquitted in the interest of justice. He has relied
upon following citations which are as follows:
1. (2024)12 SCC 401 (Maghavendra Pratap
Singh @ Pankaj Singh Vs. State of
chhattisgarh)
113 Spl.CC No.565/2021
2. (1975)3 SCC 742 (Ravinder Singh Vs.
State of Haryana)
3. 2025 SCC OnLine SC 1074 (Renuka
Prasad Vs. State represented by Assistant
Superintendent of Police)
4. (2007)4 SCC 415 (Chandrappa and others
Vs. State of Karnataka)
40. The learned counsel for accused No.20 Sri.
K.B.K.Swamy has vehemently argued that no materials
are produced in order to indicate the alleged overt-act
against accused No.20 Vasudev Rama Nilekani. It is
his submission that at the relevant point of time
accused No.20 was serving as Assistant Commissioner
of Police of Dharwad Sub-Division. It is his submission
that on learning about the incident he had rushed to
the spot at Uday Gym and by that time the
Commissioner of Police, Hubballi Dharwad, DCP (L &
O) and Deputy Commissioner of Police (Crime) had
arrived at the said place. It is also submitted that the
case was entrusted for investigation to accused No.19
Chennakeshava Tingarikar and later on it was taken
114 Spl.CC No.565/2021up for investigation by Mr. S.S.Hiremath who had
conducted substantial portion of the investigation and
finally PW.107 Motilal Pawar had concluded the
investigation and placed the final report before the
jurisdictional court. Thereafter, the learned counsel for
accused No.20 submits that the allegation which is
leveled against him is of supervising the defective
investigation being conducted by accused No.19 and
also depicting accused No.1 to 6 as assailants by
effecting recovery of implanted weapons from them and
also permitting to create false mahazar and not
bringing the actual weapons which were found near
the scene of crime. The learned counsel has filed the
witness list who have deposed or according to the
prosecution the material witnesses deposing about the
incriminating materials against the accused No.20. It
is submitted by him that CW.6 Nagaraj Thodkar had
entered into an Agreement of Sale with PW.10
Basavaraj Muttagi for which CW.7 Veeresh Byahatti
115 Spl.CC No.565/2021had negotiated and CW.8 Nataraj Makigoudar had
later on handed-over Rs.5 lakhs to Shivananda
Chalavadi, which was to be handed-over to the present
accused as bribe. It is also contended that CW.95
Shanakaragouda Patil was alleged to have brought
iron rod and wooden stick to the Town Police Station
but he had turned hostile so as the evidence of CW.96
Basavarajagouda, who was the driver of Shivananda
Chalavadi. By pointing out to the evidence of all the
aforesaid witnesses it is submitted that the
prosecution has utterly failed to prove the allegations
which they have leveled against accused No.20.
41. The learned counsel for accused has
vehemently argued that as per the case of the
prosecution a meeting was convened at Vinay Diary
wherein the prominent and higher Police officials had
attended and in that meeting it is alleged that the
conspiracy to hatch the murder of Yogesh Goudar was
hatched. The learned counsel for accused argued that
116 Spl.CC No.565/2021if only the aforesaid aspects are to be accepted, then
how the prosecution can segregate the role of other
officials who were present in the very same meeting. It
is argued that as per the allegations leveled the
meeting was attended by the Commissioner of Police
Mr. Rane, who was never summoned nor examined
before the Court by the prosecution. The non-
examination of Mr. P.H.Rane, would clearly indicate of
selective prosecution being carried out by the
Investigating Agency. It is also narrated that as per the
case of prosecution immediately after the incident, the
other accused persons had left the vicinity and hence
they were not arrested. However, the Investigating
Officer had arrested accused No.1 to 6 who had
surrendered on 17.06.2016. It is also argued that with
respect to allegation of implanting weapons by the
accused persons, no materials were forthcoming and
though there is evidence of PW.51 Ramesh
Mudukanagoudar, he has categorically deposed that
117 Spl.CC No.565/2021
none of the photographs of the mahazar Vasudev
Nilekani was to be seen. The learned counsel for
accused has vehemently argued with respect to the
non-recovery of a black colored bag which was
allegedly seen near the vicinity of the scene of offence
and as such not much inference can be drawn in this
regard. He has also pointed out that when the evidence
of the other witnesses is carefully appreciated, it would
only point out the fact that the present accused No.19
given necessary instructions to his officers to nab the
assailants. As such, the contention of the prosecution
cannot be accepted.
42. The learned counsel has also taken this court
with respect to the other limb of submissions wherein
it is stated that accused No.20 was involved in larger
conspiracy and he was having prior knowledge of the
commission of the murder of Yogesh Goudar. Except
the self-sustaining claim made by PW.10 Basavaraja
Muttagi regarding conspiracy, no other materials were
118 Spl.CC No.565/2021
forthcoming to justify his contention. The learned
Counsel has also argued that accused No.20 was
facing charges under Sec.7 and Sec.13(1)(d) r/w
Sec.13(2) of the PC Act. He has pointed out that the
witnesses who would depose against accused No.20
were PW.6 Nagaraj Thodkar, PW.7 Veeresh Byahatti,
PW.8 Nataraj Makkigoudar who were all involved in the
transaction with respect to selling the land to
Basavaraj Muttagi. PW.23 Ashok Patil was examined to
indicate handing over of money to Mr. Shivananda
Chalavadi, so as to prevent the harassment allegedly
meted out to him. It is his submission that the
evidence of PW.23 Ashok Patil was not at all inspiring
confidence since he in his evidence has deposed that it
was the brother of Ashok Patil by name Ravi Patil as
the one who had pressurized his brother to tender
money. However, it is argued that Mr. Ravi Patil was
not at all examined by the prosecution and therefore
the chain of evidence so far as demand and acceptance
119 Spl.CC No.565/2021
of bribe by accused No.20 does not inspires
confidence. The other evidence which is available is
that of PW.7 and he has not taken the name of
Shivananda Chalavadi nor has deposed of handing
over any money to the present accused in the presence
of the eye-witnesses. It is submitted that when the
question of demanding the bribe itself is not
established by the prosecution, then the question of
accepting the same does not arise for consideration.
Thereafter, the learned counsel has taken this Court to
the statement of PW.41 Mahesh Shetty, who in his
earlier statement had not disclosed the fact of accused
No.20 Basavaraja Muttagi, demanding bribe. In the
absence of the same, the contention of the prosecution
cannot be accepted. The learned counsel has also
pointed out to the sanctions which were accorded by
the Government to prosecute the present accused
person. PW.83 Rajesh.S Sulikeri was examined in this
regard. The evidence would indicate the clear non-
120 Spl.CC No.565/2021
application of mind in the sanction order accorded by
the Government. It is submitted that during the course
of evidence of the Investigating Officer, PW.113 Rakesh
Ranjan, it was submitted by him that it was correct to
suggest that in the order of granting sanction, the
authorities had not mentioned perusing the FIR and
charge-sheet for their scrutiny. During the course of
investigation, the accused No.20 had honestly co-
operated and he had also explained to the Investigating
Agency about the role played by him and he had even
consented to undergo polygraphy test. As such, it is
submitted that the accused No.20 was unnecessarily
dragged into the proceedings and in fact a false case
were being foisted against him. Hence, he has sought
for his acquittal. The learned counsel for accused has
relied upon the following authorities which are as
follows:
1. (2023)18 SCC 251 (Neeraj Dutta Vs. State
[Govt. of NCT of Delhi)
121 Spl.CC No.565/2021
2. (2015)10 SCC 152 (P.Satyanarayana
Murthy Vs. District Inspector of Police
State of Andra Pradesh and another)
43. The learned counsel for accused No.21
Sri.Nithin Ramesh has vehemently argued that the
entire case of the prosecution against accused No.21 is
not proper and there is no iota of materials in order to
indicate an overt-act against him. It is submitted by
the learned counsel that at relevant point of time
accused No.21 was working as Personal Secretary to
accused No.15 had discharged his duty in accordance
with law. The main contention of the prosecution is
pointed out by the learned counsel by arguing that the
role of accused No.21 as per the case of prosecution
itself is very minimal and at first instance it is being
submitted that he was present at Vinay Diary when
accused No.15 Vinay Kulkarni had requested PW.10
Basavaraja Muttagi to hatch a conspiracy for
committing the murder of Yogesh Goudar. PW.10 at
that point of time deposes that accused No.21 was
122 Spl.CC No.565/2021
preparing cattle feed and hence he was aware of the
conspiracy. It is his submission that accused No.21
being a government servant was preparing cattle feed
in the Vinay Diary at the first brush of incident itself
would be a fact very hard to digest. It is submitted that
the contention of the prosecution itself was a flimsy
one. The learned counsel has also argued that as per
the case of the prosecution itself no materials were
examined in order to justify the presence of accused
No.21 at that place on the fateful day. As such, the
self-serving statement of PW.10 Basavaraja Muttagi
was not sufficient in order to prove the contention of
the prosecution without any corroborating materials.
That apart, the learned counsel has also pointed out to
the provisions of Sec.133 of Indian Evidence Act
wherein the concept of accomplice has been defined
and also, he has taken this court through the evidence
of PW.10 wherein he has deposed that the opinion of
accused No.15 to the witness PW.10 was conveyed to
123 Spl.CC No.565/2021
through accused No.21. Under the circumstances it is
submitted that the entire incriminating part as alleged
by the prosecution was hit by Sec.60 of Indian
Evidence Act. Thereafter, the learned counsel has
pointed out to the evidence of PW.48 Nagaraj wherein
he has deposed by taking the name of accused No.21.
Even then the learned counsel submits that the
aforesaid evidence was hearsay evidence since the
witness has deposed that the support allegedly to be
given by accused No.15 was discussed by Basavaraja
Muttagi and he in his version had narrated to him.
The learned counsel has taken this Court to the other
limb of allegation which is leveled against the accused
No.21 that he had created a false tour program for
accused No.15. It is his submission that the
Investigating Officer during the course of cross-
examination has admitted that he was not aware of
Karnataka Secretariat Manual of office Procedure and
circular governing Private Secretaries for preparation
124 Spl.CC No.565/2021
of tour programs. It is his submission that the tour
program was prepared as per the say of the Minister
for whom the accused No.21 was working at that point
of time. It is also argued that the tour program was
pertaining to 13.06.2016 and PW.74 had deposed of
handing over the same to the tappal branch who had
marked the copies to the respective persons at that
time. If the said aspect is to be considered, then the
contention of the prosecution that accused No.21 had
tried to create alibi was not proper and correct. With
respect to obtaining of sanction for prosecuting
accused No.21, the learned counsel for accused has
vehemently argued that though a Writ Petition was
filed before the Hon’ble High Court of Karnataka in WP
No.15570/2023, the Hon’ble High Court at the time of
disposing the same had granted liberty and also
directed this Court to consider the necessity of
sanction during the course of trial if the acts were
found to have been discharged during the official work
125 Spl.CC No.565/2021
of accused No.21. By pointing out to the same, it is
argued that the entire materials would indicate that
the accused No.21 had only discharged his official
duty and had prepared a tour program in accordance
with law which was duly handed over to DPAR. When
the aforesaid aspect was established, the question of
obtaining necessary sanction was very much essential
and in the absence of it the proceedings cannot be
culminated against the present accused person.
44. The learned counsel has once again
contended that the filing of additional charge-sheet
was directly in contravention of settled law by the
Hon’ble Apex Court. It is his contention that broadly
speaking forms of intervention by the Hon’ble Apex
Court during the phase of criminal investigation at the
time of trial may be categorized as follows;
a) Hon’ble Supreme Court monitored
investigation.
b) Hon’ble Supreme Court directed
investigation.
126 Spl.CC No.565/2021
c) Hon’ble Supreme Court approved
investigation.
45. When the materials of the above case are
juxtaposed with the settled principles of law, it would
only indicate that the present fact and situation
concerned would mainly fall under the category of
Supreme Court approved investigation. As such,
obtaining of prior permission was very much essential.
The learned counsel has also pointed out to the gaps
in the chain of circumstances by adverting to the
materials collected by the prosecution. The learned
counsel has vehemently argued that during the course
of cross-examination of PW.113 in particularly at Para-
153 and 198 indicates of calls being made between the
parties and necessary tower location were obtained by
the Investigating Agency. It is his contention that the
tower location analysis of accused No.21 at Ex.P.219
when appreciated with Ex.P.241 to Ex.P.246, would
indicate that from the evening of 15.06.2016 and from
127 Spl.CC No.565/2021
morning of 16.06.2016, accused No.21 was near Raj
Bhavan or Vikas Soudha and nowhere near Sanky
Tank. Therefore, the contention of the prosecution of
accused No.21 being present near Sanky Tank of
Sadashivanagar and of meeting accused No.15,
accused No.16 and PW.10 Basavaraja Muttagi on the
late evening of 15th or at the early hours of 16.06.2016
was not established by the prosecution. By pointing
out to the aforesaid aspects, it is submitted that the
prosecution has utterly failed to prove their case
beyond reasonable doubt and accordingly he has
sought for acquittal of accused No.21. In order to
buttress his contention, he has also furnished the
CDRs with tower location analysis report and also
citations to justify his contention.
46. After completion of the sesquipedalian
arguments by the learned counsel for the accused
persons, the learned Additional Solicitor General of
128 Spl.CC No.565/2021
India, who was appointed as SPP to represent the
above case had appeared and had replied to the legal
aspects which were raised by the prosecution during
the course of trial. The learned ASG Sri. Suryaprakash
V Raju, in his usual fairness has bifurcated the entire
case of the prosecution with respect to legal aspects
urged by both parties into different chapters. The same
are deciphered as follows;
a) Prosecution is not required to prove the
adequacy of motive, lack of proof of motive is
not fatal.
b) Evidentiary value of approver:
corroboration thereof: principal accused can
be an Approver.
c) Dock identification is substantive evidence
despite the failure to identify in test of
identification parade.
d) CCTV footage is substantive evidence.
e) Admissibility of CDR accompanying
necessary certificate under Sec.65(B) of
129 Spl.CC No.565/2021Indian Evidence Act with reference to res-
gestae.
f) Judicial notice of google map can be
taken.
g) Improvement of statement under
Sec.161 of Cr.P.C. is permissible during the
course of trial.
h) Evidentiary value of Sec.164 statement
where Certificate has been attached to verify
the same.
i) Can the Court consider statement
recorded under Sec.164(5) of Cr.P.C. without
getting the same marked.
j) The programmer of technical and forensic
support unit of CBI is an expert under Sec.45
of Indian Evidence Act.
k) Whether the earlier evidence rendered before
the Sessions Court at Dharwad requires to be
eschewed or considered by the present Court.
l) Permission of the Court not required when
accused voluntarily gives specimen of his
hand writing.
130 Spl.CC No.565/2021
m) Evidentiary value of TIP without the
permission of the Court.
n) Mere signing by the accused in the mahazar
proceedings and its repercussion.
o) Mere non-recovery of weapons is immaterial.
p) Offering non-explanation in the 313
statements by the accused with respect to
their presence near the scene of crime as
visible from CCTV footage.
q) Test of valid plea of alibi.
r) No overt-act required to prove conspiracy.
s) No permission required to conduct further
investigation.
t) Mobile phone which is not sent for FSL is not
fatal when it was produced in the Court and
witness has deposed regarding the same.
u) Deviation from earlier investigation is part of
further investigation.
v) Non-mentioning of certain details in the case
diary does not go to the root of the
prosecution case.
131 Spl.CC No.565/2021
47. Further he has relied upon several authorities
of the Hon’ble Apex Court to buttress his submissions.
48. Heard the arguments of both the parties and
perused materials on record.
CHAPTER: V
POINTS FOR CONSIDERATION
49. The points that would arise for my
consideration are as follows: –
1) Whether the prosecution proves beyond
reasonable doubt that the death of
Yogesh Goudar which had taken
place on 15.06.2016 was homicidal?
2) Whether prosecution proves that the
investigation conducted by CBI in
pursuance of the Notification issued
by Government of Karnataka
amounted to further investigation?
3) Whether the prosecution proves beyond
reasonable doubt that accused No.15
Vinay Kulkarni had entered into a
criminal conspiracy with the then
accused No.1 to eliminate Yogesh
132 Spl.CC No.565/2021Goudar and in furtherance of the
same accused No.8 to 14 had agreed
to commit the murder of Yogesh
Goudar and accused No.1 to 6 had
agreed to stand in the place of real
assailants in order to screen the
evidence, for which accused No.17
and 18 had provided logistic support
with accused No.16 and in
furtherance of the same, conspiracy
was hatched in the month of June-
2016 at CTS No.4/39/L of
Saraswathpura, Dharwad and by
carrying out the instructions had
agreed to commit the murder with
the connivance and active support of
accused No.19 to 21 and thereby
committed an offence punishable
under Sec.120-B of IPC?
4) Whether the prosecution proves
beyond reasonable doubt that in
furtherance of the criminal conspiracy,
accused No.7 to 14 with the aid and
support of accused No.1 to 6 and 18
had formed unlawful assembly to
commit the murder of Yogesh
133 Spl.CC No.565/2021Goudar at Uday Gym, Dharwad on
15.06.2016 at the instructions of
accused No.15 and thereby
committed an offence punishable
under Sec.143 r/w 120-B of IPC?
5) Whether the prosecution proves
beyond reasonable doubt that on
15.06.2016 at about 07.00 a.m., in
furtherance of the criminal
conspiracy, the accused No.1 to 14
and 18 at the instructions of accused
No.15 had formed unlawful assembly
in prosecution of the common object
of committing murder of Yogesh
Goudar and had committed the
offence of rioting with deadly
weapons like Pistol, Dagger, Long
Machette, wooden stick, iron rod and
other deadly weapons and thereby
committed an offence punishable
under Sec.147 and 148 r/w Sec.120-B
of IPC?
6) Whether the prosecution proves
beyond reasonable doubt that on
15.06.2016 the accused No.7 to 14 in
furtherance of the criminal
134 Spl.CC No.565/2021
conspiracy hatched between them to
commit the murder of Yogesh Goudar,
had assembled near Uday Gym
Dharwad and between 07.00 a.m. to
07.45 a.m., had attacked Yogesh
Goudar, who was standing in front of
his Gym and was thrown chili powder
on his eyes, stabbed with Dagger on
his neck to unsettle him and had
dragged him to the Gym mentioned
above and assaulted him on his head
and other parts of the body with long
machette and other sharp weapons
inflicting deadly wounds on all parts
of his body with a clear knowledge
that such injuries in ordinary course
would cause death and accused No.1
to 6 had played a passive role in
commission of the offence as per the
criminal conspiracy hatched between
them and for which accused No.15
and 16 had supported the cause
along with accused No.18 and the
Personal Secretary of accused No.15
i.e., accused No.21 and thereby
committed an offence punishable
under Sec.302 r/w 120-B of IPC?
135 Spl.CC No.565/2021
7) Whether the prosecution proves
beyond reasonable doubt that the
accused No.15 in furtherance of the
criminal conspiracy which he had
entered between accused No.1 to 14,
16 to 18 towards the murder of
Yogesh Goudar on 15.06.2016 at
07.36 a.m. at Uday Gym and on
completion of the murder, accused
No.8 to 14 were dropped at Harihara
Bus Stand and accused No.1 to 6
were implanted in the place of the
real assailants and accused No.19
and 20, being the Police Officers had
assisted in screening the evidence by
carrying out defective evidence and
creating false mahazar with recovery
of weapons not related to the case
with an intention to screen the real
assailants from legal punishment
and thereby committed an offence
punishable under Sec.201 r/w 120-B
of IPC?
8) Whether the prosecution proves
beyond reasonable doubt that in
furtherance of the criminal
136 Spl.CC No.565/2021
conspiracy which accused No.15 had
entertained with accused No.1 to 14
and 16 to 18 to commit the murder of
Yogesh Goudar and on completion of
the murder, accused No.19 and 20
being the Supervisory Investigating
Officer and IO had implanted
accused No.1 to 6 in place of accused
No.7 to 14 who were the real
assailants and had effected recovery
of weapons not connected to the case
and also drawn false mahazar by not
bringing actual weapons on record
and thereby accused No.19 and 20
had committed an offence punishable
under Sec.218 r/w 120-B of IPC?
9) Whether the prosecution proves
beyond reasonable doubt that in
furtherance of the criminal
conspiracy entered between accused
No.15 to commit the murder of
Yogesh Goudar and further to screen
the evidence by accepting the
implanted accused No.1 to 6 as real
assailants, the accused No.19 and 20
being Investigating Officers had
137 Spl.CC No.565/2021
obtained illegal gratification to
scuttle the investigation and thereby
committed an act of criminal
misconduct being public servants and
committed an offence punishable
under Sec.7, 13(1)(d) r/w Sec.13(2) of
Prevention of Corruption Act, 1988?
10) Whether the prosecution proves
beyond reasonable doubt that the
accused No.15 in furtherance of the
criminal conspiracy to eliminate
Yogesh Goudar, had obtained three
country made Pistols from accused
No.16 Chandrashekar Indi, which
was procured through accused No.17
to be delivered to the then accused
No.1 Basavaraja Muttagi and thereby
accused No.15 and 16 committed an
offence punishable under Sec.25 r/w
Sec.3, 5, 8 and 29 of Arms Act, 1959
r/w Sec.120-B of IPC?
11) Whether the prosecution proves
beyond reasonable doubt that
separate proceedings are required to
be initiated against the witnesses for
tendering false evidence under oath?
138 Spl.CC No.565/2021
12) Whether prosecution proves beyond
reasonable doubt that the pardon
tendered to the approver accused
No.17 Shivananda Shrishaila
Biradar requires to be recalled and
necessary proceedings are required
to be initiated against him?
13) What order?
2. My answer to the above points are as follows:-
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Affirmative except
accused No.20 and accused
No.21.
Point No.4: In the Affirmative
Point No.5: In the Affirmative
Point No.6: In the Affirmative except A-21
Point No.7: In the Affirmative except A-20
Point No.8: In the Affirmative except A-20
Point No.9: In the Negative
Point No.10: In the Negative
Point No.11: In the Affirmative
139 Spl.CC No.565/2021Point No.12: Disposed off with liberty to
obtain necessary sanction to
prosecutePoint No.13: As per final order
for the following:-
:: REASONS ::
CHAPTER VI :
APPRECIATION OF EVIDENCE
49. Before adverting to the factual aspects of the
case, the entire evidence which has been led before the
Court is recapitulated and summarized as follows by
dividing into the nature of their testimony;
A. Complainant who had set the criminal law into
motion:
Sl. Nature of their
Name Brief description
No. evidence
1. PW.50 Complainant and Has deposed that on
Mallavva wife of deceased 15.06.2016 her
Yogesh Gouda Yogesh Goudar husband was
Goudar murdered which she
came to know
through Television
Channel and later
on visited the Police
Station and lodged
the complaint as per
Ex.P1 and she had
not supported the
case of prosecution
and was treated as
140 Spl.CC No.565/2021
hostile witness and
was subjected to
cross-examination
by the learned SPP
wherein she had
admitted of giving an
interview in the TV
about 1 year after
the death of her
husband that the
investigation has not
been conducted
properly by the
Dharwad Police and
had feigned her
ignorance that she
had castigated A-15
Vinay Kulkarni
towards the murder
and also admitted of
receiving threatening
letters and also
categorically
admitted of giving
TV interviews with
respect to
involvement of
accused No.15 Vinay
Kulkarni
B. Eye-witnesses to the incident of murder which had
taken place on 15.06.2016:
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
1. PW.1 Eye- Hostile Has deposed that
Dattathreya witness on 15.06.2016 he
Hanumantha to the had heard loud
Gudaganti incident noise at about
of 07.30 a.m. and
141 Spl.CC No.565/2021murder had ran out of the
door of the Gym
wherein he had
noticed 6 to 7
persons attacking
Yogesh Goudar
and stood near
the gate of the
Post Office.
Further has
deposed about
accompanying the
complainant
Mallavva at the
time of lodging the
complaint as per
Ex.P1.
He was treated as
hostile witness
and during the
course of cross-
examination has
categorically
admitted of
witnessing the
incident and has
deposed clearly
that the CCTV
footage produced
before the Court is
clear and has
categorically
identified the
assailants and
admits of running
towards Post
Office along with
other Gym mates
at the time of
incident and also
admits of
tendering
statement under
142 Spl.CC No.565/2021
Sec.164 of Cr.P.C.,
before the learned
Magistrate and
volunteers that he
had tendered such
evidence under
oath due to the
pressure exerted
by CBI and has
categorically
admitted of
identification of
assailants during
TIP.
2. PW.30 Eye- Supported Has deposed in
Lakshmi witness the case of consonance with
Benakatti prosecution the case of the
prosecution and
has deposed that
on 15.06.2016 she
had witnessed the
incident of murder
wherein Yogesh
Goudar was
assaulted with
sharp edged
weapon and she
had run to the
Post Office
building along
with Shwetha
Kulkarni. She
has also identified
accused No.9
Ashwath in the
Court and deposes
of identification of
assailants during
TIP and also
deposes about
tendering false
143 Spl.CC No.565/2021
evidence before
Dharwad Court
due to the
pressure exerted
on her.
3. PW.31 Eye- Supports Deposes that
Shashank Jain witness the case of about 4 to 5
to the the people were
incident prosecution attacking Yogesh
Goudar and had
ran towards Post
Office building
and at that time
PW.36 Shwetha
Kulkarni was also
present and they
all ran towards
Post Office
building
4. PW.32 Anand Eye- Hostile Though has
Erappa witness deposed of
Uddannanavar to the noticing an
incident incident of assault
on Yogesh Goudar
has feigned his
ignorance with
respect to seeing
the assailants and
was considered as
hostile witness
and during the
course of cross-
examination has
categorically
admitted of
hearing the loud
noise and scream
of Yogesh Goudar
near the Gym and
has also
categorically
identified the
144 Spl.CC No.565/2021
assailants who
were moving in
front of Gym as
per the CCTV
footage on
15.06.2016 and
also admitted of
tendering
statement under
Sec.164(5) of
Cr.PC before the
learned Magistrate
however had
volunteered that it
was due to
pressure exerted
on him by CBI.
5. PW.33 Vinayak Eye- Hostile Has deposed that
Binjiyavar witness he had heard the
to the scream and ran
incident out of the Gym
and when he had
returned back, the
murder had taken
place. He was
considered as
hostile and was
confronted with
CCTV footage and
further admits of
identifying
accused Harshith
during the course
of TIP
6. PW.34 Mohan Eye- Hostile Has deposed that
Echarappa witness he had heard the
Mulmuttal to the scream and ran
incident out of the Gym
and when he had
returned back, the
murder had taken
place. He was
145 Spl.CC No.565/2021
considered as
hostile and was
confronted with
CCTV footage
wherein he had
categorically
identified the
assailants
7. PW.35 Eye- Hostile Has deposed that
Vivekananda witness he had heard the
Shivashankar to the scream and ran
Dalawai incident out of the Gym
and Gym and when he had
trainer returned back, the
murder had taken
place. He was
considered as
hostile and was
confronted with
CCTV footage
wherein he had
categorically
identified the
assailants
8. PW.36 Eye- Hostile Nothing much was
Shwetha witness elucidated from
Kulkarni to the her
incident
C. Witnesses who speak about motive and intention to
commit the murder:
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
1. PW.2 Gurunath Speaks Supported The witness
Goudar about the the case of being the elder
intention prosecution brother of
deceased Yogesh
Goudar has
deposed about
146 Spl.CC No.565/2021the rivalry which
Vinay Kulkarni
had entertained
with the
deceased for
political reasons
and though he
deposes about
the incidents
which he learnt
from others, he
has also
deposed about
the prevailing
rivalry and also
filing of various
cases by Vinay
Kulkarni and
after the
incident the act
of Vinay
Kulkarni
requesting him
to meet him
near his Diary
and also
deposes about
the alurements
given by him
through Gururaj
Hunasimarad
and Thulajappa
Sulphi and also
Mahesh Shetty
2. PW.4 Speaks Supports Has deposed
Shivananda about the case of that a meeting
Basappa motive prosecution was conveyed at
Salagatti and the premises of
intention Dharwad ZP on
23.04.2016 to
discuss about
famine situation
147 Spl.CC No.565/2021wherein a verbal
altercation had
taken-place
between
deceased Yogesh
Goudar and
Vinay Kulkarni
due to which he
was enraged and
decided to
eliminate Yogesh
Goudar which
the prosecution
claims to be
motive for
commission of
the offence
3. PW.5 Gangappa Speaks Supports Has deposed
Shivappa about the case of that a meeting
Kallagoudthi motive prosecution was conveyed at
and the premises of
intention Dharwad ZP on
23.04.2016 to
discuss about
famine situation
wherein a verbal
altercation had
taken-place
between
deceased Yogesh
Goudar and
Vinay Kulkarni
due to which he
was enraged and
decided to
eliminate Yogesh
Goudar which
the prosecution
claims to be
motive for
commission of
the offence
148 Spl.CC No.565/2021D. Witnesses who speak about projected intention of
accused persons to portray the murder as
consequence of land dispute:
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
1. PW.6 Nagaraj Speaks Supported The witness
Todkar about the case of being the
entering prosecution brother of
into Shivananda
agreement Todkar has
to sale deposed about
with entering into
Basavaraj Agreement to
Muttagi Sale with
Basavaraja
Muttagi in the
house of Ashok
Patil and Ravi
Patil and
identified the
agreement to
sale at Ex.P.10
and revenue
documents at
Ex.P11
2. PW.7 Veeresh Speaks Supports Has deposed of
Amrutheshwa about the case of participating in
r Byahatti Agreement prosecution the negotiation
to Sale and of land and also
land of entering into
transactio Agreement to
ns Sale and later
on after the
murder received
call from ACP
Vasudeva Nayak
who had
demanded Rs.25
lakhs and finally
149 Spl.CC No.565/2021he had met
Shivananda
Chalavadi and
had handed-over
Rs.5 lakhs to
Vasudeva Nayak
through Mr.
Nataraj.
3. PW.8 Nataraj Speaks Partly Has deposed of
Makhigoudar about hostile participating in
Agreement the negotiation
to Sale and of land and also
land of entering into
transactio Agreement to
ns Sale and later
on after the
murder received
a demand from
ACP Vasudeva
Nayak and
visited his
chamber and
also has
deposed of
collecting Rs.5
lakhs from
Ashok Patil and
handing over it
to Shivananda
Chalavadi
4. PW.23 Ashok Circumsta Supports Deposes about
Veerannagou ntial the case of Nagaraj Todkar
da Patil evidence prosecution entering into
Agreement to
Sale with
Basavaraj
Muttagi and also
stated that
Veeresh
Byahatti had
150 Spl.CC No.565/2021called his
brother Ravi
Patil to arrange
Rs. 5 lakhs to be
paid to ACP
Vasudeva Nayak
and accordingly
he had arranged
for the same and
handed-over to
Nataraj who was
the friend of
Veeresh
Byahatti who in
turn had
handed the
amount to
Vasudeva NayakE. Witnesses who are the family members of deceased
Yogesh Goudar explaining the circumstances
prevailing prior to that and the incidents which
had taken place after his murder:
Nature of
Sl. Status of
Name the Brief description
No. witness
evidence
1. PW.11 Anjana Circumsta Supported The witness
Basavaraj ntial the case of deposes about
Dollin evidence prosecution Yogesh Goudar
contesting on
BJP ticket and
also about Vinay
Kulkarni with
whom he had
verbal
altercation and
also about the
incident at
Ambulli Ghat
wherein Yogesh
151 Spl.CC No.565/2021Goudar was
followed by a
black car and
after the death
of Yogesh
Goudar she had
accompanied
Mallavva to the
Police Station to
lodge the
complaint
2. PW.12 Suma Circumsta Supported The witness
Subhash ntial the case of deposes that
Gouda evidence prosecution after the death
Goudar of Yogesh
Goudar she had
accompanied
Mallavva for
treatment at
Sirsi and
initially they had
stayed at
Vaishnavi Lodge
near Kundagol
Cross wherein
she had met
Suresh Goudar,
Nagaraj Gouri,
Karigar
Shivanna and
later on about
switching off the
CCTV at the
lodge and
having
discussions by
Mallavva with
Nagara Gouri
and others
152 Spl.CC No.565/2021F. Witnesses who speak about the place where
conspiracy had allegedly taken place at
Sapthapura, Dharwad:
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
1. PW.13 Pramod Speaks Partly Has deposed
Narahari Rao about hostile about the
Deshpande circumstanc dispute which
es prevailing was prevailing
in his house with his sister
at Dr.Usha and
Saraswathp also with respect
ur, to the house at
Dharwad No.4/39/L at
Plot No.17,
Saraswathpur,
Dharwad. He
has also
deposed about
the quarrel that
had taken place
near his house
and in his cross-
examination has
admitted of
lodging
complaint on
05.03.2016 and
also of Vinayaka
Katagi visiting
his house.
2. PW.14 Anand Circumstant Supports Has deposed of
Kumar ial evidence the case obtaining GPA
of from Dr. Usha
prosecut Narahari for
ion selling the house
at Saraswathpur
Dharwad and
was introduced
153 Spl.CC No.565/2021
to Vinayaka
Katagi who had
paid him
commission of
Rs.3 lakhs
towards the
property that
was to be sold
3. PW.15 Sub- Supports Deposes about
Thimmanna Registrar the issuing certified
Ningappa prosecut copy of the
Bahur ion case document with
respect to land
at Morakatti
village, Dharwad
G. Witnesses who speak about the circumstantial
evidences as per the case of prosecution:
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
1. PW.16 Mahesh Speaks Hostile Has turned
Totad about hostile and has
circumstant denied of giving
ial evidence information
about the
movement of
Yogesh Goudar
from his house.
2. PW.17 Circumstan Hostile Though has
P.Roopendra tial evidence admitted his
Rao acquaintance
with Vinay
Kulkarni has
denied of giving
room to
Basavaraj
Muttagi and his
154 Spl.CC No.565/2021associates at
Hornbill River
Resort at
Ganesh Gudi,
Joida
3. PW.18 Yogesh Circumstan Hostile Deposes of
Kumar tial evidence working as
Manager at
Hornbill River
Resort and not
supported the
case of
prosecution
4. PW.19 Circumstan Hostile Deposes that he
Srivathsa tial evidence had not handed-
Dattatreya over money to
Patil Basavaraja
Muttagi but
admits of giving
statement under
Sec.164 of Cr.PC
as per Ex. P22
5. PW.20 Nataraj Circumstan Hostile Deposes by
Sarj Desai tial evidence admitting
tendering
statement under
Sec.164 of
Cr.P.C., but has
denied of
meeting
Basavaraja
Muttagi on
13.06.2016 at
Vinay Diary in
the presence of
A-21
Somashekar
Nyamagouda.
Further admits
of receiving
incoming call
155 Spl.CC No.565/2021
from Mobile
No.9844267730
on 15.06.2016
at 22.10 hours,
22.18 hours and
22.20 hours
6. PW.21 Circumstan Hostile Has deposed
Manikantan tial evidence denying the
Acharya servicing the
unlicensed
Revolver of
Basavaraja
Muttagi
7. PW.22 Syed Circumstan Hostile Has denied of
Hasham tial evidence accompanying
accused
Shahanawaz to
Dharwad and
making a futile
preparation to
commit the
murder on
earlier occasion
8. PW.25 Circumstan Hostile Has denied of
Nagappa tial evidence supplying Pistol
Mallikarjun to
Byragonde Chandrashekar
Indi
9. PW.26 Suresh Circumstan Hostile Has denied of
Jagadev Hulle tial evidence supplying Pistol
to
Chandrashekar
Indi
10. PW.27 Bharath Circumstan Hostile Has denied of
Kalsur tial evidence booking rooms
to help the
assailants of
Basavaraja
Muttagi but has
categorically
156 Spl.CC No.565/2021
admitted of
booking rooms
at Panchavati
Hotel and also
at Hotel
Hithaishi Palace
and has denied
of helping
Basavaraja
Muttagi
11. PW.28 Anoop Circumstan Supports Admits of
Churi tial evidence the case booking room by
of giving necessary
prosecuti details and
on entering it in the
Hotel Register
book of
Hithaishi Palace
12. PW.29 Girish Circumstan Hostile Deposes about
Pathri tial evidence booking room at
Hotel Panchavati
at the behest of
Bharath Kalsur
13. PW.52 Bhoosa Circumstan Supports Deposes that
Reddy tial evidence the case PW.27 Bharath
of Kalsur had
prosecuti requested him to
on permit him to
park a black
coloured car
near his house
and has handed
over the key to
him and after
one day he had
again requested
that one of his
friend would
take back his
car
157 Spl.CC No.565/2021
H. Expert witnesses who depose about forensic
examination:
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
1. PW.37 Speaks Supported Has deposed
Tyagaraj.M, about the case about analyzing
State FSL, analyzing of Sea Gate
Bengaluru CCTV prosecutio Company Hard
footage n Disc of 500 GB
capacity at
Ex.P57 which is
a CCTV footage
and deposes that
it was
authenticated
and also deposes
about extracting
e-mail files and
generating CDR
Report at Ex.P62
2. PW.38 Balu.M, Speaks Supports Has deposed
Mobile about the case about analyzing
Forensic analyzing of 7 mobile phones
Section, State mobile prosecutio and furnishing
FSL, phones n report to the
Bengaluru concerned IO
3. PW.39 Kushal Speaks Supports Deposes about
A Master, FSL, about gait the case gait feature
Gujarath pattern of analysis of the
analysis prosecutio suspected
n persons through
controlled CCTV
footage and also
analyzing
photographs
4. PW.47 Bhavin Worked as Supports Deposes that he
Kumar Jeram in-charge the case has received
158 Spl.CC No.565/2021
Sathwara, Scientific of internal
SFL, Gujarat. Officer at prosecutio forwarding letter
Departmen n on 14.07.2020
t of and had carried
Photograph out examination
y, FSL, to identify the
Gujarat presence of
accused persons
in the video
footages and has
given his opinion
that the video
footages of the
accused persons
in the captured
frames of CCTV
footages were
similar and had
filed the report
as per Ex.P77
5. PW.59 Technical Supports Has deposed of
Mallikarjun Assistant the furnishing data
Chikmutt prosecutio in a hard disc
n case with respect to
tower dump and
CDR
6. PW.93 Dr. Handwritin Supports Deposes about
Kumudha g Expert the case conducting
Rani, FSL, of analysis with
Bengaluru prosecutio respect to
n specimen writing
of Basavaraj
Muttagi and
other accused
persons
I. APPROVER EVIDENCE:
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
159 Spl.CC No.565/2021
1. PW.10 Approver Supports Deposes by
Basavaraja the case explaining the
Muttagi of circumstances
prosecutio which would
n support the
prosecution case
2. PW.9 Approver HostileHas not
Shivanand supported the
Shreeshail case of
Biradar prosecution and
has deposed that
he was
pressurized by
CBI which lead
him to depose
falsely under
oath before the
learned
Magistrate.
J. Witnesses who deposes about circumstantial evidence in
consonance with the evidence of the approver Basavaraj
Muttagi :
Nature of
Sl. Status of
Name their Brief description
No. witness
evidence
1. PW.40 Circumsta Supported Has deposed
Logendra.C., ntial the case that he had
Car Driver evidence of picked up
prosecutio Basavaraja
n Muttagi and has
also narrated
that he was
tensed at that
time and Vinay
Kulkarni had
promised to take
care of him in a
murder case and
later on in the
year 2017 he
160 Spl.CC No.565/2021was requested
by Basavaraja
Muttagi to pick
up PW.1 Dr.
Dattathreya near
Esteem Mall,
Bengaluru to
Dharwad and
further states
that they had
stayed at Ramya
Residency,
Dharwad and
also of visiting
Goa for two days
in a Tavera Car
and later on
returning back
from Julie Jolly
Resort at Goa to
Rashi Farms and
has also
narrated about
Babu Kattagi
picking up the
witnesses and
also of Lakshmi
Benakatti
staying in Rashi
Farms
2. PW.41 Mahesh Circumsta Supports Deposes he
Shetty ntial the case knew Basavaraja
evidence of Muttagi and he
prosecutio owed
n Rs.3,50,000/-
and accordingly
Muttagi had
requested him to
pay Rs.2 lakhs
to Vasudeva Rao,
the then ACP in
the year 2016
161 Spl.CC No.565/2021
which he had
paid in the Police
Station. He has
also deposed of
reserving room
at Ramya
Residency Hotel
for the friends of
Basavaraj
Muttagi on 2 to
3 occassions.
Apart from that
he has deposed
about a
arranging a
meeting between
Vinay Kulkarni
and Gurunath
Goudar and has
identified ACP
Vasudeva Nayak
as the ACP to
whom he had
made the
payment
3. PW.42 Circumsta Hostile Has not
Shivananda ntial supported the
Bheemappa evidence case of
Janmatti, prosecution and
Advocate has denied of
assisting any of
the witnesses to
turn hostile
before the
Sessions Court
at Dharwad
4. PW.43 Circumsta Supported Has deposed
Shivakumar ntial the case that while
Nijaguni evidence of having Tea with
Bendigeri, prosecutio his Senior in the
Advocate n year 2017, he
was requested to
162 Spl.CC No.565/2021
accompany him
and had got
down at Kalageri
Road, Dharwad
and at that time
one lady had
come near the
car and was
conversing with
his senior
Shinde
5. PW.45 Suresh Circumsta Supports Deposed that on
Ramegowda ntial the case 15.06.2016
evidence of Basavaraj
prosecutio Muttagi had
n contacted him
and asked him
to come to
Chitradurga and
while driving
towards
Bengaluru he
was speaking
with some
person by
borrowing his
phone and
addressing that
person as "Sir"
and later on they
reached near
Sankey Tank at
about 01.30 a.m.
and Muttagi had
got down from
the Car and
went near a Car
and conversed
with some
persons and
after that he had
requested him to
163 Spl.CC No.565/2021
drop to
Sadashivanagar
and at that time
he had noticed a
person aged
about 50 years
who was having
white hairs and
beard whom the
witness had
identified as A-
16
6. PW.46 Gowda Circumsta Supports Deposes that on
Prakash ntial the case 16.06.2016 he
Devendra evidence of went to Dollars
prosecutio Colony and
n picked the
customer who
was referred to
him and they
have reached
Sankey Tank
about 09.00 AM
in the morning
and after 10
minutes he came
to car and
requested him to
drive towards
Chitradurga and
near Nice Road
junction he had
got down from
the Car.
7. PW.48 Nagaraj Circumsta Supports Deposes that on
ntial the case 16.06.2016
evidence of Basavaraja
prosecutio Muttagi had
n called him at
09.30 AM and
requested him to
164 Spl.CC No.565/2021
drop to Dharwad
and accordingly
he had reached
Nice Road,
Bengaluru at
12.00 PM in the
afternoon and
has also deposed
that Basavaraja
Muttagi had
invested around
Rs.37 lakhs in
his real estate
and he had
asked him to
give the money
to his parents
and accordingly
after about 4 to
5 days he had
given Rs.12
lakhs through
cash to Vikas
Kalburgi and
Rs.8 lakhs
through RTGS
8. PW.49 Circumsta Supports Deposes that he
Raghavendra ntial the case knew Basavaraja
evidence of Muttagi and on
prosecutio 15.06.2016 at
n about 12.00 PM
he had called
him and had
requested him to
meet near
highway at
Hospet and on
his request he
had booked one
Hema Guest
House at
Virupapura
165 Spl.CC No.565/2021
Gaddi, Anegundi
and later in the
evening he had
requested his
mobile which he
had handed over
to him and has
identified Keerthi
Kumar,
Mahabaleshwar,
Vikas Kalburgi
as the persons
who had
accompanied
Basavaraj
Muttagi
9. PW.53 Vijay Circumsta Hostile Deposes that he
Kulkarni ntial is the younger
evidence brother of A-15
Vinay Kulkarni
and has feigned
his ignorance
about his
presence on
15.06.2016 and
also that of
Somashekar
Nyamagouda,
Chandrashekar
Indi and
Kempegowda.
He has
specifically
denied of
meeting
Basavaraja
Muttagi on
15.06.2016
along with Vinay
Kulkarni,
Chandrashekar
Indi and
166 Spl.CC No.565/2021
Somashekar
Nyamagouda
near Sanky Tank
but has admitted
of tendering his
statement under
Sec.164 of Cr.PC
before the
Magistrate and
has volunteered
that it was due
to the pressure
exerted on him
by CBI
10. PW.67 Circumsta Supports Has deposed
Umapathy ntial the case that on
evidence of 15.06.2016 at
prosecutio about 05.30 to
n 06.00 p.m.
Muttagi had
called him on his
mobile and
requested his
permission to
stay in his house
and later on in
the next day he
went away from
his house
K. Police Witnesses and other witnesses who deposes about
investigation and other circumstances that had taken
place during the course of investigation by Dharwad
Sub-Urban Police :
Nature of
Sl. Status of Brief
Name their
No. witness description
evidence
1. PW.24 Circumsta Hostile Has deposed
Shivananda ntial that he was
Chalavadi evidence working at
167 Spl.CC No.565/2021Dharwad Town
Police Station
during the
relevant period
of time and has
deposed that
on 17.06.2016
and probably
on 18.06.2016
and has also
deposed that
they were kept
in the Guest
House by the
DCP, ACP
Vasudeva
Nayak and IO
Tingarikar and
he had visited
the Guest
House to pay
respects to his
superior
officers and
has stated that
he was
pressurized to
give statement
under oath
before the
learned
Magistrate as
per the say of
CBI
2. PW.44 Babu Police Hostile Has deposed in
Katagi witness chief
examination
that he had
assisted the IO
in conducting
the
investigation as
168 Spl.CC No.565/2021per law. He
was subjected
to cross-
examination by
the prosecution
and has
deposed that
he had given
false evidence
before the
learned
Magistrate
under Sec.164
of Cr.PC due to
the pressure
exerted by CBI
3. PW.51 Ramesh, Speaks Supports Has deposed
Police Constable about the case of that he worked
mahazar prosecution as Assistant to
IO
Chennakeshav
a Tingarikar
and ACP
Vasudeva
Nayak and
further on
17.06.2016 at
about 09.00
AM, Vasudeva
Nayak had
directed him to
go to new CR
Office at
Hubballi to get
the statement
of the accused
recorded and
he had went
there along
with his staff
and 5 accused
persons were
169 Spl.CC No.565/2021
present at that
place and at
that time
Shivananda
Chalavadi
along with his
staff
Shankaragoud
a Patil and
Basavaraj
Kadakola had
come to the
said place and
had given them
one wooden
stick, one
Koitha, iron
rod to
Tingarikar.
Further he has
deposed that
on the same
day evening he
was called by
the IO to draw
the mahazar
near
Yerrikoppa at
Kalaghatagi
Road in the
presence of
accused
persons and
they were made
to hold
weapons
depicting it to
be a recovery
mahazar.
Further
deposes that
Tingarikar had
requested to
170 Spl.CC No.565/2021
collect the
blood of Yogesh
Goudar at the
time of Autopsy
through the
Havaldar by
name Mattad
and later on it
was collected
and handed
over in the
Police Station
by Vinayak.N
Badiger and
has also
admits of
drawing the
mahazar as per
the say of the
IO
4. PW.54 Police Hostile Has deposed
Shankaragouda Constable that he had not
Basanagouda accompanied
Patil Shivananda
Chalavadi nor
met any other
persons on
17.06.2016.
Has admitted
of tendering
statement
under Sec.164
of Cr.PC before
the Magistrate
of the
prosecution
case but
deposes that it
was due to the
pressure
exerted on him
by CBI
171 Spl.CC No.565/2021
5. PW.55 Police Hostile Has deposed
Chandrashekar witness that though he
Thippanna, knew about the
Head Constable murder of
Yogesh Goudar
and worked
along with
Babu Katagi,
he does not
know anything
about the case
and has
deposed that
he had not
handed-over
any envelope to
Tingrikar
6. PW.56 Mushtaq Circumsta Hostile Has denied of
Ahmed ntial handed-over
witness any weapon
from his scrap
shop
7. PW.58 Raje Sab Mahazar Hostile Has denied
S Gunjal, Police witness furnishing any
Constable articles at the
behest of
Channakeshav
a Tingrikar
8. PW.60 Sub- Supports Has deposed of
Mahendra Inspector the case of furnishing
Kumar, Police prosecution certified copy
Sub-Inspector of FIR
9. PW.91 Mahazar Supports Deposes about
Basavaraj witness the case of affixing
prosecution signature to
the mahazar as
per the say of
Tingrikar in
the Police
Station and
after that again
172 Spl.CC No.565/2021
he was asked
to visit
Yerrikoppa
village and a
person got
down from the
vehicle holding
Talwar and
photographs
were obtained
10. PW.92 Mahazar Supports Deposes that
Basavaraj S/o witness the case of he was present
Bheemappa prosecution at the time of
Maikar drawing the
inquest
mahazar
11. PW.97 Mahazar Supports Deposes of
Eshwarappa witness the affixing
Madivalappa prosecution signature to
Kondikoppa case the mahazar in
the Police
Station at
Ex.P110
12. PW.98 Mahazar Supports Deposes of
Hanumantha witness the case of affixing
prosecution signature to
the mahazar
Ex.P98 and
106
13. PW.99 Mahazar Supports Deposes of
Basavaraj witness the case of affixing
Dayanand prosecution signature to
Thondikatti the mahazar
Ex.P 107
14. PW.107 Motilal Partly Supports Deposes about
Pawar conducted the case of taking over the
investigati prosecution further
on when investigation
the case from
being S.S.Hiremath
173 Spl.CC No.565/2021
investigat and recording
ed by the statement
Dharwad of witness and
Sub- finally filing the
Urban charge-sheet
Police
Station
15. PW.110 Vijay Circumsta Supports Deposes about
Kumar.M, ntial the case of Vinay Kulkarni
Gunmen evidence prosecution receiving call
from the then
Police
Commissioner
of Hubli-
Dharwad Mr.
Rane on
15.06.2016 at
08.30 AM.
16. PW.111 Circumsta Supports Deposes about
Yogappa ntial the case of being present
Gujjannanavar evidence prosecution in the Police
Station at the
time of
recovering
Ex.P7 and
Ex.P8 letter by
the concerned
Police
L. Other circumstantial witnesses:
Nature of
Sl. Status of Brief
Name their
No. witness description
evidence
1. PW.57 Mahesh Circumsta Supports Has deposed
ntial the case of that he was
evidence prosecutio Travel Agent
n and had booked
Air Ticket for
Vinay Kulkarni
174 Spl.CC No.565/2021for his travel on
13.06.2016 to
Delhi.
2. PW.61 Ananth Additional Supports Deposes about
Kaskar Secretary, the issuing three
DPAR prosecutio tour programs
n case of Vinay
Kulkarni as per
Ex.P.125
3. PW.62 Anand Circumsta Supports the Deposes that he
Gouda. F ntial case of had received
prosecution
Badiyavar evidence call on his
mobile from
Vinay Kulkarni
wherein he was
directed not to
help the family
members of
Yogesh Goudar
to obtain copy
of the murder
case and he has
produced the
mobile in which
the
conversation
was recorded
4. PW.63 Vishal Brother of Hostile Though has
Ballary accused categorically
Vikram admitted of
Ballary having Hero
Honda Bike
bearing Reg. No.
KA-25-EA-6230
has denied of
helping his
brother and
during the
course of cross-
examination
has admitted
175 Spl.CC No.565/2021
that as on
15.06.2016 the
motor bike was
being used by
his elder
brother
5. PW.64 Circumsta Hostile Has denied of
Holabasavaiah ntial giving Rs.4
G Matapathi evidence lakhs to Babu
Katagi at the
behest of
Basavaraja
Muttagi
6. PW.65 Mahazar Supports Deposes about
Lakshman Witness the case of witnessing the
Thimmanna prosecutio mahazar with
Karekal n respect to
reconstruction
of the crime
scene
7. PW.66 Mahazar Supports Deposes about
Mahendra Witness the case of witnessing the
Nilekani prosecutio mahazar with
n respect to
recovery of
vehicle
8. PW.68 Mahazar Supports Deposes about
Sanjeeva.K Witness the case of voluntary
prosecutio statement of
n accused Dinesh
and recovery of
Splendor Motor
Bike
9. PW.69 Anil System Supports Deposes that
Kumar P.S. Assistant, the case of necessary
Dharwad prosecutio precautions
Court n were taken at
the remote
point center of
the court while
176 Spl.CC No.565/2021
recording
statement
under Sec.164
of Cr.PC
through VC
10. PW.70 Owner of Hostile Has admitted
Chandrashekar the during the
Pujar Chevrolet course of cross-
Car examination of
owning the car
bearing Reg.
No.KA-25-B-
8526 as per the
B Extract at
Ex.P132
11. PW.71 Prabhu Recovery Supports Deposes of
Shankar Mahazar the recovery three
prosecutio Pistols from the
n case Farm House of
Basavaraj
Muttagi as per
MO.12 to 14
12. PW.72 G.Shyam Circumsta Supports Deposes that as
Holla ntial the case of per the records
evidence prosecutio transfer request
n was given by
Sumithra
Hanchitgeri
with
recommendatio
ns of Vinay
Kulkarni as per
the file as
Ex.P136
13. PW.73 Jamuna Circumsta Supports Deposes of
P Balaraj ntial the case of providing travel
evidence prosecutio details of
n passengers and
in particularly
Vinay Kulkarni
on 16.06.2016
177 Spl.CC No.565/2021
14. PW.74 Sanjeev Circumsta Supports Deposes about
Kumar ntial the case of signing of tour
evidence prosecutio program of
n Vinay Kulkarni
15. PW.75 Circumsta Partly Deposes about
Ramesh.C ntial Hostile producing stay
evidence of Vinay
Kulkarni at
Hotel Mourya,
Bengaluru in
Room No.555
from
08.06.2016 to
20.06.2016
16. PW.76 Mahazar Supports Deposes about
Mohammed witness the case of recovery of
Sadiq prosecutio Splendor motor
n bike under the
Document at
Ex.P130
17. PW.77 Sathish Mahazar Supports Deposes about
Narayan witness the case of recovery of the
Thalekar prosecutio vehicle which is
n Tavera Car
bearing No.KA-
25-D-420
18. PW.78 Akshay Circumsta Hostile Deposes about
Katagi ntial using the SIM
evidence Card ending
with No.339
19. PW.79 Sub- Supports Deposes about
Mohammed Divisional the case of conducting TIP
Zubair Magistrat prosecutio
e n
20. PW.83 Rajesh S. Circumsta Supports Has deposed
Sulikeri ntial the case of about according
evidence prosecutio sanction to
n prosecute A-19
and A-20
178 Spl.CC No.565/2021
21. PW.84 Pramod Recovery Supports Deposes about
Balagouda witness the case of furnishing
Panade prosecutio register of
n Praveen Deluxe
Hotel at Nippani
22. PW.85 Harish Recovery Supports Deposes about
Shetty witness the case of furnishing
prosecutio register of
n Central Park,
Dharwad
23. PW.86 Recovery Supports Deposes about
Santhosh.R witness the case of furnishing
Jadhav prosecutio register of Hotel
n Ankitha
Residency,
Dharwad
24. PW.88 Firoz Mahazar Supports Deposes about
Khan Jagirdar witness the case of recovery of 3
prosecutio Pistols from the
n Farm House of
Basavaraj
Muttagi
25. PW.89 Recovery Supports Deposes about
Sangamesh witness the case of providing CCTV
Mallappa prosecutio footage from the
Madivalara n Post Office
26. PW.90 Ravi Recovery Supports Deposes about
Morey mahazar the case of providing the
prosecutio register of Hotel
n Rashi Farms,
Dharwad
27. PW.96 Lester Recovery Supports Deposes of
Albuquerque Mahazar the case of providing Guest
prosecutio Register extract
n at Ex.P54 and
201
28. PW.100 Yousuf Mahazar Supports Deposes about
Shariff witness the case of recovery of
prosecutio CCTV footage
n
179 Spl.CC No.565/2021
29. PW.101 Vijay Recovery Supports Deposes of
Dutt witness the case of providing
prosecutio details with
n respect to Hotel
Ashoka
Chanakyapuri,
New Delhi
30. PW.102 Kishor Mahazar Supports Was present at
Kumar Maloth witness the case of the time of
prosecutio collecting
n specimen
writings
31. PW.103 Newspape Supports Deposes about
Jagadish r Editor the case of publishing of
Buralabaddi prosecutio news article in
n Vijayavani daily
newspaper with
respect to
verbal
altercation that
had taken place
32. PW.112 Circumsta Hostile Deposes that he
Kempegouda ntial had not met
Rudragouda evidence Vinay Kulkarni
Patil on 15.06.2016
M. Nodal Officers and other Telephone Operators:
Nature of
Sl. Status of Brief
Name their
No. witness description
evidence
1. PW.80 Airtel Supports Deposes about
Gaddigeyappa Sales the providing Airtel
Ballulli @ Promoter prosecution SIM
Praveen case
2. PW.81 Circumsta Supports Has deposes
G.Suresh ntial the case of about
evidence prosecution furnishing the
address that
has denied of
purchasing any
180 Spl.CC No.565/2021SIM Cards as
shown in CAF
Forms
3. PW.82 Sathish Circumsta Hostile Has deposed
Saudatti ntial that Mobile
evidence Number ending
with 5321 was
being used by
his father
4. PW.95 Ravi Nodal Supports Deposes of
Naronha Officer the case of providing CDR
prosecution in 153 Pages
pertaining to
7795853945
5. PW.104 Media Supports Deposes of
R.Sridharan Consultan the case of producing
t at TV9 prosecution footage of the
interview
telecasted in
their news
channel of the
year 2016 and
the CD with
necessary
Certificate was
identified by
him at Ex.P209
6. PW.105 Prachi Operation Supports Deposes about
Gajendra Manager the case of producing the
Khade at Simm- prosecution records
Samm pertaining to
Airways Charter Aero
Pvt. Ltd. plane VTSSF for
the date
13.06.2016 and
14.06.2016
181 Spl.CC No.565/2021
7. PW.106 Nodal Supports Deposes about
Prakash.G Officer at the case of producing CAF
Vodafone prosecution and CDR details
as per Ex.P211
to Ex.P220
8. PW.109 Nodal Supports Deposes about
Johnson Tom Officer, the case of furnishing
Bharathi prosecution CDRs
AirtelN. Medical Officers who had conducted autopsy and also
the Scientific Expert of FSL, Bengaluru for conducting
firearm analysis :
Nature of
Sl. Status of Brief
Name their
No. witness description
evidence
1. PW.87 Dr. M. Analyzing Supports Deposes about
Kiran Kumar, the the analyzing the
Director, Firearm prosecution firearm and
Firearm case furnishing
Section, FSL, Report
Bengaluru
2. PW.94 Dr. Medical Supports Deposes about
Santhosh Officer the case of conducting the
Kumar.P conductin prosecution Postmortem on
g Autopsy the dead body
of the accused
Yogesh Goudar
and furnishing
opinionO. Witness who speaks about assisting CBI IO and also the
Investigating Officer of CBI:
Nature of
Sl. Status of Brief
Name their
No. witness description
evidence
1. PW.108 Providing Supports Deposes about
P.S.Gopalakris technical the analyzing the
182 Spl.CC No.565/2021hna, and prosecution CDR and tower
Programmer, forensic case dump by using
TAFSU, CBI assistance professional
to IO software and
furnishing
tower locations
2. PW.113 Rakesh Investigati Supports Deposes about
Ranjan ng Officer the case of conducting the
prosecution investigation
and filing three
additional/
supplementary
final reports
50. POINT NO.1: In the instant case it is alleged
that on 15.06.2016 Yogesh Goudar was attacked by
some unknown assailants in front of Uday Gym and
also chili powder was thrown to his eyes and he was
attacked with sharp edged deadly weapons. Further it
is narrated that due to the assault he had sustained
bleeding injuries and had succumbed to the same. It is
the case of the prosecution that later on the dead body
of deceased Yogesh Goudar was taken to KIMS
Hospital, Hubballi for the purpose of conducting
autopsy on the dead body of Yogesh Goudar. In order
183 Spl.CC No.565/2021to justify the said contention, the prosecution has
examined PW.94 Dr.Santhosh Kumar.P., who was
summoned as additional witness in the above case. It
is relevant to note that during the course of
investigation conducted by Dharwad Sub-Urban
Police, he was requested to conduct the autopsy on the
dead body of Yogesh Goudar by contacting his
Professor and HOD of Forensic Science Department.
The aforesaid witness in his evidence has deposed that
he was posted to conduct autopsy and accordingly on
15.06.2016 between 01.00 PM to 02.00 PM he had
conducted autopsy at the mortuary of District Civil
Hospital. Further he has deposed of noticing rigor
mortis on the dead body of the deceased which was
present over the face, neck, arms, forearm, abdomen,
both thighs and both legs. He had deposed of noticing
faint Postmortem staining over the back of the body
and blood stains were present over the head, face,
front of chest, front of abdomen, both upper limbs and
184 Spl.CC No.565/2021
at places. The Medical Officer has deposed in detail
about the injuries which were noticed on the dead
body of the deceased which is culled out from the
chief-examination and which are as follows;
1) Chop wound measuring
7CmsX2CmsXbone deep present
over high parietal region.
2) Chop wound measuring
12cmX2cmXbone deep present over
left temporal and left side frontal
region.
3) Chop wound measuring
10CmX2cmXbone deep present over
left side temporal region which was
4Cms below external injury No.2
and 6Cms above left ear pinna.
4) Chop wound measuring
19cmX7cmsXcranial cavity deep
present over whole length of fore
head exposing lacerated muscles,
vessels, nerves underlying frontal
bone fractured and fragmented.
5) Incised injury measuring
0.5cmX0.5cmXbone deep present
over left side dorsum of nose,
185 Spl.CC No.565/2021
underlying nasal bone was
fractured.
6) Incised injury measuring
4cmX0.5cmsXmuscle deep present
on the right side of the face which
was 7cms inner to right ear and
5cms outer to right side Ala of
nose.
7) Chop wound measuring 14cmsX5cmsXbone deep present over right side of cheek. 8) Chop wound measuring
15cmX6cmXbone deep pressure over
left side of cheek extending till left
side upper part of neck which was
8cm below left ear and 4cm below
left angle of mouth.
9) Stab injury measuring 5cmX1.5cmsXcavity deep present
over front of lower part of neck,
6cms below external injury no.8.
10) Stab injury measuring
2.5cmX0.5cmsXmuscle deep present
over left side upper part of front of
chest, 4cms outer to external injury
no.9 and 7cms below external
injury No.7.
11) Abrasion measuring 5cmX0.5cm
over top of right shoulder.
186 Spl.CC No.565/2021
12) Stab injury measuring
0.5cmX0.5cmXmuscle deep present
over left side upper part of chest.
13) Stab injury measuring 1cmX0.5cmXmuscle deep present
over outer end of left clavicle.
14) Abrasion measuring
1cmsX0.5cm present over front of
left side upper part of chest.
15) Abrasion measuring
0.5cmX0.5cm present over left side
upper part of chest.
16) Stab injury measuring
4cmX2cmXcavity deep present over
front of left side lower part of
chest.
17) Stab injury measuring 9cmX2cmsXcavity deep present
over left side outer aspect of chest.
18) Abrasion measuring 4cmX1cms
present over outer aspect of left
shoulder.
19) incised injury measuring
5cmsX2.5cmsXmuscle deep present
over outer aspect of left elbow.
20) Chop wound measuring 5cmX1.5cmsXbone deep present over back of left hand and 5 th
metacarpal bone was fractured.
187 Spl.CC No.565/2021
21) Chop wound measuring 1cmX0.5cmsXbone deep present over left hand ring finger. 22) Chop wound measuring
5cmX2cmsXbone deep present over
left hand index and middle finger.
23) Chop wound measuring
2.5cmsX1.5cmsXbone deep present
over left foot great toe.
24) Chop wound measuring 3.5cmsX2.5cmsXmuscle deep
present over outer aspect of lower
third of left thigh.
25) Stab injury measuring
9cmX2cmsXcavity present in the
mid line of upper part of abdomen.
26) Stab injury measuring 8cmX2cmsXmuscle deep present over left side upper part of abdomen. 27) Stab injury measuring
4cmX0.5cmsXmuscle present over
left side upper part of abdomen.
28) Stab injury measuring
7cmsX1cmXmuscle deep present
over left side upper part of
abdomen.
188 Spl.CC No.565/2021
29) Stab injury measuring
8CmX1cmXcavity present over left
side mid line of abdomen.
30) Stab injury measuring
6cmX2cmsXcavity deep present
over right-side upper part of
abdomen.
31) Stab injury measuring
8cmsX1cmsXmuscle present over
right-side upper part of abdomen.
32) Chop wound measuring
6cmsX4cmsXbone deep present over
right-hand index finger.
33) Incised wound measuring
4cmX0.5cmXmuscle deep present
over back of right hand.
34) Chop wound measuring
6cmsX2cmsXmuscle deep present
over inner aspect of middle third of
right thigh.
35) Abrasion measuring
16cmsX0.5cm was present over
front of lower third of right thigh.
51. The Medical Officer has deposed that injury
No.32 and 33 might have been caused due to probable
defence injuries and had shown the fractures of bones
on right hand. It is his specific opinion that the
189 Spl.CC No.565/2021
external injury No.1 to 4, 7 to 9, 17 and 30 were fatal
to life and injury No.19 to 22, 32 and 33 were probable
defence injuries. It is deposed by him that the
Postmortem was conducted by him along with their
HOD Dr.Gajanan Nayak and has deposed about
furnishing the Postmortem Report as per Ex.P.191.
Further he has deposed that later on a requisition was
sent by Dharwad Sub-Urban Police along with some
sharp-edged weapons like metallic knife, a long
machete with wooden handle, bamboo stick, another
long machete and an iron rod. By comparing the
weapons which were sent to them along with the
external injuries mentioned in the autopsy report, they
had arrived at a conclusion that the injuries could
have been possible to be sustained by using of single
weapon or in combination of similar type of weapons or
the same weapons which were sent for examination
and the injuries were fatal to life. He has also deposed
of furnishing the report as per Ex.P.196. I have
190 Spl.CC No.565/2021
carefully appreciated the chief evidence and also the
cross-examination and juxtaposed with the autopsy
report at Ex.P.191 and the opinion at Ex.P.196. If for a
moment both the reports are looked into and
compared, it would clearly indicate that deceased
Yogesh Goudar had sustained nearly 35 external
injuries, out of which injury No.1 to 4, 9, 17 and 30
were fatal to life. The aforesaid aspect is not denied or
controverted during the course of evidence. Under the
circumstances, the only probable cause which would
indicate the cause of death of Yogesh Goudar was
assault made by combination of several weapons.
Hence, the prosecution has proved beyond reasonable
doubt that the death of Yogesh Goudar was homicidal
and accordingly point No.1 is answered in the
affirmative.
191 Spl.CC No.565/2021
CHAPTER: VII
WHETHER INVESTIGATION BY CBI CAN BE
CLASSIFIED AS FURTHER INVESTIGATION OR RE
INVESTIGATION OR FRESH INVESTIGATION.
52. POINT NO.2: In the instant case, a peculiar
situation had arose wherein immediately after the
death of Yogesh Goudar, the criminal law was set into
motion on the basis of the complaint lodged by the wife
of the deceased Smt.Mallavva Goudar and based on
the same an FIR came to be registered in
Cr.No.135/2016 and thereafter necessary investigation
was conducted by Dharwad Sub-Urban Police. On the
completion of investigation necessary charge-sheet
came to be filed against accused No.1 to 6 and later on
the case was committed to the 4th Addl. District and
Sessions Judge Court at Dharwad and it was
numbered as SC No.50/2017. After completing the
statutory bound obligations, the Sessions Court at
Dharwad had proceeded to frame necessary charges
against the aforesaid accused No.1 to 6. The charges
192 Spl.CC No.565/2021
which were framed by the Sessions Court at Dharwad
are extracted supra for the sake of convenience. The
Sessions Court at Dharwad had fixed the trial and had
examined totally 61 witnesses and the prosecution had
closed their side. Thereafter, the statement of the
accused No.1 to 6 came to be recorded as
contemplated under Sec.313 of Cr.P.C. It is relevant to
note that from the inception the brother of deceased
Yogesh Goudar by name Mr. Gurunath Goudar was
vociferous about the nature of investigation which was
conducted by the Investigating Agency at Dharwad. In
fact, a Writ Petition was also filed before the Hon’ble
High Court of Karnataka by the mother of the
deceased by name Smt.Thungavva, seeking for
investigation from CBI which came to be rejected.
However, in the said Writ Petition, liberty was reserved
to the petitioner to file necessary application under
Sec.319 of Cr.P.C., if warranted. It is submitted that
later on during the course of trial before the Sessions
193 Spl.CC No.565/2021
Court at Dharwad on 16.07.2019, necessary
application came to be filed under Sec.319 of Cr.P.C.,
through the applicant to protect their right. However,
the application came to be rejected by the Sessions
Court at Dharwad vide order dated 26.08.2019.
Against the said order, the brother of deceased
Gurunath Goudar had filed a Criminal Petition before
the Hon’ble High Court of Karnataka, Dharwad Bench,
in Crl.Petition No.101725/2019. However, the said
petition came to be dismissed as having become
infructuous. In the meantime, the Government of
Karnataka had taken a decision to entrust the
investigation to CBI. It is relevant to note at this
juncture that the entrustment of investigation to CBI
was questioned by the then accused No.1 Basavaraja
Muttagi by filing Writ Petition before the Hon’ble High
Court of Karnataka which was dismissed later on and
the orders had confirmed by the Hon’ble Apex Court.
When such being the case, now the question which is
194 Spl.CC No.565/2021
required to be determined is whether the investigation
which was entrusted to CBI can be construed as fresh
investigation or further investigation and whether the
procedure which is required to be followed would
continue to commence from the stage where it was
stopped before the Sessions Court at Dharwad by
keeping in mind the three additional/supplementary
final reports being filed by the CBI. The aforesaid
aspect came up for consideration before this Court
when the case was posted for framing of charges.
53. At the cost of repetition, it is pertinent to
note that when the criminal law was set into motion by
Smt.Mallavva Goudar, the wife of the deceased, all that
it was narrated was the murder might have taken
place due to political rivalry or for any other reason.
Subsequently, the Dharwad Sub-Urban Police had
investigated the case and had filed the final report
against accused No.1 to 6 by contending that the
195 Spl.CC No.565/2021
motive and intention for committing the murder of
Yogesh Goudar was prevailing land dispute between
the then accused No.1 Basavaraja Muttagi and Yogesh
Goudar. However, when the investigation came to be
entrusted to CBI under Sec.6 of DSPS Act, it was
directed to conduct the further investigation. In order
to better appreciate the same, the Government order is
herewith extracted which reads as follows;
GOVERNMENT ORDER No. HD 48 PCB
2016,
BENGALURU, DATED 06/09/2019
Government of Karnataka hereby accords
sanction to the Central Bureau of
Investigation, under Sec.(6) of Delhi Special
Police Establishment Act, 1946 for further
investigation of Crime No.135/2016 u/s 302
of Indian Penal Code lodged in Dharwad Sub-
Urban Police Station, Dharwad.
The concerned Department
Officers/official/others shall hand-over
data/information/records as and when
required by the Central Bureau of
Investigation and co-operate in the
investigation.
The status report on the progress of the
enquiry/investigation may be furnished to
the State Government periodically.
196 Spl.CC No.565/2021
54. On careful examination of the notification
issued by the Home Department, it would clearly
indicate that the State Government had entrusted the
CBI to conduct further investigation in the above case.
At this juncture, the contentions urged by the learned
Senior Counsel with respect to further investigation is
required to be appreciated. It is the submission of the
learned Senior Counsel that unless it is specifically
ordered by the Superior Constitutional Authority, the
question of conducting investigation which is anterior
to the earlier investigation does not holds water. In
order to buttress his contention, the learned Counsel
has relied upon the judgment of the Hon’ble Apex
Court reported in (2013)5 Supreme Court Cases 762
(Vinay Tyagi Vs. Irshad Ali Alias Deepak and others)
wherein it has been held as:
22. “Further investigation” is where the
investigating officer obtains further oral
or documentary evidence after the final
report has been filed before the court in
197 Spl.CC No.565/2021terms of Section 173(8). This power is
vested with the executive. It is the
continuation of previous investigation
and, therefore, is understood and
described as “further investigation”. The
scope of such investigation is restricted
to the discovery of further oral and
documentary evidence. Its purpose is to
bring the true facts before the court even
if they are discovered at a subsequent
stage to the primary investigation. It is
commonly described as “supplementary
report”. “Supplementary report” would be
the correct expression as the subsequent
investigation is meant and intended to
supplement the primary investigation
conducted by the empowered police
officer. Another significant feature of
further investigation is that it does not
have the effect of wiping out directly or
impliedly the initial investigation
conducted by the investigating agency.
This is a kind of continuation of the
previous investigation. The basis is
discovery of fresh evidence and in
continuation of the same offence and
chain of events relating to the same
occurrence incidental thereto. In other
words, it has to be understood in
complete contradistinction to a
“reinvestigation”, “fresh” or “de novo”
investigation.
198 Spl.CC No.565/2021
49. Now, we may examine another
significant aspect which is how the
provisions of Section 173(8) have been
understood and applied by the courts and
investigating agencies. It is true that
though there is no specific requirement in
the provisions of Section 173(8) of the
Code to conduct “further investigation” or
file supplementary report with the leave
of the court, the investigating agencies
have not only understood but also
adopted it as a legal practice to seek
permission of the courts to conduct
“further investigation” and file
“supplementary report” with the leave of
the court. The courts, in some of the
decisions, have also taken a similar view.
The requirement of seeking prior leave of
the court to conduct “further
investigation” and/or to file a
“supplementary report” will have to be
read into, and is a necessary implication
of the provisions of Section 173(8) of the
Code. The doctrine of contemporanea
expositio will fully come to the aid of
such interpretation as the matters which
are understood and implemented for a
long time, and such practice that is
supported by law should be accepted as
part of the interpretative process.
199 Spl.CC No.565/2021
55. Even in the aforesaid judgment it has been
held by the Hon’ble Apex Court that further
investigation can be construed as the one where the
Investigating Officer obtains further oral or
documentary evidence after final report is placed. It is
further clarified that the scope of such investigation is
restricted to the discovery of further oral or
documentary evidence and its purpose is to bring the
true facts before the Court, even if they are discovered
at a subsequent stage to the primary investigation. It
has also been rendered in the said judgment that the
basis for further investigation is discovery of fresh
evidence and in continuation of the same offence and
chain of events relating to the same occurrence
incidental thereto which in other words means that it
has to be understood in complete contra-distinction to
a “re-investigation”, “fresh”, or “denova investigation”.
The learned Senior Counsel appearing for accused
No.16 Sri.M.S. Shyam Sundar has submitted that
200 Spl.CC No.565/2021
further investigation cannot be construed as the one
which is totally anti-thesis to the earlier one. In my
humble opinion, the said contention is not correct and
as laid down by the Hon’ble Apex Court, what is
required to be seen by the Court is whether the
materials discovered are in furtherance of the same
chain of events which is incidental thereto. In the
instant case, what is required to be appreciated is a
brutal murder had taken-place on 15.06.2016 at Uday
Gym, Dharwad and immediately thereafter the
criminal law was set into motion by filing FIR before
the Dharwad Sub-Urban Police Station. The materials
which are placed before the Court indicates that
initially the complainant Smt.Mallavva Goudar was
also not happy with the investigation that was being
carried out by the local investigating agency. During
the course of her evidence, wherein she was examined
as PW.50 Mallavva Gouda Goudar, she has deposed
that on learning about the incident she had rushed to
201 Spl.CC No.565/2021
the Police Station and had lodged the complaint
contending that the death might have been caused due
to political rivalry or land dispute or some other
reason. At the inception of the case, the Local
Investigating Agency at Dharwad had arrived at a
conclusion that the land dispute prevailing between
Basavaraja Muttagi and deceased Yogesh Goudar was
the root cause for commission of the murder. However,
the case took an entirely different turn when it was
entrusted to CBI.
56. In the interregnum, the brother of the
deceased by name Gurunath Goudar and the mother
of deceased was fighting with various authorities and
forums seeking justice. Though the Court is not
entirely basing its opinion on the versions of PW.2
Gurunatha Gouda, at this juncture it would be
appropriate to appreciate that whether it was a tussle
given by Gurunath Goudar for extraneous reasons or
202 Spl.CC No.565/2021
not. In the instant case, it would be appropriate to
look into the evidence of PW.2 Gurunath Goudar in
this regard. It is his specific contention that from the
beginning Yogesh Goudar and Vinay Kulkarni were at
logger heads with each other and the political rivalry
between them had led to the said situation.
Repeatedly it has been stated by him even before the
Court at Dharwad and the evidence would indicate
that he was explaining the situations and turn of
events that had taken place at the time of murder of
Yogesh Goudar and also after the same. He has
specifically deposed at the earliest point of time about
the involvement of the Police Officers and also the
political personalities. It is not that for the first time he
had taken up the name of present accused No.15 for
some extraneous reasons. The learned Additional
Solicitor General of India and SPP Sri. S.V.Raju, during
the course of his reply arguments has submitted that
the further investigation being in later point of time
203 Spl.CC No.565/2021
considers all materials which includes earlier material
as well as fresh material and has also argued that the
investigation is being done in proper direction is to be
ascertained. In order to substantiate his contention, he
has relied upon the judgment of the Hon’ble Apex
Court reported in (2023)1 SCC 48 (Devendranath Singh
Vs. State of Bihar and others), wherein it has been held
as follows:
45. For what has been noticed
hereinbefore, we could reasonably cull
out the principles for application to the
present case as follows:
45.1. The scheme of the Code of Criminal
Procedure, 1973 is to ensure a fair trial
and that would commence only after a
fair and just investigation. The ultimate
aim of every investigation and inquiry,
whether by the police or by the
Magistrate, is to ensure that the actual
perpetrators of the crime are correctly
booked and the innocents are not
arraigned to stand trial.
45.2. The powers of the Magistrate to
ensure proper investigation in terms of
Section 156CrPC have been recognised,
which, in turn, include the power to order
204 Spl.CC No.565/2021further investigation in terms of Section
173(8)CrPC after receiving the report of
investigation. Whether further
investigation should or should not be
ordered is within the discretion of the
Magistrate, which is to be exercised on
the facts of each case and in accordance
with law.
45.3. Even when the basic power to direct
further investigation in a case where a
charge-sheet has been filed is with the
Magistrate, and is to be exercised subject
to the limitations of Section 173(8)CrPC,
in an appropriate case, where the High
Court feels that the investigation is not in
the proper direction and to do complete
justice where the facts of the case so
demand, the inherent powers under
Section 482CrPC could be exercised to
direct further investigation or even
reinvestigation. The provisions of Section
173(8)CrPC do not limit or affect such
powers of the High Court to pass an order
under Section 482CrPC for further
investigation or reinvestigation, if the
High Court is satisfied that such a course
is necessary to secure the ends of justice.
45.4. Even when the wide powers of the
High Court in terms of Section 482CrPC
are recognised for ordering further
investigation or reinvestigation, such
205 Spl.CC No.565/2021powers are to be exercised sparingly, with
circumspection, and in exceptional cases.
45.5. The powers under Section 482CrPC
are not unlimited or untrammelled and
are essentially for the purpose of real
and substantial justice. While exercising
such powers, the High Court cannot issue
directions so as to be impinging upon the
power and jurisdiction of other
authorities. For example, the High Court
cannot issue directions to the State to
take advice of the State Public Prosecutor
as to under what provision of law a
person is to be charged and tried when
ordering further investigation or
reinvestigation; and it cannot issue
directions to investigate the case only
from a particular angle. In exercise of
such inherent powers in extraordinary
circumstances, the High Court cannot
specifically direct that as a result of
further investigation or reinvestigation, a
particular person has to be prosecuted.
57. Further in another judgment of the Hon’ble
Apex Court reported in (2004)5 SCC 347 (Hasan Bhai
Vali Bhai Qureshi Vs. State of Gujarath and others) it has
been held as follows:
206 Spl.CC No.565/2021
2. Sub-section (8) of Section 173 of the
Code permits further investigation, and
even dehors any direction from the court
as such, it is open to the police to
conduct proper investigation, even after
the court took cognisance of any offence
on the strength of a police report earlier
submitted. All the more so, if as in this
case, the Head of the Police Department
also was not satisfied of the propriety or
the manner and nature of investigation
already conducted.
13. In Ram Lal Narang v. State (Delhi
Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri)
479 : AIR 1979 SC 1791] it was observed
by this Court that further investigation is
not altogether ruled out merely because
cognisance has been taken by the court.
When defective investigation comes to
light during course of trial, it may be
cured by further investigation, if
circumstances so permitted. It would
ordinarily be desirable and all the more
so in this case, that the police should
inform the court and seek formal
permission to make further investigation
when fresh facts come to light instead of
being silent over the matter keeping in
view only the need for an early trial since
an effective trial for real or actual
offences found during course of proper
investigation is as much relevant,
desirable and necessary as an
207 Spl.CC No.565/2021
expeditious disposal of the matter by the
courts. In view of the aforesaid position
in law, if there is necessity for further
investigation, the same can certainly be
done as prescribed by law. The mere fact
that there may be further delay in
concluding the trial should not stand in
the way of further investigation if that
would help the court in arriving at the
truth and do real and substantial as well
as effective justice. We make it clear that
we have not expressed any final opinion
on the merits of the case.
58. In the aforesaid authority, the Hon’ble Apex
Court has specifically held that the further
investigation can be carried out under Sec.173(8) of
Cr.P.C., even dehors any directions from the Court. At
the same time, the judgment of the Hon’ble Apex Court
reported in (2009)7 SCC 685 (Kishan Lal Vs. Dharmender
Bafna and another), wherein it has been held as follows:
15. An order of further investigation can
be made at various stages including the
stage of the trial, that is, after taking
cognizance of the offence. Although some
decisions have been referred to us, we
need not dilate thereupon as the matter
208 Spl.CC No.565/2021has recently been considered by a
Division Bench of this Court in Mithabhai
Pashabhai Patel v. State of
Gujarat [(2009) 6 SCC 332 : (2009) 2 SCC
(Cri) 1047 : (2009) 7 Scale 559] in the
following terms: (SCC pp. 336-37, paras
12-13)“12. This Court while passing the order in
exercise of its jurisdiction under Article
32 of the Constitution of India did not
direct reinvestigation. This Court
exercised its jurisdiction which was
within the realm of the Code.
Indisputably the investigating agency in
terms of sub-section (8) of Section 173 of
the Code can pray before the Court and
may be granted permission to investigate
into the matter further. There are,
however, certain situations, where such a
formal request may not be insisted upon.
13. It is, however, beyond any cavil that
‘further investigation’ and
‘reinvestigation’ stand on different
footing. It may be that in a given
situation a superior court in exercise of
its constitutional power, namely, under
Articles 226 and 32 of the Constitution of
India could direct a ‘State’ to get an
offence investigated and/or further
investigated by a different agency.
Direction of a reinvestigation, however,
being forbidden in law, no superior court
209 Spl.CC No.565/2021
would ordinarily issue such a direction.
Pasayat, J. in Ramachandran v. R.
Udhayakumar [(2008) 5 SCC 413 : (2008)
2 SCC (Cri) 631] , opined as under: (SCC p.
415, para 7)
‘7. At this juncture it would be necessary
to take note of Section 173 of the Code.
From a plain reading of the above section
it is evident that even after completion of
investigation under sub-section (2) of
Section 173 of the Code, the police has
right to further investigate under sub-
section (8), but not fresh investigation or
reinvestigation.’ “
We have referred to the aforementioned
decision only because Mr Tulsi contends
that in effect and substance the prayer of
the appellant before the learned
Magistrate was for reinvestigation but the
learned Magistrate had directed further
investigation by the investigating officer
inadvertently.
16. The investigating officer may exercise
his statutory power of further
investigation in several situations as, for
example, when new facts come to his
notice; when certain aspects of the
matter had not been considered by him
and he found that further investigation is
necessary to be carried out from a
different angle(s) keeping in view the fact
that new or further materials came to his
210 Spl.CC No.565/2021notice. Apart from the aforementioned
grounds, the learned Magistrate or the
superior courts can direct further
investigation, if the investigation is found
to be tainted and/or otherwise unfair or is
otherwise necessary in the ends of
justice. The question, however, is as to
whether in a case of this nature a
direction for further investigation would
be necessary.
59. In the said authority, it is clarified that the
Investigating Officer may exercise his statutory power
of further investigation in several situations when new
facts come to his notice, when certain aspects of the
matter have not been considered by him or he has
found the necessity to conduct investigation from a
different angle. At this juncture, it would be relevant to
consider the submission of the learned Senior Counsel
Sri. C.V.Nagesh on behalf of accused No.15, who has
vehemently argued that during the course of
examination of the Investigating Officer, PW.113 Mr.
Rakesh Ranjan, it was elucidated from him that no one
else apart from Mallavva Goudar had filed the
211 Spl.CC No.565/2021complaint nor any fresh materials were furnished at
the time of registration of case by CBI in RC No. 17(S)
of 2016 by CBI. At the first stroke of incidence, the
submissions seem to be attractive. At the same time, it
has to be kept in mind that the subsequent
registration of FIR by the CBI was only for statistical
purposes and in fact the statement of PW.2 Gurunath
Goudar from the inception would indicate that he was
making several allegations with respect to the manner
in which the investigation was being carried out. As
such, the said submission does not hold water. Even
otherwise, the Court at the time of framing of the
charge had specifically observed the reason for
conducting new trial in the wake of the supplementary
final reports being filed by the CBI.
60. At the cost of repetition, it is relevant to
recall that the alleged motive and intention for the
commission of murder during the course of
212 Spl.CC No.565/2021investigation by Dharwad Sub-Urban Police was the
prevailing land dispute between deceased Yogesh
Goudar and the accused No.1 Basavaraja Muttagi.
Though the learned counsel for accused No.19
vehemently contends that the investigation which was
carried out by them was appropriate and correct, the
aforesaid aspect will be dealt in the later part of the
judgment. However, at this juncture, it is noticed from
the records that immediately after the registration of
the FIR, the accused No.1 to 6 had surrendered before
the concerned Police and thereafter the Mahazar and
other materials were collected. Even otherwise, in the
present case the first supplementary charge-sheet filed
by the CBI indicates of prevailing land dispute. When
the evidence of the persons who had intended to sell
the land to Basavaraja Muttagi is appreciated, wherein
the land owner Nagaraj Todkar was examined as PW7
And also the persons who were present at the time of
said Agreement to Sale is considered, nowhere it is
213 Spl.CC No.565/2021pointed out that Basvaraja Muttagi had entertained a
rivalry with deceased Yogesh Goudar. The learned
Senior Counsels have vehemently argued that the
evidence of PW.50 Mallavva Gouda Goudar, the
widowed wife of the deceased indicates the presence of
dispute amongst them is to be considered. At the same
time, it is also relevant to note that during the course
of cross-examination of PW.50 by the learned SPP it
was submitted by her that at the earliest instance
before the Sessions Court at Dharwad, she had
deposed that accused No.1 to 6 were having cordial
relationship with deceased Yogesh Goudar and even
they were like brothers. Under the circumstances, the
course of investigation which is taken-up by the
present IO PW.113 Rakesh Ranjan is nothing but
discovery of new facts and circumstances. As could be
gathered from the materials, it indicates that during
the course of trial before the learned Sessions Court at
Dharwad, the motive and intention for committing the
214 Spl.CC No.565/2021murder was land dispute which is not found in the
evidence before this Court. Even otherwise, PW.50
Mallavva was confronted with a TV interview, wherein
she had given an interview to the TV9, Public TV and
other media house that the murder had taken-place
due to political rivalry in which the involvement of
Minister was involved and there was no land dispute.
The said interview which is in the Pen-drive came to be
marked before this Court as Ex.P.103 and necessary
Certificate was marked at Ex.P.104. The aforesaid
Pendrive was marked subject to its relevancy and
admissibility at that point of time. It is relevant to note
that though it was objected that the interview cannot
be exhibited before the Court since it cannot be
considered as a previous statement as contemplated
under Sec.145 of Indian Evidence Act, this
Court had given a detailed finding permitting the
prosecution to get the aforesaid document marked.
That apart, it is also relevant to note that during the
215 Spl.CC No.565/2021course of investigation by the CBI, accused No.7 to 21
came to be arraigned as necessary accused and the
motive and intention also drastically changed. If for a
moment the provision of Sec.273 of Cr.PC is
appreciated, which reads as follows;
273. Evidence to be taken in presence of
accused. –Except as otherwise expressly
provided, all evidence taken in the course
of the trial or other proceeding shall be
taken in the presence of the accused, or,
when his personal attendance is
dispensed with, in the presence of his
pleader:
1[Provided that where the evidence of a
woman below the age of eighteen years
who is alleged to have been subjected to
rape or any other sexual offence, is to be
recorded, the court may take appropriate
measures to ensure that such woman is
not confronted by the accused while at
the same time ensuring the right of cross-
examination of the accused.]Explanation. –In this section, “accused”
includes a person in relation to whom
any proceeding under Chapter VIII has
been commenced under this Code
61. The aforesaid provision would indicate that
the evidence is required to be recorded in the presence
of the accused or their pleader. However, the evidence
216 Spl.CC No.565/2021
which was recorded before the Sessions Court at
Dharwad was with respect to the charge-sheet filed
against accused No.1 to 6 and accused No.7 to 21 were
totally navy to the aforesaid investigation process.
Under the principles of natural justice, a proper
opportunity and fair trial is also required to be
conducted. As such, this Court had passed an order
on 06.12.2023 to conduct new trial by framing
necessary charges. The said order has reached its
finality as the same had obtained the stamp of
approval by the Hon’ble High Court of Karnataka.
Later on, an application was filed under Sec.231(2) of
Cr.P.C., seeking to continue with the trial from the
stage where it was stopped at the learned Sessions
Court at Dharwad. However, the aforesaid contention
was not accepted and accordingly the same came to be
rejected by this court. Even the said order was
challenged before the Hon’ble High Court of
Karnataka, wherein it had confirmed the orders
217 Spl.CC No.565/2021
passed by this Court to conduct new trial. Hence, the
submission of the learned Senior Counsel Sri.M.S.
Shyam Sundar, falls like a pack of cards and the same
is to be negated. Accordingly, the new trial is being
conducted before this Court by independently
examining the witnesses. Under the circumstances,
the new trial which is being conducted is based on the
further investigation which is being conducted by CBI.
Accordingly, I answer point No.2 in the affirmative.
CHAPTER – VIII
MOTIVE AND INTENTION TO COMMIT THE
MURDER:
62. As per the case of the prosecution, it is
contended that the main motive and intention to
commit the murder of the deceased Yogesh Goudar
was the political rivalry which he had entertained with
accused No.15 Vinay Kulkarni. The CBI has filed the
final supplementary report indicating of the aforesaid
rivalry that had taken-place on 23.04.2016 during the
218 Spl.CC No.565/2021
meeting convened by accused No.15 Vinay Kulkarni
who was the then District In-charge Minister at
Dharwad at the Zilla Panchayath premises. The
prosecution in order to establish the aforesaid aspect,
has examined PW.4 Shivananda Basappa Salagatti
who has deposed that he was Member of the Village
Panchayath from 2010 to 2015 and has deposed that
on the fateful day i.e., on 23.04.2016 a verbal
altercation had taken-place in the said meeting which
was attended by the CEO of Zilla Panchayath, PDO’s of
all Village Panchayath, President and Vice President of
Village Panchayath, Taluk Panchayath and Zilla
Panchayath along with Taluk Level Officials apart from
the District In-charge Minister. It has also been
deposed by him that the meeting was convened to
discuss about the famine situation prevailing at
Dharwad. Further he deposes that when the turn of
Yogesh Goudar had come, a verbal altercation had
taken-place with respect to Maradagi Panchayath.
219 Spl.CC No.565/2021
During the course of cross-examination, the learned
Senior Counsel for accused No.15 has confronted the
witness with the notice of the meeting which was
marked as Ex.D.2 and has elucidated from him that
only the aforementioned persons were permitted to
attend and also it is elucidated from him that the
witness was neither the Member of Village Panchayath
nor any other local bodies or was its President or Vice
President. Further it is elucidated that after the
meeting the grievances aired in the meeting along with
the recommendations and suggestions were recorded
as per Ex.D.3. By pointing out to the aforesaid aspect,
it is argued that he had no iota of the meeting and he
was an implanted witness. Apart from that, the
prosecution has examined PW.5 Gangappa Shivappa
Kallagoudthi, who has also deposed in consonance
with the evidence of PW.4. During the course of his
cross-examination, once again he was confronted with
the meeting notice of Ex.D.2 and also with the meeting
220 Spl.CC No.565/2021
notice at Ex.D.3. Though he has deposed that he was
the Member of Managundi Ward No.1 Village
Panchayath during the period 2015 to 2020, it is
argued by the learned Senior Counsel that the meeting
did not permit any other ordinary members to attend
the same. I have carefully appreciated the said
contentions. Even in the written arguments it is
argued that PW.4 and PW.5 being not the President or
holding any authoritative post in the Village
Panchayath had not attended the meeting. The learned
Senior Counsel has submitted that the Attendance
Register pertaining to the aforesaid day also indicates
of the fact that the signatures of PW.4 and PW.5 are
not forthcoming. At the first instance, the aforesaid
submission seems to be attractive. However, when the
Attendance List is carefully appreciated which is
marked along with Ex.D.2 the notice, it indicates the
persons who had attended the meeting on the
aforesaid day. Incidentally, the name of accused No.15
221 Spl.CC No.565/2021
Vinay R Kulkarni is forthcoming in the Attendance
List, but none of the political personalities whose name
are forthcoming have affixed their signature to the
same. The next sheet in the same indicates the
Members of the Zilla Panchayath who had attended the
meeting and in that the name of deceased Yogesh
Goudar is forthcoming; however, he has not affixed his
signature. It is relevant to note that in the list
pertaining to the Taluk Panchayath Members, it
specifically states the name of the members and the
list does not indicate that it should be signed only by
the members who are enjoying the post of the
President or Vice President of their respective local
body. The column would indicate them to be the
members of the local body. Under the circumstances, if
for a moment the contention of the defence is to be
accepted, then it would be totally contrary to the notice
which is issued at Ex.P.2, wherein it requires the
President and Vice President of the local body to be
222 Spl.CC No.565/2021
present in the meeting. That apart, I have also
appreciated the Minutes of the meeting which was also
marked by way of confrontation with PW.4 Shivananda
Basappa Salagatti. The document was marked at
Ex.D.3 and in the Minutes column, with respect to
each Panchayath it has been referred that the
President of the each Panchayath had discussed about
the problems faced in each of their constituency. As
such, it is clear that the attendance list does not have
any nexus with the Minutes of the resolution which
was passed in the said meeting. In other words, it can
be construed that the same is not indicating of the
true and correct picture with respect to the restriction
on the participants to the said meeting. Even
otherwise, if the minutes of the meeting are accepted
that doesn’t indicate that other persons were barred
from attending the meeting. If the aforesaid conclusion
is to be derived, then the question which requires to be
223 Spl.CC No.565/2021
answered is whether the prosecution have established
the aforesaid notice through any other witnesses.
63. I have bestowed my anxious reading to the
evidence of PW.103 Jagadish Buralabaddi, who is the
Resident Editor of Vijayavani Newspaper. During the
course of his evidence, he has deposed that in the year
2016, he was working as second in-charge of Chief
Sub-Editor at Vijayavani, Hubballi. He has specifically
deposed that the Investigating Officer had enquired
him about the news item which they had published in
their newspaper on 24.04.2016. The said news item
was pertaining to the verbal altercation that had taken
place between the accused No.15 and the then Zilla
Panchayath Member Yogesh Goudar. Further the
certified copy of the newspaper was produced by him
pertaining to 24.04.2016, which was marked as
Ex.P.206. If for a moment, the aforesaid aspect is to
be brushed aside as the one which was erroneously
224 Spl.CC No.565/2021
reported, the same was required to be denied by
accused No.15 at the earliest point of time itself. Even
during the course of cross-examination, nothing has
been suggested to indicate that it was a false and
misleading report which was published in the
newspaper nor there is any denial in this regard that
the newspaper had published false and misleading
report of the said incident. All that it is suggested is
that the newspaper was part of VRL Media which was
owned by Mr. Vijay Sankeshwar, who was elected as
MP on the ticket of BJP Political Party. The aforesaid
suggestion does not have any nexus and in the
absence of any denial with respect to the veracity, the
contention of the accused counsels cannot be
accepted. Even otherwise, the witness has specifically
deposed that with respect to city like Dharwad, one or
two Reporters would cover all the news materials.
Under the circumstances, the contention of the
accused that the newspaper material cannot be relied
225 Spl.CC No.565/2021
upon is not acceptable. Even otherwise, the newspaper
report was published on 24.04.2016 and whereas the
investigation to CBI was handed-over in the year 2019
and the newspaper report was collected by the
Investigating Officer in the year 2021. As such, it
cannot be presumed that the motive and intention
were created by the Investigating Agencies to suit their
needs after lapse of several years and in particularly
after more than 5 to 6 years after the incident. The
aforesaid aspect also assumes importance for the fact
that it has been repeatedly contended by the defence
counsel during the course of their cross-examination
that the prominent political parties at Dharwad was
BJP and Congress and since accused No.15 Vinay
Kulkarni belonged to Congress Political Party, he has
been falsely implicated in the above case.
64. At this juncture, it would be appropriate to
marshal the entire evidence which is placed before the
226 Spl.CC No.565/2021
Court to ascertain the motive and intention. The law is
well settled that under the provisions of IPC, motive
does not play an important role but at the same time
when the case is based upon circumstantial evidence,
the existence or otherwise of the motive is required to
be looked into. At the first instance, the law with
respect to the existence of motive is required to be
ascertained. The learned Senior Counsel has
vehemently argued that just because a verbal
altercation had taken-place in the Zilla Panchayath
meeting at Dharwad, the same cannot be construed as
adequate motive for commission of the offence. Even
otherwise, it is his submission that by looking into the
evidence of PW.4 Shivananda Salagatti and PW.5
Gangappa Shivappa Kallagoudthi, there is no motive or
intention as such pointed out. At this juncture, it
would be appropriate to look into the evidence of
PW.10 Basavaraja Muttagi, who has turned approver
in the above case. The learned Senior Counsel has
227 Spl.CC No.565/2021
vehemently argued that the entire cross-examination
pertaining to PW.10 is ascertained, it would indicate
that PW.10 is a damn lair and his entire evidence is of
no consequences at all. With respect to the veracity of
the evidence of approver Basavaraja Muttagi, the same
will be considered in the later part of my judgment.
65. During the course of his chief-examination
he has deposed that on 23.04.2016, he was near the
building of Dharwad Zilla Panchayath along with other
accused persons and later on Vinay Kulkarni had
expressed to him that he was insulted by Yogesh
Goudar in front of all small and big leaders of Dharwad
by stating that they will have to face dire
consequences. During the course of cross-examination
of PW.113 Rakesh Ranjan, it was suggested to him
that as per the CDR the tower location of accused No.1
Basavaraja Muttagi with respect to 23.04.2016
indicated of he being present near Gokul Road (Airport
228 Spl.CC No.565/2021
Road), Hubballi at about 19.45 PM and further it was
elucidated that as per the CDR apart from the above
call there were no calls indicated on that particular
day from different locations. It is also been elucidated
that the Zilla Panchayath building at U.B.Hills,
Dharwad and the Airport was at a distance of about 20
to 24 Kms. As such, it is submitted that the
prosecution has not given any materials to believe the
version of the approver. If for a moment the aforesaid
aspect is to be accepted, then it is required to
understand that the Call Detail Register (CDR) will
only project the calls which were answered or
connected from a particular number on that particular
day. For instance, a number is reflected in CDR
immediately after the completion of a call, SMS or a
data session. If for a moment, the aforesaid aspect is to
be considered then obviously in the absence of any call
being received by him would not lead to a conclusion
that he was not at all present at Zilla Panchayath
229 Spl.CC No.565/2021
premises on that particular day. The aforesaid case is
also required to be looked into from an angle wherein
the Investigating Agencies are carrying out of the
investigation of a case which had taken-place in the
year 2016 and buried under labyrinth circumstances
that had traversed from 2016 to 2019 when the
investigation was handed-over to CBI. The evidence of
the approver Basavaraja Muttagi as argued by the
learned counsel for the accused is always required to
be considered with a pinch of salt since he is the one
who had changed his side from the arraign of accused
persons and has joined the hands of the prosecution.
At the same time, the Court is also required to
consider the fact that whether the same leads to
provide any additional link to the evidence of the
prosecution which otherwise it would have been not
possible for the prosecution to establish. During the
course of his evidence PW.10 Basavaraj Muttagi had
deposed that after about 2 days he was once again
230 Spl.CC No.565/2021
called near Vinay Dairy, wherein Vinay Kulkarni had
requested him to eliminate Yogesh Goudar. The
aforesaid aspect would add as a linkage or a chain to
the other aspects that had taken-place in the above
case.
66. At this juncture, it would not be out of
context to discuss about the other facet of the
allegation which has been leveled against accused No.1
to 6. It is submitted by the learned counsel for accused
No.15 that during the course of investigation by the
Dharwad Sub-Urban Police Station, it was contended
that the real motive and intention to commit the
murder of Yogesh Goudar was the land dispute which
was prevailing between them. At the cost of repetition,
at this juncture the evidence of PW.50 Mallavva
Goudar is required to be looked into whom the learned
Counsel for accused No.15 in their written submission
has contended as “no one could be more loyal than a
231 Spl.CC No.565/2021
King and the King being PW.50 Mallavva” . It is
submitted that the wife of the deceased would speak
about the person who really had the motive to do away
with the life of her husband. It is submitted that after
the death of the deceased, the accused No.15 and
other members of his family had met her to express
their condolences consequent to the bereavement in
her family. It is also submitted that she has admitted
during the course of her cross-examination of the
helping hand which was given by 15th accused to the
deceased which had made the deceased as President of
Taluk Panchayath even though he was elected as an
independent candidate. The aforesaid aspect is also
required to be appreciated with the evidence of PW.2
Gurunatha Goudar. If for moment his evidence is
looked into, he has specifically deposed that during the
period 2010-11, his brother Yogesh Goudar had
become Member of Taluk Panchayath and later on he
had become the President of the Panchayath.
232 Spl.CC No.565/2021
Somewhere the evidence of PW.50 Mallavva Goudar to
that extent is corroborated with the evidence of PW.2
Gurunath Goudar. However, PW.2 Gurunath Goudar
further deposes that after about 15 months a ‘No
Confidence Motion’ was moved at the behest of Vinay
Kulkarni and he was made to resign which had led to
developing of animosity. The aforesaid aspect has been
denied by accused No.15 Vinay Kulkarni in his
statement recorded under Sec.313 of Cr.P.C. at
Question No.12. The further evidence of Gurunath
Goudar indicates of winning the elections by Yogesh
Goudar to Zilla Panchayath from Hebballi
Constituency in the year 2016 on BJP Political Party
ticket. When the evidence of PW.50 Mallavva Goudar is
juxtaposed and examined with the cross-examination,
it would indicate that Mallavva Goudar herself had
admitted that there was rivalry prevailing between two
prominent political parties at Dharwad which was BJP
and Congress and of which accused No.15 Vinay
233 Spl.CC No.565/2021
Kulkarni was the prominent leader of Congress Party.
During the course of evidence of PW.50 Mallavva
Goudar it was elucidated from her by the learned
counsel for accused No.15 that a land dispute was
prevailing between Basavaraja Muttagi and the land of
Todkar. In her evidence she has deposed that
Basavaraj Muttagi and his wife had virtually begged
her to tender evidence in a particular manner before
the Dharwad Court and had stated that the lands of
Mr. Todkar was in her possession and they would not
interfere with the same. It is her evidence that the
lands in Sy.No.117, Sy.No.118 and Sy.No.119 of
Managundi village were in her possession and the
remaining portion of the land apart from the one in
which they had entered into Agreement with Todkar
was also in her possession. The aforesaid aspect is also
required to be considered since as per the case of
prosecution which was prevailing initially during the
course of investigation by the Dharwad Sub-Urban
234 Spl.CC No.565/2021
Police was the land dispute which was prevailing
between Basavaraja Muttagi and Yogesh Goudar.
However, when the evidence of PW.6 Nagaraj Todkar is
carefully appreciated, it does indicate that he had
entered into an Agreement to Sale with Basavaraja
Muttagi. He was not at all subjected to any cross-
examination by accused No.15. Now this leads to a
situation wherein it is argued by the learned Counsel
for accused No.15 that the wife of the deceased is the
best suited person to depose about the ill-will or the
rivalry which was prevailing between Yogesh Goudar
and which can be construed as a motive. At the cost of
repetition, the evidence of PW.50 is to be appreciated,
it indicates that she was the one who had set the
criminal law into motion by lodging a criminal
complaint immediately after the murder of Yogesh
Goudar. In her chief-examination she has admitted of
filing the complaint as per Ex.P.1. If for a moment, the
complaint at Ex.P.1 which was written in the
235 Spl.CC No.565/2021
handwriting of PW.1 Dr. Dattatreya Gudaganti as per
the say of PW.1 Mallavva Goudar is appreciated, she
states that about 2 days prior to the murder, they had
received an anonymous letter wherein Yogesh Goudar
was warned of murder like another brother Uday
Goudar. In her complaint at Ex.P.1, she has
specifically stated that her husband was murdered by
some persons who were not tolerating him politically
and with some malafide intention he was murdered.
Once again at the cost of repetition if the evidence
which is elucidated from her is considered, the
unequivocal inference which can be drawn is that the
main political parties at Dharwad was BJP and
Congress, of which accused No.15 Vinay Kulkarni was
the prominent leader of Congress Party. That apart,
PW.2 Gurunath Goudar in his evidence has specifically
deposed that just prior to the election Yogesh Goudar
was leveled with an allegation of distributing money
and violating model pole of conduct and was arrested
236 Spl.CC No.565/2021
and remanded to custody. The learned Senior Counsel
has vehemently argued that the entire evidence of
PW.2 Gurunath Goudar is required to be considered in
its entirety, wherein it is elucidated that Gurunath
Goudar was facing volley of criminal cases against him
which included of henious offences. No doubt the said
admission is true and correct, at the same time what
could be drawn from the entire episode is the existing
rivalry between both the parties. Now the question
which is required to be answered at this juncture is
whether the mere existence of some motive is sufficient
to draw an inference or is it required by the
prosecution to prove adequacy of motive. In this
regard, it would be profitable to rely upon the
judgment of the Hon’ble Apex Court reported in 1981
(Supp.) SCC 31 (Krishna Pillai Shree Kumar and
another Vs. State of Kerala) wherein it is held as:
9. It is undisputed that some bad blood
existed between the deceased on the one
hand and the appellants on the other
237 Spl.CC No.565/2021prior to the occurrence. The animosity
may not have been very bitter but then it
is too much to say that it could not
possibly form a motive for the occurrence.
The variation in human nature being so
vast, murders are known to have been
actuated by much lesser motives. In any
case, it is not a sine qua non for the
success of the prosecution that the motive
must be proved. So long as the other
evidence remains convincing and is not
open to reasonable doubt, a conviction
may well be based on it.
67. Further in another judgment of the Hon’ble
Apex Court reported in (1999)4 SCC 370 (State of
Himachal Pradesh Vs. Jeeth Singh), wherein it has been
held as follows:
33. No doubt it is a sound principle to re-
member that every criminal act was done
with a motive but its corollary is not that
no criminal offence would have been com-
mitted if the prosecution has failed to
prove the precise motive of the accused to
commit it. When the prosecution suc-
ceeded in showing the possibility of some
ire for the accused towards the victim,
the inability to further put on record the
manner in which such ire would have
swelled up in the mind of the offender to
such a degree as to impel him to commit
the offence cannot be construed as a fatal
weakness of the prosecution. It is almost
an impossibility for the prosecution to un-
ravel the full dimension of the mental dis-
position of an offender towards the per-
238 Spl.CC No.565/2021
son whom he offended. In this context, we
may extract the observations made by a
two-Judge Bench of this Court (Dr A.S.
Anand, J., as the learned Chief Justice
then was and Thomas, J.) in Nathuni Ya-
dav v. State of Bihar [(1998) 9 SCC 238 :
1998 SCC (Cri) 992] : (SCC p. 244, para
17)
“17. Motive for doing a criminal act is
generally a difficult area for prosecution.
One cannot normally see into the mind of
another. Motive is the emotion which im-
pels a man to do a particular act. Such
impelling cause need not necessarily be
proportionally grave to do grave crimes.
Many a murder has been committed with-
out any known or prominent motive. It is
quite possible that the aforesaid im-
pelling factor would remain undiscover-
able. Lord Chief Justice Campbell struck
a note of caution in R. v. Palmer [ Short-
hand Report at p. 308 SCC May 1856]
thus:
‘But if there be any motive which can be
assigned, I am bound to tell you that the
adequacy of that motive is of little impor-
tance. We know, from experience of crimi-
nal courts that atrocious crimes of this
sort have been committed from very slight
motives; not merely from malice and re-
venge, but to gain a small pecuniary ad-
vantage, and to drive off for a time press-
ing difficulties.’Though, it is a sound proposition that ev-
ery criminal act is done with a motive, it
is unsound to suggest that no such crimi-
nal act can be presumed unless motive is
proved. After all, motive is a psychologi-
cal phenomenon. Mere fact that prosecu-
tion failed to translate that mental dispo-
239 Spl.CC No.565/2021
sition of the accused into evidence does
not mean that no such mental condition
existed in the mind of the assailant.”
68. In the aforesaid judgment it has been held
by the Hon’ble Apex Court that motive is essential for
commission of a criminal act but at the same time if
the prosecution has failed to prove the precise motive
of the accused to commit it but has succeeded in
showing the possibility of some ire between accused
and the victim, the same is suffice. The aforesaid
authority is aptly applicable to the case on hand. The
motive for commission of offence could be traced from
the fact that prior to the meeting at Zilla Panchayath,
there was some ire between them with respect to
political rivalry.
69. Now the other aspect which requires
attention of the Court is with respect to the
submission of the learned Senior Counsel that the
evidence of PW.50 Mallavva Goudar itself would clarify
the aforesaid contentions of the prosecution. As
240 Spl.CC No.565/2021
already pointed out in the earlier part of discussion, it
is deposed by her that the land in Sy.No.117 to 119 of
Managundi village which belonged to PW.6 Nagaraj
Todkar was in her possession. At the cost of repetition
if the evidence of PW.10 Basavaraj Muttagi is to be
considered, it would indicate that in his chief-
examination he had specifically deposed that it was the
idea of accused No.15 Vinay Kulkarni to portray some
ill-will between Basavaraja Muttagi and deceased
Yogesh Goudar for the commission of murder. PW.10
Basavaraj Muttagi, in his evidence has specifically
deposed that he was advised by Vinay Kulkarni to
enter into an Agreement to Sale with Nagaraj Todkar.
As already discussed above, PW.6 Nagaraj Todkar was
not at all subjected to any cross-examination by the
learned counsel for accused No.15. At the same time,
the incidences which was narrated by Basavaraja
Muttagi with respect to holding negotiations with PW.6
Nagaraj Todkar and his family members and also
241 Spl.CC No.565/2021
meeting them in the house of Ravi Patil are all
corroborated in the evidence of PW.6 Nagaraj Todkar
and in the evidence of PW.7 Veeresh Amrutheshwar
Byahatti. In fact, PW.7 had explained in extenso about
the manner in which the negotiation had taken-place
and also tendering of advance amount. At this
juncture it would be relevant to refer to the evidence of
PW.8 Nataraj Maki Goudar. In his evidence he was
treated as hostile and was subjected to cross-
examination. He has specifically admitted of tendering
statement under Sec.164 of Cr.P.C., before the learned
Magistrate and deposing that on one late night he had
given a call to Mr. Byahatti i.e., PW.7 at about 23.30
hours from the Dairy of Vinay Kulkarni and had stated
that Basavaraja Muttagi was also present there and
requested him to assist Muttagi to get the Agreement
done. The aforesaid evidence reflects in the chief-
examination of PW.7 Veeresh Amrutheshwar Byahatti,
wherein at Para No.2 he had specifically deposed that
242 Spl.CC No.565/2021
probably in the month of April/May-2016 at about
11.30 PM, Nataraja Maki Goudar had called him and
had stated that Basavaraja Muttagi was intending to
purchase the land which was situated at Managundi
village measuring 25 Acres and 08 Guntas of land.
This particular aspect would clearly indicate the
conspiracy which was being hatched by Vinay
Kulkarni towards the commission of offence.
70. Now coming to the aspect of relying upon
the evidence of PW.50 Mallavva Goudar. As already
discussed above, at the inception of the case, she had
lodged a written information at Ex.P.1 stating that her
husband might have been murdered due to political
reasons. It is relevant to note that she had appeared
before the Sessions Court at Dharwad and tendered
her evidence. Though strictly speaking the Court is not
entirely relying upon the evidence which was tendered
before the Sessions Court at Dharwad, for the sake of
243 Spl.CC No.565/2021
conclusiveness and to consider the veracity of the
witness the same is now looked into wherein she was
examined as PW.1 in SC No.50/2017. In her evidence
she has feigned her ignorance about the reason for the
murder of her husband and has specifically deposed
that in the Newspaper it was reported that the murder
had taken-place due to a land dispute. If the said
aspect is to be accepted, then as contended by the
learned Counsel for accused No.15 that “no one could
be more than loyal than a King”, requires explanation
and she has to explain the circumstances which had
led her to change her stand now and then. During the
course of her cross-examination before the Sessions
Court at Dharwad, she has specifically deposed that
her husband did not have any rivals and did not know
any quarrel that had taken place during the lifetime of
her husband. It is rather curious to note that during
the course of her cross-examination and in particularly
at Para No.13 she has denied the suggestion that there
244 Spl.CC No.565/2021
was no acquaintance with accused No.1 to 6 and
Yogesh Goudar and further deposes that deceased
Yogesh Goudar and accused No.1 to 6 were like own
brothers. The aforesaid statement is looked into only
for a limited extent to ascertain the veracity of the
witness and further it could be noticed from her
present evidence that she had given an interview to the
media that is to TV9, Public TV and other media
houses wherein she had specifically stated that the
murder had taken-place due to political rivalry in
which the involvement of Minister was forthcoming
and it required to be thoroughly investigated as there
was no land dispute. The aforesaid media interview
was displayed in the open court and it was marked as
Ex.P.103. It is also relevant to note that displaying and
exhibiting of the interview was resisted by the learned
defence counsel on the premises that the same is not
covered under Sec.145 of Indian Evidence Act.
However, this Court had passed a detailed order with
245 Spl.CC No.565/2021
respect to admissibility of the same and after that the
above interview was marked subject to its
admissibility. With respect to the interview, the
prosecution has examined PW.104 R.Sridharan who
was working as Media Consultant at TV9 Kannada,
Bengaluru. He has specifically deposed of telecasting a
video footage pertaining to the year 2016 and also
issuing of necessary Certificate under Sec.65(B) at
Ex.P.208 and the CD at Ex.P.209. The aforesaid aspect
when juxtaposed and considered together would lead
to a situation indicating that the witness was changing
her stand at every stage of her evidence. In short, she
deposed that the murder of her husband might have
taken-place due to some political rivalry at an
undisputed point of time of lodging the complaint. The
Court is fully aware of the factual aspect that the
prosecution is required to establish their case beyond
reasonable doubt. At the same time, in matters
pertaining to circumstantial evidence, the chain of link
246 Spl.CC No.565/2021
is required to be established by the prosecution.
Though Mallavva Goudar was treated as hostile,
several aspects were elucidated from her during the
course of her cross-examination by the prosecution.
During the course of her initial cross-examination, she
has admitted of giving interview in a Press Conference
and also of giving bites to the Newspaper. She has also
admitted that the main opponent of her husband was
Congress Party and also admitted of giving an
interview in the News Channel that the investigation
by Dharwad Police was not conducted properly. If for a
moment an aspersion is casted with respect to the
motive alleged by the prosecution, then at the same
time the evidence of PW.50 Mallavva Goudar nullifies
the same wherein she states that the investigation by
Dharwad Police was not proper wherein they had
stated that the motive for committing the murder as
learnt by her was land dispute between her husband
and Todkar. As per Ex.P.7 to 9, which are the revenue
247 Spl.CC No.565/2021
records pertaining to lands at Managundi, the same
stands in the name of Nagaraj Todkar and his brother
Shivananda Todkar, whereas Mallavva Goudar deposes
before the Court that she is in possession over the said
land. Further she has deposed by admitting the
signature to Ex.P.101, which was letter dated
16.01.2017 requesting for proper investigation. The
aforesaid cross-examination had taken-place on
30.08.2025 and later on she was subjected to cross-
examination by the defence on 09.10.2025 and there
she gives an explanation for the evidence which she
had tendered in her chief-examination. If for a moment
the aforesaid aspect is considered it indicates that the
version of the witness cannot be believed.
71. It is also relevant to note that PW.50 had
admitted of tendering her statement under Sec.164 of
Cr.P.C., before the learned Magistrate explaining about
the aforesaid aspects. However, she has denied certain
248 Spl.CC No.565/2021
portion of the statement and it was marked as
Ex.P.105 and Ex.P.105(a). She has admitted of
receiving Rs.20 lakhs from the house of Nagaraj Gouri
and Shivananda Karigar at the behest of Vinay
Kulkarni, but she has deposed that Shivananda
Karigar had given her Rs.4 lakhs towards digging a
bore well. She has also admitted of receiving
threatening letters as per Ex.P.7 prior to the murder of
her husband. If for a moment, the evidence led by
PW.50 is appreciated, it does indicate that she keeps
on changing her stand at every instance. It is her
evidence that her husband Yogesh Goudar had
distributed money to the voters and in fact she goes to
an extent of deposing that even she had distributed
money. If for a moment, her earlier complaint at Ex.P.1
when compared with the interview which she had
given to the media at Ex.P.209 is looked into, it does
indicate that she has deposed that her husband was
incarcerated due to his own fault. The aforesaid
249 Spl.CC No.565/2021
evidence is looked into and compared with the
evidence of other family members of deceased Yogesh
Goudar i.e., PW.11 Anjana Basavaraj Dollin, who has
deposed that Mallavva was a maternal aunt and she
has deposed about the verbal altercations that had
taken-place between Vinay Kulkarni and Yogesh
Goudar and also receiving of a threat letter prior to the
murder of Vinay Kulkarni. Even during the course of
her cross-examination, it has been elucidated from her
that Congress and BJP were the two dominant political
parties who were at logger heads with each other and
she has also deposed of Yogesh Goudar contesting for
Zilla Panchayath election on BJP ticket and at that
time Vinay Kulkarni was supporting Congress Party.
She has also deposed of personally being present in
the house of Yogesh Goudar when he had received the
threat letter prior to his murder. Likewise, the evidence
of PW.12 Suma Subhash Gouda Goudar, who is
related to Yogesh Goudar is also required to be
250 Spl.CC No.565/2021
appreciated. She has deposed in her chief-examination
that she had accompanied Mallavva and Suresh
Gouda, the Driver, when Mallavva had intended to take
treatment at Sirsi in the month of December-2017.
She has deposed of visiting Vaishnavi Lodge and also
on the same day evening Suresh Gouda, Nagaraj
Gouri, Karigar Shivanna had come to the lodge and
had discussed something with Mallavva. However, the
said aspect was denied by Mallavva. The aforesaid
witness during the course of her cross-examination
has been consistent of staying at Vaishnavi Lodge. All
the aforesaid aspects when combined and looked into,
would only lead to an inference about the existing
rivalry between Yogesh Goudar and Vinay Kulkarni. I
have also considered the judgment of the Hon’ble Apex
Court which is relied upon by the learned Counsel for
accused No.15 reported in 2024 SCC Online SC 3683
(Nusrat Parween Vs. State of Jharkhand), wherein it has
been held as follows:
251 Spl.CC No.565/2021
12. Immediate cause of the incident as
per the prosecution was a quarrel which
allegedly took place between the accused-
appellants and Hamida
Parween(deceased) on the morning of
11th March, 1997 just before her children
i.e. Md. Sahid Khan(PW3) and Md. Javed
Khan left for school. However, upon a
close scrutiny of the depositions of Md.
Sahid Khan(PW3) and the immediate
neighbours, namely, Chand
Mohammad(PW1), Matiur Rahman(PW2),
Md. Sagir Ahmad Ansari(PW5), Fazal
Khan(PW6) and Ragho Sharma(PW7), we
do not find anything in their evidence
which can even remotely suggest that
there had been any quarrel between the
accused-appellants and Hamida
Parween(deceased) on the day of the
incident. Hence, there is a total lack of
evidence to convince the Court that there
was any immediate strife on the fateful
day which could have fueled the accused-
appellants with such rage that they were
impelled to murder Hamida Parween.
15. Thus, we have no hesitation in
holding that the evidence led by the
prosecution to prove the theory of motive
for commission of the crime as attributed
to the accused-appellants is far from
convincing and a vital link in the chain
of incriminating circumstances is
snapped. In view of the above finding,
unquestionably, the trial Court as well as
the High Court erred in holding that the
prosecution has been able to prove the
motive for the murder against the
accused-appellants beyond all manner of
doubt.
252 Spl.CC No.565/2021
72. Further, another judgment has been relied
upon by the learned counsel for the accused reported
in (2022)19 SCC 301 (Nandu Singh Vs. State of Madhya
Pradesh), wherein it has been held as follows:
9. In a case based on substantial
evidence, motive assumes great
significance. It is not as if motive alone
becomes the crucial link in the case to be
established by the prosecution and in its
absence the case of prosecution must be
discarded. But, at the same time,
complete absence of motive assumes a
different complexion and such absence
definitely weighs in favour of the
accused.
11. In the subsequent decision in Shivaji
Chintappa Patil v. State of
Maharashtra [Shivaji Chintappa
Patil v. State of Maharashtra, (2021) 5
SCC 626 : (2021) 2 SCC (Cri) 679] , this
Court relied upon the decision in Anwar
Ali [Anwar Ali v. State of H.P., (2020) 10
SCC 166 : (2021) 1 SCC (Cri) 395] and
observed as under : (Shivaji Chintappa
Patil case [Shivaji Chintappa
Patil v. State of Maharashtra, (2021) 5
SCC 626 : (2021) 2 SCC (Cri) 679] , SCC p.
635, para 27)
“27. Though in a case of direct evidence,
motive would not be relevant, in a case of
circumstantial evidence, motive plays an
important link to complete the chain of
circumstances. The motive. …”
253 Spl.CC No.565/2021
73. And finally, the defense has relied upon the
judgment of the Hon’ble Apex Court reported in 2025
SCC Online SC 1459 (Baljinder Kumar @ Kala Vs. State of
Punjab) wherein it is held as:
35. Having examined the above
testimonies in thorough detail, it becomes
evident that once PW1 and PW2’s
statements are discarded for absence of
reliability, the prosecution case
effectively loses its vertebrae and comes
crumbling down to its feet.
36. Further, to make matters even worse
for the prosecution, there are key
deficiencies in the investigation and the
evidentiary value of the alleged recoveries
remains questionable. Neither the arrest
of the accused nor the alleged recovery of
the blood-stained clothes and the weapon
(purportedly based on the disclosure
statement of the accused) is supported by
any independent witness. While the
recovery may not be wholly discarded due
to the lack of a supporting witness,
however, it undoubtedly becomes highly
questionable, especially with the factum
of long delay of two months in the
discovery being effected.
74. The sum and substance of the aforesaid
judgment are that in case of direct evidence motive will
254 Spl.CC No.565/2021
not be relevant and the prosecution has to prove the
chain of link that exist. Here in the instant case, the
evidence of PW.50 Mallavva Goudar, PW.10 Basavaraja
Muttagi and with that of PW.4 Shivananda Salagatti,
PW.5 Gangappa Shivappa Kallagoudthi is looked into
and juxtaposed with the evidence of PW.11 Anjana
Basavaraj Dollin, PW.12 Suma Subhash Gouda
Goudar, the same would indicate the chain of link or
the corroboration with respect to the existing rivalry.
At the same time, it is noticed that the contention of
the Dharwad Police of existence of a land dispute is
not established. With respect to the settled principles
of law, it would be trite to rely upon the judgment of
the Hon’ble Apex Court reported in (2008) 16 SCC 73
(State of UP Vs. Kishan Pal), wherein it has been held as:
38. Regarding the motive, according to
the prosecution, the accused persons
had enmity with the complainant’s
party, including the deceased persons
and their family members. There was
an ancestral land of Suraj Pal Singh,
255 Spl.CC No.565/2021Raghubir Singh and Jograj Singh. A
sheesham tree was standing therein.
The chak of Daulat Singh, accused is
adjacent to the said land. Daulat
Singh and Yudhishtir Singh wanted to
cut the said tree but they were not
permitted and Raghubir Singh lodged a
report against Daulat Singh,
Yudhishtir Singh, Onkar Singh,
Kishanpal, Naresh Singh, Suresh
Singh, Gyan Singh, Sher Singh,
Mahendra and Amol Singh. The said
report dated 9-3-1978 has been marked
as Ext. Ka-15. Thereafter, Naresh
Singh and Onkar Singh got a false
report lodged by Tok Singh under
Section 392 IPC against Ranvir Singh,
Balbir Singh and Rambir Singh on 6-5-
1978. Onkar Singh and Daulat Singh,
accused persons in the case on hand,
were cited as prosecution witnesses.
This is evident from Ext. Ka-17. The
police, however, submitted final report
which infuriated Daulat Singh and
Onkar Singh. Further, two days prior
to the present occurrence when Raj
Mahesh and Kaptan Singh were going
in front of the shop of Onkar Singh, the
latter extended threat to them of dire
consequences. Though it was pointed
out that for such a serious crime, the
said motive was highly insufficient, as
rightly observed by the trial Judge, the
motive is a thing which is primarily
256 Spl.CC No.565/2021
known to the accused themselves and
it is not possible for the prosecution to
explain what actually promoted or
excited them to commit the particular
crime.
39. The motive may be considered as a
circumstance which is relevant for
assessing the evidence but if the
evidence is clear and unambiguous and
the circumstances prove the guilt of
the accused, the same is not weakened
even if the motive is not a very strong
one. It is also settled law that the
motive loses all its importance in a
case where direct evidence of
eyewitnesses is available, because even
if there may be a very strong motive for
the accused persons to commit a
particular crime, they cannot be
convicted if the evidence of
eyewitnesses is not convincing. In the
same way, even if there may not be an
apparent motive but if the evidence of
the eyewitnesses is clear and reliable,
the absence or inadequacy of motive
cannot stand in the way of conviction.
40. As pointed out, even the accused
persons have stated that they have
been falsely implicated due to previous
enmity. In such circumstances, it
cannot be said that the accused
257 Spl.CC No.565/2021
persons had no motive to commit the
crime in question. In fact, the
prosecution witnesses have specifically
adverted to this without any
contradiction and all of them denied
the suggestion that the alleged
incident was due to attack by the
dacoits and the accused persons have
nothing to do with it.
75. And also, another judgment of the Hon’ble
Apex Court reported in (1998)9 SCC 238 (Nathuni Yadav
Vs. State of Bihar) wherein it is held as follows:
16. Learned counsel advanced an argument,
very vehemently, based on the motive
attributed to the appellants for committing
this dastardly murder. According to the
counsel, if the appellants were the
murderers, they should have had insatiable
thirst for the blood of Sona Devi, but the
prosecution suggested only a puerile or
fragile motive for them to perpetrate the
brutal murder of an unarmed sleeping
woman. What PW 10 Bhagelu Singh Yadav
suggested as motive for the crime is this: He
had given his child Sheela Kumari in
marriage to somebody else. As he has no
other male progeny, the first appellant
Balroop Yadav had an eye on his landed
property. But Bhagelu Singh Yadav had
gifted it away to his wife Sona Devi — this
258 Spl.CC No.565/2021embittered the appellants and drove them
to murder Sona Devi — is the case of the
prosecution. Learned Sessions Judge
treated it as a very weak motive for this
gory murder. Learned counsel for the
appellant rightly contended that by
murdering Sona Devi the appellants could
not succeed in securing the property which
was gifted away by Bhagelu Singh. Does it
mean that the appellants would have had
no motive at all for gunning down Bhagelu
Singh Yadav and his wife? The mere fact
that motive alleged by the prosecution is
not strong enough for others to develop
such a degree of grudge would not mean
that the assailants had no serious reasons
to do this.
17. Motive for doing a criminal act is
generally a difficult area for prosecution.
One cannot normally see into the mind of
another. Motive is the emotion which impels
a man to do a particular act. Such
impelling cause need not necessarily be
proportionally grave to do grave crimes.
Many a murders have been committed
without any known or prominent motive. It
is quite possible that the aforesaid
impelling factor would remain
undiscoverable. Lord Chief Justice
Champbell struck a note of caution
in R. v. Palmer [ Shorthand Report at p. 308
CCC May 1856] thus:
259 Spl.CC No.565/2021
“But if there be any motive which can be
assigned, I am bound to tell you that the
adequacy of that motive is of little
importance. We know, from experience of
criminal courts that atrocious crimes of
this sort have been committed from very
slight motives; not merely from malice and
revenge, but to gain a small pecuniary
advantage, and to drive off for a time
pressing difficulties.”
Though, it is a sound proposition that every
criminal act is done with a motive, it is
unsound to suggest that no such criminal
act can be presumed unless motive is
proved. After all, motive is a psychological
phenomenon. Mere fact that prosecution
failed to translate that mental disposition
of the accused into evidence does not mean
that no such mental condition existed in the
mind of the assailant. In Atley v. State of
U.P. [AIR 1955 SC 807 : 1955 Cri LJ 1653] it
was held:
“That is true; and where there is clear proof
of motive for the crime, that lends
additional support to the finding of the
court that the accused was guilty but the
absence of clear proof of motive does not
necessarily lead to the contrary
conclusion.”
In some cases, it may not be difficult to
establish motive through direct evidence,
while in some other cases inferences from
circumstances may help in discerning the
260 Spl.CC No.565/2021
mental propensity of the person concerned.
There may also be cases in which it is not
possible to disinter the mental transaction
of the accused which would have impelled
him to act. No proof can be expected in all
cases as to how the mind of the accused
worked in a particular situation.
Sometimes, it may appear that the motive
established is a weak one. That by itself is
insufficient to lead to any inference adverse
to the prosecution.
76. In the aforesaid authority it has been held
by the Hon’ble Apex Court that motive for committing
a criminal act is generally a difficult area for
prosecution and one cannot normally see into the
mind of another. Further motive is the emotion which
impels a man to do a particular act and said impelling
cause need not be proportionally grave to do grave
crimes. The aforesaid aspect is clearly established by
the prosecution through the evidence discussed above
and hence the prosecution has established the
existence of motive to commit the murder of Yogesh
Goudar by accused No.15 Vinay R Kulkarni.
261 Spl.CC No.565/2021
CHAPTER: IX
HATCHING OF CONSPIRACY TO COMMIT THE
OFFENCE VIS-À-VIS THE EVIDENTIARY VALUE
OF APPROVER
77. The next aspect wcohich is required to be
appreciated at this juncture is with respect to entering
into a conspiracy by accused No.15 with the then
accused No.1 Basavaraja Muttagi. As already
discussed above, accused no. 15 Vinay Kulkarni had
entertained an ill will against deceased Yogesh Goudar
due to the political rivalry which he had entertained on
23.04.2016 at the meeting which was conveyed at the
Zilla Panchayath premises at Dharwad. It is also
submitted that immediately after 2 to 3 days, the
accused No.15 Vinay Kulkarni had called upon
accused No. 1 Basavaraja Muttagi to his Vinay Diary
at Dharwad and had stated that the act of deceased
Yogesh Goudar had exceeded the limits and as such
necessary steps were required to be taken from his
side. The prosecution mainly relies upon the evidence
262 Spl.CC No.565/2021
of PW.10 Basavaraja Muttagi, who had turned
approver in order to connect the dotted lines to
indicate the existence of conspiracy entertained
between the accused persons. It is relevant to note at
this juncture that the settled principles of law indicate
that the conspiracy will always be hatched in darkness
and secrecy and no direct materials would be available
for the purpose of proving the conspiracy. Even in the
above case, what is tried to be pointed out by the
prosecution is that at the behest of accused no. 15
Vinay Kulkarni, the then accused no. 1 Basavaraja
Muttagi had contacted the Dharwad boys i.e., accused
no. 2 to 6 and had requested them to commit the
murder of Yogesh Goudar. It is also the case of the
prosecution that they had not agreed to do so and as
such Basavaraja Muttagi being the active member of
Jaya Karnataka Association had thought it fit to
contact accused no. 7 to 14 who were termed as
Bangalore Boys by him during the course of his
263 Spl.CC No.565/2021
evidence. As they had agreed to commit the murder by
receiving a sum of ₹ 20,00,000/- Basavaraja Muttagi
had once again conveyed the same to Vinay Kulkarni
but putting up a rider and that the Bangalore boys
were not agreeable to get surrendered before the
concerned Police. The prosecution has contended that
at this juncture the accused no. 15 had stated that the
accused no. 2 to 6 along with Basavaraja Muttagi shall
surrender before the concerned Police in the place of
accused no. 7 to 14 who were to be the assailants in
the above case. With this background now it is
required to appreciate the case of the prosecution. To
appreciate whether there are incidences of conspiracy
being projected by the prosecution is established by
them beyond reasonable doubt, it would be
appropriate to recapitulate the evidence of PW.10
which is led before this Court. The Learned Senior
Counsel appearing for the accused no. 15 has
vehemently argued that the evidence of PW10
264 Spl.CC No.565/2021
Basavaraja Muttagi itself is inadmissible since he is
not a trustworthy witness. It is his submission that the
evidence of the approver shall always be considered
with a pinch of salt, since he is the one who has
changed the sides and was deposing totally against his
erstwhile accomplices.
78. In order to point out the said aspects, the
Learned Senior Counsel has taken this Court through
the entire course of sesquipedalian cross-examination,
wherein the witness i.e., PW10 Basavaraja Muttagi had
deposed of not remembering the incidents to the
majority of the cross examination that were put to him.
The Learned Senior Counsel has deposed that though
Basavaraja Muttagi was fully aware of the aforesaid
aspects at the earliest point of time, he had not taken
any steps to reveal the same before the then
Investigating Agency i.e., Dharwad Sub-Urban Police
or before CBI and also he has pointed out to the fact
that on earlier three occasions, Basavaraja Muttagi
265 Spl.CC No.565/2021
had filed necessary application and even an un-dated
application was placed before this CBI, wherein he had
chosen not to disclose anything about the aforesaid
aspects. By pointing out to all the aforesaid aspects
and also to the other intricacies involved in the above
case, it has been vehemently argued by the Learned
Senior Counsel that the entire evidence of PW.10
Basavaraja Muttagi itself is not in accordance with law
and the same cannot be believed upon by the
prosecution to join the link between them, much less
pointing out the circumstances.
79. I have bestowed my anxious reading to the
submissions made by the Learned Senior Counsel in
this regard. The Learned Senior Counsel has also
pointed out the incidences that had taken place prior
to the commission of the offences which would indicate
the existence of rivalry between the accused no. 15
and the deceased. First of all, it is his contention that
the evidence of PW.50 Mallava Goudar itself would be
266 Spl.CC No.565/2021
sufficient to indicate that no rivalry was in existence
between deceased Yogesh Goudar and with the
accused no. 15 Vinay Kulkarni. It is his contention
that PW.50 Mallava Goudar who is the widow of the
deceased Yogesh Goudar has specifically deposed of
having a cordial relationship with the family of Vinay
Kulkarni and as such, the question of having ill will or
a grudge against the deceased by accused no. 15
cannot be constituted or assumed by the court.
Further he has argued that the name of the accused
No.15 as a conspirator in the above case came to be
introduced for the first time when the second
additional report came to be filed by the Investigating
Agency and prior to that no materials were produced
nor in the remand application it was explained about
the manner in which the name of accused no. 15
Vinay Kulkarni had figured out to be an additional
accused in the above case. It is also submitted that the
Implication of accused No.15 commenced with a letter
267 Spl.CC No.565/2021
said to have been addressed by the then accused no. 1
Basavaraja Muttagi that the deceased would be made
over to death and he should be cautious in his
activities and movements. The undated letter was
placed before this court and was marked as Ex. P7. It
is also submitted that the deceased who had received
the letter at Ex. P7 would have ignored the same. It is
been projected by the CBI Authorities that after the
incident PW50 Mallava Goudar had lodged the
complaint and she had also handed over the letter to
the Investigating Officer Channakeshava Tingrikar who
had recovered the same by drawing the mahazar on
the next day in the presence of PW2 Gurunatha
Goudar and other witnesses. However, it is been
submitted by the Learned Senior Counsel that the
letter which was shown before the court was not
properly identified by PW50 Mallava Goudar and in
fact she was clear in her evidence that the letter which
was now marked as Ex. P7 before this court was not
268 Spl.CC No.565/2021
the one which her husband had received. It is also
been argued by the Learned Senior Counsel that when
the letter itself was not established by the prosecution
the contention of PW10 Basavaraja Muttagi that he
had warned the deceased of dire consequences and
also requesting him to be cautious in his activities
were all farrago and it was meant only to derail the
Investigating Agencies. That apart it is his contention
that even the person i.e., PW1 Dr. Dattatreya
Gudaganti who had drafted the complaint as per the
say of PW50, Mallava Goudar had not identified the
same and in fact he was very much positive in his
cross examination wherein he had deposed that the
said letter was not the one which was produced to the
concerned Police at the inception of the case. By
pointing out to the aforesaid aspects, the Learned
Senior Counsel has argued that the evidence of PW10
Basavaraja Muttagi does not inspire confidence and it
is required to be rejected lock, stock and barrel. In
269 Spl.CC No.565/2021
order to indicate the differences in the evidences
prevailing between that of PW2 Gurunatha Goudar
and that of PW50 Mallava Goudar, the Learned Senior
Counsel has pointed out that as per the case of
prosecution Ex. P6 and Ex. P7 were produced before
the police on 16.06.2016 itself and it was recovered by
drawing a panchanama by the then Investigating
Officer of Dharwad Sub-Urban Police Station. It is
submitted that PW2 Gurunatha Goudar during the
course of his cross examination has admitted that on
15.06.2016 itself he had handed over the letter at Ex.
P7 to the police and it is also been deposed by him that
the same was produced before the concerned Police
came to be recovered by drawing a seizure
panchanama on the next day. The learned Senior
Counsel has argued that the foundational fact which is
sought to be projected by the prosecution was that the
accused No.15 had hatched a conspiracy prior to the
commission of the murder of the deceased does not
270 Spl.CC No.565/2021
have its own legs to stand despite the fact that the
approver Basavaraj Muttagi in his evidence had stated
that he was the one who had authored Ex.P6 and
Ex.P7 letter. It is his submission that if only
Basavaraja Muttagi wanted to save the life of deceased
Yogesh Goudar, whom he claims to be his friend, then
what had prevented him from stopping to do the
particular act and intimating Yogesh Goudar directly
about the conspiracies that were being hatched against
him. It is also been argued that the CBI had
intentionally roped the present PW10 as the Approver
in the case only to suit their needs. Further pointing
out to the evidence which has been placed before the
court, the Learned Senior Counsel has argued that if
the witness i.e., PW10 Basavaraja Muttagi himself has
identified the contents of Ex.P7 letter which had
cautioned deceased Yogesh Goudar, then there was no
necessity for the Investigating Officer to send the same
for an opinion by the Handwriting Expert to ascertain
271 Spl.CC No.565/2021
the veracity of the same. By pointing out to the same it
is argued that even the Investigating Officer was
doubtful about the claim of PW10 Basavaraja Muttagi
and that had led him to refer the same to the
handwriting expert. The learned counsel then has
taken this court through the evidence of PW93
Kumudha Rani, who is the handwriting expert in the
above case. It is his submission that the manner in
which the expert has examined the documents
particularly of the disputed and admitted writings and
the manner of its verification by the Handwriting
Expert would clearly indicate that she cannot be
considered as an expert. It is argued at length by the
learned counsel that to the bare eyes itself it is clearly
visible that the words which are used in the admitted
documents with that of the disputed documents would
clearly indicate of glaring differences between them.
However, without verifying the aforesaid aspects an
opinion has been furnished by the Handwriting Expert
272 Spl.CC No.565/2021
to the Investigating Agency that the writings which are
found are one and the same is highly illegal and
contrary to the settled principles of law. The Learned
Senior Counsel has also taken this court to the
evidence which has been placed by the prosecution in
order to prove the conspiracy. It is his submission that
immediately after the incident it is submitted by the
approver that he had visited legislator home during the
year 2016. However, during the course of his cross-
examination it was elucidated from him that prior to
visiting Vidhana Soudha, Vikasa Soudha, Legislator’s
Home and Raj Bhavan which are considered as high
security zone necessary entries were required to be
made in the official Register with respect to identity,
purpose of visit and also the place of visit. However,
no materials which were produced before the Court
indicated of the fact that PW.10 Basavaraja Muttagi
had visited the Karnataka Legislature Home at
Bengaluru during the period 01.02.2016 to
273 Spl.CC No.565/2021
30.06.2016. On his admission, the said Register came
to be marked as Ex. D23. By pointing out to the same,
it is argued that the submission of the approver
himself is not valid and it is not fully corroborated.
The learned counsel for accused No.15 has also
dispute with respect to meeting of PW.10 Basavaraja
Muttagi with Vinay Kulkarni on 13.06.2016 at his
Dairy. It is the submission of the learned Senior
Counsel that there is a categorical admission being
made by the approver himself that several CCTV
Cameras were installed in and around Vinay Dairy and
further he deposes by feigning his ignorance about
making entry in the necessary Register at the time of
entering the Dairy at Dharwad. By pointing out to the
same, the learned Senior Counsel has argued that the
aforesaid aspects are not backed by any materials and
in fact it is a concocted and created story of CBI to suit
their needs. The next aspect which is argued by the
learned Senior Counsel is with respect to the presence
274 Spl.CC No.565/2021
of Natraj Sarj Desai near the Dairy. Without any
materials in this regard, it is argued that the
prosecution has failed to give necessary connection to
the contentions urged by them as it is their bounden
duty to prove their case beyond reasonable doubt.
80. If for a moment, the aforesaid aspects are
carefully appreciated, the fact which emerges is that
the law with respect to conspiracy is well settled by the
catena of judgments and there will not be any direct
evidences to prove the conspiracy and as such no
overt-act is required to be proved by the prosecution in
order to prove the conspiracy. In order to substantiate
the same, the prosecution has relied upon the
judgment of the Hon’ble Apex Court reported in
(2003)3 SCC 641 (Ram Narayan Popli Vs. CBI), wherein
it has been held as follows;
354. It was noticed that Sections 120-A
and 120-B IPC have brought the law of
conspiracy in India in line with the
English law by making an overt act
inessential when the conspiracy is to
275 Spl.CC No.565/2021
commit any punishable offence. The most
important ingredient of the offence being
the agreement between two or more
persons to do an illegal act. In a case
where criminal conspiracy is alleged, the
court must inquire whether the two
persons are independently pursuing the
same end or they have come together to
pursue the unlawful object. The former
does not render them conspirators but the
latter does. For the offence of conspiracy
some kind of physical manifestation of
agreement is required to be established.
The express agreement need not be
proved. The evidence as to the
transmission of thoughts sharing the
unlawful act is not sufficient. A
conspiracy is a continuing offence which
continues to subsist till it is executed or
rescinded or frustrated by choice of
necessity. During its subsistence,
whenever any one of the conspirators
does an act or series of acts, he would be
held guilty under Section 120-B of the
Penal Code, 1860.
355. I may usefully refer to Ajay
Aggarwal v. Union of India [(1993) 3 SCC
609 : 1993 SCC (Cri) 961 : JT (1993) 3 SC
203] . It was held : (SCC p. 617, paras 8-9)
“8. … It is not necessary that each
conspirator must know all the details of
the scheme nor be a participant at every
stage. It is necessary that they should
agree for design or object of the
conspiracy. Conspiracy is conceived as
having three elements : (1) agreement; (2)
between two or more persons by whom the
agreement is effected; and (3) a criminal
276 Spl.CC No.565/2021
object, which may be either the ultimate
aim of the agreement, or may constitute
the means, or one of the means by which
that aim is to be accomplished. It is
immaterial whether this is found in the
ultimate objects. The common law
definition of ‘criminal conspiracy’ was
stated first by Lord Denman in Jones
case [R. v. Jones, 1832 B & Ad 345 : 110
ER 485] that an indictment for
conspiracy must ‘charge a conspiracy to
do an unlawful act by unlawful means’
and was elaborated by Willies, J. on
behalf of the Judges while referring the
question to the House of Lords
in Mulcahy v. R. [(1868) 3 HL 306] and the
House of Lords in unanimous decision
reiterated in Quinn v. Leathem [1901 AC
495 : 85 LT 289 : (1900-03) All ER Rep 1
(HL)] :
‘A conspiracy consists not merely in the
intention of two or more, but in the
agreement of two or more, to do an
unlawful act, or to do a lawful act by
unlawful means. So long as such a design
rests in intention only, it is not
indictable. When two agree to carry it
into effect, the very plot is an act in
itself, and the act of each of the parties,
promise against promise, actus contra
actum, capable of being enforced, if
lawful; and punishable if for a criminal
object, or for the use of criminal means.’
277 Spl.CC No.565/2021
9. This Court in E.G. Barsay v. State of
Bombay [AIR 1961 SC 1762 : (1961) 2 Cri
LJ 828] held:
‘The gist of the offence is an agreement to
break the law. The parties to such an
agreement will be guilty of criminal
conspiracy, though the illegal act agreed
to be done has not been done. So too, it is
an ingredient of the offence that all the
parties should agree to do a single illegal
act. It may comprise the commission of a
number of acts. Under Section 43 of the
Penal Code, 1860, an act would be illegal
if it is an offence or if it is prohibited by
law.’
‘… The very agreement, concert or league
is the ingredient of the offence. It is not
necessary that all the conspirators must
know each and every detail of the
conspiracy as long as they are co-
participators in the main object of the
conspiracy. There may be so many devices
and techniques adopted to achieve the
common goal of the conspiracy and there
may be division of performances in the
chain of actions with one object to
achieve the real end of which every
collaborator must be aware and in which
each one of them must be interested.
There must be unity of object or purpose
but there may be plurality of means
278 Spl.CC No.565/2021sometimes even unknown to one another,
amongst the conspirators. In achieving
the goal several offences may be
committed by some of the conspirators
even unknown to the others. The only
relevant factor is that all means adopted
and illegal acts done must be and
purported to be in furtherance of the
object of the conspiracy even though there
may be sometimes misfire or overshooting
by some of the conspirators.’
10. In Mohd. Usman Mohd. Hussain
Maniyar v. State of Maharashtra [(1981) 2
SCC 443 : 1981 SCC (Cri) 477] it was held
that for an offence under Section 120-B
IPC, the prosecution need not necessarily
prove that the conspirators expressly
agreed to do or cause to be done the
illegal act, the agreement may be proved
by necessary implication.”
356. After referring to some judgments of
the United States Supreme Court and of
this Court in Yash Pal Mittal v. State of
Punjab [(1977) 4 SCC 540 : 1978 SCC (Cri)
5] and Ajay Aggarwal v. Union of
India [(1993) 3 SCC 609 : 1993 SCC (Cri)
961 : JT (1993) 3 SC 203] the Court
in State of Maharashtra v. Som Nath
Thapa [(1996) 4 SCC 659 : 1996 SCC (Cri)
820 : JT (1996) 4 SC 615] summarized the
position of law and the requirements to
279 Spl.CC No.565/2021establish the charge of conspiracy, as
under : (SCC p. 668, para 24)“24. The aforesaid decisions, weighty as
they are, lead us to conclude that to
establish a charge of
conspiracy knowledge about indulgence
in either an illegal act or a legal act by
illegal means is necessary. In some
cases, intent of unlawful use being made
of the goods or services in question may
be inferred from the knowledge itself.
This apart, the prosecution has not to
establish that a particular unlawful use
was intended, so long as the goods or
service in question could not be put to
any lawful use. Finally, when the
ultimate offence consists of a chain of
actions, it would not be necessary for the
prosecution to establish, to bring home
the charge of conspiracy, that each of the
conspirators had the knowledge of what
the collaborator would do, so long as it is
known that the collaborator would put
the goods or service to an unlawful use.”
[See State of Kerala v. P. Sugathan [(2000)
8 SCC 203 : 2000 SCC (Cri) 1474] (SCC p.
212, para 14)]
357. As was observed by this Court
in State of Kerala v. P. Sugathan [(2000) 8
SCC 203 : 2000 SCC (Cri) 1474] it would
be extremely difficult to find direct
evidence in case of criminal conspiracy.
280 Spl.CC No.565/2021
The circumstances and surrounding
factors have to be taken note of. In the
instant case, Accused 1, 2 and 5 have
submitted that the role of A-5 as
described is that he did not want to be
directly shown in the picture. In fact, A-1
wanted that MUL did not want to involve
brokers and did not want to deal with
them. This itself deals a fatal blow to the
stand taken by the accused that there
was no prohibition of acting through
brokers and the intention was that
dealing would be directly with the Bank
and not through any broker or
intermediary. Much has been made out of
use of the word “through” in the
resolution. If the clear understanding of
A-1 was that the deal should not be dealt
with or involve any broker then the
question of A-5 acting as broker does not
arise. Use of the expression “through” is
indicative of the fact that emphasis was
on securities being not purchased in the
open market, but “through” a named PSU.
These PSUs were admittedly not brokers.
They were either banks or financial
institutions. Evidence clearly shows that
A-5 wanted that he will not directly come
into the picture, and would not appear in
the books of accounts of MUL, but would
stand to gain by way of commission and
as a brokerage from the Bank. The
statement of A-1 that he would look into
any good proposals if A-5 does not come
281 Spl.CC No.565/2021
into the picture shows that the actual
state of affairs was intended to be hidden
from MUL authorities and a totally
distorted picture was sought to be given.
These are factors which do not go in
favour of the accused as contended, and
on the contrary clearly prove conspiracy.
81. The aforesaid judgment clearly depicts the
manner in which the investigation is required to be
conducted to prove the incidence of entering into
conspiracy. For the sake of convenience, the entire
material which is placed before the Court is once again
appreciated. By looking into the aforesaid aspects, it is
clear that the prosecution has established the entering
of criminal conspiracy by Accused No.1 to 15 and 18 to
cause the murder of Yogesh Gouder.
CHAPTER: X
ADMISSIBILITY AND EVIDENTIARY VALUE OF
THE EVIDENCE OF THE APPROVER COMPARED
WITH THE SETTLED PRINCIPLES OF LAW:
82. Much has been submitted with respect to
the evidentiary value of the approver. It is the
282 Spl.CC No.565/2021
submission of the learned counsels appearing for the
defence that the testimony of the approver is required
to be corroborated and the conviction cannot be based
on the uncorroborated testimony of the approver. That
apart, it is also argued that the accused No.1
Basavaraj Muttagi himself being the main conspirator
in the above case was granted with pardon and now
the evidences which are placed before the Court
through him cannot be accepted. However, in this
regard, it would be appropriate to rely upon the
authority of the Hon’ble Apex Court reported in 1995
Supp. (1) SCC 80 (Suresh Chandra Bahri Vs. State of
Bihar), wherein it is held as follows;
42. We have already
reproduced above Section 306 of the
Code the provisions of which apply to
any offence triable exclusively by the
Court of Special Judge to any offence
punishable with imprisonment
extending to seven years or with a
more serious sentence. Section 306 of
the Code lays down a clear exception
to the principle that no inducement
shall be offered to a person to disclose
283 Spl.CC No.565/2021
what he knows about the procedure
(sic). Since many a times the crime is
committed in a manner for which no
clue or any trace is available for its
detection and, therefore, pardon is
granted for apprehension of the other
offenders for the recovery of the
incriminating objects and the
production of the evidence which
otherwise is unobtainable. The
dominant object is that the offenders
of the heinous and grave offences do
not go unpunished, the Legislature in
its wisdom considered it necessary to
introduce this section and confine its
operation to cases mentioned in
Section 306 of the Code. The object of
Section 306 therefore is to allow
pardon in cases where heinous offence
is alleged to have been committed by
several persons so that with the aid of
the evidence of the person granted
pardon the offence may be brought
home to the rest. The basis of the
tender of pardon is not the extent of
the culpability of the person to whom
pardon is granted, but the principle is
to prevent the escape of the offenders
from punishment in heinous offences
for lack of evidence. There can
therefore be no objection against
tender of pardon to an accomplice
simply because in his confession, he
does not implicate himself to the same
extent as the other accused because
all that Section 306 requires is that
pardon may be tendered to any person
284 Spl.CC No.565/2021
believed to be involved directly or
indirectly in or privy to an offence.
43. The evidence of an approver does not
differ from the evidence of any other
witness except that his evidence is
looked upon with great suspicion.
Consequently in the event the
suspicion which is attached to the
evidence of an accomplice is not
removed his evidence could not be
acted upon unless corroborated in
material particulars. But where the
suspicion is removed and the evidence
of an approver is found to be
trustworthy and acceptable then that
evidence may be acted upon even
without corroboration and the
conviction may be founded on such a
witness. Here in this connection, it
would be appropriate to make
reference to the provisions of Section
133 of the Evidence Act which deal
with the testimony of an accomplice.
It contemplates that an accomplice
shall be a competent witness against
an accused person; and a conviction is
not illegal merely because it proceeds
upon the uncorroborated testimony of
an accomplice. The first part
envisages that an accomplice, in other
words, a guilty companion in crime,
shall be a competent witness while the
second part states that conviction is
not illegal merely because it is based
on the uncorroborated testimony of an
accomplice. But if we read Section
133 of the Evidence Act with
285 Spl.CC No.565/2021
illustration (b) of Section 114 of the
Evidence Act it may lead to certain
amount of confusion and
misunderstanding as to the real and
true intention of the Legislature
because quite contrary to what is
contained in Section 133 illustration
(b) to Section 114 of the Evidence Act
lays down “that an accomplice is
unworthy of credit, unless he is
corroborated in material particulars”.
A combined reading of the two
provisions that is Section 133 and
illustration (b) of Section 114 of
Evidence Act goes to show that it was
considered necessary to place the law
of accomplice evidence on a better
footing by stating in unambiguous
terms that according to Section 133 a
conviction is “not illegal or in other
words not unlawful” merely because it
is founded on the uncorroborated
testimony of an accomplice while
accepting that an accomplice is a
competent witness. But at the same
time the Legislature intended to invite
attention to illustration (b) of Section
114 of the Evidence Act with a view to
emphasise that the rule contained
therein as well as in Section 133 are
parts of one and the same subject and
neither can be ignored in the exercise
of judicial discretion except in cases
of very exceptional nature. However,
the difficulty in understanding the
combined effect of the aforementioned
two provisions arises largely due to
286 Spl.CC No.565/2021
their placement at two different
places of the same Act. It may be
noticed that illustration (b) attached
to Section 114 is placed in Chapter VII
of Evidence Act while Section 133 is
inserted in Chapter IX of the Act. The
better course was to insert illustration
(b) to Section 114 as an explanation or
in any case as a proviso to Section
133 of the Act instead of their
insertion at two different places and
that too in different chapters of the
Evidence Act. In any case since an
approver is a guilty companion in
crime and, therefore, illustration (b) to
Section 114 provides a rule of caution
to which the courts should have
regard. It is now well settled by a long
series of decisions that except in
circumstances of special nature it is
the duty of the court to raise the
presumption in Section 114
illustration (b) and the Legislature
requires that the courts should make
the natural presumption in that
section as would be clear from the
decisions which we shall discuss
hereinafter.
83. Further in another judgment of the Hon’ble
Apex Court reported in (2005)1 SCC 237 (Hashim Vs.
State of Tamilnadu), wherein it has been held as
follows;
287 Spl.CC No.565/2021
25. In Bhuboni Sahu v. R. [AIR 1949 PC
257 : 50 Cri LJ 872] it was observed that
the rule requiring corroboration for
acting upon the evidence of an
accomplice is a rule of prudence. But the
rule of prudence assumes great
significance when its reliability on the
touchstone of credibility is examined. If it
is found credible and cogent, the court
can record a conviction even on the
uncorroborated testimony of an
accomplice. On the subject of the
credibility of the testimony of an
accomplice, the proposition that an
accomplice must be corroborated does not
mean that there must be cumulative or
independent testimony to the same facts
to which he has testified. At the same
time the presumption available under
Section 114 [Ed. : Ill. (b)] of the Evidence
Act is of significance. It says that the
court may presume that an accomplice is
unworthy of credit unless he is
corroborated in “material particulars”.
26. Section 133 of the Evidence Act
expressly provides that an accomplice is
a competent witness and the conviction is
not illegal merely because it proceeds on
an uncorroborated testimony of an
accomplice. In other words, this section
renders admissible such uncorroborated
testimony. But this section has to be read
along with Section 114 Illustration (b).
288 Spl.CC No.565/2021
The latter section empowers the court to
presume the existence of certain facts
and the illustration elucidates what the
court may presume and makes clear by
means of examples as to what facts the
court shall have regard to in considering
whether or not the maxims illustrated
apply to a given case. Illustration (b) in
express terms says that an accomplice is
unworthy of credit unless he is
corroborated in material particulars. The
statute permits the conviction of an
accused on the basis of uncorroborated
testimony of an accomplice but the rule of
prudence embodied in Illustration (b) to
Section 114 of the Evidence Act strikes a
note of warning cautioning the court that
an accomplice does not generally deserve
to be believed unless corroborated in
material particulars. In other words, the
rule is that the necessity of corroboration
is a matter of prudence except when it is
safe to dispense with such corroboration
must be clearly present in the mind of the
judge. (See Suresh Chandra Bahri v. State
of Bihar [1995 Supp (1) SCC 80 : 1995
SCC (Cri) 60 : AIR 1994 SC 2420] .)
27. Although Section 114 Illustration (b)
provides that the court may presume that
the evidence of an accomplice is
unworthy of credit unless corroborated,
“may” is not must and no decision of
court can make it must. The court is not
289 Spl.CC No.565/2021
obliged to hold that he is unworthy of
credit. It ultimately depends upon the
court’s view as to the credibility of
evidence tendered by an accomplice.
32. In Jnanendra Nath Ghose v. State of
W.B. [(1960) 1 SCR 126 : AIR 1959 SC
1199 : 1959 Cri LJ 1492] this Court
observed that there should be
corroboration in material particulars of
the approver’s statement, as he is
considered a self-confessed traitor. This
Court in Bhiva Doulu Patil v. State of
Maharashtra [AIR 1963 SC 599 : (1963) 1
Cri LJ 489 : (1963) 3 SCR 830] held that
the combined effect of Sections 133 and
114 Illustration (b) of the Evidence Act
was that an accomplice is competent to
give evidence but it would be unsafe to
convict the accused upon his testimony
alone. Though the conviction of an
accused on the testimony of an
accomplice cannot be said to be illegal,
yet the courts will, as a matter of
practice, not accept the evidence of such
a witness without corroboration in
material particulars. In this regard the
Court in Bhiva Doulu Patil case [AIR 1963
SC 599 : (1963) 1 Cri LJ 489 : (1963) 3
SCR 830] observed (AIR pp. 600-01, para
6):
“6. In coming to the above conclusion we
have not been unmindful of the provisions
290 Spl.CC No.565/2021of Section 133 of the Evidence Act which
reads:
133. An accomplice shall be a competent
witness against an accused person; and a
conviction is not illegal merely because it
proceeds upon the uncorroborated
testimony of an accomplice.'”
84. The aforesaid judgment would clearly
indicate that the rule requiring corroboration for acting
upon the evidence of accomplice is a rule of prudence.
But the rule of prudence assumes great significance
when its reliability on the touch stone of credibility is
examined. In order to better consider the same, I have
bestowed my anxious reading to the entire evidence
lead by PW.10 Basavaraja Muttagi. At the cost of
repetition, it is to be recapitulated that the application
which was filed by Basavaraja Muttagi seeking to
tender pardon was initially accepted by this Court and
the same was challenged before the Hon’ble High
Court of Karnataka. The order of granting pardon had
attained finality in the wake of the kind orders passed
291 Spl.CC No.565/2021
by the Hon’ble High Court of Karnataka in WP
No.383/2025. The said order was also confirmed by
the Hon’ble Apex Court. With this background, now
the deposition of PW.10 has to be looked into. As
already discussed above during the discussions made
with respect to existence of motive or intention, it is
already held that a verbal altercation had taken place
between deceased Yogesh Goudar and Vinay Kulkarni
at the time of meeting convened at Zilla Panchayath,
Dharwad on 23.04.2016. It is also relevant to note
that during the course of evidence of PW.2 Gurunatha
Goudar, has deposed of entertaining an ill-will between
them due to the no confidence motion which was
brought at the behest of Vinay Kulkarni against
Yogesh Goudar when he was the President of Taluk
Panchayath. Though the evidence of PW.50 Mallavva
Goudar indicates that her husband Yogesh Goudar
and Vinay Kulkarni were having cordial relationship
and also that cordiality had lead to the election of
292 Spl.CC No.565/2021
Yogesh Goudar as Taluk Panchayath Member, the
other incidents which is deposed by PW.11 Anjana
Basavaraja Dollin and PW.12 Suma Subhash Gouda
Goudar, would only fortify the contention of
Gurunatha Goudar and the one which is being
deposed by PW.10 Basavaraja Muttagi. In this
backdrop, the evidence is required to be appreciated.
It is submitted by PW.10 that he had spoken to Vinay
Kulkarni about two days after 23.04.2016 and there
for the first time Vinay Kulkarni had requested for
eliminating Yogesh Goudar. The witness has further
deposed that initially Vinay Kulkarni had requested
Basavaraja Muttagi to complete the work with the help
of Dharwad Boys who were very close to him. In order
to appreciate the said aspect, it would be appropriate
to look into the CDRs which are collected and marked
as per Ex. P220, Ex. P241 and Ex. P242. The records
would indicate the continuous conversation that had
taken place between accused No.2 to 6 with accused
293 Spl.CC No.565/2021
No.1 Basavaraja Muttagi during the period 01.01.2016
to 13.06.2016. The CDRs which are marked before the
Court would indicate of continuous conversations that
had taken place between them. Hence, the
conversation probablizes the acquaintance of the
aforesaid accused persons. The Court is not drawing
any inference or attaching credibility on the basis of
the telephonic conversations that had taken place
between the accused No.1 to 6. But at the same time,
the Court is intending to examine the veracity of the
witness on the basis of the materials which are placed
before the Court. The telephonic conversations
between them are one of the factors which would
indicate about the veracity of the evidence of PW.10
Basavaraja Muttagi. It is submitted by him that after
the aforesaid incident, he had contacted his other
members and had discussed with them. The
continuous telephonic contacts which are reflected in
the CDRs would clearly indicate of their closeness and
294 Spl.CC No.565/2021
continuous conversations between them. For instance,
the CDR which is the extract retrieved from the hard
disc which was initially seized by the Dharwad Sub-
Urban Police Station and the Chart at Ex. P62(a)
indicates of conversation between Mahabaleshwar @
Muduka with Basavaraja Muttagi continuously on
05.06.2016 and 06.06.2016 and also between Kirti
Kumar and Muttagi during the said period. Curiously
in majority of the instances, the tower location was
located at Saraswathpur, Dharwad. The aforesaid
aspects were specifically brought to the notice of
accused No.2 to 6 and accused No.18 during the
course of their statement being recorded under
Sec.313 of Cr.P.C. They have denied the incriminating
material and have deposed that Basavaraja Muttagi
had not discussed with them in this regard. If that is
so, then the accused were liable to answer and explain
the circumstances which lead them to converse with
Basavaraja Muttagi constantly or at least on regular
295 Spl.CC No.565/2021
basis. The law in this regard is well settled wherein
the Hon’ble Apex Court has clearly held that the
recording of the statement under Sec.313 of Cr.PC., is
not an empty formality but it is a stage wherein the
accused are required to explain about certain
incriminating materials against them. Further it has
been held that at times the non-explanation of the
accused can be construed as a missing link leading to
the circumstances of the case. In this regard, the
Court has relied upon the judgment of the Hon’ble
Apex Court reported in (2012)11 SCC 205 (Sunil Clifford
Daniel V State of Punjab) wherein it is held as:
50. It is obligatory on the part of the
accused while being examined under
Section 313 CrPC to furnish some
explanation with respect to the
incriminating circumstances associated
with him, and the court must take note of
such explanation even in a case of
circumstantial evidence, to decide as to
whether or not, the chain of
circumstances is complete. The aforesaid
judgment has been approved and followed
296 Spl.CC No.565/2021in Musheer Khan v. State of M.P. [(2010) 2
SCC 748 : (2010) 2 SCC (Cri) 1100] (See
also Transport Commr. v. S. Sardar
Ali [(1983) 4 SCC 245 : 1984 SCC (Cri) 827
: AIR 1983 SC 1225] .)
51. This Court in State of
Maharashtra v. Suresh [(2000) 1 SCC
471 : 2000 SCC (Cri) 263] held that, when
the attention of the accused is drawn to
such circumstances that inculpate him in
relation to the commission of the crime,
and he fails to offer an appropriate
explanation or gives a false answer with
respect to the same, the said act may be
counted as providing a missing link for
completing the chain of circumstances.
We may hasten to add that we have
referred to the said decision only to
highlight the fact that the accused has
not given any explanation whatsoever, as
regards the incriminating circumstances
put to him under Section 313 CrPC.
85. At the same time, I have also considered the
judgment which has been relied upon by the learned
counsel for Accused No.7, which is reported in 2025
SCC Online SC 1481 (Rahil and others V State[Govt of
NCT, Delhi]) wherein it is held as:
297 Spl.CC No.565/2021
34. It would be argued that Navjot
Sandhu (supra) which did not insist on
production of certificate for admissibility
of computer-generated printouts was pre-
vailing at the time when the case was de-
cided by the Trial Court and the Appel-
late Court. The judgment in Anvar
PV (supra) was delivered subsequently and
cannot be a ground to render the CDRs in-
admissible. It is also brought to our no-
tice that issue of retrospective applica-
tion of the ratio in PV Anvar (supra) is
pending for consideration before this
Court11.
35. Be that as it may, it is relevant to
note the larger bench in Khotkar (supra)
while reiterating PV Anvar (supra) did not
hold that its ratio shall apply prospec-
tively. Furthermore, in Mohd. Arif @ Ash-
faq v. State (NCT of Delhi)12 this Court
while hearing a review petition in a death
penalty case retrospectively applied the
ratio in Anvar PV to cases decided earlier
and eschewed secondary electronic evi-
dence dehors certificate under section 65-
B(4), holding as follows:–
“23. Navjot Sandhu was decided on 4-8-
2005 i.e. before the judgment was ren-
dered by the trial court in the instant
matter. The subsequent judgments of the
High Court and this Court were passed on
13-9-2007 and 10-8-2011 respectively af-
firming the award of death sentence.
These two judgments were delivered prior
to the decision of this Court in Anvar
P.V. which was given on 18-9-2014. The
judgments by the trial court, High Court
298 Spl.CC No.565/2021and this Court were thus well before the
decision in Anvar P.V. and were essen-
tially in the backdrop of law laid down in
Navjot Sandhu. If we go by the principle
accepted in para 32 of the decision
in Sonu, the matter may stand on a com-
pletely different footing. It is for this rea-
son that reliance has been placed on cer-
tain decisions of this Court to submit that
the matter need not be reopened on issues
which were dealt with in accordance with
the law then prevailing. However, since
the instant matter pertains to award of
death sentence, this review petition must
be considered in light of the decisions
made by this Court in Anvar P.V. and Ar-
jun Panditrao Khotkar.
24. Consequently, we must eschew, for
the present purposes, the electronic evi-
dence in the form of CDRs which was
without any appropriate certificate under
Section 65-B(4) of the Evidence Act.”
Similar view was taken in Sundar @ Sun-
darrajan v. State by Inspector of Police13.
36. Though the present case does not in-
volve death penalty, it is undeniable that
appellants were facing a criminal trial
and the prosecutor was required to prove
a fact beyond reasonable doubt strictly in
accordance with law. Appellants during
trial raised objections to admissibility of
the secondary electronic evidence relating
to Rahil which was marked as exhibit
PW23/B-D. Thereby the prosecutor was
put on due notice and had opportunity to
fill the lacuna by producing the requisite
299 Spl.CC No.565/2021
certificate under Section 65-B(4) but did
not do so.
In Sonu (supra), this court held if an ob-
jection is taken to CDRs being marked
without a certificate and the same was
not cured by the prosecutor at relevant
stage the document shall be inadmissible
in law.
In these circumstances we are inclined to
apply the ratio in PV An-
var and Khotkar to the case and hold
that the exhibits are inadmissible in law
being secondary evidence without certifi-
cation.
37. Even if the CDRs and other electronic
records were admitted in evidence they
merely contain the cell tower location in-
formation, that is to say, which tower mo-
bile phone was connected to and how long
the calls lasted when it was connected to
that tower. These data give an approxi-
mate area corresponding to the opera-
tional area of the cell tower and not the
exact site where the phone is located.
42. It is settled law in a criminal case
whether based on direct or circumstantial
evidence, the burden of proof always rests
on the prosecution. Only when the prose-
cution discharges the initial onus, that
is, proves the incriminating attending cir-
cumstances to establish the cause of
death are within the ‘special knowledge’
of an accused does the onus shift and an
adverse inference against such accused
may be drawn if he fails to discharge
such onus.
300 Spl.CC No.565/2021
86. There cannot be any qualms with respect to
the ratio laid down by the Hon’ble Apex Court. Even in
the instant case, the court is looking after for
corroboration even when the prosecution is contending
of hatching conspiracy.
87. The learned Senior Counsel appearing for
accused No.15 has vehemently argued that it cannot
be safely relied upon the testimony of the approver
since approver is a person of low morals and for the
reason he being a co-participator in the crime has lead
down his companion. Hence, for the said reason the
Court has to cautiously appreciate his evidence and
always necessary corraboration is required to be
insisted by the Court. In order to buttress his
submission he has relied upon the judgment of the
Privy Council reported in 1949 SCC Online PC 12
(Bhuboni Sahu Vs. The King), wherein it has been held
as follows;
301 Spl.CC No.565/2021
The danger of acting on accomplice
evidence is not merely that the
accomplice is on his own admission a
man of bad character who took part in
the offence and afterwards to save
himself betrayed his former associates,
and who has placed himself in a
position in which he can hardly fail to
have a strong bias in favour of the
prosecution; the real danger is that he
is telling a story which in its general
outline is true, and it is easy for him to
work into the story matter which is
untrue. He may implicate ten people in
an offence, and the story may be true
in all its details as to eight of them,
but untrue as to the other two, whose
names have been introduced because
they are enemies of the approver. This
tendency to include the innocent with
the guilty is peculiarly prevalent in
India, as judges have noted on
innumerable occasions, and it is very
difficult for the court to guard against
the danger. An Indian villager is
seldom in a position to produce cogent
evidence of alibi. If he is charged with
having
taken part in a crime on a particular
night when he was in fact asleep in his
hut, or guarding his crops, he can only
rely, as a rule, on the evidence of his
wife, members of his family, or friends
to support his story, and their evidence
is interested and not likely to carry
weight. The only real safeguard
against the risk of condemning the
302 Spl.CC No.565/2021
innocent with the guilty lies in
insisting on independent evidence
which in some measure implicates
each accused. This aspect of the
matter was well expressed by Sir
George Rankin in Ambica’s case17.
In the present case their Lordships are
in complete agreement with the judges
of the High Court in declining to act on
the evidence of the approver supported
only by the confession of Trinath.
These two persons appear to have been
nothing but hired assassins. They had
ample opportunity of preparing their
statements in concert, and, in
addition, the approver has sworn to
two contradictory stories, and Trinath
has denied that his confession was
true. It is true that no motive is shown
for their falsely implicating the
appellant, but motive is often a matter
of conjecture. It may be that these two
men thought it advisable to say falsely
that they were acting on the
instigation of another rather than on
their own initiative, or they may have
had reasons of their own for wishing to
conceal the name of the real instigator.
88. He has also relied upon another judgment of
the Hon’ble Apex Court reported in 1995 Supp. (1) SCC
80 (Suresh Chandra Bahri Vs. State of Bihar), wherein it
is held as follows;
303 Spl.CC No.565/2021
44. In Bhiva Doulu Patil v. State of
Maharashtra [AIR 1963 SC 599 :
(1963) 1 Cri LJ 489 : 1963 All LJ 253]
this Court took the view that the
combined effect of Sections 133 and
114, illustration (b) may be stated as
follows. According to the former,
which is a rule of law, an accomplice
is competent to give evidence and
according to the latter which is a rule
of practice it is almost always unsafe
to convict upon his testimony alone.
Therefore, though the conviction of an
accused on the testimony of an
accomplice cannot be said to be illegal
yet the courts will as a matter of
practice, not accept the evidence of
such a witness without corroboration
in material particulars. There should
be corroboration of the approver in
material particulars and qua each
accused. Similar observations were
made by this Court in Ram Narain v.
State of Rajasthan [(1973) 3 SCC 805 :
1973 SCC (Cri) 545] in the following
words: (SCC headnote)“Section 133 expressly provides that
an accomplice is a competent witness
and the conviction is not illegal
merely because it proceeds on
uncorroborated testimony of an
accomplice. In other words, this
section renders admissible such
uncorroborated testimony. But this
section has to be read along with
illustration (b) to Section 114. The
latter section empowers the court to
304 Spl.CC No.565/2021presume the existence of certain facts
and the illustrations elucidate what
the court may presume and make
clear by means of examples as to what
facts the court shall have regard in
considering whether or not the
maxims illustrated apply to a given
case before it. Illustration (b) in
express terms says that an accomplice
is unworthy of credit unless he is
corroborated in material particulars.
The statute permits the conviction of
an accused person on the basis of
uncorroborated testimony of an
accomplice but the rule of prudence
embodied in illustration (b) of Section
114 strikes a note of warning
cautioning the court that an
accomplice does not generally deserve
to be believed unless corroborated in
material particulars. In other words,
the rule is that the necessity of
corroboration as a matter of prudence
except when it is safe to dispense with
such corroboration must be clearly
present to the mind of the Judge.”
45. Further in Ravinder Singh v. State
of Haryana [(1975) 3 SCC 742 : 1975
SCC (Cri) 202 : AIR 1975 SC 856] this
Court while considering the approver’s
testimony within the meaning of
Section 133 of the Evidence Act made
the following observations: (SCC
headnote)
“An approver is a most unworthy
friend, if at all, and he, having
305 Spl.CC No.565/2021
bargained for his immunity, must
prove his worthiness for credibility in
court. This test is fulfilled, firstly, if
the story he relates involves him in the
crime and appears intrinsically to be
a natural and probable catalogue of
events that had taken place. The story
if given of minute details according
with reality is likely to save it from
being rejected brevi manu. Secondly,
once that hurdle is crossed, the story
given by an approver so far as the
accused on trial is concerned, must
implicate him in such a manner as to
give rise to a conclusion of guilt
beyond reasonable doubt. In a rare
case, taking into consideration all the
factors, circumstances and situations
governing a particular case,
conviction based on the
uncorroborated evidence of an
approver confidently held to be true
and reliable by the court may be
permissible. Ordinarily, however, an
approver’s statement has to be
corroborated in material particulars
bridging closely the distance between
the crime and the criminal. Certain
clinching features of involvement
disclosed by an approver appertaining
directly to an accused, if reliable, as
determined by the touchstone of other
independent credible evidence, would
give the needed assurance for
acceptance of his testimony on which
a conviction may be based.”
306 Spl.CC No.565/2021
Thus it is clear that a definite rule
has been crystallized to the effect that
though a conviction can be based on
uncorroborated evidence of an
accomplice but as a rule of prudence
it is unsafe to place reliance on the
uncorroborated testimony of an
approver as required by illustration (b)
of Section 114 of the Evidence Act.
89. The aforesaid authorities would definitely
lay down the dictum that though conviction of an
accused on the testimony of an accomplice is not
illegal, but the Court as a matter of practice is required
not to accept such evidence without corroboration in
material particular. Even in the above case, the Court
is not blindly accepting the testimony of the
accomplice but still the Court is looking into the
various facets of evidence with the circumstances in
the case to ascertain the veracity of the evidence of
accomplice.
90. That apart, it is seriously disputed with
respect to the place where the conspiracy was allegedly
hatched between the parties. As per the evidence of
307 Spl.CC No.565/2021
PW.10 Basavaraja Muttagi, initially he was requested
by accused No.15 Vinay Kulkarni to eliminate Yogesh
Goudar in his Vinay Dairy after about 2 to 3 days from
23.04.2016. The learned Counsels for accused had
vehemently argued that none of the CDRs indicate
conversation or tower location of Basavaraja Muttagi
near Vinay Dairy on 25.04.0216. As noticed from
records, the said contention seems to be attractive, at
the same time the Court is also required to appreciate
the fact that the investigation was handed-over to CBI
about 3 ½ years after the incident and as such there
will be some sort of limitations to the Investigating
Agency to point out each and every aspect. That does
not mean that the prosecution will be exonerated from
the factual fact of proving their case beyond reasonable
doubt. However, by looking into the evidence of PW.10,
the Court is now required to draw an inference with
respect to the materials to link the aforesaid incidents.
308 Spl.CC No.565/2021
91. The prosecution has examined PW.13
Pramod Narahari Rao Deshpande, who has deposed
that the land in Plot No.17 of Saraswathpura,
Dharwad in No.4/39/L belonged to them and it is
contention that his sister had got the property gifted to
her name by manipulating certain documents and in
the year 2016 he was thrown out of the house by some
persons and he had feigned his ignorance to identify
them. He was considered as hostile witness and it was
suggested to him that Vinayaka Kattagi, the accused
herein had visited their house as a prospective buyer
for which he has categorically admitted but has
deposed that he cannot identify Vinayaka Katagi in the
Court but he was very much present in the Police
Station at Dharwad. Curiously he was not at all cross-
examined by the accused person which would once
again fortify the contention of the prosecution. The
next aspect which is required to be considered is the
evidence of PW.14 Anand Kumar.H., who has deposed
309 Spl.CC No.565/2021
that Dr.Usha Narahari had executed a GPA in his
favour and he was introduced to one Thippanna
through Vinayaka Katagi. Further it is deposed by him
that Vinayaka Katagi had approached him to sell the
house and he had also received Rs.1,20,000/- as the
advance towards his commission and he has also
identified accused No.5 Vinayaka Katagi in the Court.
The aforesaid aspects are categorically denied by
accused No.5, but nothing much was elucidated from
him with respect to collection of evidence or entering
into a GPA. The aforesaid aspect requires to be
considered with the recovery mahazar drawn by
PW.113 Rakesh Ranjan. PW.113 during the course of
his evidence has deposed that on 02.03.2020 he had
recorded the confession statement of accused No.8
Dinesh, who had stated that he would show the house
where they had hatched the conspiracy and they were
led to the house at Saraswathpura, Dharwad. The
document came to be marked as Ex.P.262. The learned
310 Spl.CC No.565/2021
counsel for the accused has seriously disputed to the
same and had contended that since the signature of
the witness are obtained, the same cannot be
construed as a confession statement and in fact the
title of the document indicates it as the proceedings
being drawn. I have bestowed my anxious reading to
the aforesaid aspect in this regard. I have relied upon
the judgment of the Hon’ble Apex Court reported in
(1999) 3 SCC 507 (State of Rajasthan v. Teja Ram),
wherein it has been held as follows;
28. Learned counsel in this context
invited our attention to one step which
PW 21 (investigating officer) had
adopted while preparing the seizure-
memos Ex. P-3 and Ex. P-4. He obtained
the signature of the accused concerned
in both the seizure-memos. According to
the learned counsel, the aforesaid
action of the investigating officer was
illegal and it has vitiated the seizure. He
invited our attention to Section 162(1) of
the Code which prohibits collecting of
signature of the person whose statement
was reduced to writing during
interrogation. The material words in the
sub-section are these:
311 Spl.CC No.565/2021
“162. (1) No statement made by any
person to a police officer in the course of
an investigation under this Chapter,
shall, if reduced to writing, be signed by
the person making it;”
No doubt the aforesaid prohibition is in
peremptory terms. It is more a direction
to the investigating officer than to the
court because the policy underlying the
rule is to keep witnesses free to testify in
court unhampered by anything which the
police claim to have elicited from them.
(Tahsildar Singh v. State of U.P. [AIR
1959 SC 1012 : 1959 Cri LJ 1231]
and Razik Ram v. Jaswant Singh
Chouhan [(1975) 4 SCC 769 : AIR 1975 SC
667].) But if any investigating officer,
ignorant of the said provision, secures
the signature of the person concerned in
the statement, it does not mean that the
witness’s testimony in the court would
thereby become contaminated or vitiated.
The court will only reassure the witness
that he is not bound by such statement
albeit his signature finding a place
thereon.
29. That apart, the prohibition contained
in sub-section (1) of Section 162 is not
applicable to any proceedings made as
per Section 27 of the Evidence Act, 1872.
It is clearly provided in sub-section (2) of
Section 162 which reads thus:
312 Spl.CC No.565/2021
“Nothing in this section shall be deemed
to apply to any statement falling within
the provisions of clause (1) of Section 32
of the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions of
Section 27 of that Act.”
30. The resultant position is that the
investigating officer is not obliged to
obtain the signature of an accused in any
statement attributed to him while
preparing seizure-memo for the recovery
of any article covered by Section 27 of the
Evidence Act. But if any signature has
been obtained by an investigating officer,
there is nothing wrong or illegal about it.
Hence, we cannot find any force in the
contention of the learned counsel for the
accused that the signatures of the
accused in Exs. P-3 and P-4 seizure-
memos would vitiate the evidence
regarding recovery of the axes.
92. The aforesaid authority would clearly
indicate that mere obtaining of signature on the
confession statement or on the seizure memos would
not vitiate the evidence regarding the same. The other
aspect now which would be appropriate to consider is
the evidence of PW.63 Vishal Bellary, who is the
313 Spl.CC No.565/2021
younger brother of accused No.2 Vikram Bellary.
Vishal Bellary speaks about the motor bike which he
had collected from NTTF premises at Dharwad as on
the date of incident i.e., on 15.06.2016. Further he has
deposed that as on that day it was being used by
Vikram Bellary. Curiously, he feigns his ignorance that
he does not have knowledge whether PW.10
Basavaraja Muttagi and Vikram Bellary were close with
each other and were conversing with each other.
Though the aforesaid witness is working as a Police
Constable for the last 12 years, has interestingly
feigned ignorance about various aspects. In this aged
of electronic era, where human testimony may waver,
electronic evidence remains steadfast nor the materials
which was in existence can be falsified. As already
discussed supra, the CDR records clearly indicate of
their continuous conversations. If not, they were
having any acquaintances, then it was for accused
No.2 Vikram Bellary to explain the aforesaid aspects.
314 Spl.CC No.565/2021
93. Apart from this, it would be appropriate to
now consider the evidence of PW.78 Akshay Katagi,
who is also the relative of accused Vinayaka Katagi.
The witness has deposed that he was working as
Attender at Commercial Tax Department and Mobile
Number ending with the No.339 belonged to him. On
perusal of his evidence, he has deposed positively
before the Court that he was using the SIM card and
he had not given the SIM to any other person. Further
it is his evidence that his office was situated next to
DC Office Compound at Dharwad. He was considered
as hostile witness and he had deposed that he had
never spoken with accused Mahabaleshwar Hongal @
Mudukappa during the period 01.06.2016 to
16.06.2016. However, the CDR records which are
marked at Ex.P62, would clearly indicate of his
continuous conversations with each other. In other
words, the aforesaid act tallies with the evidence of the
approver Basavaraja Muttagi wherein he has deposed
315 Spl.CC No.565/2021
that accused No.18 Vikas Kalburgi had provided
logistic support for them immediately after the incident
and also the overt-act of accused No.18 is found in the
manner in which he was participant to the conspiracy
which was leveled against him. It is also strange to
note that initially he had attended the TIP as witness,
he has feigned his ignorance to identify the accused
persons. Only thereafter, he was arraigned as
additional accused in the above case. The digital
records would clearly indicate of his overt-act in the
above case. The electronic records would clearly
indicate of all the accused No.1 to 6 being in touch
with each other. However, during his evidence he had
went to an extent of feigning his ignorance with respect
to Basavaraj Muttagi, Vikas Kalburgi, Sandeep
Saudatti, Santhosh Saudatti, Kirti Kumar, Vikram
Bellary at any point of time. The witness has gone to
an extent of submitting that he had attended his work
on 15.06.2016 at Commercial Tax Department. But
316 Spl.CC No.565/2021
the CDRs clearly indicated that on the date of incident,
Basavaraja Muttagi had called upon Vinayaka Katagi
at 06.41.48 hours the tower location indicated of CITB
Layout, Gokul Road, Hubli. It is relevant to note that
the incident had taken-place between to 07.15 AM to
07.45 AM on the aforesaid date and after that the
accused No.1 to 6 had visited in front of the Uday Gym
to get themselves assured about the murder. The
evidence indicates that a faint effort has been made by
the witness to protect his brother Vinayaka Katagi.
Further he has deposed that Babu Katagi was his
relative and uncle. It is pertinent to note that a specific
court question was posed to him that with whom the
mobile SIM bearing No.959186339 was with on
15.06.2016. The witness has deposed that it was with
him from morning till evening. The aforesaid aspect
would clearly indicate that the witness had
intentionally turned hostile to help his brother
Vinayaka Katagi and also it is relevant to note that
317 Spl.CC No.565/2021
certain serious allegations are leveled against PW.44
Babu Katagi, who had helped accused No.15 to win
over the witnesses after the commission of the murder.
The aforesaid aspect will be discussed in the later part
of my judgment. Now the aforesaid aspect is required
to be juxtaposed and appreciated with the further
evidence of PW.10 Basavaraja Muttagi. The witness
has deposed that after agreeing to act on behalf of
accused No.15 Vinay Kulkarni, it was suggested to him
that it would be appropriate for him to enter into an
Agreement to Sale with Todkar’s land so as to project
the incident of murder as a consequence of land
dispute. Already with respect to the above is discussed
by me at the time of appreciating the existence of
motive or otherwise with the evidence of PW.50
Mallavva Goudar who has deposed about Yogesh
Goudar having land dispute with the Todkar’s. Though
the learned Counsel for the accused disputes the
same, the fact remains is that a statement under oath
318 Spl.CC No.565/2021
was recorded before the learned Magistrate under
Sec.164 of Cr.PC. The witnesses have deposed that
they had given such a statement before the learned
Magistrate due to the pressure exerted on them by
CBI. However, from the date of tendering their
statement in the year 2019-20, till the date of
tendering their statement before the Court, no little
finger was raised with respect to the alleged pressure
or harassment exerted by CBI on them. However, all of
a sudden, the witnesses who have turned hostile are
deposing before this Court that they were pressurized
and harassed to depose in a particular manner before
the learned Magistrate and now at present the threat
against them was lifted. In my humble opinion, this is
a serious attempt being made by the witnesses in
connivance with the accused persons to circumvent
the judicial process and to cast aspersion against the
majesty of justice. If the witnesses are permitted to
sledge allegations or to sully the faith of the people in
319 Spl.CC No.565/2021
the judicial system than the entire system would be
collapsed. Be that as it may, the aforesaid evidence
finds corroboration in the evidence of PW.7 Veeresh
Amrutheshwar Byahatti who has specifically deposed
that in the month of April-May 2016 at about 11.30
PM in the night PW.8 Nataraj Makki Goudar had called
him with respect to the aforesaid land. Though it is
argued that there is no connection with the murder of
Yogesh Goudar, the evidence of PW.10 would clearly
indicate that the Agreement was entered upon only to
misguide the Investigating Agency and to project that
the incident had taken place due to the land dispute.
As already noticed from the records, PW.50 has
deposed that they were in possession of the land
though the revenue records indicate of possession
being with Todkar’s. Even otherwise at any point of
time Basavaraja Muttagi had never intended to
purchase the property as deposed by him, but the
320 Spl.CC No.565/2021
materials are indicating of creating a motive to deviate
the people from real intention can be ascertained.
94. Now coming to the other aspect of the
evidence of PW.10 Basavaraja Muttagi, he has deposed
that he had stayed at Ankitha Residency Hotel at
Dharwad from 12.06.2016 to 15.06.2016. In order to
justify the said aspect, the Register of the Hotel is
produced before the Court and marked as Ex.P.13,
which would justify the same. Though it is submitted
that residing at Ankitha Residency by PW.10 Basavarja
Muttagi is inconsequence to the facts of the case, it is
relevant to note that the evidence would only indicate
of further link in the case. For instance, PW.10 during
the course of chief-examination has deposed that in
furtherance of the conspiracy, he had purchased a Car
from PW.70 Chandrashekar Pujar. I have carefully
appreciated the evidence of PW.70 Chandrashekar
Pujar, who had deposed that he was having Chevrolet
321 Spl.CC No.565/2021
Car bearing Reg. No. KA-25-P-8526 which was black in
colour. At the cost of repetition, it is observed that the
movement of the black-colored Chevrolet Car is clearly
visible in the CCTV footage pertaining to 15.06.2016
which was collected by the Investigating Officer.
Further PW.70 Chandrashekar Pujar deposes that he
had not given the Car to Muttagi at any point of time
and he had not sold it to him. However, he was treated
as hostile witness and has admitted the ‘B’ Extract of
the vehicle at Ex.P.132 and also admitted of getting the
vehicle released from the Dharwad Court. During the
course of his cross-examination, he has deposed that
he had not visited Uday Gym on 15.06.2016 at the
time of the murder of Yogesh Goudar. However, the
CCTV footage clearly indicates of its presence near the
Gym at that point of time. It is curious to note that the
CCTV footage at Ex.P.80 was displayed to the witness
with respect to 15.06.2016 at about 07.42.53 hours. It
indicates that the witness with a clear motive has
322 Spl.CC No.565/2021
deposed that he could identify whether it was his Car.
However, he admits that the Car which was seen in the
CCTV footage was a black colored Chevrolet Car and
he had not lodged any complaint stating that his Car
was stolen and given by some other persons on
15.06.2016. The aforesaid cross-examination would
clearly cast an aspersion on his evidence. Though the
learned Counsel for accused No.7 has cross-examined
him wherein an admission has been obtained that the
CCTV footage at 07.42 hours does not belong to him
and there are several black colored Chevrolet Cars at
Dharwad. However, when the cross-examination of the
prosecution is appreciated, it does indicate that the
witness admits that he was working as part-time driver
to the Car belonging to Dy.SP Thulajappa Sulfi prior to
the murder and his Car has not passed Haveri-Hospet
National Highway on 15.06.2016 though it was having
Fastag affixed to it. At this juncture, once again the
evidence of PW.2 Gurunath Goudar is required to be
323 Spl.CC No.565/2021
appreciated. PW.2 Gurunath Goudar in his evidence
has repeatedly taken the name of Thulajappa Sulfi as
the one who was a close confident of accused No.15
Vinay Kulkarni and in fact in his evidence before the
Sessions Court at Dharwad also he had deposed about
the very same aspects and had stated that the
Thulajappa Sulfi was the one who was trying to
negotiate the case with him on behalf of Vinay
Kulkarni. Even before this Court, the same aspect has
been deposed by him. The Court at the first instance
itself is not blindly accepting the contentions of this
witness i.e., PW.2 Gurunath Goudar or PW.10
Basavaraja Muttagi, it is to be borne in mind that
initially the investigation was entrusted to Dharwad
Sub-Urban Police and the CBI had commenced the
further investigation only in the year 2019. As such,
collection of materials with respect to movement of the
vehicle in the National Highway may not be possible
for the Investigating Agency.
324 Spl.CC No.565/2021
95. The other aspect which corroborates in this
regard is the evidence of PW.49 Raghavendra. PW.49
Raghavendra in his evidence has supported the case of
prosecution. He has deposed that on 15.06.2016,
Muttagi had called him at 12.00 PM in the afternoon
and requested to meet him on the Highway near
Hospet. As such, he had met him between 01.00 PM to
01.15 PM, wherein they had come in a black Sedan
Car and another yellow board Tavera Taxi which ended
with the No.420. The aforesaid aspect once again
corrobates that PW.10 Basavaraj Muttagi had travelled
in a black Chevrolet Car on that day. Further the
witness has deposed of arranging a guest house by
name Hema Guest House at Virupapura Gaddi,
Anegundi and at that time PW.10 had requested him to
hand-over the mobile phone since his mobile was
having some problem in it. He has deposed of handing
over his mobile phone which was returned to him after
about 4-5 days. The witness has also identified
325 Spl.CC No.565/2021
accused No.3 Kirthi Kumar, accused No.6
Mahabaleshwar @ Muduka, accused No.18 Vikas
Kalburgi as the persons who had accompanied PW.10.
It is his specific evidence that at present Hema Guest
House was demolished by the competent Hampi
Authority as it was constructed illegally. During the
course of his cross-examination nothing much was
elucidated from him. However, as per the evidence of
PW.10, it is relevant to note that several calls were
made by him by using the phone of Raghavendra. For
instance, he deposes that as per the directions of
Vinay Kulkarni who had requested him to meet him at
Bengaluru, he had called upon PW.20 Natraj Sarj
Desai, who was the brother of Vinay Kulkarni to
ascertain the place where he was suppose to meet
Vinay Kulkarni on that day. PW.10 has deposed that
when he had crossed Nelamangala, he had again
contacted Natraj Sarj Desai and he was told to meet
Vinay Kulkarni near Sanky Tank at about 01.00 AM in
326 Spl.CC No.565/2021
the mid-night. Though it is seriously contested by the
defence that no such telephonic call was made, I have
considered the tower location of CDR pertaining to
Basavaraja Muttagi for the day 15.06.2016. Now the
evidence of PW.20 Natraj Sarj Desai is required to be
appreciated. Natraj Sarj Desai had turned hostile and
has deposed that though he knew Basavaraja Muttagi,
he did not have any acquaintance with him. However,
after treating him as hostile, the prosecution had
subjected him to cross-examination. During the course
of his cross-examination, he has categorically admitted
when he was confronted with the CDR pertaining to
15.06.2016 that at about 22.09 hours he had made a
call to mobile number i.e., 9844267730. It is not in
dispute that the very same mobile number was being
used by Basavaraja Muttagi and it was also elucidated
during his evidence. Further it is pertinent to note that
PW.20 has also admitted that several missed calls were
received by him from the aforesaid number and
327 Spl.CC No.565/2021
specifically admits of receiving the call and conversing
at 22.10 hours, 22.18 hours and 22.20 hours. This
particular evidence clearly corroborates with the
evidence of PW.10 Basvaraja Muttagi, wherein he has
deposed that he was asked by PW.20 Nataraj Sarj
Desai to call him again when he is near to Bengaluru.
Though the witness has deposed that he had called
back the missed call which he had received, he had
once again deposed that due to lot of disturbances in
the background, he could not hear properly and as
such he had made a return call to that number. The
aforesaid aspect once again fortifies the contention of
the prosecution and also the evidence of PW.10
Basavaraja Muttagi. The above aspects would only
indicate that the materials which are deposed by
PW.10 Basavaraja Muttagi who was given the status of
approver is corroborating with the evidence of other
circumstantial witnesses.
328 Spl.CC No.565/2021
96. That apart, I have also bestowed my anxious
to the evidence of PW.27 Bharath Kalsur. He has
deposed of having close nexus with Basavaraja Muttagi
and it is his evidence on that 18.06.2016 he was
supposed to take oath as President of Jaya Karnataka
Organization of Haveri District and he had invited
Basavaraja Muttagi also. He has deposed of reserving
two rooms at Panchavati Hotel and also Mr. Anup
Churi of booking rooms at Hithaishi Palace. It is his
evidence that Mr. Girish Pathri had furnished the ID
proof for the purpose of booking room. He was
considered as hostile witness and during the course of
cross-examination he has admitted that PW.10 had
visited Haveri one or two days prior to 18.06.2016,
which in other words would justify and fortify the
contention of PW.10 Muttagi who has deposed of
staying there at Haveri after the commission of
murder. Though he has denied of identifying any
vehicle, it is pertinent to note that in his cross-
329 Spl.CC No.565/2021
examination he has admitted that one Mr. Parashuram
Belladavar was his landlord and he was having close
acquaintance with Vinay Kulkarni and has obtained
several contractual works with respect to running
smart classes from the Government to an extent of
Rs.09,25,00,000/-. Further he has also deposed by
denying the suggestion that due to the threat given by
Vinay Kulkarni he was deposing falsely before the
Court. All the aforesaid aspects when compared with
the evidence of PW.28 Anup Churi and PW.29 Girish
Pathri, would only fortify the case of prosecution.
97. I have also bestowed my anxious reading to
the further evidence of PW.10 Basavaraja Muttagi. It is
his evidence that he had called upon the taxi driver
PW.45 Suresh Ramegowda. He has deposed that he
was having contact with Basavaraja Muttagi and on
15.06.2016 he had requested him to come to
Chithradurga and from there they had visited
330 Spl.CC No.565/2021
Bengaluru. It is also deposed by him that he had called
upon some person and was addressing him as “Sir”
during the conversation. During the course of his
further evidence, he has deposed that his mobile
number was 9844267730. The aforesaid number is the
one to which PW.20 Natraj Sarj Desai had contacted.
The aforesaid aspect would definitely prove as a link to
the circumstances. Thereafter, it is deposed by him
that he had visited Sanky Tank at about 01.30 AM in
the mid night and there he had met accused No.15
Vinay Kulkarni and also accused No.16
Chandrashekar Indi. If for a moment, the evidence of
PW.45 is looked into, he deposes that they had reached
Sanky Tank at the aforesaid time and a person had got
down from the Car who was aged about 50 years and
was smoking cigarette and witness particularly
identifies accused No.16 Chandrashekar Indi as the
same person. During the course of cross-examination,
he was questioned to recall the mobile number to
331 Spl.CC No.565/2021
which allegedly Basavaraja Muttagi had called.
However, the witness has feigned his ignorance.
Further he has deposed of obtaining the aforesaid
mobile number by furnishing KYC documents. During
the course of cross-examination nothing much was
elucidated to cast aspersion to his evidence.
98. With these aforesaid aspects, now the
question which is required to be determined is whether
the contention of the prosecution that accused No.15
Vinay Kulkarni, accused No.16 Chandrashekar Indi
were present near the Sanky Tank during the
intervening night of 15/16.06.2016 at about 01.30 AM
in the mid night. The Investigating Officer has
contended that prior to reaching Sanky Tank, accused
No.15 had requested Chandrashekar Indi and also his
brother who was examined as PW.53 Vijay Kulkarni.
In his evidence he has deposed of purchasing a flat at
Bengaluru and had got it registered on 17.06.2016.
332 Spl.CC No.565/2021
Though he has denied meeting Chandrashekar Indi or
Somashekar Nyamagouda near Sanky Tank on the
intervening night of 15/16.06.2016, has deposed of
making two calls from his mobile phone to then Police
Commissioner Mr. P.H.Rane on 16.06.2016. The
aforesaid evidence is required to be juxtaposed with
the evidence of PW.10 Basavaraja Muttagi, wherein he
has deposed that he was assured by Vinay Kulkarni
that he had spoken with the Commissioner
Mr.P.H.Rane, who would make arrangements for his
surrender. He has also admitted of giving a statement
under oath under Sec.164(5) of Cr.P.C., explaining of
all the aforesaid aspects. However, it is his contention
that he had tendered false evidence before the learned
Magistrate due to the pressure exerted on him by the
CBI. It is rather astonishing to note that the aforesaid
witness is the younger brother of Vinay Kulkarni and
he feigns his ignorance about the procedures to be
dealt in the event of exerting pressure by any agency.
333 Spl.CC No.565/2021
Further he has admitted of visiting Bengaluru and
having dinner at Hotel Mourya with Kempegowda,
Vinay Kulkarni, Somashekar Nyamagouda and
Chandrashekar Indi. The aforesaid aspects only fortify
the contention of the prosecution and that of the
approver which would act as a chain in the link.
99. I have also appreciated the evidence of
PW.67 Umapathy, who has deposed that he was using
the mobile number ending with 4505 and on
15.06.2016 he had received call from Basavaraja
Muttagi requesting him that he may be permitted to
stay in his house. Further he has deposed that at
about 01.30 AM in the midnight PW.10 had come to
his house and immediately on the next day he got up
and was ready to leave by 08.30 AM. He had deposed
that he wanted to meet Somashekar Nyamagouda near
Sadashivanagar on that day. During the course of
cross-examination by the learned Counsel for accused
334 Spl.CC No.565/2021
No.21 it is suggested that the witness was also
involved in the conspiracy of murder with Raghavendra
and persons of Jaya Karnataka Organization. The said
suggestion was denied by the witness and thereafter
another suggestion was made that the witness had
falsely deposed that Basvaraja Muttagi had stated that
Nyamagoudar was the Personal Secretary of the
Minister. It is also been elucidated from his that he
had not intimated about the incident after he had
learnt about it through the news channel. If for a
moment, the aforesaid suggestions in the cross-
examination are considered, it does indicate of
categorically supporting the contention of PW.10.
100. With the aforesaid aspects, now it would be
appropriate to consider whether the evidence tendered
by the approver inspires confidence. The learned
counsel for the defence has vehemently argued that
the testimony of the accomplice cannot be relied upon
335 Spl.CC No.565/2021
so easily as it is stigmatized evidence in criminal
proceedings. Further it is submitted that to the
majority of questions the witness has feigned his
ignorance and has deposed that he does not know
anything about the incident. No doubt the aforesaid
aspects are forthcoming in the evidence of PW.10
Basavaraj Muttagi. It is also been elucidated from him
that he had not narrated about those aspects before
the learned Sessions Court at Dharwad or during the
course of his evidence before the court at Dharwad. It
is relevant to note that he was contesting the case at
that point of time and further it is not expected from
the accused to give self-incriminatory materials against
himself during the evidence. The law with respect to
appreciation of approver’s evidence has been laid down
by the Hon’ble Apex Court in the judgment rendered in
(1996)9 SCC 98 (Niranjan Singh Vs. State of Punjab) ,
wherein it has been held as follows;
336 Spl.CC No.565/2021
12. The important question that arises
for our consideration is whether there is
sufficient evidence in this case to arrive
at a conclusion that the approver and the
appellant were the persons responsible
for causing the murder of Harnek Singh
(deceased). It is also equally important to
find out as to whether evidence of Gurjant
Singh (PW 3) the approver is trustworthy
and can be relied upon to sustain the
conviction of the appellant before us. It is
well settled that the approver’s evidence
must pass the double test of reliability
and corroboration in material
particulars. It is said that the approver is
a most unworthy friend and he having
bargained for his immunity must prove
his worthiness for credibility in court.
Firstly, we will have to scrutinize the
evidence of Gurjant Singh (PW 3),
approver carefully to find out as to
whether his evidence can be accepted as
trustworthy. Secondly, once that hurdle
is crossed the story given by an approver
so far as the accused on trial is
concerned, must implicate him in such a
manner as to give rise to a conclusion of
guilt beyond reasonable doubt.
Ordinarily, combined effect of Sections
133 and 114 of the Evidence Act, 1872 is
that conviction can be based on
uncorroborated testimony of an approver
but as a rule of prudence it is unsafe to
place reliance on the uncorroborated
337 Spl.CC No.565/2021
testimony of an approver. Section 114
Illustration (b) incorporates a rule of
caution to which the courts should have
regard. See Suresh Chandra
Bahri v. State of Bihar [1995 Supp (1) SCC
80 : 1995 SCC (Cri) 60] .
20. There is also another circumstance
which supports the prosecution in this
behalf. The tractor and trolley owned by
Amrik Singh, the accused, developed a
fault and was stranded near the railway
track and thereafter Amrik Singh
contacted Gandoor Singh (PW 4) and
Ranjit Singh (PW 5) residents of Village
Chotian to tow-chain the said tractor and
trolley and bring it to Village Chotian.
This all happened on 8-12-1980 at about
5.00 a.m. Both these witnesses then
brought the tractor and trolley to Village
Chotian. On the following day Amrik
Singh and Niranjan Singh, the appellant
went to the said village and after
knowing the suspicion entertained by
Gandoor Singh (PW 4) and Ranjit Singh
(PW 5) as regards the foul play since the
blood was found on the trolley, Amrik
Singh and Niranjan Singh (accused)
brought the said tractor to their village.
The evidence of Gandoor Singh (PW 4) and
Ranjit Singh (PW 5) corroborates the
evidence of Gurjant Singh, the approver
on this issue. In these circumstances we
are of the opinion that the High Court
338 Spl.CC No.565/2021
was right in upholding the conviction of
the appellant under Sections 120-B, 201
of the Penal Code, 1860. We accordingly
uphold the conviction of the appellant for
the offences punishable under Sections
120-B and 201 IPC.
101. Further in another judgment of the Hon’ble
Apex Court reported in (1998)2 SCC 372 (State of
Tamilnadu Vs. Suresh), wherein it has been held as
follows;
21. The testimony of an accomplice is, no
doubt, a stigmatised evidence in criminal
proceedings. It is on account of the
inherent weakness which such evidence
is endowed with that illustration (b) to
Section 114 of the Evidence Act suggests
that it is open to the court to presume
that the uncorroborated testimony of an
accomplice is unworthy of credit. But the
legislature had advisedly refrained from
including the said category of evidence
within the ambit of legal presumptions
but retained it only within the area of
factual presumptions by using the
expression “the court may presume”. In
order to make the position clear the
same enactment has incorporated
Section 133 saying that it is not illegal
to convict a person on the uncorroborated
testimony of an accomplice. The raison
d’être for such legislative marshalling is
339 Spl.CC No.565/2021
to enable the court to have its freedom to
act on the evidence of an accomplice in
appropriate cases, even without
corroboration, if the court feels that a
particular accomplice evidence is worthy
of credence.
22. Thus, the law is not that the evidence
of an accomplice deserves outright
rejection if there is no corroboration.
What is required is to adopt great
circumspection and care when dealing
with the evidence of an accomplice.
Though there is no legal necessity to seek
corroboration of accomplice’s evidence it
is desirable that the court seeks
reassuring circumstances to satisfy the
judicial conscience that the evidence is
true.
CHAPTER: XI
EVIDENCE OF HANDWRITING EXPERT AND
APPRECIATION OF EVIDENCE VIS-A-VIS
ADMISSION BY THE APPROVER:
102. With the aforesaid ratio the other limb of
submission made by the defence with respect to the
veracity of the evidence of PW.10 Basavaraja Muttagi is
to be considered. It is contended by PW.10 that he had
addressed a letter to deceased Yogesh Goudar prior to
his death cautioning him about his life. The aforesaid
340 Spl.CC No.565/2021letter and its cover marked as Ex.P.6 and 7 before this
Court. The learned counsel for the accused No.15 has
vehemently argued that the Report which is furnished
by PW.93 Smt.Kumudha Rani itself is not in
accordance with law. It is his contention that for a
moment if Basavaraja Muttagi himself had admitted of
addressing a letter to Yogesh Goudar prior to his
death, then what was the necessity to refer the same to
a Handwriting Expert. As such, it can be held that the
investigating officer was not believing the version of
PW.10 approver. Even otherwise it is his submission
that the entire materials would only indicate a clear-
cut distinction in the manner in which it has been
authored. Further it is argued that no permission was
obtained from the Court for referring to Handwriting
Expert. In this regard, the learned Senior Counsel for
accused No.15 has relied upon the judgment of the
Hon’ble Apex Court reported in (2023)19 SCC 321
341 Spl.CC No.565/2021
(Santhosh @ Bhure Vs. State [GNCT of Delhi]) , wherein it
is held as follows;
No doubt, by Act 25 of 2005, with effect
from 23-6-2006, Section 311-A has
been inserted in the Code thereby
empowering a Magistrate of the First
Class to direct any person including an
accused to give specimen signature or
handwriting for the purposes of
investigation but this provision would
have no bearing on this case as it came
into effect in the year 2006, whereas
the instant case is of the year 2000. In
Sukh Ram v. State of H.P. [Sukh Ram v.
State of H.P., (2016) 14 SCC 183 :
(2016) 4 SCC (Cri) 342] , this Court held
that the amended provisions of Section
311-A of the Code would apply
prospectively. Otherwise also, the
purpose of obtaining permission/order
of the Magistrate is to maintain the
sanctity of those specimens so as to
obviate fabrication. In Ashish Jain v.
Makrand Singh [Ashish Jain v.
Makrand Singh, (2019) 3 SCC 770 :
(2019) 2 SCC (Cri) 256] , it was held
that the object of the provisions of
Section 5 of the 1920 Act for obtaining
an order from a Magistrate to take
specimens is to eliminate the
possibility of fabrication of evidence.
There it was also held that those
provisions are directory and not
mandatory. Similar view has been
taken in Sonvir v. State (NCT of Delhi)
342 Spl.CC No.565/2021
[Sonvir v. State (NCT of Delhi), (2018) 8
SCC 24 : (2018) 3 SCC (Cri) 486] .
103. In the aforesaid judgment it has been held
that it is always necessary for obtaining permission
from the Magistrate and no forcible specimen
signatures can be collected. However, in the instant
case, the accused persons at the time of collecting
their specimen signatures were not in custody and in
fact they had voluntarily given their specimen writings.
Even otherwise, during the course of cross-
examination no such materials are forthcoming or even
a suggestion was put-forth to the witnesses in this
regard. This particular aspect would lead to a situation
that what happens when the specimen signature is
obtained without there being prior intimation to the
Court and that too when the accused is not in judicial
custody.
104. In this regard, I have relied upon the
judgment of the Hon’ble Apex Court which is cited by
343 Spl.CC No.565/2021
the prosecution and reported in (2011)2 SCC 490
(Rabindra Kumar Pal @ Dhara Singh Vs. Republic of
India), wherein it has been held as follows;
75. Another question which we have to
consider is whether the police (CBI) had
the power under CrPC to take specimen
signature and writing of A-3 for
examination by the expert. It was pointed
out that during investigation, even the
Magistrate cannot direct the accused to
give his specimen signature on the asking
of the police and only after the
amendment of CrPC in 2005, power has
been given to the Magistrate to direct any
person including the accused to give his
specimen signature for the purpose of
investigation. Hence, it was pointed out
that taking of his signature/writings
being per se illegal, the report of the
expert cannot be used as evidence against
him.
76. To meet the above claim, the learned
Additional Solicitor General heavily
relied on a eleven-Judge Bench decision of
this Court in State of Bombay v. Kathi
Kalu Oghad [AIR 1961 SC 1808 : (1961) 2
Cri LJ 856 : (1962) 3 SCR 10] . This larger
Bench was constituted in order to re-
examine some of the propositions of law
laid down by this Court in M.P.
344 Spl.CC No.565/2021
Sharma v. Satish Chandra [AIR 1954 SC
300 : 1954 Cri LJ 865 : 1954 SCR 1077] .
77. After adverting to various factual
aspects, the larger Bench formulated the
following questions for consideration :
(Kathi Kalu Oghad case [AIR 1961 SC
1808 : (1961) 2 Cri LJ 856 : (1962) 3 SCR
10] , AIR pp. 1810 & 1812, paras 2 & 4)
“2. … On these facts, the only questions
of constitutional importance that this
Bench has to determine are; (1) whether
by the production of the specimen
handwritings, Exts. 27, 28 and 29, the
accused could be said to have been ‘a
witness against himself’ within the
meaning of Article 20(3) of the
Constitution; and (2) whether the mere
fact that when those specimen
handwritings had been given, the accused
person was in police custody could, by
itself, amount to compulsion, apart from
any other circumstances which could be
urged as vitiating the consent of the
accused in giving those specimen
handwritings. …
***
4. … The main question which arises for
determination in this appeal is whether a
direction given by a court to an accused
person present in court to give his
specimen writing and signature for the
purpose of comparison under the
provisions of Section 73 of the Evidence
345 Spl.CC No.565/2021Act infringes the fundamental right
enshrined in Article 20(3) of the
Constitution.”
The following conclusion/answers are
relevant : (AIR pp. 1814-17, paras 10-12
& 16)
“10. … ‘Furnishing evidence’ in the latter
sense could not have been within the
contemplation of the Constitution-makers
for the simple reason that–though they
may have intended to protect an accused
person from the hazards of self-
incrimination, in the light of the English
law on the subject–they could not have
intended to put obstacles in the way of
efficient and effective investigation into
crime and of bringing criminals to justice.
The taking of impressions of parts of the
body of an accused person very often
becomes necessary to help the
investigation of a crime. It is as much
necessary to protect an accused person
against being compelled to incriminate
himself, as to arm the agents of law and
the law courts with legitimate powers to
bring offenders to justice. …
11. … When an accused person is called
upon by the court or any other authority
holding an investigation to give his finger
impression or signature or a specimen of
his handwriting, he is not giving any
testimony of the nature of a ‘personal
testimony’. The giving of a ‘personal
346 Spl.CC No.565/2021
testimony’ must depend upon his volition.
He can make any kind of statement or
may refuse to make any statement. But
his finger impressions or his
handwriting, in spite of efforts at
concealing the true nature of it by
dissimulation cannot change their
intrinsic character. Thus, the giving of
finger impressions or of specimen writing
or of signatures by an accused person,
though it may amount to furnishing
evidence in the larger sense, is not
included within the expression ‘to be a
witness’.
12. … A specimen handwriting or
signature or finger impressions by
themselves are no testimony at all, being
wholly innocuous because they are
unchangeable except in rare cases where
the ridges of the fingers or the style of
writing have been tampered with. They
are only materials for comparison in
order to lend assurance to the court that
its inference based on other pieces of
evidence is reliable. They are neither oral
nor documentary evidence but belong to
the third category of material evidence
which is outside the limit of ‘testimony’.
***
16. In view of these considerations, we
have come to the following conclusions–
(1) An accused person cannot be said to
have been compelled to be a witness
347 Spl.CC No.565/2021
against himself simply because he made
a statement while in police custody,
without anything more. In other words,
the mere fact of being in police custody at
the time when the statement in question
was made would not, by itself, as a
proposition of law, lend itself to the
inference that the accused was compelled
to make the statement, though that fact,
in conjunction with other circumstances
disclosed in evidence in a particular case,
would be a relevant consideration in an
enquiry whether or not the accused
person had been compelled to make the
impugned statement.
(2) The mere questioning of an accused
person by a police officer, resulting in a
voluntary statement, which may
ultimately turn out to be incriminatory, is
not ‘compulsion’.
(3) ‘To be a witness’ is not equivalent to
‘furnishing evidence’ in its widest
significance; that is to say, as including
not merely making of oral or written
statements but also production of
documents or giving materials which may
be relevant at a trial to determine the
guilt or innocence of the accused.
(4) Giving thumb impressions or
impressions of foot or palm or fingers or
specimen writings or showing parts of the
body by way of identification are not
348 Spl.CC No.565/2021
included in the expression ‘to be a
witness’.
(5) ‘To be a witness’ means imparting
knowledge in respect of relevant facts by
an oral statement or a statement in
writing, made or given in court or
otherwise.
(6) ‘To be a witness’ in its ordinary
grammatical sense means giving oral
testimony in court. Case law has gone
beyond this strict literal interpretation of
the expression which may now bear a
wider meaning, namely, bearing
testimony in court or out of court by a
person accused of an offence, orally or in
writing.
(7) To bring the statement in question
within the prohibition of Article 20(3), the
person accused must have stood in the
character of an accused person at the
time he made the statement. It is not
enough that he should become an
accused, any time after the statement
has been made.”
78. In view of the above principles, the
procedure adopted by the investigating
agency, analysed and approved by the
trial court and confirmed by the High
Court, cannot be faulted with. In view of
the oral report of Rolia Soren, PW 4
which was reduced into writing, the
evidence of PW 23, two letters dated 1-2-
2002 and 2-2-2002 addressed by
349 Spl.CC No.565/2021
Mahendra Hembram (A-3) to the trial
Judge facing (sic confessing) his guilt
coupled with the other materials, we are
unable to accept the argument of Mr
Ratnakar Dash, learned Senior Counsel
for Mahendra Hembram (A-3) and we
confirm the conclusion arrived at by the
High Court.
105. In order to better appreciate the veracity of
the evidence tendered by the Handwriting Expert
PW.93 Kumudha Rani, I have bestowed my anxious
reading to the evidence and also the Report furnished
by her. In her chief-examination she has specifically
deposed that the specimen writings and the admitted
document was examined by her. Further she has
deposed that the person who wrote the specimen
writings at S-1 to S-45, S-389 to S-400 also wrote the
questioned documents. The aforesaid aspects only
indicates that the 57 sheets of specimen writings were
noticed by her which was sent by the Investigating
Officer. During the course of her cross-examination, it
350 Spl.CC No.565/2021
is elucidated from her that different alphabets in
Kannada language would have different writing skills
and well-known authorities on handwriting
examination were Osborne, Hilton and Harrison. She
has also deposed that the standard writings mean
admitted writings which the experts’ desires that the
standard writings should come into existence when on
or about the time the questioned documents came into
existence. She has admitted that she was not having
the advantage of standard writings. Further she has
deposed that the questioned writings are to be dictated
to the person to avoid the chances of imitation and
disguise. Further she has denied the suggestion that
the pictorial script at Ex.P.177 does look like Telugu
script than the Kannada language. Further she has
sticked on to her contention about the similarity in the
alphabets. In order to better appreciate the same, I
have relied upon the authoritative book published in
this regard titled as “Questioned Documents, A study of
351 Spl.CC No.565/2021
questioned documents with an outline of methods by
which facts may be discovered and shown” authored by
Albert Sherman Osborn which was first published in
the year 1910. In the said book it has been discussed
with respect to ascertaining the similarities is
discussed as below;
Two handwritings in the same language
must inevitably have similarities, but, as
we have seen, certain similarities show
only that the writers belong to the same
class or nationality. Although all writing
in the same language is bound to be
somewhat similar, like men of the same
race, from this fact it does not logically
follow that individuality cannot be
distinguished. It would be as absurd to
say that because Americans can easily be
distinguished from Chinamen that
therefore all Americans are alike. As a
matter of fact they are alike in certain
race features, but individuality is shown
by a combination of variations of
individual and general characteristics.
Writing is individualized in precisely the
same manner. Writing that we often see
has about it that which we instantly
recognize as something that gives it a
personality and a character which it may
be difficult or im-possible for the
inexperienced to describe and analyze. It
is not the form alone nor any one feature
but a com-bination of all that mainly
appeals to us, and we name the water
without hesitation. This individuality,
352 Spl.CC No.565/2021
which is recognized even by the
untrained, results from the combination
and proportion of all the varied elements
which make it up, and irrespective of
individual peculiar forms, may strongly
affect judgment as to identity.
The undisguised handwriting of a friend
thus becomes to us almost as
recognizable as the friend’s face, and this
general appearance or pictorial affect is
always of assistance in identifying a
writing, but, it must be added, is also the
means of leading many into error who are
not able to distinguish general from
personal characteristics.
This instant recognition of a writing
simply by intuition the careful examiner
not only does not attempt but, on the
contrary, studiously avoids: he reserves
judgment until the characteristics of the
writing have all been observed, compared
and carefully weighed¹ resemble
somewhat that which it is intended to
resemble, A forged or simulated
handwriting must naturally and a
disguised writing will inevitably diverge
in some degree from a genuine writing
and, as stated above, the whole problem
is to determine and show what
characteristics are of controlling force as
a basis for an opinion. A signature may
be unusual in a number of particulars
and yet contain undoubted evidence of
genuineness, and again a signature may,
in general appearance and superficial
characteristics, bear strong resemblance
to the writing it imitates and yet upon
closer examination be positively shown to
be a forgery. As was considered in the
preceding chapter some writers write a
fixed and uniform hand that diverges but
353 Spl.CC No.565/2021
little from a normal type, while others
are extremely erratic, and these facts
must always be taken into consideration
in forming a judgment in such a case and
each inquiry must be weighed and
measured by itself by examination of the
standard writing in the case. The fact
must be carefully investigated and
considered as to the manner and degree
in which writing is affected by changes in
conditions, and this matter must always
be given due consideration and weight
whether the conditions under which the
writing was done are known or not.
That a questioned and a genuine
handwriting resemble each other in that
they were written on a slant of about
fifty-two degrees from the horizontal
would alone be of little significance as
showing identity, except that they belong
to the same general class, for the reason
that up to a recent date this has been the
normal slant, nor would it be significant
as showing identity that the downward
strokes all slanted alike, because this is
the standard form. If, however, in such a
handwriting it is shown that certain
letters repeatedly depart from normal
forms in slant and for no apparent cause,
then such characteristics at once become
significant.
106. Further in the judgment rendered by the
Hon’ble Apex Court reported in (2010)11 SCC 120
(Ravichandran V State by Deputy Superintendent of Police,
Madras) it has been held as follows:
354 Spl.CC No.565/2021
15. In Murari Lal v. State of M.P. [(1980) 1
SCC 704 : 1980 SCC (Cri) 330 : AIR 1980
SC 531] this Court held as under: (SCC pp.
711-12, para 11)
“11. We are firmly of the opinion that
there is no rule of law, nor any rule of
prudence which has crystallised into a
rule of law, that opinion-evidence of a
handwriting expert must never be acted
upon, unless substantially corroborated.
But, having due regard to the imperfect
nature of the science of identification of
handwriting, the approach, as we
indicated earlier, should be one of
caution. Reasons for the opinion must be
carefully probed and examined. All other
relevant evidence must be considered. In
appropriate cases, corroboration may be
sought. In cases where the reasons for the
opinion are convincing and there is no
reliable evidence throwing a doubt, the
uncorroborated testimony of an
handwriting expert may be accepted.
There cannot be any inflexible rule on a
matter which, in the ultimate analysis, is
no more than a question of testimonial
weight. We have said so much because
this is an argument frequently met with
in subordinate courts and sentences torn
out of context from the judgments of this
Court are often flaunted.”
107. In the aforesaid judgment it has been held
that in cases where the reasons for the opinion are
convincing and there is no reliable evidence throwing a
doubt, the uncorroborated testimony of a handwriting
expert may be accepted. There cannot be any inflexible
355 Spl.CC No.565/2021
rule on a matter which, in the ultimate analysis, is no
more than a question of testimonial weight. When the
aforesaid aspects are compared with the evidence
which is tendered by the Expert before the Court, it
would indicate that the same is in consonance with the
settled principles of law. Even otherwise, the approver
himself has admitted of addressing a letter to deceased
Yogesh Goudar prior to the incident. This particular
aspect once again raises the question that if only the
approver had an intention to save the deceased person,
then why he had not directly contacted him. The
learned Senior Counsel is right to some extent in this
regard. However, how the human mind behaves is not
within the scope of imagination by any person nor it
can be easily deciphered. As such, the Court is
required to now appreciate the materials which is
available on record to ascertain whether there are any
materials to indicate of the overt-act of the accused
person.
356 Spl.CC No.565/2021
108. The learned Senior Counsel has also argued
at length that the evidence of PW.10 does not inspire
confidence for the reason that the said letter which
was produced before the then Investigating Officer was
not fully corroborated in the evidence of PW.1 Dr.
Dattatregya Gudaganti. It is his submission that if at
all the letter was produced by PW.50 Mallavva Goudar,
then PW.1 Dattatreya Gudaganti would not have
deposed that the letter which is at Ex.P.7 was not the
one which he had seen on the date of incident.
Admittedly, the letter was recovered by accused No.19
Channakeshava Tingarikar by drawing a mahazar on
16.06.2016. At the time of mahazar, PW.111 Yogappa
Gujjannanavar has deposed that on 15.06.2016 itself
Mallavva Goudar has narrated to the Investigating
Officer that she was in possession of another letter and
subsequently the letter came to be produced and
mahazar at Ex.P8 was drawn. He has also identified
the photograph at Ex.P.224. All the aforesaid aspects
357 Spl.CC No.565/2021
when compared with the cross-examination made by
the learned counsel for accused No.19, it would
indicate that it was suggested that on 12.06.2016
when Mallavva and her husband along with their
family members had visited Ambulli Ghat, they were
being followed by a black colored Car and two
motorbikes, due to which they had returned back. It is
relevant to note that if such suggestions were made by
accused No.19 himself who was the then Investigating
Officer, then the fact which is required to be answered
is why the black colored vehicle was not recovered not
any investigation was made by the Dharwad Police in
this regard.
109. The aforesaid evidence would only
corroborate with the evidence of PW.2 Gurunatha
Goudar who has also deposed in a similar manner. Be
that as it may, when the evidence of PW.50 is
scrupulously considered, it does indicate that they
have deposed of being followed by a black colored
358 Spl.CC No.565/2021
vehicle and they had returned back on that particular
day itself. That apart, the letter at Ex.P.7 would clearly
indicate that it was being produced by Smt. Mallavva.
Though Smt. Mallavva Goudar has denied of producing
the letter to the Investigating Officer and also about its
veracity, it is curious to note that Smt. Mallavva
Goudar was examined as PW.1 before the Sessions
Court at Dharwad and there she had identified the
letter as the one which they had received as an
anonymous letter prior to the incident and at that time
she had identified the same and accordingly it was
marked as Ex.P2 andEx.P3 which is now again marked
as Ex.P6 and 7. As such, the witness cannot take a
different stand at different interval of time and hence
not much weight-age can be given to the evidence of
PW.50 Mallavva Goudar that she was deposing truly
with respect to motive, intention and conspiracy.
110. I have also bestowed my anxious reading to
the authorities which is relied upon by the learned
359 Spl.CC No.565/2021
Counsel for the accused which is reported in 2021 SCC
Online SC 1184 (Praveen @ Sonu Vs. State of Haryana)
wherein it is held as follows;
12. It is fairly well settled, to prove the
charge of conspiracy, within the ambit of
Section 120-B, it is necessary to establish
that there was an agreement between the
parties for doing an unlawful act. At the
same time, it is to be noted that it is diffi-
cult to establish conspiracy by direct evi-
dence at all, but at the same time, in ab-
sence of any evidence to show meeting of
minds between the conspirators for the
intended object of committing an illegal
act, it is not safe to hold a person guilty
for offences under Section 120-B of IPC. A
few bits here and a few bits there on
which prosecution relies, cannot be held
to be adequate for connecting the accused
with the commission of crime of criminal
conspiracy. Even the alleged confessional
statements of the co-accused, in absence
of other acceptable corroborative evi-
dence, is not safe to convict the accused.
In the case of Indra Dalal v. State Of
Haryana1, this Court has considered the
conviction based only on confessional
statement and recovery of vehicle used in
the crime. In the said case, while setting
aside the conviction, this Court has held
in paragraphs 16 & 17 as under:
“16. The philosophy behind the aforesaid
provision is acceptance of a harsh reality
that confessions are extorted by the po-
lice officers by practising oppression and
torture or even inducement and, there-
fore, they are unworthy of any credence.
The provision absolutely excludes from ev-
idence against the accused a confession
360 Spl.CC No.565/2021made by him to a police officer. This pro-
vision applies even to those confessions
which are made to a police officer who
may not otherwise be acting as such. If he
is a police officer and confession was
made in his presence, in whatever capac-
ity, the same becomes inadmissible in evi-
dence. This is the substantive rule of law
enshrined under this provision and this
strict rule has been reiterated countlessly
by this Court as well as the High Courts.
17. The word “confession” has nowhere
been defined. However, the courts have re-
sorted to the dictionary meaning and ex-
plained that incriminating statements by
the accused to the police suggesting the
inference of the commission of the crime
would amount to confession and, there-
fore, inadmissible under this provision. It
is also defined to mean a direct acknowl-
edgment of guilt and not the admission of
any incriminating fact, however grave or
conclusive. Section 26 of the Evidence Act
makes all those confessions inadmissible
when they are made by any person, whilst
he is in the custody of a police officer, un-
less such a confession is made in the im-
mediate presence of a Magistrate. There-
fore, when a person is in police custody,
the confession made by him even to a
third person, that is, other than a police
officer, shall also become inadmissible.
111. He has also relied upon the judgment
reported in (2012)9 SCC 696 (Baliya @ Balakishan Vs.
State of Madhya Pradesh) and also another judgment
reported in (2022)16 SCC 166 (Ram Sharan Chathurvedi
361 Spl.CC No.565/2021Vs. State of Madhya Pradesh). In the aforesaid two
authorities, it has been laid down by the Hon’ble Apex
Court that in order to draw any inference the
prosecution has to establish the existence of
conspiracy and also such agreement must be proved
through direct or circumstantial evidence. There
cannot be any qualms with respect to the ratio laid
down in the aforesaid authorities. Even in the case on
hand the materials which are produced before the
Court would clearly indicate of existence of criminal
conspiracy.
CHAPTER: XII
IDENTIFICATION OF THE ACCUSED/ASSAILANTS
AND SILENT WITNESS THEORY
112. In the instant case, at the cost of repetition
it is submitted that the incident of murder had taken
place on 15.06.2016 at Uday Gym wherein Yogesh
Goudar was made over to death by some unknown
assailants wherein he was assaulted with deadly
362 Spl.CC No.565/2021weapons like Long, Machette, Dagger, Knife and he
was thrown with chilly powder on his eyes. The fact
also remains on record that as per the contention of
the Dharwad Sub-Urban Police Station, accused No.1
to 6 were the assailants and whereas as per the
contention of the CBI, accused No.7 to 14 were the
assailants. In order to ascertain the same, once again
the evidence is required to be revisited. Admittedly in
the above case, the eye-witnesses who have been cited
are PW.1 Dr.Dattatreya Gudaganti, PW.30 Lakshmi
Benakatti, PW.31 Shashank Jain, PW.32 Anand
Erappa Uddannanavar, PW.33 Vinayak Binjiyavar,
PW.34 Mohan Yecharappa Malmuttal, PW.35
Vivekananda Dalawai, PW.36 Shwetha Kulkarni. It is
relevant to note that except PW.30 Lakshmi Benakatti
all other witnesses have turned hostile. In the instant
case, once again it is required to fall back on the
evidence of PW.10 Basavaraja Muttagi, who has turned
approver. Basavaraja Muttagi in his evidence has
363 Spl.CC No.565/2021deposed that after about 11 months incarceration in
the above case, he was admitted to bail and on the
basis of the final report placed by the Dharwad Sub-
Urban Police, the trial was fixed before the Sessions
Court at Dharwad in the year 2017. He has deposed
that as such he had requested PW.40 Logendra.C.,
who was a Taxi Driver and confident of Basavaraja
Muttagi to pick him from Bengaluru. He has deposed
of picking up Dr.Dattatreya near Esteem Mall who was
the main witness in the above case. Further he has
deposed that PW.10 had sent him a Toyota Etios Car
and he had picked-up Dr.Dattatreya. He has also
deposed of reaching Ramya Residency at Dharwad and
had requested him to take the name of PW.10 with the
owner Mahesh Shetty. After that, they were allotted
with a room and later on he had met Basavaraja
Muttagi, PW.44 Babu Katagi and later on visited the
Dairy of Vinay Kulkarni. It has also been deposed by
him that later on Vinay Kulkarni had directed PW.10
364 Spl.CC No.565/2021to send Dr.Dattatreya and three other persons to Goa
for two days. He had also deposed of traveling in a
Red coloured Tavera Car along with Nithin Shetty and
Amith Reddy. Though PW.1 Dr.Dattatreya, PW35
Vivekananda Dalawai and PW.34 Mohan Yecharappa
had denied of travelling to Goa with any other persons,
it is relevant to note that they had stayed at Jullie Jolly
Resort at Goa. In order to appreciate the same, firstly
the evidence of PW.1 Dr. Dattatreya in this regard is
required to be appreciated. He has admitted of availing
rooms at Jullie Jolly Resort at Ex.P.54. But he has
denied of traveling together with PW.40 Logendra. At
this juncture, if the evidence of PW.96 Leaster
Albuquerque is appreciated, it would indicate that he
was the Proprietor of Jullie Jolly Resort at Goa. For
the better appreciation of the evidence, I have
considered the extract at Ex.P.54 which is seriously
disputed by the defence. In his evidence, he has
deposed that their Resort was situated at Vagator
365 Spl.CC No.565/2021Anjuna Goa and they accept online booking, email
booking and also walk-in guest to their Resort.
Further he has deposed that in the year 2020-21, CBI
Officer had enquired him with respect to certain
persons staying in their Resort and accordingly he had
furnished the extract of the Register along with the
scanned copy of the ID Proof as per Ex.P.54(d). During
the course of his cross-examination, the learned
Counsel for accused No.15 had put a specific question
that the entry in the Register would be made in
seriatim. To the aforesaid question it was answered by
the witness that when there was telephonic booking
made by the party, they would enter their name and
request them to send their ID proof and would make
entry of their arrival and departure only when they
were physically present in the Resort. It is submitted
by him that the aforesaid procedure was adopted only
to ensure hassle free entry to the customers at the
time of check-in. The aforesaid aspect seems to be
366 Spl.CC No.565/2021convincing since the date and time of arrival in the
first two columns reflects as 22.11.2017. Thereafter
the name of PW.40 Logendra, Amith Doddamani,
Nithin Shetty, PW.35 Vivekananda Dalawai, PW.1 Dr.
Dattatreya Gudagandi and PW.34 Anand
Uddannanavar are forthcoming. Their signatures are
also admitted by the parties. All the aforesaid aspects
would lead to a situation that why the eye-witnesses
had travelled with Logendra and stayed at Jullie-Joly
Resort. Even if it is to be considered as a coincidence,
the evidence of PW.44 Babu Katagi casts a serious
aspersion over the manner in which the investigation
is being handled by the Dharwad Sub-Urban Police.
113. PW.44 Babu Katagi in his chief-examination
has not supported the case of prosecution and has
deposed that he was harassed and physically tortured
by CBI and he was even stripped down of his clothes
and assaulted. The aforesaid aspect requires a serious
consideration to be made since a serious allegation is
367 Spl.CC No.565/2021leveled against the Investigating Agency. The Hon’ble
Apex Court and also the Hon’ble High Court of
Karnataka has come down heavily upon the
Investigating Agencies where third-degree methods are
adopted. In order to better appreciate the same, it
would be trite to rely upon the evidence of PW.44 Babu
Katagi. Though PW.44 Babu Katagi was considered as
a hostile evidence, certain factors affecting the
credibility of PW.44 itself came to be revealed during
the course of his cross-examination. It is relevant to
note that Babu Katagi is related to Vinayaka Katagi,
the accused in the above case. He has deposed that for
the aforesaid reason he was requested by the then
Investigation Officer accused No.19 Tingarikar to keep
away from the investigation. However, it is relevant to
note that he was the one who had served the summons
to Dr. Dattatreya. As per the evidence of Dr.
Dattatreya, he was served with the summons by some
Policemen at Ramya Residence, Dharwad. If for a
368 Spl.CC No.565/2021moment, the aforesaid evidence is looked into, Dr.
Dattatreya has specifically deposed that Babu Katagi
had telephonically called him and requested to come in
a Car which was being arranged. Further he deposes
that he had alighted the taxi near Esteem Mall,
Bengaluru and stayed at Hotel Ramya, Dharwad. This
particular evidence would clearly corroborate with the
evidence of the approver Basavaraja Muttagi wherein
he had stated that he had arranged the taxi for Dr.
Dattatreya and he was accompanied by PW.40
Logendra. Even otherwise, it is to be answered by
Babu Katagi or by Dr. Dattatreya that why a Police
Constable would make arrangements for a key eye-
witness to reach Dharwad from Bengaluru in a taxi. It
is rather surprising that the so called highly educated
practicing Medical Doctor had also fallen to the bait of
providing with free transportation and of providing
with free excursion to Goa. Though the witness
deposes that they had visited Goa on their own, the
369 Spl.CC No.565/2021Hotel extract at Ex.P.54 indicates that PW.1 had
traveled with Logendra and two other persons. That
apart, the evidence of PW.41 Mahesh Shetty, who
happens to be owner of Hotel Ramya Residency had
provided two rooms. During the course of his cross-
examination, he has specifically deposed that no entry
in the Register was made for the reason that the rooms
were sought by Basavaraja Muttagi and for family
members and friends he never used to make entry in
the Register. The aforesaid portion would now lead to a
situation that how Babu Katagi was knowing Dr.
Dattatreya to serve the summons. Even the Court had
specifically posed question to him that whether he had
acquaintance with Dr. Dattatreya prior to service of
summons, for which he had answered in the negative
and he had deposed that he was provided the phone
number by his superior officer. The above answer
would create further suspicion with respect to the
character of Babu Katagi. Normally in a criminal case,
370 Spl.CC No.565/2021the character of a witness will not be under scrutiny.
But here is a case wherein several aspersions are
leveled against the witness himself. The witness has
categorically admitted that he was having love affair
with the sister of deceased Yogesh Goudar, whom he
had married at Dharmasthala and later on deserted
her. He has also admitted that for the aforesaid reason
a confrontation had taken place in the Police Station
itself wherein Yogesh Goudar had lodged a complaint
against Babu Katagi due to which he was suspended
from the services. That apart, it is also elucidated from
the witness that he was having illicit affair with
another lady, due to which a child was born who was
named as Pradeep Babu Kattagi and also, he had
made the settlement by paying Rs.2,50,000/-. It is
elucidated from him that several public persons had
assaulted him due to which he was once again kept
under suspension. Though he has denied the same, he
has admitted of publication of a newspaper article in
371 Spl.CC No.565/2021this regard. The learned Senior Public Prosecutor Sri.
Shivananda Perla has vehemently contended that it
was not the CBI who had subjected Babu Kattagi to
third degree method by striping him half naked,
however it was the general public who at an
undisputed point of time being frustrated with the
perverted acts of Babu Katagi had assaulted him and
in order take advantage of the said situation he had
created the aforesaid theory.
114. Even otherwise, the Court is astonished
with the manner in which evidences are being tendered
before the Court. The rustic villagers if any had shown
any disrespect to some extent, it would have been a
matter ignored for the reason that they may be
illiterates. However, in the instant case, it is noticed
that the custodians of the law enforcement machinery
are showing scant respect to the procedures of the
Court and without any remorse have deposed before
the Court that they have tendered false evidence before
372 Spl.CC No.565/2021the learned Magistrate at Dharwad due to the
pressures exerted by the CBI. If for a moment, it is to
be accepted for the sake of arguments that certain
high-handedness was dealt by the Investigating
Agency, then the million-dollar question which
requires to be answered is what prevented the Police
Authorities and that too Dy.SP i.e., PW.24 Shivananda
Chalavadi or for that matter PW.44 Babu Katagi to
report it to the higher authorities. Unfortunately, after
lapse of about 5 years for the first time the witnesses
have appeared before the Court in a blatant manner
have deposed of deposing falsely at the time of
recording their statement on oath under Sec.164 of
Cr.P.C before the learned Magistrate. It is nothing but
a classic case where the act of the concerned Police is
to be depreciated so as to prevent the eroding of faith
by the public on judiciary.
115. Be that as it may, when the evidence of
PW.30 Lakshmi Benakatti is appreciated, it does
373 Spl.CC No.565/2021indicate that she was present on the fateful day i.e., on
15.06.2016 when the incident had taken place. It is
her evidence that after completing her gym activities,
she was standing in front of Gym and conversing with
PW.36 Shwetha Kulkarni. However, on hearing a loud
noise and on witnessing persons assaulting Yogesh
Gouder, they had started to run towards the adjacent
building i.e., the Post Office. Somewhere the evidence
of PW.1 Dr. Dattatreya, PW.30 Lakshmi Benakatti and
other eye-witnesses co-relate with the aspect that they
all had run towards the Post Office building and later
on they had returned back. PW.36 Shwetha Kulkarni
has specifically denied of witnessing any incident or
running towards the Post Office building, it is noticed
from records that when she was subjected to cross-
examination through video conferencing, she had
admitted categorically of being frightened and standing
near the gate of Post Office. All the aforesaid aspects
would indicate that she had also noticed the incident.
374 Spl.CC No.565/2021
With respect to the other eye-witnesses i.e., PW.31 to
35 have deposed in the similar manner. The learned
counsel for accused No.15 has contended that none of
the accused were identified by the so-called eye-
witnesses to the incident. It is his contention that the
evidence of PW.30 does not inspire confidence.
116. In order to better appreciate the same, the
concept of winning over the witness as propagated by
the CBI in comparison with that of the approver is
required to be looked into. PW.30 in her evidence has
admitted that she was examined by the Sessions Court
at Dharwad at the first instance wherein she has
deposed that she had joined the evening batch and not
the morning batch on the fateful day. She was also
considered as hostile witness. Now the main question
which requires to be determined is how the Court can
place reliance on the evidence of PW.30 Lakshmi
Benakatti by ignoring the stand of other eye-witnesses
who had turned hostile in the above case. In order to
375 Spl.CC No.565/2021better appreciate the same, it would be appropriate to
consider the chief examination of PW.30 Lakshmi
Benakatti. She has specifically deposed that in the
year 2017 through Babu Katagi she had received the
summons and immediately thereafter she was
requested to come near Sai Temple at Dharwad. There
two Advocates had met her in the evening and later on
was made to sit in a Car wherein an Advocate had
stated that one lady Advocate would examine her in
the Court, for which she has to depose by feigning her
ignorance about the incident and stating that she was
not attending Gym in the morning. After that she was
again asked to come near the same place and she had
narrated the incident to her father and sister and they
were scared and accompanied her. Further at about
08.00 PM they were taken to one Rashi Farms and she
had stayed in the last room along with her father,
sister and one Nagaraj Yadav, the family friend. If for a
moment, the aforesaid aspect is considered, it would
376 Spl.CC No.565/2021indicate the fearful situation which an unmarried girl
was made to pass through at that point of time.
Somewhere the evidence of PW.30 finds corroboration
in the evidence of PW.43 Shivakumar Nijaguni
Bendigeri, Advocate, who has deposed that in the year
2017 at about 06.30 PM when he was having a cup of
Tea near Hotel Ganesh, opposite to District Court, a
Car had come and his senior A.S.Shinde had asked
him to accompany in that Car and they had travelled
till Sai Baba Temple at Kalageri Road, Dharwad
wherein he was requested to get down of the Car and
he had seen a lady coming near the Car and
conversing with his Senior A.S.Shinde. Further he
deposes that his Senior was practicing on criminal
side. During the course of cross-examination, it was
suggested to him that he was Special Public Prosecutor
for CBI, for which the witness has admitted and
deposes that since from 2025 he was working as
Special Public Prosecutor. For the sake of arguments
377 Spl.CC No.565/2021and corroboration it is relevant to note that his
statement was recorded at a point of time when he was
not working for CBI. However, he was not subjected to
any cross-examination by the learned counsel for the
accused apart from accused No.15. With this aspect, if
the evidence of PW.30 Lakshmi Benakatti is
appreciated, it seems plausible that she might have
been pressurized to depose in a particular manner and
that too being an unmarried girl she was not in a
position to swim against the current at that time.
Further it is noticed from records that she has
specifically identified the accused No.9 Ashwath before
the Court as the one who was the main assailant
holding Long Machette and assaulting deceased
Yogesh Goudar on the fateful day. The learned defence
counsels have vehemently argued that in the absence
of any proper Test of Identification Parade being
carried out or identifying the assailants, the Court
cannot draw any inference with respect to the
378 Spl.CC No.565/2021allegations leveled against the accused persons. The
said submissions seem to be attractive at the first
brush of incidence. However, when the materials are
examined in detail, the said presumption and inference
cannot be made. This particular aspect leads to a
crucial aspect that how the identity of the accused can
be established without following the aforesaid
procedures and whether the CCTV footage can be
construed as substantive piece of evidence.
SILENT WITNESS THEORY
“Men may falter, memories may fade, but digital
evidence endures and speaks the truth.”
117. The aforesaid proverbial adage is aptly
applicable in the present context and particular in the
above case, where the majority of the eye witness have
turned hostile. Though it is contended by the
prosecution that the aforesaid eye witness had
witnessed the incident, they had turned hostile and
had denied being so. However, in the wake of the
379 Spl.CC No.565/2021
digital evidence in the form of CCTV footage being
displayed to the aforesaid witnesses they have
identified themselves in the vicinity of the incident and
the pictorial image of the accused persons are also
forthcoming in the aforesaid CCTV footage. The
aforesaid aspect leads to a situation to juxtapose the
digital evidence with the ocular evidence and ascertain
the truth. Ultimately the voyage of criminal trial is the
discovery of truth. In the instant case, the court is now
required to appreciate the digital records which are
placed before the court for the appreciation. As noticed
from the records, photographs, video documents and
electronic devices have been placed before the court in
order to prove the guilt of the accused persons by the
prosecution. It is relevant to note that the materials
which are produced in the audio-visual content is
required to be considered as evidence. A document,
which is defined as per Sec.3(18) of General Clauses
Act, which defines the document as hereunder:
380 Spl.CC No.565/2021
“Document shall include any matter
written, expressed, or described upon any
substances by means of letters, figures or
marks, or by more than one of those
means which is intended to be used, or
which may be used for the purpose of
recording that matter.”
118. Further, as per Section 29 of Indian Penal
Code, it explains that the word document denotes any
matter expressed or described upon any substance by
means of letters, figures or marks or by more than one
of those means, intended to be used or which may be
used as evidence in that matter. Going by the
definitions of document, it includes not only all
materials or substances upon which thoughts of a
man are represented, by writing or any other specious
of conventional mark or symbol, but also records and
it includes the records of information of some sort.
Hence by looking into the definition clause, it is crystal
clear that the document means something which
conveys or affords information, notwithstanding the
matter or medium on which it is exhibited, inscribed or
381 Spl.CC No.565/2021
contained. It also includes writing, picture, caricature,
map or plan printed, lithographed or photographed on
a piece of paper and document includes an inscription
on a metal plate or a stone as could be noticed from
the records, photographs, audio and video aspects also
would be considered as documents. Witnesses may
with their personal knowledge state that a photograph
is a fair and accurate representation of fundamental
facts which appears therein. In such a case, the
evidence of the witnesses will be the primary matter
rather than what is depicted in the photograph and the
photographer need not be examined in the court. They
are explained by Wigmore as nothing more than
illustrated testimony of the witness. This principle gave
rise to ‘Pictorial testimony theory’ or a communication
theory. But when a photograph itself is taken as a
probative and substantial evidence of the matters
appeared therein, it acquires the glorified status of
independent ‘Silent witnesses’. In Black’s Law
382 Spl.CC No.565/2021
Dictionary, 9th edition, at Page 1508 Silent Witness Theory
is mentioned as hereunder:
“A method of authenticating and
admitting evidence (such as a
photograph), without the need for a
witness to verify its authenticity, upon a
sufficient showing of the reliability of the
process of producing the evidence,
including proof that the evidence has not
been altered.”
In Halsbury’s Laws of England, Fourth Edition,
Vol. 1 7, at Page 158, it is noticed as follows:
“224. Photographs: Photographs properly
verified on oath by a person able to speak
to their accuracy are generally
admissible to prove the identity of
persons, or the configuration of land as it
existed at a particular moment (scientific
deductions from them being made by a
witness both skilled and experienced in
such a task, or radar echoes or the
contents of a lost document. In the High
Court a photograph is receivable in
evidence at the trial only when certain
provisions have been complied with.”
In Halsbury’s Laws of England, Fifth Edition,
Vol.11, at page 723, it is stated as follows:
“958. Photographs, films, records, tape
recordings and video recordings. At
common law, photographs properly
verified on oath by a person able to speak
383 Spl.CC No.565/2021to their accuracy were generally
admissible to prove the identity of
persons, or the configuration of land as it
existed at a particular moment (scientific
deductions from them being made by a
witness both skilled and experienced in
such a task), or radar echoes or the
contents of a lost document. For the
purpose of Civil Evidence Act 1995,
‘document ‘means anything in which
information of any description is
recorded and a similarly wide definition
applies for the purposes of disclosure
under the Civil Procedure Rules. Thus
photographs, films, records, tape
recordings and video recordings are all
admissible in evidence, subject, if
appropriate, to the statutory safeguards
with regard to hearsay evidence. Prior
notice must be given of a party’s intention
to put photographs and certain other
items in evidence.
119. The law of evidence has progressively
evolved from an era dominated by oral testimony and
human perception to one increasingly reliant upon
scientific and electronic modes of proof. In this
transition, courts have recognized that truth is not
always spoken–it is often recorded. The Silent Witness
Theory emerges from this shift, acknowledging that
mechanically or electronically generated evidence can
384 Spl.CC No.565/2021
itself serve as a witness, independent of human
narration.
120. The Silent Witness Theory originated in
Anglo-American jurisprudence to address the
admissibility of photographs and recordings in the
absence of an eyewitness. Traditionally, such evidence
was admitted only if a witness testified that it
accurately represented what they had personally
observed–this was known as the pictorial testimony
theory. The Silent Witness Theory marked a doctrinal
shift by holding that:
a. Evidence generated by a machine is
admissible if the integrity of the process that
produced it is established, even in the ab-
sence of a human witness to vouch for its
contents.
b. Thus, a camera, recording device, or
computer system becomes a “silent witness”,
narrating events through data rather than
words.
121. In order to better appreciate the above said
aspects it would be appropriate to consider the
385 Spl.CC No.565/2021
evidence which has been produced by the prosecution
in order to prove the aforesaid aspects. Firstly, the
evidence of PW.39 Kushal A Master is required to be
appreciated. The aforesaid witness is working as
Scientific Officer, Forensic Science lab, Gujarat. In his
evidence he has deposed about the expertise which he
has got in the subject and even during the course of
cross examination nothing much was elucidated to
dismantle his professional expertise. Further he has
deposed that under a covering letter with proper seal,
the Superintendent of Police, HOB/ACB, CBI
Bengaluru had sent him with certain materials in the
form of hard disk of Western Digital make with Sl. No.
WCC4M5TY6JZK which was of 2TB capacity and also
another pen drive with Sandisk make of 8GB capacity.
He has deposed of scientifically examining the same
and by using the software and hardware ‘DVR
Examiner Version 2.9.0’ which was available and
‘ENCASE Version 6.19.7.2″ which was available in
386 Spl.CC No.565/2021
their Forensic Department. Further he has deposed of
examining the materials which were available in the
pen drive and had found that the contents of the pen
drive were the controlled CCTV footage which was
available in the Hard disk. It is his evidence that on
examining the aforesaid materials he had arrived at a
conclusion that the video footage for the given date,
time and camera for the date 14.06.2016 and
15.06.2016 between 6.00 AM and 10.00 AM for
camera 6 were copied and he had found that there
were no signs of editing or altercations with the CCTV
video footage. The aforesaid witness was cross
examined by the learned counsel for accused No.8 to
14 and it is noticed that he was not examined
extensively. That apart, the court is now required to
consider the evidence of PW.93 Dr. Kumuda Rani is
required to be appreciated. She has appeared before
the court to tender her evidence as expert. During the
course of her chief examination, she has explained her
387 Spl.CC No.565/2021
educational and professional credentials so as to be
called as expert witness. In her evidence she has
deposed that she was sent with 2 TB hard disc of
Western digital make. She has also deposed that the
entire video files were carefully and forensically
searched for their genuinity. It is her evidence that the
videos were subjected to frame analysis by using
forensic software by name ‘forevid’. The forensic
system generated the details which were enclosed in
the soft copy as Annexure-A1 and Annexure-A2 (DVD).
It is deposed by her that on the basis of the same she
had furnished her opinion as per Ex.P187. I have
carefully appreciated the Certificate which has been
furnished by the witness. By verifying the entire
aspects it has been opined that the video files present
in 2 TB Western Digital internal hard disc contained
the duration of 07.00.00 to 08.00.00 were genuine and
also content of the video file which was present in the
DVD marked as D1 during the time interval found in
388 Spl.CC No.565/2021
the hard disc were also found to be genuine. I have
also bestowed my anxious reading to the nature of
cross-examination to which she was subjected to. As
noticed from the records, much cross-examination was
made with respect to the specimen writing. During the
course of cross-examination by the learned counsel for
accused No.2 to 6, all that it was suggested was the
witness had not analyzed any video and has not
furnished the 65-B Certificate to the Investigating
Officer. Even during the cross-examination by accused
No.8 to 14 much thrust was given with respect to the
opinion furnished on the handwriting. By looking into
the aforesaid aspects, now the Court is required to
determine whether the evidence tendered through
CCTV footage can be considered as substantial piece of
evidence. In order to better appreciate the same, it
would be appropriate to rely upon the judgment of the
Hon’ble Apex Court reported in (2017)6 SCC 1 (Mukesh
389 Spl.CC No.565/2021
Vs. State [NCT of Delhi]), wherein it has been held as
follows;
102. Once it is proved before the court
through the testimony of the experts that
the photographs and the CCTV footage
are not tampered with, there is no reason
or justification to perceive the same with
the lens of doubt. The opinion of the CFSL
expert contained in the CFSL report
marked as Ext. PW-76/E authenticates
that there was no tampering or editing in
both the exhibits, Ext. P-67/1 and Ext. P-
67/2, and that a bus having identical
patterns as the one parked at Thyagraj
Stadium is seen in the CCTV footage,
which includes the word “Yadav” written
on one side, “backside dent (left)” and
absence of wheel cover on the front left
side. The contents of the report is also
admitted to be true by its author, PW 76,
Gautam Roy. Quite apart from that, it is
perceptible that the High Court, in order
to satisfy itself, had got the CCTV footage
played during the hearing and found the
same to be creditworthy and acceptable.
311.3. There is no reason or justification
to disregard the CCTV footage, for the
same has been duly proved and it clearly
establishes the description and movement
of the bus.
122. In the aforesaid authority, it has been held
that unless there are other compelling reasons or
390 Spl.CC No.565/2021
materials to indicate that the testimony of the experts
that the photographs and the CCTV footage were
tampered, the same cannot be doubted. The facts in
the above case for which it was sent to Forensic
examination is quite similar to the present case. It is
also relevant to note from the testimony of PW.89
Sangamesh Mallappa Madivalara, who was the Postal
Assistant at PMG Office, Sapthapura, Dharwad, it
could be ascertained that the CCTV was installed in
their office during the period 2015-16 and also outside
the office near the main gate which he was monitoring.
It is his evidence that the concerned Police had
addressed a request to their higher authority who in
turn had directed him to furnish the CCTV footage
which was recovered by the concerned Police along
with a Technician on 16.06.2016 under a mahazar at
Ex.P167. He has also deposed that at the time of
recovery itself, the relevant footage was copied into a
DVD which he had identified as Ex.P168. During the
391 Spl.CC No.565/2021
course of his cross-examination, it was elucidated from
him by the learned counsel for accused No.7 that he
was only looking after the CCTV footage. He has also
deposed of receiving a written directions by his higher
authorities to look after the CCTV. By looking into the
aforesaid aspects it is clear that the CCTV footage were
collected properly and in accordance with law. Even
otherwise, the CCTV footage were collected by the then
Investigating Officer Chennakeshava Tingrikar during
the course of his investigation. The CCTV footage
though was collected by him and even though PW.10
Basavaraja Muttagi also deposes of accused No.19
Chennakeshava Tingrikar of having confronted him,
there is no explanation nor any materials are available
to indicate that why the then IO and present accused
No.19 Chennakeshava Tingrikar had not examined the
presence of accused No.7 to 14, who were seen
running at the place of incident of murder. All the
aforesaid aspects once again cast a serious aspersion
392 Spl.CC No.565/2021
against the evidence which was collected by the
erstwhile Investigating Officer.
123. I have also carefully appreciated the
evidence of eye-witnesses in the above case. The
materials on record indicate that the admitted eye-
witnesses in the case dehorns that of PW.30 Lakshmi
Benkatti have all turned hostile. As such, the question
which requires to be considered is whether any
reliance can be placed on the evidence of the witnesses
who have turned hostile. It is the settled principles of
law that merely because the witnesses have turned
hostile, the Court cannot ignore or brush aside the
evidence which is placed before the Court. In that
event, it would be fit and appropriate to look into the
evidence which is placed before the Court. Admittedly,
the CCTV footage which is produced before the Court
consists of the footage pertaining to 14.06.2016 and
15.06.2016. The approver PW.10 Basavaraja Muttagi
has deposed that as per their initial plan, the incident
393 Spl.CC No.565/2021
should have taken place on 14.06.2016, but the same
was postponed for the reason that at a particular point
of time a vehicle belonging to Vinay Dairy was noticed
to be passing in front of the Gym. Hence, they had
decided that the same may attract the wrath of some
superior officers or from the general public and hence
they had waited for the next day. As noticed from the
records, the CCTV footage pertaining to 15.06.2016
indicates of some chaos that had taken place near the
Gym area on the fateful day. Just prior to the arrival
of the car of Yogesh Goudar, the accused persons are
seen moving in front of the Gym. The learned PP has
pointed out towards accused No.1 to 6 and has
deposed that they were not at all seen at the alleged
time of incident and whereas the movement of accused
No.7 to 14 could be easily traced. As such, it can be
clearly held that accused No.7 to 14 had formed an
unlawful assembly armed with deadly weapons and in
furtherance of the common intention which they had
394 Spl.CC No.565/2021
entertained with accused No.1 to 6 as per the
conspiracy entertained with accused No.15, 16 and 18,
they had committed the murder of Yogesh Goudar on
the fateful day.
124. The common factors which are noticed from
the evidence of the eye-witnesses who have turned
hostile are as follows;
(a) PW.1 Dr. Dattatreya Gudagunti and also the
other eye-witnesses who had turned hostile
i.e., PW.31 to 36 have specifically admitted
that the CCTV footage which is displayed in
the Court was having full clarity and also
they have deposed unequivocally that much
vehicles and persons were traversing in front
of the Gym on 15.06.2016 at about 06.46.59
AM to 07.45 AM.
(b) All the aforesaid witnesses have admitted
that the very same persons were seen in the
CCTV footage pertaining to 14.06.2016.
(c) All the aforesaid witnesses have admitted the
movement of vehicles and also three persons
raiding the motor bike immediately after the
incident of murder.
395 Spl.CC No.565/2021
(d) The witnesses have also admitted by
identifying themselves and also their
companion Gym mates running towards the
Post Office building which was adjacent to the
Gym and after some time returning back to
the Gym area.
(e) The cross-examination also indicates that
the witnesses have identified the movement of
a black Chevrolet Car after the incident.
When the evidence of PW.1 is carefully
appreciated, he has not specifically denied
the presence of accused persons near the
place of incident when during the cross-
examination of PW.1, it was suggested by the
prosecution.
(f) PW.1 has also identified the Car in which
Yogesh Goudar had entered into the Gym
which further corroborates the submission of
the approver. Likewise, PW.31 Shashank
Jain has also identified PW.36 Shwetha
Kulkarni and has deposed that he was shown
with CCTV footage by Dharwad Sub-Urban
Police wherein a person was wearing red
jacket and cap coming to the road from Post
Office towards Gym. It is deposed by him
that by looking into the CCTV footage, he had
not identified any accused persons.
396 Spl.CC No.565/2021
(g) PW.32 Ananda Irappa Uddannanavar, has
also admitted that CCTV footage was very
clear and also, he had admitted of noticing
two persons of which one was wearing blue
jerkin and another wearing green checks full
shirt was seen near the place of incident.
Likewise, he has also deposed by identifying a
person wearing red jacket and has
categorically identified the motorbike.
(h) PW.33 Vinayak Pinjiyavar has also admitted
about the clarity of CCTV and also about the
assailants who seem to have been running in
front of the Gym.
(i) PW.33 has admitted the presence of his other
Gym mates who were seen to be running
behind him towards Post Office building.
(j) PW.34 Mohan Yecharappa Mulmuttal has
also deposed in consonance with the
aforesaid evidence and has admitted that he
was standing at a 10 feet distance from the
Gym.
(k) PW.35 Vivekananda Shivshankar Dalwai,
Gym Trainer, though had turned hostile, has
admitted that the CCTV footage was clear and
persons were clearly visible. With respect to
the movement of the assailants, he had
admitted the same. During the course of his
cross-examination it was elucidated from him
397 Spl.CC No.565/2021
by putting the suggestions in the form of
questions which has all been admitted by the
witness.
(l) PW.36 Shwetha Kulkarni, who was examined
through VC has deposed that she was
attending the Gym in lady’s batch. The
cross-examination would clearly indicate the
manner in which the witness was won over by
the accused. Though the witness deposes of
attending the lady’s batch, she has
categorically admitted that as per the CCTV
footage, her presence could be noticed on
15.06.2016 and it was seen that she was
panting from fear. It was specifically
questioned to her that whether she had come
running in the similar manner or in any
previous occasions to the Gym, she has
denied the same. When she has further
probed for the reason of running inside the
Gym area, she has feigned her ignorance.
However, she has admitted that she was
looking outside the gate from the Post Office
building at 07.38.01 hours. He has also
admitted that the lady standing next to her
was also standing in fear wherein she too had
closed her mouth due to fear. At the height of
feigning ignorance, she has deposed that she
does not remember the reason for her run
towards the Post Office building.
398 Spl.CC No.565/2021
125. By considering the evidence, the fact which
emerges and requires appreciation is that accused
No.1 to 6 were from Dharwad and they were not seen
near the place of incident as on 15.06.2016. Further it
is pertinent to note that initially the investigation was
commenced by accused No.19 Chennakeshava
Tingarikar and the evidence of PW.39 and PW.93
would indicate that the CCTV footage which were all
collected were not tampered and were in accordance
with law. The aforesaid aspect boils down to another
important questions being cropped up that if accused
No.7 to 14 were not having any nexus with the crime,
then why they were present on the fateful day at
relevant point of time and that too when Yogesh
Goudar was being murdered. Admittedly, accused No.8
to 14 were from Bengaluru and they did not had any
job or work at Dharwad and also the reason for their
movement in front of Uday Gym and the reason for
their fanatic run immediately after the murder by
399 Spl.CC No.565/2021
raiding the vehicles. It is relevant to note that during
the course of investigation by Dharwad Sub-Urban
Police, he had only seized the motorbike belonging to
accused No.18 Vikas Kalburgi which is also admitted
during the course of evidence of PW.63 it is noticed
that the motorbike bearing Reg. No.KA-25-EA-6230
was not seized during the course of his investigation.
Though the Bike and Scooter on which the accused
persons had fled from the place of incident, no
recovery was made by accused No.19 during the
course of his investigation. As such, it would cast a
serious aspersion with respect to the manner in which
the investigation has been carried out by the State
Police. Even during the course of cross-examination, it
has been elucidated from the witnesses that one of the
assailants was showing gesture towards another
assailant when the vehicle of Yogesh Goudar had
arrived near the Gym. As it was suggested that the
person who was showing the gesture was accused
400 Spl.CC No.565/2021
No.14 Harshith to accused No.12 Shahanawaz, the
witnesses have deposed that they do not know about
it. As could be noticed from the records, there is no
specific denial with respect to the presence of accused
persons. As per the records which is placed before the
court, the call detail extracts pertaining to accused
No.1 to 6 and 18 indicate their presence in and around
the Gym area and not exactly near the Gym at the time
of incident. As such, the contention of accused No.19
Tingariker, the then IO would be falsified since the
aforesaid accused persons were not at all present. The
CDRs at Ex.P220, Ex.P241, Ex.P242, Ex.P243 and
Ex.P62(a) are required to be juxtaposed and looked
into. The aforesaid documents would indicate that the
evidence which is tendered by Basavaraja Muttagi is
corroborated with the other materials placed before the
court.
126. The learned Counsel for accused No.2 to 6
and 18 and also accused No.8 to 14 have seriously
401 Spl.CC No.565/2021
disputed with respect to the same and have contended
that unless the prosecution establishes the presence of
accused, the CDR cannot be made as the basis for the
same. It is relevant to note that the CDRs were
obtained from various service providers and also
necessary Certificate was obtained from them. It is to
be kept in mind that under Cr.P.C., no specific
schedule or manner of Certificate is prescribed for
issuing the Certificate under Sec.65(B), unlike the
provisions of Sec.63(4)(c) of Bharathiya Sakshya
Adhiniyam, 2023. Though the evidence of PW.106 and
PW.109 is seriously disputed by the defence on the
premises that the Certificates which are issued are not
in consonance with law. I have bestowed my anxious
to the same and appreciated the evidence of PW.106
Prakash.G, who is the Nodal Officer at Vodafone India.
In his evidence he has deposed of furnishing CDRs as
per Ex.P211 to 220 and the Certificate as per Ex.P221.
During the course of his cross-examination by the
402 Spl.CC No.565/2021
learned Counsel for accused No.1, it was elucidated
that CDR tower location was not available and it
consists of only Cell ID which he had used to map the
tower location. He was specifically questioned that
whether he remembers the mapping of mobile number
ending with 0003 during the period 15.06.2016 and
16.06.2016, he has deposed that he does not
remember about the same and likewise when the
evidence of PW.109 Johnson Tom is considered who
was also Chief Nodal Officer of Bharathi Airtel Ltd., it
is elucidated from him of furnishing the CDR during
the period 01.01.2016 to 30.06.2016 as per Ex.P249
and three Certificates under Sec.65(B) of Indian
Evidence Act was issued by him as per Ex.P250. He
was also cross-examined at length by the learned
counsel for accused No.7 and 15. The witness has
deposed that the IO had not requested to identify the
hand-set used by the suspected persons. Further he
has deposed that he had issued the CDR in a CD
403 Spl.CC No.565/2021
which was only a readable one and which could not be
re-writted. The aforesaid aspects when compared with
his further cross-examination wherein it is suggested
that the mobile Number 9663406677 was activated on
05.03.2014, the witness had admitted the same. The
aforesaid mobile number belongs to accused No.15
Vinay Kulkarni himself and when his CDR is carefully
looked into and in particularly for the date 15.06.2016,
a call was received by him from Natraj Sarj Desai, who
is none other than his cousin and whereas PW.10 has
specifically deposed that on the date of murder he had
called Natraj Sarj Desai on several occasions to
ascertain the whereabouts of accused No.15 Vinay
Kulkarni and the call duration indicated that they are
conversed for about 08.18.34 minutes and the tower
address of accused No.15 Vinay Kulkarni indicated
near Boys Hostel, inside Indian Institute of Science,
C.V.Raman Avenue, Bengaluru. Further the tower
location of Basavaraja Muttagi on 16.06.2016 at about
404 Spl.CC No.565/2021
13.35.35 hours indicates of passing near Nice Road,
Bengaluru. The learned counsel for accused No.21 has
vehemently argued that if at all the accused had
collected money near Sanky Tank and left the same,
then how the tower location indicated of movement
near Nice Road at 13.35 hours. The said aspect seems
to be attractive. However, it is to be noticed from
records and also from the incident that has taken
place that a person cannot be expected to have a
photographic memory with respect to the time.
Admittedly, the incident had taken place in the year
2016, for which the evidence was being recorded in the
year 2025 and hence the Court cannot expect a
photographic memory from them. However, by looking
into the materials, it is clear that accused No.7 to 14
were very much present near the Gym at the time of
incident of murder and that too when they were not
the residents of Dharwad, the question of their
presence requires explanation from them.
405 Spl.CC No.565/2021
127. Further, I have also considered the evidence
of PW.108 P.S.Gopalakrishna, who has deposed he
worked as Technical Assistant to the Investigating
Officer in analysis of the connectivity chart which he
had prepared by using IBM i2 analyst application and
has also identified the chart at Ex.P247. He has
deposed of assisting the Investigating Officer for
segregation of the call details of Basavaraja Muttagi
and Vinay Kulkarni and also the call details between
Basavaraja Muttagi and Smt. Shivaleela Kulkarni
which were collectively marked at Ex.P248. On perusal
of the aforesaid documents, it does indicate that
during the aforesaid period PW.10 was in continuous
contact with accused No.15 till 02.06.2016 and they
had conversed with each on 57 occasions commencing
from 26.01.2016 to 02.06.2016. It is also noticed from
the CDRs that during the period 16.04.2016 to
30.05.2016, totally 94 calls were made by PW.10
Basavaraja Muttagi to the wife of Vinay Kulkarni by
406 Spl.CC No.565/2021
name Smt. Shivaleela Kulkarni. Curiously, after the
aforesaid date and just prior to the commission of the
crime no calls were seen from each other’s mobile
which once again raises the eyebrow that for what
reasons suddenly the calls had stopped. In the
matters pertaining to conspiracy, which rests on
circumstantial evidence, the aforesaid aspect is
required to be looked into. It is curious to note that
with respect to the call details between Basavaraja
Muttagi and Vinay Kulkarni and also between
Basavaraja Muttagi and Shivaleela Kulkarni, specific
question was posed by this Court under Sec.313 of
Cr.P.C., at Question No.292. For the aforesaid
question, the accused No.15 has not denied the same,
but has deposed that he does not know about it. The
aforesaid act also indicates of one of the circumstances
which requires to be looked into. Further it is the
settled principles of law that when the case rests on
circumstantial evidence, the accused are required to
407 Spl.CC No.565/2021
offer an explanation with respect to their presence
near the place of incident. In this regard, it would be
appropriate to rely upon the judgment of the Hon’ble
Apex Court reported in (2000)8 SCC 382 (State of West
Bengal Vs. Mir Mohammed Omar and others) wherein it is
held as follows;
31. The pristine rule that the burden of
proof is on the prosecution to prove the
guilt of the accused should not be taken
as a fossilised doctrine as though it
admits no process of intelligent
reasoning. The doctrine of presumption is
not alien to the above rule, nor would it
impair the temper of the rule. On the
other hand, if the traditional rule
relating to burden of proof of the
prosecution is allowed to be wrapped in
pedantic coverage, the offenders in
serious offences would be the major
beneficiaries and the society would be the
casualty.
32. In this case, when the prosecution
succeeded in establishing the afore-
narrated circumstances, the court has to
presume the existence of certain facts.
Presumption is a course recognised by the
law for the court to rely on in conditions
such as this.
408 Spl.CC No.565/2021
33. Presumption of fact is an inference as
to the existence of one fact from the
existence of some other facts, unless the
truth of such inference is disproved.
Presumption of fact is a rule in law of
evidence that a fact otherwise doubtful
may be inferred from certain other proved
facts. When inferring the existence of a
fact from other set of proved facts, the
court exercises a process of reasoning
and reaches a logical conclusion as the
most probable position. The above
principle has gained legislative
recognition in India when Section 114 is
incorporated in the Evidence Act. It
empowers the court to presume the
existence of any fact which it thinks
likely to have happened. In that process
the court shall have regard to the
common course of natural events, human
conduct etc. in relation to the facts of the
case.
34. When it is proved to the satisfaction
of the Court that Mahesh was abducted
by the accused and they took him out of
that area, the accused alone knew what
happened to him until he was with them.
If he was found murdered within a short
time after the abduction the permitted
reasoning process would enable the Court
to draw the presumption that the accused
have murdered him. Such inference can
be disrupted if the accused would tell the
409 Spl.CC No.565/2021
Court what else happened to Mahesh at
least until he was in their custody.
35. During arguments we put a question
to learned Senior Counsel for the
respondents based on a hypothetical
illustration. If a boy is kidnapped from
the lawful custody of his guardian in the
sight of his people and the kidnappers
disappeared with the prey, what would be
the normal inference if the mangled dead
body of the boy is recovered within a
couple of hours from elsewhere. The
query was made whether upon proof of
the above facts an inference could be
drawn that the kidnappers would have
killed the boy. Learned Senior Counsel
finally conceded that in such a case the
inference is reasonably certain that the
boy was killed by the kidnappers unless
they explain otherwise.
36. In this context we may profitably
utilise the legal principle embodied in
Section 106 of the Evidence Act which
reads as follows: “When any fact is
especially within the knowledge of any
person, the burden of proving that fact is
upon him.”
37. The section is not intended to relieve
the prosecution of its burden to prove the
guilt of the accused beyond reasonable
doubt. But the section would apply to
cases where the prosecution has
succeeded in proving facts from which a
410 Spl.CC No.565/2021
reasonable inference can be drawn
regarding the existence of certain other
facts, unless the accused by virtue of his
special knowledge regarding such facts,
failed to offer any explanation which
might drive the court to draw a different
inference.
38. Vivian Bose, J., had observed that
Section 106 of the Evidence Act is
designed to meet certain exceptional
cases in which it would be impossible for
the prosecution to establish certain facts
which are particularly within the
knowledge of the accused. In Shambhu
Nath Mehra v. State of Ajmer [AIR 1956
SC 404 : 1956 SCR 199 : 1956 Cri LJ 794]
the learned Judge has stated the legal
principle thus:
“This lays down the general rule that in a
criminal case the burden of proof is on
the prosecution and Section 106 is
certainly not intended to relieve it of that
duty. On the contrary, it is designed to
meet certain exceptional cases in which it
would be impossible, or at any rate
disproportionately difficult for the
prosecution to establish facts which are
‘especially’ within the knowledge of the
accused and which he could prove
without difficulty or inconvenience.
The word ‘especially’ stresses that. It
means facts that are pre-eminently or
exceptionally within his knowledge.”
411 Spl.CC No.565/2021
39. In the present case, the facts which
the prosecution proved including the
proclaimed intention of the accused,
when considered in the light of the
proximity of time within which the victim
sustained fatal injuries and the proximity
of the place within which the dead body
was found are enough to draw an
inference that victim’s death was caused
by the same abductors. If any deviation
from the aforesaid course would have
been factually correct only the abductors
would know about it, because such
deviation would have been especially
within their knowledge. As they refused
to state such facts, the inference would
stand undisturbed.
128. With respect to the admissibility of CDR, it
would be appropriate to consider the judgment of the
Hon’ble Apex Court reported in (2010)6 SCC 1 (Siddarth
Vasishta @ Manu Sharma Vs. State [NCT of Delhi]),
wherein it has been held as follows;
223. The evidence of the telephone calls
in the present case is admissible under
Sections 8 and 27 of the Evidence Act. PW
16, Raj Narain Singh, has deposed that
Tel. No. 3782072 is installed at 15, B.R.
Mehta Lane in the name of O.P. Yadav,
Ext. PW 16-C. The printout for the period
412 Spl.CC No.565/2021
25-4-1999 to 11-5-1999 is Ext. PW 16/C-1.
The evidence of PW 19 further proved
that Tel. No. 4642868 was installed at
Majid Chakkarawali, Mathura Road vide
Ext. PW 16-D and the printout for the
period 3-5-1999 to 5-5-1999 is Ext. PW
16/D-1. PW 17, Mohd. Jaffar stated that
Tel. No. 4642868 was installed at his
PCO. Phone calls were made to USA from
his STD booth on 4-5-1999. The photocopy
of calls made is Ext. PW 17-A. PW 16 also
proved that Tel. No. 3793628 was shifted
to 23, Safdarjung (Ext. PW 16-E) and
printout for the period 3-4-1999 to 31-5-
1999 is Ext. PW 16/E-1. It is further in
evidence of PW 45, Sanjay Garg, that Tel.
Nos. 660550, 660499, 705692, 741001,
741002 are installed in the various
premises of Piccadilly and the same is
Ext. PW 45-B.
226. The above phone call details show
that the accused were in touch with each
other which resulted in destruction of
evidence and harbouring. Thus the
finding of the trial court that in the
absence of what they stated to each other
is of no help to the prosecution is an
incorrect appreciation of evidence on
record. A close association is a very
important piece of evidence in the case of
circumstantial evidence. The evidence of
phone calls is a very relevant and
admissible piece of evidence. The details
of the calls made by the various accused
to one another are available in Exts. PW
66-B, PW 66-D and PW 66-C.
413 Spl.CC No.565/2021
129. The aforesaid judgment is aptly applicable to
the case on hand and even there the Hon’ble Apex
Court has held that as per the phone call details the
accused were in touch with each other which resulted
in destruction of evidence and harboring. Further it
was held that the observation of the trial court that in
the absence of materials to indicate that what they had
stated to each other was of no help is not correct and
further held that the evidence of phone call is very
much relevant and admissible piece of evidence. As
already discussed above, the digital records cannot be
erased so easily even though human memory fades or
even when attempts are made by witnesses of feigning
their memory for extraneous reasons.
130. Last but not the least with respect to the
manner in which the materials are collected by the
Investigating Agency, it is contended that the
procedures with respect to seizure and recovery are
not properly made by the Investigating Agency. In
414 Spl.CC No.565/2021
order to better appreciate the same, it would be
appropriate to rely upon the judgment of the Hon’ble
Apex Court which was considered as the first judgment
in India with respect to Silent Witness Theory. In the
judgment rendered in (1973)1 SCC 471 (R.M.Malkani Vs.
State of Maharashtra), it has been held as follows;
25. This Court in Magraj Patodia v. R.K.
Birla [AIR 1971 SC 1295] dealt with the
admissibility in evidence of two files
containing numerous documents
produced on behalf of the election
petitioner. Those files contained
correspondence relating to the election of
Respondent 1. The correspondence was
between Respondent 1 the elected
candidate and various other persons. The
witness who produced the file said that
Respondent 1 handed over the file to him
for safe custody. The candidate had
apprehended raid at his residence in
connection with the evasion of taxes or
duties. The version of the witness as to
how he came to know about the file was
not believed by this Court. This Court said
that a document which was procured by
improper or even by illegal means could
not bar its admissibility provided its
relevance and genuineness were proved.
27. The admissibility of evidence
procured in consequence of illegal
searches and other unlawful acts was
415 Spl.CC No.565/2021
applied in a recent English decision
in R. v. Maqsud Ali [(1965) 2 All ER 464]
In that case two persons suspected of
murder went voluntarily with the police
officers to a room in which, unknown to
them, there was a microphone connected
with a tape-recorder in another room.
They were left alone in the room. They
proceeded to have a conversation in
which incriminating remarks were made.
The conversation was recorded on the
tape. The court of criminal appeal held
that the trial Judge had correctly
admitted the tape-recording of the
incriminating conversation in evidence. It
was said “that the method of the
informer and of the eavesdropper is
commonly used in the detection of crime.
The only difference here was that a
mechanical device was the
eavesdropper”. The courts often say that
detention by deception is a form of police
procedure to be directed and used
sparingly and with circumspection.
30. It was said that the admissibility of
the tape recorded evidence offended
Articles 20(3) and 21 of the Constitution.
The submission was that the manner of
acquiring the tape-recorded conversation
was not procedure established by law and
the appellant was incriminated. The
appellant’s conversation was voluntary.
There was no compulsion. The attaching
of the tape-recording instrument was
unknown to the appellant. That fact does
not render the evidence of conversation
inadmissible. The appellant’s
416 Spl.CC No.565/2021
conversation was not extracted under
duress or compulsion. If the conversation
was recorded on the tape it was a
mechanical contrivance to play the role
of an eavesdropper.
In R. v. Leatham [(1961) 8 Cox CC 498] it
was said “it matters not how you get it if
you steal it even, it would be admissible
in evidence”. As long as it is not tainted
by an inadmissible confession of guilt
evidence even if it is illegally obtained is
admissible.
131. Under the circumstances, as already
discussed above, the CCTV footage can be construed
as a silent witness which indicates of the existence of
materials and also the true set of facts. The
Certificates which are issued under Sec.65(B) of Indian
Evidence Act and also the testimony of the expert
witnesses does justify the contentions of the
prosecution.
CHAPTER : XIII
TEST OF IDENTIFICATION PARADE AND ITS
RELEVANCE:
132. In the instant case the learned Counsel for
accused No.2 to 6 and also the learned Counsel for
417 Spl.CC No.565/2021
accused No.7 to 14 and 18 has vehemently argued that
the Test of Identification Parade which is carried out is
not in accordance with law. It is vehemently argued
that the law with respect to Test of Identification
Parade is well settled and that too in matters
pertaining to heinous offences and when the accused
persons are not known to the witnesses, the TIP is
required to be conducted in a proper manner. PW.79
Mohammed Zubair.N has deposed that he was the
Sub-Divisional Magistrate who had conducted the Test
of Identification Parade at Dharwad Jail premise. He
had also deposed that he had conducted TIP with
respect to accused by name Dinesh, Ashwath, Sunil,
Nazeer Ahmed, Shahanawaz and Nutan on
11.03.2020, 12.03.20220 and 13.03.2020 in the
presence of 5 witnesses i.e., Anand Eranna, Dr.
Dattatreya, Mahabaleshwar, Vikas Kalburgi and
Vinayaka Basavaraj. He has also deposed about the
procedures which was adopted by him to carry out the
418 Spl.CC No.565/2021
TIP. The witness has also deposed that subsequently
on 12.03.2020 he had conducted the TIP of the
suspected person accused No.9 Ashwath by following
the very same procedures in the presence of the
witnesses Anand Erappa, Dattatreya, Mahabaleshwar,
Vikas Kalburgi, Vinayaka Basavaraj and also the TIP of
suspected accused Sunil was carried out along with
the TIP of the suspect Nazeer Ahmed separately.
Thereafter it is deposed by him that on 13.03.2020,
the TIP of the suspected accused Shahanawaz was
carried out in the presence of the witness Ananda
Erappa, who had identified him and accordingly the
proceedings were drawn as per Ex.P89. He has further
deposed of carrying out the TIP thereafter of the
suspected persons Shahanawaz, Nutan and again on
19.03.2020 he had once again received the request
from CBI to conduct the TIP of the suspected person
by name Harshith in the presence of the witness
Mohan Mulmuttal, Lakshmi Benkatti and Vinayaka
419 Spl.CC No.565/2021
Binjiyavar. He has deposed of carrying out the TIP
immediately after the Covid-19 Lockdown by following
the necessary protocol and procedures. He has
deposed of conducting the TIP of the suspected
Harshith, Dinesh.M, Ashwath. PW.30 Lakshmi
Benakatti had identified accused No.9 Ashwath in all
three rounds and he had specifically asked her that
how she was identifying him, for which she has
deposed that the suspect whom she had seen on the
fateful day was a tall person having dark complexion
and hence she had identified him. The witness has
also deposed of conducting the TIP of the suspect Sunil
K.S., Shahanawaz and others in the presence of the
additional witnesses mentioned above. During the
course of the cross-examination, it is suggested to him
and enquired whether he had obtained any permission
from the Court in this regard. That apart, it is
repeatedly contended by the learned Counsel for
accused that the TIP conducted was not proper. It is
420 Spl.CC No.565/2021
also elucidated from the evidence that the witness
PW.79 had not mentioned the height or weight of the
persons who had matched with the suspected person.
However, the witness had volunteered that similarly
placed persons were made to stand and he has
specifically deposed that he had not mentioned the
colour of the person who was made to stand with the
suspected person. I have carefully appreciated the
same and in short and to summarize the identification
process of the accused, it could be summarized as
follows;
(a) PW.30 Lakshmi Benakatti had
identified accused No.9 Ashwath as per
Ex.P33 and also during the during the
identification in the dock and also she
had identified accused No.12
Shahanawaz as per Ex.P51.
(b) PW.32 Anand Irappa Uddannanavar
had idneitifed accused No.12
Shahanawaz as per Ex.P89, but has
resiled from his identification at the
time of trial.
(c) PW.33 Vinayak Binjiyavar had
identified accused No.14 Harshith as
per Ex.P46, accused No.9 Ashwath as
421 Spl.CC No.565/2021
per Ex.P48 and accused No.11 Nazeer
as per Ex.P51.
(d) PW.34 Mohan Echarappa Mulmuttal
has identified accused No.8 Dinesh as
per Ex.P70, accused No.9 Ashwath as
per Ex.P71, accused No.10 Sunil as per
Ex.P72, accused No.13 Nutan as per
Ex.P73.
133. It is also relevant to note that the aforesaid
witnesses were specifically enquired by the SDM i.e.,
PW.79 Mohammed Zubair that how they were
identifying the witnesses. It is also relevant to note
that in the proceedings he has explained the reasons
provided by the witnesses to identify them. In this
regard, the law has been laid down by the Hon’ble
Apex Court with respect to the resailing of evidence.
The judgment rendered in (2019)17 SCC 523 (Hemudan
Nanbha Gadhvi Vs. State of Gujarat) , wherein it has been
held as follows;
7. The appellant was apprehended on
suspicion along with another. The TIP
was held without delay on 22-2-2004.
Ext. P-38, the TIP report bears the thumb
impression of PW 2 who was accompanied
422 Spl.CC No.565/2021
by her mother. The TIP report has been
duly proved by PW 11. The appellant was
identified by PW 2. There appears no
substantive challenge to the TIP
identification in the dock, generally
speaking, is to be given primacy over
identification in TIP, as the latter is
considered to be corroborative evidence.
But it cannot be generalised as a
universal rule, that identification in TIP
cannot be looked into, in case of failure
in dock identification. Much will depend
on the facts of a case. If other
corroborative evidence is available,
identification in TIP will assume
relevance and will have to be considered
cumulatively.
9. The family of the prosecutrix was poor.
She was one of the five siblings. The
assault upon her took place while she
had taken the buffalos for grazing. Her
deposition was recorded nearly six
months after the occurrence. We find no
infirmity in the reasoning of the High
Court that it was sufficient time and
opportunity for the accused to win over
the prosecutrix and PW 1 by a settlement
through coercion, intimidation,
persuasion and undue influence. The
mere fact that PW 2 may have turned
hostile, is not relevant and does not
efface the evidence with regard to the
sexual assault upon her and the
423 Spl.CC No.565/2021
identification of the appellant as the
perpetrator. The observations with regard
to hostile witnesses and the duty of the
court in State v. Sanjeev Nanda
[State v. Sanjeev Nanda, (2012) 8 SCC 450
: (2012) 4 SCC (Civ) 487 : (2012) 3 SCC (Cri)
899] are also considered relevant in the
present context : (SCC p. 487, para 101)
“101. … If a witness becomes hostile to
subvert the judicial process, the court
shall not stand as a mute spectator and
every effort should be made to bring home
the truth. Criminal justice system cannot
be overturned by those gullible witnesses
who act under pressure, inducement or
intimidation. Further, Section 193 IPC
imposes punishment for giving false
evidence but is seldom invoked.”
11. It would indeed be a travesty of
justice in the peculiar facts of the present
case if the appellant were to be acquitted
merely because the prosecutrix turned
hostile and failed to identify the
appellant in the dock, in view of the other
overwhelming evidence available.
In Iqbal v. State of U.P. [Iqbal v. State of
U.P., (2015) 6 SCC 623 : (2015) 3 SCC (Cri)
301] , it was observed as follows : (SCC p.
630, para 15)
“15. Evidence of identification of the
miscreants in the test identification
parade is not a substantive evidence.
Conviction cannot be based solely on the
424 Spl.CC No.565/2021
identity of the dacoits by the witnesses in
the test identification parade. The
prosecution has to adduce substantive
evidence by establishing incriminating
evidence connecting the accused with the
crime, like recovery of articles which are
the subject-matter of dacoity and the
alleged weapons used in the commission
of the offence.”
134. By looking into the aforesaid aspects, it
could be held that though the TIP cannot be construed
as a substantive piece of evidence, the identification of
accused in the dock during the course of trial is
considered as substantive piece of evidence. It is also
relevant to note that majority of the assailants were
identified by the eye-witnesses at the earliest point of
time. However, during the course of trial, except that of
PW.30 Lakshmi Benakatti, the other eye witnesses
have turned hostile. Under the circumstances, the
cross-examination assumes importance and even the
witnesses have deposed categorically identifying the
accused persons.
425 Spl.CC No.565/2021
CHAPTER: XIV
TAMPERING OF THE EVIDENCE BY THE POLICE
OFFICER IN CONNIVANCE WITH THE CONSPIRACY
ENTERED BETWEEN THE ACCUSED PERSONS
“Quis custodiet ipsos custodes?”
(Who will guard the guards?)
135. In the instant case, a strange situation has
arisen wherein it is submitted that the investigation
which was carried out by the Dharwad Sub-Urban Po-
lice were not in consonance with law and in fact they
were making every effort to help the real assailants at
the behest of accused No.15 Vinay Kulkarni. During
the course of the evidence of PW.10 Basavaraja Mut-
tagi, the approver, it is deposed by him that prior to
the incident a meeting was conveyed in the Dairy of
Vinay Kulkarni which was attended by the then Com-
missioner Mr. P.H.Rane, accused No.19 Channake-
shava Tingrikar, accused No.20 Vasudev Rama
Nilekani. It is also been deposed by him that after the
incident he had met Vinay Kulkarni on the intervening
night of 15/16.06.2016 near Sanky Tank, Bengaluru,
426 Spl.CC No.565/2021
wherein it was narrated to him to contact the Police
Commissioner who would arrange for his surrender. It
would also be appropriate to look into the case of the
prosecution and also the manner in which the investi-
gation was conducted by the Dharwad Sub-Urban Po-
lice. PW.89 Sangamesh Mallappa Madivalara, it has
been elucidated that the CCTV footage was recovered
under the mahazar at Ex.P167 and also the CCTV
footage was later on displayed by the Investigating Offi-
cer to the then accused No.1 and the present approver
Basavaraja Muttagi. If for a moment, the aforesaid as-
pect is to be accepted, then the question which re-
quires to be answered is why the Investigating Officer
accused No.19 Chennakeshava Tingarikar had kept
quite when none of the accused i.e., accused No.1 to 6
were not seen in the vicinity when the murder of Yo-
gesh Goudar had taken place. The genuineness of
CCTV footage is not at all in dispute and the same was
sent for scientific examination to the State FSL
427 Spl.CC No.565/2021
wherein PW.93 Dr. Kumudha Rani had given her opin-
ion. PW.93 was examined as PW.54 before the learned
4th Additional District and Sessions Judge Court at
Dharwad, wherein she has deposed in the similar
manner as she has deposed before this Court. During
the course of cross-examination, apart from denial
nothing was suggested to her by the learned counsel
for accused No.1 to 6. Though PW.10 deposes in his
evidence that after the incident he had moved in front
of the Gym in his black coloured Chevrolet Car which
he had purchased from PW.70 Chandrashekar Pujar,
the IO had not bothered to investigate over the same.
The aforesaid aspects would only lead to a situation
that accused No.19 Chennakeshava Tingrikar was in a
hurry to complete the investigation. I have also care-
fully appreciated the submissions made by the learned
counsel for accused No.19 Sri. S.Balan, who has vehe-
mently argued that why accused No.19 alone has been
castigated in the above case and that too when he was
428 Spl.CC No.565/2021
not the one who had completed the investigation and
infact he had only conducted investigation for 22 days
and later on it was handed over to his successors. Fur-
ther it is argued that it was the duty of the successors
to verify the same and file the final report. It is the
submission of the learned counsel that only prelimi-
nary investigations were carried out by him and also it
was monitored by his superior officers i.e., the Com-
missioner of Police Mr. P.H.Rane, the then Dy.SP Mr.
Jinendra Kanagavi, the then ACP, accused No.20 Va-
sudev Rama Nilekani. It is his contention that accused
No.19 had handed-over the further investigation to Mr.
S.S. Hiremath, who in turn had handed-over investiga-
tion to PW.107 Motilal Pawar. By pointing out to the
aforesaid aspects, it is contended by the learned Coun-
sel that if at all a person is required to be held respon-
sible, then it should be the higher Police authorities
who had monitored the investigation and also permit-
ted to file the final report. The submissions seem to be
429 Spl.CC No.565/2021
very attractive at the first instance. However, when the
same is analyzed in deep, it would clearly indicate the
overt-act on the part of accused No.19 who was en-
trusted with the investigation of a heinous offence. The
aforesaid situation will lead to a situation wherein the
Latin phrase coined by Roman poet Juvenal can be
quoted, which reads as;
“Quis custodiet ipsos custodes?”
(Who will guard the guards?)
136. In this regard, it would be trite to rely upon
the often-quoted word of the celebrated justice Hon’ble
Krishna Iyer who in his iconic style had quoted in one
judgment as:
“Who will Police the Police”
137. The aforesaid judgment would clearly throw
light in the manner in which the Constitutional rights
guaranteed by the Constitution is required to be
protected. In the judgment rendered in (1981)1 SCC 639
430 Spl.CC No.565/2021
(Prem Chand (Paniwala) V Union of India) it has been held
as follows:
Who will police the police? Is freedom of
movement unreasonably fettered if
policemen are given power of externment
for public peace? These twin problems of
disturbing import, thrown up by this
bizarre case, deserve serious
examination. The former is as important
as the latter, especially when we view it
in the strange police setting painted by
the petitioner. The constitutional
question, which we will state presently
and discuss briefly, has become largely
otiose so far as the present petitioner is
concerned because counsel for the State
has assured the Court that they will drop
police surveillance or any action by way
of externment as proposed earlier. The
police methodology, with sinister
potential to human liberty described by
the petitioner, if true, deserves strong
disapproval and constitutional
counteraction by this Court. But before
committing ourselves to any course, we
must set out the factual matrix from
which the present case springs.
9. The provisions of the statute ostensibly
have a benign purpose and in the context
of escalation of crime, may be restrictions
which, in normal times might appear
unreasonable, may have to be clamped
down on individuals. We are conscious of
the difficulties of detection and proof and
the strain on the police in tracking down
431 Spl.CC No.565/2021criminals. But fundamental rights are
fundamental and personal liberty cannot
be put at the mercy of the police.
Therefore, Sections 47 and 50 have to be
read strictly. Any police apprehension is
not enough. Some ground or other is not
adequate. There must be a clear and
present danger based upon credible
material which makes the movements
and acts of the person in question
alarming or dangerous or fraught with
violence. Likewise, there must be
sufficient reason to believe that the
person proceeded against is so desperate
and dangerous that his mere presence in
Delhi or any part thereof is hazardous to
the community and its safety. We are
clear that the easy possibility of abuse of
this power to the detriment of the
fundamental freedoms of the citizen
persuades us to insist that a stringent
test must be applied. We are further clear
that natural justice must be fairly
complied with and vague allegations and
secret hearings are gross violations of
Articles 14, 19 and 21 of the Constitution
as expounded by this Court in Maneka
Gandhi [Maneka Gandhi v. Union of India,
(1978) 1 SCC 248] . We do not go deep into
this question for two reasons: There is
another petition where the
constitutionality of these identical
provisions is in issue. Secondly, the
counsel for the State has fairly conceded
that no action will now be taken even by
way of surveillance against the
petitioner. In an age when electronic
432 Spl.CC No.565/2021
surveillance and midnight rappings at
the door of ordinary citizens remind us of
despotic omens, we have to look at the
problem as fraught with peril to
constitutional values and not with lexical
laxity or literal liberality.
138. The aforesaid judgment would clearly laid
down the principles on which the necessary protection
of fundamental rights and also the manner in which
the investigation is required to be carried out. I have
bestowed my anxious reading to the evidence of PW.51
Ramesh, who was the Assistant to the then
Investigating Officer Tingarikar. It is relevant to note
that he has deposed that on 17.06.2016 at about
09.00 Am in the morning he was directed by accused
No.20 Vasudeva Nayak to go to new CR Office at
Hubballi and as such he has visited the same. It is
also deposed by him that Vasudeva Nayak was also
present there and had shown 5 accused persons there
and at the time of recording the statement PW.24
Shivananda Chalavadi along with his staff
433 Spl.CC No.565/2021
Shankaragouda Patil, Basavaraj Kadakola had come to
the said place and given them a wooden stick and
koitha. He has also deposed about visiting Yerrikoppa
and drawing the mahazar depicting it to be the
recovery of weapons which was handed over by PW.24
Shivananda Chalavadi to the then accused No.1 to 6.
Further he has deposed that Tingarikar had requested
to collect the blood of Yogesh Goudar at the time of
Autopsy which was later on collected through Mr.
Thanaji. The other material which is deposed against
accused No.19 Tingarikar and accused No.20
Vasudeva Nayak is that he had noticed a black
coloured bag kept in the cupboard on 16.06.2016, for
which the staff in the Police Station had answered that
it was brought by Vasudva Nayak and it should not be
touched by any other persons. I have bestowed my
anxious reading to the cross-examination of PW.51.
During the course of cross-examination, the witness
has admitted that he was the one who had scribed the
434 Spl.CC No.565/2021
mahazar as per the instructions of his higher officers.
However, it is elucidated from him that it is the normal
practice to obtain the signature of the higher officers if
they are present. In the instant case, the signature of
accused No.20 is not forthcoming in any of the
mahazars nor he is seen in any of the photographs. It
is also noticed from records that it is elucidated from
him that accused No.19 has acted as IO only for a
period of 22 days. Later on, the witness was recalled
by accused No.19 and subjected to cross-examination.
It was deposed at that point of time that till the
weapon was sent to FSL for scientific examination, it
was in the custody of Dharwad Sub-Urban Police. The
aforesaid suggestion itself would indicate that the
weapons allegedly recovered by Mr. Tingarikar were
definitely in his custody. Further it is elucidated that
the blood which was smeared on the weapon were
reddish in colour and also it was liquid in nature. The
learned counsel for accused No.19 has argued that
435 Spl.CC No.565/2021
how the blood can be collected after the murder since
the blood will be clotted immediately after coming out
of the veins. Further he has submitted the color of the
blood would change into brownish/black color and
coagulation would take place. In order to appreciate
the same, it would be appropriate to refer to Modi’s
Jurisprudence and Toxicology, wherein it is held as,
post-mortem clots are soft, gelatinous and non-
adherent to the vessel wall, often resembling ‘currant
jelly’ or ‘chicken fat’, thereby clearly distinguishable
from antemortem thrombi. As such, when it is
categorically admitted by the Accused No.19 of
collecting the blood samples since the Medical officer
has deposed in this regard and as there is no cross
examination to that extent and also for the reason that
it was suggested to the other police officers that the
entire materials were in the custody of the
investigating officer, until it was sent to FSL, the
aforesaid aspect requires to be considered that the
436 Spl.CC No.565/2021
Accused No.19 had made a foul play in this regard. In
order to better appreciate the same, I have considered
the evidence of the Medical Officer who was examined
as PW.94 Dr.Santhosh Kumar, who had conducted the
Postmortem. During the course of his evidence, a
Court question was posed that for how many hours the
blood in the dead body will not be clotted and it can be
collected. The witness has deposed that some amount
of blood will be present in the dead body in the liquid
form and some portion will be clotted. Further he has
deposed that by using syringe from the collected areas
of blood in the dead body, they had collected the same.
He has also deposed of furnishing the collected blood
to the Investigating Officer. Though it is submitted that
the sample blood which was collected was for
serological test, the admitted fact which remains is
that the blood was collected and sent to the Police
Station. At this juncture, the suggestion made by the
learned counsel for accused No.19 also assumes
437 Spl.CC No.565/2021
importance for the reason that he himself has
suggested that the materials were in the custody of
Dharwad Sub-Urban Police Station till the period it
was sent for scientific examination. The aforesaid
aspects would clearly vindicate the contention of CBI
wherein it is stated that the sample blood which was
collected was used to smear on the implanted
weapons. Further during the course of cross-
examination, he was questioned about the extent of
blood which was smeared on the weapon, for which
the witness has feigned his ignorance. In other words,
the aforesaid question itself would indicate of
categorical admissions by the accused. Further a
question was also posed by the learned counsel for
accused No.19 that how the blood was smeared on the
weapon either by hands or otherwise. The answer
tendered by the witness is that he does not remember
that. In other words, once again the categorical
admission fortifies the case of the present prosecution.
438 Spl.CC No.565/2021
It is also suggested that he had intentionally not
ascertained about the veracity of the blood belonging
to Yogesh Goudar. If such a suggestion is made, then
obviously the accused has to suggest the reason for
posing the same. It is the case of the CBI that the
weapons were not used for the commission of murder,
but it was smeared on the same to falsely cast
aspersions. If for a moment, the same is to be
accepted, then the question is why the same was being
smeared on the weapon. As such, indirectly the
suggestion is explaining and fortifying the contention
of the prosecution. Further he has deposed that he
cannot say whether the blood which was present in the
Police Station was drawn prior to death or after the
death of Yogesh Goudar. The aforesaid aspect also
fortifies the contention of the CBI that accused No.19
had conducted a botched-up investigation only to
substantiate his faulty investigation. The indirect
admission of the accused of presence of blood in the
439 Spl.CC No.565/2021
Police Station and non-explaining about the same
during the course of the statement being recorded
under Sec.319 of Cr.P.C., by accused No.19 would cast
a serious aspersion against him. Further the evidence
of PW.10 would clearly corroborate with the aforesaid
aspects and as such a serious doubt is raised with
respect to the manner in which the investigation was
being conducted.
139. I have also bestowed my anxious reading to
the cross-examination and also the submissions made
by the learned Counsel for accused No.19 in this
regard. It has been argued that the subsequent
Investigating Officer had not conducted any proper
investigation, it is relevant to note that the case is
based on circumstantial evidences and at times the
entire case when rests on circumstantial evidence, the
materials collected by the previous I.O will be taken
forward. Even otherwise, it is relevant to note that
prior to handing over the case files, the accused No.19
440 Spl.CC No.565/2021
had already completed the majority of investigation
and as noticed from the chief-examination of PW.7
Motilal Pawar, he was entrusted with only limited
investigation since majority of the investigation were
already completed by accused No.19 himself. As such,
the contention of PW.51 seems believable.
140. I have also bestowed my anxious reading to
the evidence of PW.91 Basavaraj, who was a recovery
mahazar witness. During the course of his evidence, he
has deposed that in the year 2016 he was summoned
to the Dharwad Sub-Urban Police Station and there he
had met accused No.19 Chennakeshava Tingarikar.
Further he has deposed that after his visit to the Police
Station he was requested to affix his signature to some
mahazar and later on he was taken to a place near
Harihara wherein photographs were taken and also
after about 2 days he was called to the Police Station
and was taken to Yerrikoppa village. He has deposed
that when they had reached Yerrikoppa village, already
441 Spl.CC No.565/2021
a vehicle was waiting for them and a person had got
down from Tata Sumo vehicle by holding Talwar and
necessary photographs were taken. During the course
of cross-examination, nothing much was elucidated on
behalf of accused No.19. Further he has denied the
suggestion that when he had visited the Police Station,
the accused persons were present and only after
drawing the mahazar, the signatures were obtained.
The denial of the aforesaid suggestion and also the
unflinching material which is placed before the Court
would fortify the case of prosecution than that of the
defence counsel. I have also bestowed my anxious
reading to the evidence of PW.97 Eshwarappa
Madivalappa Kondikoppa. He has deposed that in the
year 2016, he was requested by Dharwad Police to
affix signature to some document and has further
deposed that though he had affixed his signature to
Ex.P.110 mahazar, no weapons were shown to him.
The other mahazar witness PW.98 Hanumantha has
442 Spl.CC No.565/2021
also deposed in similar manner. It is his evidence that
he has requested to get down from the Jeep and the
concerned Police had taken out one Koitha (in
vernacular language) and had obtained his signature
of some document which is none other than Ex. P98
and Ex. P106 mahazars. The other witness who
deposes about the recovery of weapons is PW.99
Basavaraj Dayanand Thondikatti. He has also deposed
in the similar manner.
141. The learned counsel for accused No.20 Sri.
K.B.K.Swamy has vehemently argued that in none of
the evidence no incriminating material is forthcoming
against accused No.20. The aforesaid submission
seems to be justifiable. It is relevant to note at this
juncture that nowhere the presence of accused No.20
is forthcoming. However, at the same time, the
materials on record would indicate the definite active
role being played by accused No.19 Tingarikar.
Though it is argued that accused No.19 did not had
443 Spl.CC No.565/2021
any vested interest, it is noticed from records that he
was actively involved in the commission of offence.
That apart, the evidence of PW.51 Ramesh, who was
the Assistant Investigating Officer would tilt the
balance in favour of the investigation of the CBI. In
normal circumstances, nothing much can be
attributed if the mahazar witnesses turns hostile.
However, in the present scenario, wherein a serious
aspersion is casted against the Investigating Officer
himself, the Court will have to scrutinize each and
every aspect. The act of the Investigating Officer in not
verifying the CCTV footage and also though he had
collected the CDRs from the concerned higher
authorities, he had not taken any pain to verify
whether accused No.1 to 6 were very much present
near the scene of incident.
142. I have also considered the evidence of PW.56
Mushtaq Ahmed, who is the owner of the scrap shop.
The aforesaid witness was considered as hostile
444 Spl.CC No.565/2021
witness and has feigned his ignorance about his
acquaintance with the Police Constable by name
Rajisab Gunjal. During the course of his cross-
examination, he has denied of handing over a Macchu
to Rajisab Gunjal. Thereafter it would be appropriate
to consider the evidence of PW.58 Rajisab Gunjal
himself, wherein he had feigned his ignorance and
denied of handing over any weapon. During the course
of his cross-examination, nothing much was elucidated
from him. On perusal of the aforesaid evidence along
with the evidence of PW.10 Basavaraja Muttagi, it
would indicate that accused No.19 Chennakeshava
Tingarikar had conducted the investigation to suit his
needs and not in accordance with law. I have also
carefully appreciated the evidence of PW.50 Mallavva
Goudar. In her evidence, she has deposed of lodging
the complaint as per Ex. P1. However, she has not
uttered anything with respect to Ex. P7 threat letter,
which her late husband had received prior to his
445 Spl.CC No.565/2021
murder. She was also examined as PW.1 before the
Sessions Court at Dharwad initially. In her chief-
examination she has deposed that they had received
threat letter and identified it, which was marked as Ex.
P3 (the very same document is marked as Ex. P7
before this Court). With this evidence, the deposition of
PW.1 Dr. Dattatreya Gudaganti is required to be
considered. In his chief-examination he has deposed of
helping PW.50 Mallavva Goudar to draft the complaint
and he has specifically deposed that after lodging the
complaint he was taken to a Guest House near the
Police Station for the purpose of enquiry and he was
kept in the Guest House for about 3 days by the
concerned Police till 17.06.2016. The aforesaid aspect
assumes importance in the above case when the same
is considered from the point of view of the cross-
examination made by the learned counsel for accused
No.15. During the course of his cross-examination, he
has admitted that Smt Mallavva Goudar had shown
446 Spl.CC No.565/2021
him the anonymous letter which she had received.
Further he has deposed that in the said letter did not
contain the name of Sri. H.K.Patil or Sri. Vinay
Kulkarni. Further he has deposed that if their names
were forthcoming then he would have included in it
and also, he has deposed that the letter which Smt.
Mallavva had given to him did not have the name of
the accused person. If for a moment the aforesaid
evidence is juxtaposed and compared with the
evidence of PW.2 Gurunatha Goudar, it would indicate
that on the fateful day he had visited the Police Station
and PW.1 Dr. Dattatreya had drafted the complaint.
Further he has deposed that when Smt. Mallavva had
taken the name of Vinay Kulkarni as the person
responsible for the murder, the accused No.19 had
asked them not to take the name of Vinay Kulkarni
and further he had directed them not to mention the
name of Vinay Kulkarni and to assign the reason for
murder was political reasons and had also collected
447 Spl.CC No.565/2021
the letter stating that it was required to investigation.
If for a moment, the evidence of PW.1 is compared, he
deposes that Smt. Mallavva had not handed over any
letter to the IO on that day but he deposes in a positive
manner during the course of his cross-examination
that Smt.Mallavva had shown him the threat letter
addressed to Yogesh Goudar. When Yogesh Goudar or
Smt.Mallavva were not his family friends nor their
relative, then how Smt. Mallavva was able to show the
letter to Dr.Dattatreya, who positively asserts before
the Court that name of Vinay Kulkarni was not
forthcoming in the letter.
143. When the evidence of PW.2 Gurunatha
Goudar is looked into, he deposes that on the next day
he had visited the Police Station and again he had
handed-over the anonymous letter which was
recovered in the presence of PW.111 Yogappa
Gujjannanavar. I have appreciated the evidence of
PW.111 who has deposed that on 16.06.2016 he had
448 Spl.CC No.565/2021
received the call from the Police Station and
immediately he had contacted Gurunatha Goudar and
Mahanthesh and thereafter they had visited the Police
Station. He has deposed that at that time a photograph
was obtained depicting it as a recovery mahazar
wherein a letter was being handed over. He has
identified the letter at Ex. P7 and also the mahazar at
Ex. P8. During the course of cross-examination,
nothing much was elucidated from him nor anything
was suggested to him with respect to Ex. P7 letter.
The aforesaid aspect once again cast aspersions
against the investigation carried out by accused No.19
Chennakeshava Tingarikar.
144. Now coming to the other aspect of attracting
the provisions of Prevention of Corruption Act against
accused No.19 Chennakeshava Tingarikar and
accused No.20 Vasudeva Nayak. It is the case of the
prosecution that accused No.20 had demanded bribe
in the above case. In order to ascertain the same, at
449 Spl.CC No.565/2021
the first instance it would be appropriate to consider
the evidence of PW.6 Nagaraj Todkar. PW.6 Nagaraj
Todkar has specifically deposed that he had never met
Vasudev Nilekani at any point of time. At the cost of
repetition, it is to be noticed from records that as per
the say of accused No.15 Vinay Kulkarni had directed
Basavaraja Muttagi to enter into Agreement to Sale
with PW.6 Nagaraj Todkar so as to portray the
commission of murder as the one that had taken place
for the reason of planned dispute. It is also noticed
from records that the negotiation had taken place at
the house of Mr. Ravi Patil and the aforesaid aspect
has been admitted by PW.6, PW.7 Veeresh Byahatti,
PW.8 Nataraj Makkigoudar and also PW.23 Ashok
Patil. It is curious to note that Ravi Patil was not
examined by CBI. At this juncture it would be
appropriate to consider the authority which is relied
upon by the learned Senior Public Prosecutor which is
450 Spl.CC No.565/2021
reported in (1998) Supp SCC 686 (State of U.P. V Anil
Singh) wherein it is held as:
15. Of late this Court has been receiving a
large number of appeals against
acquittals and in the great majority of
cases, the prosecution version is rejected
either for want of corroboration by
independent witnesses, or for some
falsehood stated or embroidery added by
witnesses. In some cases, the entire
prosecution case is doubted for not
examining all witnesses to the
occurrence. We have recently pointed out
the indifferent attitude of the public in
the investigation of crimes. The public
are generally reluctant to come forward
to depose before the court. It is, therefore,
not correct to reject the prosecution
version only on the ground that all
witnesses to the occurrence have not been
examined. Nor it is proper to reject the
case for want of corroboration by
independent witnesses if the case made
out is otherwise true and acceptable.
With regard to falsehood stated or
embellishments added by the prosecution
witnesses, it is well to remember that
there is a tendency amongst witnesses in
our country to back up a good case by
false or exaggerated version. The Privy
Council had an occasion to observe this.
In Bankim Bihari Maiti v. Matangini
Dasi [AIR 1919 PC 157 : 24 Cal WN 626]
the Privy Council had this to say (at p.
628):
451 Spl.CC No.565/2021
“That in Indian litigation it is not safe to
assume that a case must be a false case
if some of the evidence in support of it
appears to be doubtful or is clearly
untrue. There is, on some occasions, a
tendency amongst litigants ….to back up
a good case by false or exaggerated
evidence.”
145. Though in the aforesaid authority it is held
that mere non examination of a particular witness
cannot be a reason to drawn adverse inference, still it
is held by the Hon’ble Apex Court that if there are
other witness who speaks about it, the same can be
considered. However, in the instant case, the main
person who was supposed to speak about handing
over of money is not examined by the prosecution.
Which in my humble opinion would go to the root of
the case. Further it is submitted that accused No.20
Vasudev Nilekani had demanded bribe of Rs.25 lakhs
from Ravi Patil and as such he was dull. When the
evidence of PW.23 Ashok Patil is looked into, it
indicates that he was requested to hand-over a sum of
452 Spl.CC No.565/2021
Rs.5 lakhs which was allegedly handed over through
PW.24 Shivananda Chalavadi. If for a moment, the
evidence of PW.23 is appreciated, it does indicate that
he admits that none of the Dharwad Police had
pressurized him to pay the amount and he has
volunteered that his brother Ravi Patil was pressurized
to make the payment. If for a moment the same is
considered, then the best person to depose about the
same was Ravi Patil, however he was not examined.
Thereafter, the evidence of PW.24 Shivananda
Chalavadi is required to be considered. He was
considered as a hostile witness and apart from mere
suggestion that he had given a voluntary statement on
11.08.2020 that a sum of Rs.5 lakhs was handed over
to accused No.20, nothing much was elucidated from
him. As such, the submissions made by the learned
Counsel for accused No.20 Sri. K.B.K.Swamy seems
justified that the chain of incidence is broken. That
apart, the evidence of PW.7 Veeresh Byahatti when
453 Spl.CC No.565/2021
considered does not indicate that the name of
Shivananda Chalavadi nor Nataraj Makigoudar was
taken up with respect to collecting the bribe amount.
In order to attract the provisions of Sec.7 of Prevention
of Corruption Act 1988 and also the provision of
Sec.13(1)(d) and Sec.13(2) of the aforesaid Act, the
demand and payment of bribe is required to be
established beyond reasonable doubt. Even otherwise,
there are no materials to indicate that accused No.20
was involved in the investigation process and apart
from the statement of PW.10 Basavaraja Muttagi that
he had contacted the ACP prior to his surrender and
the statement of PW.51 Ramesh that accused No.20
had directed him to reach new CR Office along with
necessary staff to conduct the mahazar, no materials
are pointing out against them. I have also noticed the
submissions made by the learned counsel for accused
No.20 with respect to recording of the statement. The
statement of PW.6 Nagaraj Todkar was recorded on
454 Spl.CC No.565/2021
06.03.2020 and in that statement no incriminating
material was found against accused No.20. The delay
of disclosure by the witness would again cast a serious
doubt with respect to the veracity. Likewise, when the
evidence of PW.41 Mahesh Shetty is considered, it
indicates that he has deposed that Basavaraja Muttagi
during the course of his custodial interrogation has
telephonically called him and requested him to hand
over a sum of Rs.2 lakhs to Vasudeva Nilekani which
he had accordingly paid after 2 days at his Police
Station, Dharwad. During the course of his cross-
examination, apart from denial nothing much was
elucidated from him. However, at the same time the
evidence of PW.10 Basavaraja Muttagi is to be
appreciated. He has deposed that an amount of Rs.5
lakhs was handed over to Basavaraj Matapathi who in
turn handed it to Babu Katagi and it was stated that
out of that Rs.4 lakhs was to be given to Vasudeva
Nayak and remaining Rs.1 lakh was to be given to
455 Spl.CC No.565/2021
Chennakeshava Tingarikar. Further he has deposed
that Rs.75,000/- was additionally given to
Shankaragouda Patil. As such, the allegations of bribe
against accused No.19 is demanding and accepting
Rs.1 lakh through Basavaraja Matapathi and another
Rs.75,000/- through Shankaragouda Patil. PW.64
Basavaraja Matapathi had turned hostile and had not
supported the case of the prosecution. He was treated
as hostile and he has deposed that a sum of Rs.8
lakhs was given by Basavaraja Muttagi in the year
2016 for constructing Poultry Farm which was not
materialized. However, he has denied the suggestion
that out of the said amount he had handed over Rs.4
lakhs to one Babu Katagi. Even otherwise, the
evidence of PW.54 Shankaragouda Patil also does not
indicate of any support to the prosecution. However,
with respect to the defective investigation he has
categorically admitted that Basavaraja Kadakola was
the Driver of Shivananda Chalavadi in the year 2016
456 Spl.CC No.565/2021
and if for the sake of arguments, the evidence of PW.10
is recalled, he has deposed that when they were kept
in CAR Office, Shivananda Chalavadi along with his
Driver had visited the same and had handed over the
implanted weapons. The aforesaid aspect is also
forthcoming in the evidence of PW.51 Ramesh. It is
curious to note that the very same witness who is also
a Police Officer had given his statement under oath in
particularly under Sec.164 of Cr.P.C., by describing
about the aforesaid aspects. He has deposed that he
had tendered evidence before the Court in several
cases but he had not tendered false evidence before
any Court. It is also elucidated from him that during
the course of recording their statement through VC,
the CBI officials were standing next to him. However,
the aforesaid aspect is falsified by the evidence of
PW.69 Anil Kumar, who worked as a System Assistant,
is considered, it indicates that the Video Conferencing
was conducted by the concerned Court as per the
457 Spl.CC No.565/2021
procedure and he has deposed that no persons were
present at the time of recording the evidence through
VC and only witnesses and coordinators were
permitted at remote point of the witness. He was not at
all subjected to cross-examination. All the aforesaid
aspects would clearly indicate that PW.54
Shankaragouda Patil has deposed falsely before the
Court.
146. Once again, it is disheartening to note that
the concerned Police Officers have taken the Court and
judicial system for granted and have deposed in a
reckless manner wherein, they have deposed casually
in this Court also that they had tendered false
evidence under oath before the learned Magistrate.
147. When the entire facts of the case are
considered, it does indicate that the prosecution has
failed to establish the demand of bribe being made by
accused No.19 and 20. However, with respect to the
458 Spl.CC No.565/2021
other aspects, it is crystal clear that the allegations
leveled against accused No.19 with respect to
implanting of the weapons and conducting a faulty
investigation as a part of larger conspiracy which he
had entertained with accused No.15 is clearly
established by the prosecution. With respect to faulty
investigation being conducted by the Accused No.19 in
connivance with Accused No.15 Vinay Kulkarni, the
court is required to consider whether it is a fit case to
initiate necessary action in this regard. In this regard
the court has relied upon the judgment of the Hon’ble
Apex court reported in (2012)8 SCC 263 (Dayal Singh v.
State of Uttaranchal) wherein it is held as follows:
25. Similarly, the investigating officer
has also failed in performing his duty in
accordance with law. Firstly, for not
recording the reasons given by Dr C.N.
Tewari for non-mentioning of injuries on
the post-mortem report, Ext. Ka-4, which
had appeared satisfactory to him.
Secondly, for not sending to the FSL the
viscera and other samples collected from
the body of the deceased by Dr C.N.
Tewari, who allegedly handed over the
459 Spl.CC No.565/2021
same to the police, and their
disappearance. There is clear callousness
and irresponsibility on their part and
deliberate attempt to misdirect the
investigation to favour the accused.
26. This results in shifting of avoidable
burden and exercise of higher degree of
caution and care on the courts.
Dereliction of duty or carelessness is an
abuse of discretion under a definite law
and misconduct is a violation of
indefinite law. Misconduct is a forbidden
act whereas dereliction of duty is the
forbidden quality of an act and is
necessarily indefinite. One is a
transgression of some established and
definite rule of action, with least element
of discretion, while the other is primarily
an abuse of discretion. This Court
in State of Punjab v. Ram Singh [(1992) 4
SCC 54 : 1992 SCC (L&S) 793 : (1992) 21
ATC 435] stated that the ambit of these
expressions had to be construed with
reference to the subject-matter and the
context where the term occurs, regard
being given to the scope of the statute
and the public purpose it seeks to serve.
The police service is a disciplined service
and it requires maintenance of strict
discipline. The consequences of these
defaults should normally be attributable
to negligence. Police officers and doctors,
by their profession, are required to
maintain duty decorum of high
standards. The standards of
investigation and the prestige of the
profession are dependent upon the action
460 Spl.CC No.565/2021
of such specialised persons. The Police
Manual and even the provisions of CrPC
require the investigation to be conducted
in a particular manner and method
which, in our opinion, stands clearly
violated in the present case. Dr C.N.
Tewari, not only breached the
requirement of adherence to professional
standards but also became instrumental
in preparing a document which, ex facie,
was incorrect and stood falsified by the
unimpeachable evidence of the
eyewitnesses placed by the prosecution on
record. Also, in the same case, the Court,
while referring to the decision in Awadh
Bihari Yadav v. State of Bihar [(1995) 6
SCC 31] noticed that if primacy is given
to such designed or negligent
investigation, to the omission or lapses by
perfunctory investigation or omissions,
the faith and confidence of the people
would be shaken not only in the law
enforcement agency but also in the
administration of justice.
27. Now, we may advert to the duty of the
court in such cases. In Sathi
Prasad v. State of U.P. [(1972) 3 SCC 613 :
1972 SCC (Cri) 659] this Court stated that
it is well settled that if the police
records become suspect and investigation
perfunctory, it becomes the duty of the
court to see if the evidence given in court
should be relied upon and such lapses
ignored. Noticing the possibility of
investigation being designedly defective,
this Court in Dhanaj Singh v. State of
461 Spl.CC No.565/2021Punjab [(2004) 3 SCC 654 : 2004 SCC (Cri)
851] , held: (SCC p. 657, para 5)“5. In the case of a defective investigation
the court has to be circumspect in
evaluating the evidence. But it would not
be right in acquitting an accused person
solely on account of the defect; to do so
would tantamount to playing into the
hands of the investigating officer if the
investigation is designedly defective.”
28. Dealing with the cases of omission
and commission, the Court in Paras
Yadav v. State of Bihar [(1999) 2 SCC
126 : 1999 SCC (Cri) 104 : AIR 1999 SC
644] enunciated the principle, in
conformity with the previous judgments,
that if the lapse or omission is committed
by the investigating agency, negligently
or otherwise, the prosecution evidence is
required to be examined dehors such
omissions to find out whether the said
evidence is reliable or not. The
contaminated conduct of officials should
not stand in the way of evaluating the
evidence by the courts, otherwise the
designed mischief would be perpetuated
and justice would be denied to the
complainant party.
29. In Zahira Habibullah Sheikh
(5) v. State of Gujarat [(2006) 3 SCC 374 :
(2006) 2 SCC (Cri) 8] , the Court noticed
the importance of the role of witnesses in
a criminal trial. The importance and
primacy of the quality of trial process
can be observed from the words of
Bentham, who states that witnesses are
462 Spl.CC No.565/2021the eyes and ears of justice. The Court
issued a caution that in such situations,
there is a greater responsibility of the
court on the one hand and on the other
the courts must seriously deal with
persons who are involved in creating
designed investigation. The Court held
that: (SCC p. 398, para 42)
“42. Legislative measures to emphasise
prohibition against tampering with
witness, victim or informant have become
the imminent and inevitable need of the
day. Conducts which illegitimately affect
the presentation of evidence in
proceedings before the courts have to be
seriously and sternly dealt with. There
should not be any undue anxiety to only
protect the interest of the accused. That
would be unfair, as noted above, to the
needs of the society. On the contrary,
efforts should be to ensure a fair trial
where the accused and the prosecution
both get a fair deal. Public interest in
proper administration of justice must be
given as much importance, if not more, as
the interest of the individual accused. In
this courts have a vital role to play.”
(emphasis supplied)
30. With the passage of time, the law also
developed and the dictum of the Court
emphasised that in a criminal case, the
fate of proceedings cannot always be left
entirely in the hands of the parties. Crime
is a public wrong, in breach and violation
of public rights and duties, which affects
the community as a whole and is harmful
to the society in general.
463 Spl.CC No.565/2021
31. Reiterating the above principle, this
Court in NHRC v. State of Gujarat [(2009)
6 SCC 767 : (2009) 3 SCC (Cri) 44] held as
under: (SCC pp. 777-78, para 6)
“6. … ’35. … The concept of fair trial
entails familiar triangulation of interests
of the accused, the victim and the society
and it is the community that acts through
the State and prosecuting agencies.
Interest of society is not to be treated
completely with disdain and as persona
non grata. The courts have always been
considered to have an overriding duty to
maintain public confidence in the
administration of justice–often referred
to as the duty to vindicate and uphold
the ‘majesty of the law’. Due
administration of justice has always been
viewed as a continuous process, not
confined to determination of the
particular case, protecting its ability to
function as a court of law in the future as
in the case before it. 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 by becoming a
participant in the trial evincing
intelligence, active interest and elicit all
relevant materials necessary for reaching
the correct conclusion, to find out the
truth, and administer justice with
fairness and impartiality both to the
parties and to the community it serves.
The courts administering criminal justice
cannot turn a blind eye to vexatious or
oppressive conduct that has occurred in
464 Spl.CC No.565/2021
relation to proceedings, even if a fair
trial is still possible, except at the risk of
undermining the fair name and standing
of the Judges as impartial and
independent adjudicators.’ (Zahira
Habibullah case [(2006) 3 SCC 374 :
(2006) 2 SCC (Cri) 8] , SCC p. 395, para
35)”
35. This brings us to an ancillary issue
as to how the Court would appreciate the
evidence in such cases. The possibility of
some variations in the exhibits, medical
and ocular evidence cannot be ruled out.
But it is not that every minor variation or
inconsistency would tilt the balance of
justice in favour of the accused. Of
course, where contradictions and
variations are of a serious nature, which
apparently or impliedly are destructive of
the substantive case sought to be proved
by the prosecution, they may provide an
advantage to the accused. The courts,
normally, look at expert evidence with a
greater sense of acceptability, but it is
equally true that the courts are not
absolutely guided by the report of the
experts, especially if such reports are
perfunctory, unsustainable and are the
result of a deliberate attempt to misdirect
the prosecution. In Kamaljit
Singh v. State of Punjab [(2003) 12 SCC
155 : 2004 SCC (Cri) Supp 343 : 2004 Cri
LJ 28] , the Court, while dealing with the
discrepancies between ocular and
medical evidence, held: (SCC p. 159, para
8)
465 Spl.CC No.565/2021“8. It is trite law that minor variations
between medical evidence and ocular
evidence do not take away the primacy of
the latter. Unless medical evidence in its
term goes so far as to completely rule out
all possibilities whatsoever of injuries
taking place in the manner stated by the
eyewitnesses, the testimony of the
eyewitnesses cannot be thrown out.”
148. The aforesaid judgment would clearly show
the way ahead wherein the witness has turned hostile
and also the situation wherein the investigating officer
conducts lopsided investigation. Further in this regard
with respect to initiating proceeds will be dealt by me
in the later part of the judgment. Since the materials
on record are not positively indicating of active role by
accused No.19, a benefit of doubt is required to be
given to him. Accordingly, point No.9 is answered in
the negative.
149. Now coming to the other aspect of the
involvement of accused No.21 Somashekar
Nyamagoudar in the above case. It is submitted that
accused No.21 had played an active role in the course
466 Spl.CC No.565/2021
of entering into conspiracy by accused No.15 Vinay
Kulkarni with the then accused No.1 Basavaraja
Muttagi. It is relevant to note that during the course of
chief-examination of PW.10 Basavaraja Muttagi, he
has deposed that on 13.06.2016 when he had visited
Vinay Dairy, he had met his brother Natraj Desai and
conveyed him that it would be better to stop the plan
to commit the murder. However, accused No.15 had
not agreed to the same and had conveyed through
accused No.21 that the plan could not be stopped and
was to be continued which was conveyed to Nataraj
Desai. The other evidence which is forthcoming against
accused No.21 is with respect to PW.48 Nagaraj, who
has deposed that on 16.06.2016 Muttagi had
requested him to drop him to Dharwad and when he
had reached Nice Road at about 12.00 PM, he came in
a Taxi after about 5 to 10 minutes. It is submitted that
PW.10 had collected money on 16.06.2016 near Sanky
Tank from accused No.21 Somashekar Nyamagouda.
467 Spl.CC No.565/2021
However, when the evidence of PW.46 Gowda Prakash
Devendra is carefully appreciated, he has deposed that
on the fateful day he had picked up Basavaraja
Muttagi from Dollars Colony and had reached Sanky
Tank at about 09.00 AM and he was requested to stop
the car for about 10 minutes and thereafter Basavaraja
Muttagi had returned and had asked him to drive
towards Chitradurga. However, he had got down near
Nice Road Junction itself. Nowhere the witness
deposes of noticing the presence of any other person at
least to indicate the presence of accused No.21
Somashekar Nyamagouda. That apart, the evidence of
PW.48 Nagaraj, wherein it is stated that Basavaraj
Muttagi had called upon Vinay Kulkarni and also his
Personal Secretary Somashekar Nyamagouda and
intimated regarding the surrender before the
concerned Police amounts to hearsay evidence. Even
otherwise, I have bestowed my anxious reading to the
evidence of PW.67 Umapathi. Even though the name of
468 Spl.CC No.565/2021
Somashekar Nyamagoudar is taken up in his evidence,
it amounts to hearsay evidence. As such, the only
aspect which is required to be considered is whether
accused No.21 Somashekar Nyamagoudar was present
on the fateful day i.e., on the intervening night of
15/16.06.2016 at about 01.30 AM near Sank Tank,
Sadashivanagar. As already discussed above, the Car
driver with whom Basavaraja Muttagi had travelled
has clearly identified accused No.16 Chandrashekar
Indi as the one who was present at that point of time
which would clearly corroborate with the evidence of
PW.10 Basavaraj Muttagi. That apart, the presence of
accused No.21 is not forthcoming either through the
evidence of any other persons or through the digital
evidence. No doubt the basic principles of conspiracy
does indicate that the physical presence is not
required, but still there are no materials to indicate
that Accused No.21 Somashekar Nyamagoudar had
entertained such intention.
469 Spl.CC No.565/2021
150. The aforesaid aspect would lead to a
situation wherein it is required to consider the
presence of accused No.21 on the fateful day. The
learned Counsel Sri. Nithin Ramesh has deciphered
the CDR records which were marked before the Court
as exhibit and through that the location of Basavaraja
Muttagi is tried to be pointed out. As per the same, i.e.,
Ex.P.219, accused No.21 on 16.06.2016 from morning
06.00 AM to 10.48 AM was found in the vicinity of Raj
Bhavan. The call detail extracts would clearly indicate
of his tower location and if for a moment the very same
tower location of Basavaraja Muttagi is juxtaposed and
seen, the same reflects some other place. Under the
circumstances, the meeting of accused No.21 on
16.06.2016 near Sanky Tank itself is not clearly
established by the prosecution. As such, benefit of
doubt is required to be given to him.
470 Spl.CC No.565/2021
CHAPTER : XV
ALIBI
151. The other allegations which are leveled
against accused No.21 is creating of false tour
programs for accused No.15 Vinay Kulkarni to visit
Delhi. It is submitted that in order to create alibi, the
accused No.15 had created false tour program on
12.06.2016 and to return back on 13.06.2016.
However, the evidence of PW.61 Ananth Kaskar, who
was examined before the Court. Prior to that, the
concept of alibi is required to be considered. The word
alibi means “elsewhere” wherein an accused takes
recourse to a defence line that when the occurrence
took place, he was far away from the place of
occurrence which would extremely make improbable of
his participation in the crime. The prosecution has
relied upon the judgment of the Hon’ble Apex Court
reported in (1997)1 SCC 283 (Binay Kumar Singh Vs.
State of Bihar), wherein it has been held as follows;
471 Spl.CC No.565/2021
23. The Latin word alibi means
“elsewhere” and that word is used for
convenience when an accused takes
recourse to a defence line that when the
occurrence took place he was so far away
from the place of occurrence that it is
extremely improbable that he would have
participated in the crime. It is a basic
law that in a criminal case, in which the
accused is alleged to have inflicted
physical injury to another person, the
burden is on the prosecution to prove that
the accused was present at the scene and
has participated in the crime. The burden
would not be lessened by the mere fact
that the accused has adopted the defence
of alibi. The plea of the accused in such
cases need be considered only when the
burden has been discharged by the
prosecution satisfactorily. But once the
prosecution succeeds in discharging the
burden it is incumbent on the accused,
who adopts the plea of alibi, to prove it
with absolute certainty so as to exclude
the possibility of his presence at the
place of occurrence. When the presence of
the accused at the scene of occurrence
has been established satisfactorily by the
prosecution through reliable evidence,
normally the court would be slow to
believe any counter-evidence to the effect
that he was elsewhere when the
occurrence happened. But if the evidence
adduced by the accused is of such a
quality and of such a standard that the
court may entertain some reasonable
doubt regarding his presence at the scene
472 Spl.CC No.565/2021
when the occurrence took place, the
accused would, no doubt, be entitled to
the benefit of that reasonable doubt. For
that purpose, it would be a sound
proposition to be laid down that, in such
circumstances, the burden on the accused
is rather heavy. It follows, therefore, that
strict proof is required for establishing
the plea of alibi. This Court has observed
so on earlier occasions (vide Dudh Nath
Pandey v. State of U.P. [(1981) 2 SCC 166 :
1981 SCC (Cri) 379]; State of
Maharashtra v. Narsingrao Gangaram
Pimple [(1984) 1 SCC 446 : 1984 SCC
(Cri) 109 : AIR 1984 SC 63].
152. There cannot be any qualms with respect to
the ratio laid down in the said authority. However, at
the same time, the court is required to consider
whether an alibi was really created by accused No.21.
If for a moment, the evidence of PW.61 Ananth Kaskar
is looked into who is none other than the Secretary at
DPAR, Bengaluru, it would indicate that during the
period 01.06.2016 to 17.06.2016 totally four tour
programs of Vinay Kulkarni was furnished and he has
also explained the procedures about submitted the
473 Spl.CC No.565/2021
tour program. Further he has deposed about the tour
program pertaining to 12.06.2016 and 13.06.2016. I
have also considered the evidence of PW.74 Sanjeev
Kumar, who had worked as Personal Assistant to
Vinay Kulkarni during the period 2015-16. He has also
deposed that as per Ex. P125 tour program, the same
was signed by Somashekar Nyamagoudar. However,
mere preparing the tour program will not be suffice to
hold that an alibi was created by accused No.21.
Further the prosecution had also examined PW.105
Prachi Khade to prove their case in this regard.
PW.105 Prachi Gajendra Khade had worked as
Manager Operations, SIMM-SAMM Airways Pvt. Ltd.,
during the period 2018 to 2022 and she has deposed
that based on the records of their office they had
provided details of the person who had availed
Chartered Airplane VTSSF pertaining to the date
13.06.2016 and 14.06.2016 as per Ex. P210. I have
carefully considered the aforesaid document which is
474 Spl.CC No.565/2021
placed before the court. However, the records do not
indicate of any bookings being made by accused No.15
in this regard. As such, the contention of the
prosecution with respect to creating alibi accused
No.21 is also not established. Under the
circumstances, the benefit of doubt is required to be
given to accused No.21 with respect to his presence
and participating in the commission of murder in the
above case.
CHAPTER: XVI
RECOVERY OF PISTOLS AND ALLEGATION OF
COMMISSION OF OFFENCE UNDER INDIAN ARMS
ACT
153. The prosecution has contended that during
the course of hatching the conspiracy it was decided
by accused No.15 Vinay Kulkarni that it was not so
easy to commit the murder of Yogesh Goudar as he
was a well-built person. As such, he had requested
Basavaraja Muttagi to take the assistance of accused
No.16 Chandrashekar Indi in this regard. The main
475 Spl.CC No.565/2021
witnesses who have deposed in this regard with
respect to the presence of accused No.16 at the time of
meeting PW.10 Basavaraja Muttagi near Sanky Tank is
already discussed by this Court. At the same time, now
it would be appropriate to consider the evidence of
PW.85 Harish Shetty. PW.85 Harish Shetty has
deposed that accused No.16 had stayed in their Hotel
Central Park during the period 01.07.2017 to
09.06.2019. It is noticed from the records that as per
Ex. P163 and also as per Ex. P163(a) to 163(j), he had
continuously stayed in their hotel. It is contended by
the prosecution that the stay was nothing but to
monitor the on-going trial at Dharwad Court. He was
subjected to cross-examination by the learned Senior
Counsel appearing for the accused. Apart from denial,
nothing much was elucidated from him. The evidence
of PW.86 Santhosh R. Jadhav is also required to be
considered in this regard. The aforesaid witness had
worked as Receptionist at Ankitha Residency, Belgaum
476 Spl.CC No.565/2021
Road, Dharwad. He has also identified the relevant
entry at Ex. P164, 165, 165(a) and (b). All the aforesaid
aspects coupled with his oral testimony that accused
No.16 Chandrashekar Indi was regularly availing their
Hotel would indicate that he was part of larger
conspiracy. As already discussed supra, a serious
effort was being made by accused No.15 Vinay
Kulkarni to tamper with the evidence which were
collected and also to scuttle the trial which was being
conducted before the Sessions Court at Dharwad and
also it is relevant to note that during the course of trial
before this court, an allegation was leveled against him
and also against Accused No.16 Chandrashekar Indi of
interfering with the course of trial and it is noticed
from records that the Hon’ble Apex Court had to
intervene and to cancel the bail of Accused No.15
Vinay Kulkarni and he was only admitted to
conditional bail by the Hon’ble Apex court only after
completion of trial. Though the cancellation of the bail
477 Spl.CC No.565/2021
by the Hon’ble Apex Court cannot be considered on
merits at this juncture but the same is required to be
appreciated to notice the conduct of the accused before
this court during the course of trail. In furtherance of
the same, the materials on record indicates that the
eye-witnesses to the incident PW.1 Dr. Dattatreya,
PW.31 to PW.36 were sent to Goa just prior to
tendering their evidence and later on they were kept at
M/s Rashi Farms and Resorts and Dharwad and in all
the aforesaid aspects the presence of accused No.16
and his support is forthcoming. If at all, accused No.16
had no role to play in the entire incident, the fact of his
continuous presence at Dharwad and staying back in
the Hotel at the time of the evidence being recorded
before the 4th Addl. Sessions Judge Court at Dharwad
would only fortify the case of prosecution. The other
aspect which is required to be considered is
procurement of illegal weapons in the form of Pistols,
which was handed over to PW.10 Basavaraja Muttagi.
478 Spl.CC No.565/2021
In the above case, the prosecution has examined
PW.26 Suresh Jagadev Hulle. It is contended by the
prosecution that he was the Assistant of Nagappa
Mallikarjun Bhairagunde and also, he knew
Shivananda Shrishaila Biradar. Further he has denied
of having acquaintance with noted gangster Dharmaraj
Chadachana. It is deposed by him that he had not
handed over any country made Pistols to
Chandrashekar Indi. He was considered as hostile
witness and though he had admitted of tendering his
statement under oath i.e., under Sec.164 of Cr.P.C., of
handing over the Pistols to Chandrashekar Indi in a
bag and also giving a confession statement as per Ex.
P27, he has not supported the case of prosecution. In
ordinary circumstances, the aforesaid aspect could
have led to discarding the evidence of PW.26. However,
in the instant case, a statement of accused No.17
Shivananda Shrishaila Biradar is placed before the
court. It is curious to note that Shivananda Shrishaila
479 Spl.CC No.565/2021
Biradar had filed an application before this Court
seeking for pardon. However, his application was
rejected by this court and later on he had challenged
the same before the Hon’ble High Court of Karnataka.
The aforesaid accused was granted with pardon by
imposing condition by the Hon’ble High Court to
depose truly about the facts which were within his
knowledge. In the instant case, he had turned hostile
when he was examined as PW.9 before this Court.
With respect to the veracity and the manner in which
he had turned hostile, the same would be dealt in the
later part of my judgment. As such, the records
indicates that the three country made Pistols were
handed over to Chandrashekar Indi, who in turn had
handed it to PW.10 Basavaraja Muttagi. Though the
aforesaid witness has turned hostile, in the wake of
accepting the evidence of the approver, it would be
appropriate to consider the other materials which are
produced before the Court in this regard. The approver
480 Spl.CC No.565/2021
has deposed that he was advised by accused No.15
Vinay Kulkarni to get the country made Pistols
serviced at the hand of PW.21 Manikantan Acharya.
Pw.21 Manikantan Acharya who is running a Arms
and Ammunition Shop has deposed that he knew
Basavaraja Muttagi and had helped him to obtain
licensed weapon from M/s Srinivasa Armory of Bellary.
The learned Senior Counsel appearing for accused
No.15 has vehemently argued that if at all PW.10
Basavaraja Muttagi was possessing a licensed weapon,
then there was no necessity for him to procure an
unlicensed weapon. Though the said submission is
correct, the court cannot decipher the intention which
is running in the mind of a person to commit an
offence. At the same time, I have also considered the
evidence of recovery mahazars to the aforesaid country
made Pistols. They were examined as PW.88 Fairoz
Khan Jagirdar and PW.71 Prabhu Shankar. During the
course of evidence of PW.71 Prabhu Shankar, it is
481 Spl.CC No.565/2021
deposed by him that on 08.11.2020 he was summoned
by his higher authorities and he was requested to
accompany them for a recovery mahazar wherein they
had visited the Farm House of Basavaraja Muttagi and
had recovered MO.12 to 14 Country made Pistols by
drawing the proceedings under Ex.P116. During the
course of cross-examination, nothing much was
elucidated from him. Likewise, it would be appropriate
to consider the evidence of PW.88 Firoz Khan who has
also deposed in a similar manner. The aforesaid fact
finds corroboration with the evidence of PW.10
Basavaraja Muttagi and when compared with the
evidence of PW.87 Dr. M.Kiran Kumar, it would
indicate that the country made Pistols were sent for
scientific examination and the Report would indicate
that the firearm was not used by any of the accused
persons. Under the circumstances, the procurement
of country made Pistols quite contrary to the provision
of law is established by the prosecution. The aforesaid
482 Spl.CC No.565/2021
aspect would lead to a situation wherein the firearms
were procured knowing fully well that the same was
not having any valid license and it was illegally handed
over to PW.10 Basavaraja Muttagi. However, at the
same time, it would be appropriate to note that as per
the provisions of Sec.39 of the Arms Act, it is very
much necessary to obtain previous sanction from the
District Magistrate. As per the said provision, without
obtaining necessary sanction from the District
Magistrate, prosecution cannot be launched any
person. I have bestowed my anxious reading to
Ex.P170, which is the sanction order issued by the
District Magistrate and Deputy Commissoner,
Dharwad District. The aforesaid order is extracted
which reads as follows;
ORDER
On the basis of the details mentioned
in the preamble and the proposal given
by the Superintendent of Police and
Head of the Branch, CBI, ACB,
Bangalore, I, Nitesh K Patil, IAS,
483 Spl.CC No.565/2021
Deputy Commissioner and District
Magistrate, Dharwad District,
Dharwad, exercising the powers
enacted under Sec.39 of Indian Arms
Act, 1959, permitted to Superintendent
of Police and Head of the Branch, CBI,
ACB, Bangalore for the prosecution
against Mr. Basavaraj Muttagi in RC
17(S)/2019
Dt. 24.09.2019
Sd/-
154. Accordingly, it is noticed that there was no
sanction against accused No.15 or accused No.16 in
this regard. Initially at the time of framing of charge,
accused No.1 Basavaraj Muttagi was still contesting
the case and later on during the course of trial, he had
given the approver status. Under the circumstances, it
is clear that the prosecution cannot launched against
accused No.15 or 16, who are still in the arraign of
accused. Hence, points for consideration with respect
to Arms Act is answered in the negative.
CHAPTER : XVII
THE CONSEQUENCES OF TENDERING FALSE
STATEMENT UNDER OATH AT THE TIME OF
484 Spl.CC No.565/2021
RECORDING THE STATEMENT UNDER SEC.164(5)
OF CR.PC.
155. In the instant case as noticed from the
records, the Investigating Agencies at the time of
recording the statement of the witnesses under
Sec.161 of Cr.P.C., had also proceeded to record the
statement of the witnesses under oath. It is relevant to
note that PW.1 Dr. Dattatreya Gudaganti, PW.32
Anand Erappa Uddannanavar, PW.33 Vinayaka
Binjiyavar, PW.34 Mohan Yecharappa Mulmuttal,
PW.35 Vivekananda Dalawai had specifically tendered
their statement under Sec.164 of Cr.P.C., before the
learned Magistrate under oath and they had narrated
about the incident of murder. It is relevant to note
that they have turned hostile and they have also
deposed before the court that they were pressurized by
CBI to tender the evidence in their manner to suit their
needs. The similarity can be seen in the evidence of
PW.24 Shivananda Chalavadi who was holding an
485 Spl.CC No.565/2021
important post under the Police Department and also a
Police Inspector at Dharwad Town Police Station. In
his evidence itself he has deposed that he was afraid of
CBI and hence he had deposed falsely under oath
before the learned Magistrate. The very same manner
is noticed in the evidence or PW.44 Babu Katagi,
PW.54 Shankaragouda Patil, PW.20 Nataraj Sarj Desai
and PW.53 Vijay Kulkarni. The aforesaid evidence
indicates of tendering false evidence before the Court.
Either false evidence must have been tendered before
this Court or before the learned Magistrate. The act of
the Police Officers who are considered as the
guardians of law enforcement machinery and turning
hostile by opening deposing that they had tendered
evidence falsely under oath before the Court of Law is
nothing but making an attempt to sully the image and
faith which the public has reposed in the judicial
system. A person may be pardoned of any act being
committed by him, but albeit he cannot be pardoned
486 Spl.CC No.565/2021
when he openly deposes of tendering false evidence
before the Court. As already discussed above, it is
noticed from the evidence of PW.69 Anil Kumar, it is
noticed that sufficient care was taken by the Court at
the time of recording the evidence. The witnesses have
deposed that the CBI Officers were standing behind
them or just outside the Court and had pressurized
them to depose in a manner to suit their needs.
However, the evidence of PW.69 Anil Kumar, who is the
System Assistant clearly falsifies their contention. That
apart, I have also looked into the manner in which the
witnesses have tried to disrupt the faith which the
public are having in the judicial process. Admittedly,
none of the witnesses who were all educated and well
positioned in the society had uttered single word till
the time of tendering their evidence before the Court.
For instance, PW.24 during the course of his evidence
has deposed that he was discharging his duty at
present as ACP at Bengaluru. Inspite of lapse of 5
487 Spl.CC No.565/2021
years, either PW.24 Shivananda Chalavadi or PW.44
Babu Katagi or for that matter any of the Police
Officers had thought it fit to complain to their higher
authorities or at least even to the Court of Law about
the alleged threat given by CBI. It is to be kept in mind
that though the investigation was entrusted to Central
Bureau of Investigation, they cannot be considered
above the provisions of law. Ultimately, it is the Court
which is considered as the guardian of justice and
public are reposing faith in judicial system. In the
instant case, apart from the high rank Police Officials,
the witnesses who have turned hostile are all educated
persons and it is disheartening to note that PW.1 Dr.
Dattatreya Gudagunti, who is a Doctor by profession
has deposed in a cavalier manner that though he is a
Ayurvedic Doctor by profession, he advises his patient
with Allopathic medicine which in other words would
indicate that he is having scant respect for the
prevailing law of the land. It is also relevant to note
488 Spl.CC No.565/2021
that Natraj Sarj Desai is the relative of accused No.15
Vinay Kulkarni and PW.53 Vijay Kulkarni is the own
brother of accused No.15 Vinay Kulkarni. Though it is
deposed by him that he was threatened by CBI that he
will also be roped in as accused person, the silence on
his part for such a long period of time is quite
astonishing and that too he being member of a political
family and also, he deposing of having close nexus
with higher Police authorities. All the aforesaid aspects
would cast a serious aspersion against the manner in
which they have turned hostile.
156. The aforesaid aspect would lead to a
situation that whether the evidence of the Magistrate is
required to be considered in order to appreciate the
tendering of false evidence by the witnesses. In this
regard, the Court has relied upon the judgment of the
Hon’ble Apex Court reported in (1971)3 SCC 432 (Babu
Rao Baji Rao Patil Vs. State of Maharashtra) , wherein it
has been held as follows:
489 Spl.CC No.565/2021
5. The principles laid down in these
decisions are unexceptionable. The
question is whether the judgment of the
High Court has violated any of these
principles. As already noticed, the High
Court had, after narrating the
circumstances, come to the conclusion
that there was no reasonable doubt of the
appellant’s guilt as a person who was a
member of the conspiracy and had
participated in the same. The
acquaintance of Kalyan with the
appellant and the interest taken by the
latter in the former and the appellant’s
contacts with the police officers and
other government officials were
undoubtedly not considered by themselves
sufficiently strong incriminating
circumstances but they were held to
render the prosecution story plausible
and probable against him. After
expressing this opinion, the High Court
observed that in addition to the
circumstances which were of sufficient
importance and of necessary
incriminating nature and tendency there
were other circumstances relied upon by
the prosecution. Those circumstances
were, however, considered by the Court
not to be indicative by themselves of
anything more than that the appellant
had contacts and association with PSI
Patil, Dy. SP Thorat and P.S.I. Shinde on
certain occasions and they did not show
that this association was linked with the
conspiracy or its execution. The purchase
by the appellant of gold worth Rs 3000
490 Spl.CC No.565/2021sometime about December 27, 1961 and
payment of Rs 13,000 to one Anna Gund,
owner of a grocery shop on or about
February 27, 1962, when the appellant
was indebted to some other persons was
also held not to be of much significance
because the appellant was not considered
to be a man of no substance. He had
landed property and he also owned
houses. He had further given monetary
help to Viswasrao Phate in the elections
in 1957. But in spite of these
circumstances which were not considered
to be conclusively connecting the
appellant with the offence, as we have
already observed, the High Court had
come to the conclusion on the other
evidence which does not suffer from any
infirmity that there was no reasonable
doubt about the appellant’s guilt. After
having so held the confessional
statements of the co-accused, in our
opinion, could legitimately be taken into
account by the Court to receive assurance
to its conclusions. In regard to the
appellant’s presence at Angar on the
morning of December 7, 1961 and in
regard to the request by Rangya, Shankar
and Kalyan to the appellant to help and
protect them, the confessional statements
of the co-accused could also be
appropriately taken into consideration as
provided by Section 30 of the Indian
Evidence Act. In a case of conspiracy in
which only circumstantial evidence is
forthcoming, when the broad features are
proved by trustworthy evidence
491 Spl.CC No.565/2021connecting all the links of a complete
chain, then on isolated events the
confessional statements of the co-accused
lending assurance to the conclusions of
the Court can be considered as relevant
material and the principle laid down in
the case of Hari Charan Kurmi [AIR 1964
SC 1184 : (1964) 6 SCR 623 : (1964) 2 SCJ
454 : 1964 SCD 956] would not vitiate the
proceedings. The fact that some of the
prosecution witnesses had been examined
earlier under Section 164 CrPC is only a
circumstance to be taken into account in
appraising the value of their testimony
and the Court has to scrutinise such
evidence a little more closely and see if
the other circumstances lend support to
it. The decision of this Court in Rai
Bahadur v. State of U.P. [ Cr.A. No. 121 of
1967, decided on August 4, 1969] does
not seem to us to be of much help to the
appellant. On a consideration of the
arguments addressed at the Bar we do
not think there is any ground for
interference with the order of the High
Court under Article 136 of the
Constitution. The appeal thus fails and is
dismissed. The appellant will surrender
to his bail bond to serve out the
remaining sentence.
157. In another judgment of the Hon’ble Apex
Court reported in (1981)2 SCC 224 (Madi Ganga Vs. State
of Orissa), wherein it has been held as follows:
492 Spl.CC No.565/2021
5. We desire to express no opinion on the
question whether the extra-judicial
confession made to PWs 2 to 5 is barred
under Section 24 of the Evidence Act. It is
unnecessary for us to say anything on
this question, since we are satisfied that
the learned Sessions Judge was wholly
wrong in excluding and the High Court
was certainly right in acting upon the
confessional statement made to the
Magistrate. The learned Magistrate has
put to the accused all the necessary
questions to satisfy himself that the
confession was voluntary. He has also
appended the necessary certificate. We do
not accept Shri Jain’s submission that the
learned Magistrate should have been
examined as a witness. Section 80 of the
Evidence Act makes the examination of
the Magistrate unnecessary. It authorises
the court to presume that the document is
genuine, that any statements as to the
circumstances under which it was taken
are true and that such confession was
truly taken in accordance with law. Shri
Jain submitted that if the Magistrate had
been examined as a witness, the accused
might have been in a position to show, by
cross-examination that the confession
recorded by the Magistrate was not
voluntary. The Magistrate has appended
a certificate that he was satisfied that
the confession was voluntary. No
circumstance has been brought out in the
evidence justifying the calling of the
Magistrate as a witness. We do not think
that the circumstances of the case justify
493 Spl.CC No.565/2021any comment on the alleged failure of the
prosecution to examine the Magistrate as
a witness.
6. The final submission of the learned
counsel was that even if the confession to
the Magistrate was accepted as voluntary
it had not been sufficiently corroborated
to justify the conviction of the accused. It
is now well settled that in order to
sustain a conviction on the basis of a
confessional statement it is sufficient
that the general trend of the confession is
substantiated by some evidence which
would tally with the contents of the
confession. General corroboration is
sufficient–vide Subramania
Goundan v. State of Madras [AIR 1958 SC
66 : 1958 SCR 428 : 1958 Cri LJ 238] . In
the present case the confessional
statement refers to the motive for the
occurrence. This part of the confession is
corroborated by the evidence of PW 1. The
confessional statement refers to the
accused having thrown a big stone on the
head of the deceased. This part of the
statement is corroborated by the medical
evidence. We think that there was
sufficient general corroboration to justify
the High Court acting upon it. The appeal
is, therefore, dismissed.
158. Further in a recent judgment, the Hon’ble
Apex Court has examined the similar situation wherein
it is submitted that the Investigating Agency had
494 Spl.CC No.565/2021
threatened the witness to depose in a particular
manner which had led them to tender false evidence
under oath. The judgment of the Hon’ble Apex Court
reported in 2024 SCC Online SC 3510 (Vijaya Singh Vs.
State of Uttarkhand), wherein it has been held as
follows:
7.It is further submitted that the
statements of PW-3 and PW-4 recorded
under Section 164 CrPC are liable to be
rejected as the said statements were
recorded in the presence of the
Investigating Officer under threat, and
could not be considered as voluntary
statements. It is further submitted that
the said statements could not be termed
as substantive evidence and could only be
used to corroborate or contradict the
testimony of a witness in the Court. It is
further submitted that the primary
witness of the prosecution is PW-7/doctor
and his testimony is fundamentally
flawed. It is submitted that the concerned
doctor initially deposed that he could not
definitively state whether the death of
the deceased was homicidal or suicidal,
however, the witness later opined that
100% percent burn injuries were
uncommon in suicide cases. It is
submitted that in case of suicide, the act
of burning is a voluntary act and
therefore, 100% burn injuries are
495 Spl.CC No.565/2021completely possible. To buttress, it is
contended that the evidence of an expert
is not the evidence of fact and is only
advisory in nature. It is added that
medical jurisprudence is not an exact
science and in the expert testimony
cannot be considered as a conclusive
proof of the fact.
30. PW-3 and PW-4 have deposed that
they were under threat from the
concerned Investigating Officer who was
present along with them before the
Magistrate. The concerned Investigating
Officer has been examined as PW-8 in the
present case and during his examination,
there is not even a suggestion from the
appellants to the effect that he was
present along with PW-3 and PW-4 at the
time of recording their statement under
Section 164 or to the effect that he had
threatened them to give incriminating
statements against the appellants.
Furthermore, the concerned Magistrate
could have been examined as a witness in
the present matter to clear the
controversy on this aspect and for
unexplained reasons, he was never called
for examination especially when a
completely hostile version was being
provided by the witnesses qua the
proceedings which were conducted before
him. The appellants failed to place any
material on record to justify the
allegation of threat and as discussed
above, the statements of PW-3 and PW-4
recorded under Section 164 CrPC
496 Spl.CC No.565/2021
reflected the correct version of the events
that transpired on the fateful day.
31. Having said so, we deem it fit to
observe that a statement under
Section 164 CrPC cannot be discarded at
the drop of a hat and on a mere
statement of the witness that it was not
recorded correctly. For, a judicial
satisfaction of the Magistrate, to the
effect that the statement being recorded
is the correct version of the facts stated
by the witness, forms part of every such
statement and a higher burden must be
placed upon the witness to retract from
the same. To permit retraction by a
witness from a signed statement recorded
before the Magistrate on flimsy grounds
or on mere assertions would effectively
negate the difference between a
statement recorded by the police officer
and that recorded by the Judicial
Magistrate. In the present matter, there is
no reasonable ground to reject the
statements recorded under
Section 164 CrPC and reliance has
correctly been placed upon the said
statements by the courts below.
158. The aforesaid situation would lead to
unerring inferences to be drawn that the statement
which is rendered under Sec.164 of Cr.PC., can be
acted upon and no leniency can be shown for turning
hostile or tendering false evidence under oath. Now the
497 Spl.CC No.565/2021
aforesaid aspect will lead to a situation wherein it is
required to consider the confession statement of
accused who have contended that they were forced to
give such a statement. It is relevant to note that
generally corroboration is required and what is
required to be ascertained at this juncture is whether
such a statement can be looked into in the absence of
Magistrate being not examined.
159. The learned Counsel for the accused
persons have vehemently argued that though certain
confession statements are available on record which
were marked subject to its admissibility, in the
absence of proving the same in accordance with law
cannot be construed as legally obtained confession
statement. The learned Senior Counsel in order to
buttress his submission has relied upon the judgment
of the Hon’ble Apex Court reported in 2026 SCC Online
SC 116 (Bernard Lyngdoh Phawa Vs. State of Meghalaya) ,
wherein it has been held as follows;
498 Spl.CC No.565/2021
24. The reliance placed by the
State on Mohammed Ajmal
Mohammad Amir Kasab3 to urge
the acceptability of the
confessions in this case may not
be appropriate. Therein, the
confession was argued to be not
voluntary, but a tutored
statement to suit the
prosecution’s case. It was argued
that the language, tone and
tenor of the confession coupled
with its inordinate length and
also the unnecessary details
contained therein made it highly
suspect. This Court on an
examination of the facts leading
to the confession found it to be a
voluntary statement. Though,
some of the statements made
were vague that was found to be
no reason to eschew the
confession altogether. It was
categorically found from the
statements that it was not made
under any influence or under
duress and that the tone and
tenor indicated that it was
truthful and voluntary,
especially since the statement
indicated that the confession
was not made out of a feeling of
weakness or a sense of
resignation or out of remorse but
on the other hand made, more
out of pride and to project
himself to be a role model. The
Court also noticed that in the
course of the trial, after 58
prosecution witnesses were
examined, the accused requested
to make a statement, which
though not so detailed had
499 Spl.CC No.565/2021
almost similar contents as in the
confessional statement.
25. Examined, in the light of the
above findings, we find the
confessional statements as seen
from the records, juxtaposed
with the deposition of PW 32, the
Magistrate who recorded the
confession under Section 164 of
the Cr. P.C., to be highly suspect.
The confession of A1 as deposed
before the Court was recorded on
07.03.2006. Insofar as A2 is
concerned, in the testimony
before the Court, PW32 deposed
that the confessional statement
of A2 was recorded on
09.03.2006. The confessional
statement, however, does not
record any date nor is the
signature of the Magistrate
accompanied by a date. The
signature of A2 is accompanied
with a date; i.e. 08.03.2006. The
recorded statement of A2 in the
handwriting of the Magistrate,
in the loose sheets affixed to the
printed form, the signature of
the Magistrate is accompanied
with the date 09.03.2006. The
said discrepancy was
specifically put to the Magistrate
in cross-examination. There was
no satisfactory answer to the
question, regarding discrepancy
of the accused having signed on
08.03.2006 but the Magistrate
having signed the recorded
confession on 09.03.2006. The
printed portion of the
confessional statement also
indicates the statements having
500 Spl.CC No.565/2021
been recorded of A1 in English
while that of A2 is stated to be
in Khasi. This is contrary to the
testimony of PW32 before Court
and both the recorded
statements are completely in
English as seen from the
records.
26. One other compelling
circumstance is the fact that the
accused, when produced before
the Magistrate for the purpose of
recording the confession, they
were never asked as to whether
they required the assistance of a
lawyer. In Mohammed Ajmal
Mohammad Amir Kasab3, a
similar contention raised was
negated by the Court finding
that the accused had initially
refused representation by an
Indian lawyer and had been
seeking the services of a
Pakistani lawyer. Examining the
question of legal assistance at
the pre-trial stage on a
conspectus of Article 22(1) of the
Constitution of India and Section
304 of the Cr. P.C. read with
Article 39A of the Constitution of
India, it was held so in
paragraphs 474 and 475:
“474. We, therefore, have no
hesitation in holding that the
right to access to legal aid, to
consult and to be defended by a
legal practitioner, arises when a
person arrested in connection
with a cognizable offence is first
produced before a Magistrate.
We, accordingly, hold that it is
501 Spl.CC No.565/2021the duty and obligation of the
Magistrate before whom a person
accused of committing a
cognizable offence is first
produced to make him fully
aware that it is his right to
consult and be defended by a
legal practitioner and, in case
he has no means to engage a
lawyer of his choice, that one
would be provided to him from
legal aid at the expense of the
State. The right flows from
Articles 21 and 22(1) of the
Constitution and needs to be
strictly enforced. We,
accordingly, direct all the
Magistrates in the country to
faithfully discharge the
aforesaid duty and obligation
and further make it clear that
any failure to fully discharge the
duty would amount to
dereliction in duty and would
make the Magistrate concerned
liable to departmental
proceedings.
475. It needs to be clarified here
that the right to consult and be
defended by a legal practitioner
is not to be construed as
sanctioning or permitting the
presence of a lawyer during
police interrogation. According
to our system of law, the role of
a lawyer is mainly focused on
court proceedings. The accused
would need a lawyer to resist
remand to police or judicial
custody and for granting of bail;
to clearly explain to him the
legal consequences in case he
502 Spl.CC No.565/2021intended to make a confessional
statement in terms of Section
164 CrPC; to represent him when
the court examines the charge-
sheet submitted by the police
and decides upon the future
course of proceedings and at the
stage of the framing of charges;
and beyond that, of course, for
the trial. It is thus to be seen
that the right to access to a
lawyer in this country is not
based on the Miranda [(1966) 16
L Ed 2d 694: 384 US 436]
principles, as protection against
self-incrimination, for which
there are more than adequate
safeguards in Indian laws. The
right to access to a lawyer is for
very Indian reasons; it flows
from the provisions of the
Constitution and the statutes,
and is only intended to ensure
that those provisions are
faithfully adhered to in
practice.”
[underlining by us for emphasis]
27. We do not find PW32 having
offered any such legal
assistance to the accused at the
time of production before her
before recording the confession
under Section 164.
160. I have bestowed my anxious reading to the
same and in the judgment reported by (1978)3 SCC 435
503 Spl.CC No.565/2021
(Shankariya Vs. State of Rajasthan) clarifies the same
wherein it is held as follows:
23. This confession was retracted by the
appellant when he was examined al the
trial under Section 311 CrPC on June 14,
1975. It is well settled that a confession,
if voluntarily and truthfully made, is an
efficacious proof of guilt. Therefore, when
in a capital case the prosecution
demands a conviction of the accused,
primarily on the basis of his confession
recorded under Section 164 CrPC, the
court must apply a double test:
(1) Whether the confession was
perfectly voluntary?
(2) If so, whether it is true and
trustworthy?
Satisfaction of the first test is a sine qua
non for its admissibility in evidence. If
the confession appears to the court to
have been caused by any inducement,
threat or promise such as is mentioned in
Section 24 of the Evidence Act, it must be
excluded and rejected brevi manu. In
such a case, the question of proceeding
further to apply the second test, does not
arise. If the first test is satisfied, the
court must, before acting upon the
confession reach the finding that what is
stated therein is true and reliable. For
judging the reliability of such a
confession, or for that matter of any
substantive piece of evidence, there is no
rigid canon of universal application. Even
so, one broad method which may be
504 Spl.CC No.565/2021useful in most cases for evaluating a
confession may be indicated. The court
should carefully examine the confession
and compare it with the rest of the
evidence, in the light of the surrounding
circumstances and probabilities of the
case. If on such examination and
comparison, the confession appears to be
a probable catalogue of events and
naturally fits in with the rest of the
evidence and the surrounding
circumstances, it may be taken to have
satisfied the second test.
161. The Hon’ble Apex Court in another
judgment reported in (1954)1 SCC 465 (Hem Raj Vs.
State of Ajmair), wherein it has been held as follows:
9. The Magistrate who recorded the
confession has been examined, and he
states that he told the prisoner that he
was a Magistrate and that he complied
with all the requirements of law in
recording the confession. The
memorandum made by him shows that
the following questions were put to Hem
Raj:”Do you wish to make a confession?”,
to which Hem Raj replied “Yes”. “Are you
making it of your own free will and
without the compulsion of anybody?”; the
answer was “Yes”. The third question was
“You are not bound to make a confession.
Do you understand this?” The answer
was “Yes”. The fourth question was:”If
you make a confession it may be used in
505 Spl.CC No.565/2021
evidence against you. Do you realise
this?” The answer was “Yes”. The last
question was “Shall I record your
confession?” The answer was “Yes”. It
was after these queries that a confession
covering about 21 pages and full of
details which are precise and cannot be
described as vague was recorded. The
police could not even dream of these
details or make an effort to tutor such a
detailed confession to the prisoner and it
is absolutely unthinkable that such a
tutored confession could be narrated by
Hem Raj to the Magistrate after 36 hours
of any possible attempt made to tutor
him. As a matter of fact, some of the facts
contained in the confession and indicated
later were not even known to the police
then. The confession contained the usual
endorsement that the confession was
voluntary and all the necessary matters
had been explained to the prisoner before
he made the confession. It is significant
that the confession was not retracted till
Hem Raj took legal advice and even then
it was not stated who supplied all the
details contained in the confession to
Hem Raj. The allegations made by the
prisoner have been denied by the police
officers examined and we are not inclined
to accept those allegations as true. The
circumstances relied upon by Dr Tek
Chand regarding the conduct of the
police before Hem Raj was lodged in jail
do not, in our opinion, affect the
voluntary character of the confession.
The contention that the Magistrate did
506 Spl.CC No.565/2021
not tell the prisoner that he was a
Magistrate is also belied by the
Magistrate’s evidence. No doubt the
confession was recorded in jail though
ordinarily it should have been recorded in
the courthouse, but that irregularity
seems to have been made because nobody
seems to have realised that that was the
appropriate place to record it but this
circumstance does not affect in this case
the voluntary character of the confession.
10. Dr Tek Chand drew our attention to a
quotation from Taylor’s Evidence, 11th
Edn., p. 588, Para 872, and to the
decision
in R. v. Thompson [R. v. Thompson, (1893)
2 QB 12] , in which it had been
emphasised that : (QB p. 12)
“In order that evidence of a confession by
a prisoner may be admissible, it must be
affirmatively proved that such confession
was free and voluntary, that is, was not
preceded by any inducement to the
prisoner to make a statement held out by
a person in authority, or that it was not
made until after such inducement had
clearly been removed.”
The principle laid down in that case is
well settled, but we do not think that Dr
Tek Chand is right in contending that
that principle has not been borne in mind
by the courts below. The mere bald
assertion by the prisoner that he was
threatened, tutored or that inducement
was offered to him, cannot be accepted as
true without more. There is no material
507 Spl.CC No.565/2021
whatsoever to hold that the prisoner was
threatened or beaten. As a fact it has
been found by the courts below that that
assertion was untrue. The story of
tutoring, on the face of it, is incredible. It
was not possible for the police or anyone
to teach the prisoner all that is contained
in the confession. As regards inducement,
again, there is no material whatsoever
and the circumstances relied upon are
not such which raise a suspicion that the
confession was extorted by inducement.
Even if some suspicion of this character
could be raised in this case, it has to be
held that the confession was made after
the inducement had clearly been removed.
162. By looking into the aforesaid provision of
law, it is crystal clear that though the accused had
given the confession statement before the learned
Magistrate, have taken a U turn before this court and
have deposed that they were pressurized by the
Investigating Agency.
163. I have also bestowed my anxious reading to
Ex.P286 which was the confession statement of
accused Kirthi Kumar and marked before the Court
subject to its admissibility and also of another accused
508 Spl.CC No.565/2021
Mahabaleshwar at Ex.P287. In the beginning itself a
detailed Report has been furnished by the learned
Magistrate indicating of the procedure he had adopted.
He has also specifically narrated that the accused was
explained that from that point he was not in Police
custody. Further he had explained to him that there
was no compulsion on him to make confessional
statement and even otherwise he would not be
handed-over to the Police. Thereafter, it is recorded
that the accused had volunteered to give statement
and also he had narrated that there was no
inducement or threat given by the Police and after that
a retraction period of 48 hours was granted by the
Magistrate prior to recording of the statement, only
after that he was produced before the Magistrate on
18.12.2020 again and he was also granted another 48
hours time and thereafter it indicates that the accused
Basavaraja had appeared on 22.12.2020. Once again
it is observed by the Magistrate that the accused No.3
509 Spl.CC No.565/2021
had submitted that he had not come in contact with
the Police nor there was any inducement or threat
given to him. After that the Magistrate had recording
his findings of his preliminary enquiry holding that the
answers given by the accused would satisfy him that
no threat or inducement was given by anybody and the
accused had come voluntarily to the Court. Even the
confession statement of Mahabaleshwara Hongal also
indicates of the same wherein initially he was enquired
on 18.12.2020 thereafter on 23.12.2020 and necessary
Certificate has been issued by the learned Magistrate
under Sec.164 of Cr.P.C. All the aforesaid aspects
would only indicate of following the due process of law
by the learned Magistrate. Accordingly, at this
juncture the accused cannot take-up a contention that
the Magistrate has not followed the procedure or the
statement was recorded under compulsion. Even
otherwise, the said aspect was not explained by the
accused at the time of recording their statement under
510 Spl.CC No.565/2021
Sec.313 of Cr.P.C., which was the appropriate stage for
them to explain the circumstances.
164. I have bestowed my anxious reading to the
authoritative dictum laid down by the Hon’ble Apex
Court when compared with the facts of the case, would
clearly indicate that sufficient precautions was taken
by the concerned Magistrate at the time of recording
the confession statement of accused No.3 Kirthi Kumar
Kurahatti and accused No.6 Mahabaleshwar Hongal.
Under the circumstances, the contention of the
accused in this regard cannot be accepted.
Accordingly, point No.3 to 8 are answered in the
affirmative. However, it is made clear that the role of
accused No.20 Vasudev Rama Nilekani and accused
No.21 Somashekar Nyamagoudar is not established by
the prosecution. With respect to the approver turning
hostile, the same is considered in the next part of the
judgment.
511 Spl.CC No.565/2021
CHAPTER : XVIII
APPROVER TURNING HOSTILE
165. In the instant case, accused No.17
Shivananda Shrishaila Biradar had initially filed
necessary application under Sec.306 and Sec.307 of
Cr.P.C., seeking to grant pardon. However, the same
came to be rejected by my predecessor in office. The
said order was challenged before the Hon’ble High
Court of Karnataka by imposing condition that he
shall tender true and correct facts which are within his
knowledge. During the course of the evidence, he was
examined as PW.9. In his evidence, he has turned
hostile and has admitted that he had appeared before
the learned Magistrate in pursuance of the kind orders
passed by the Hon’ble High Court. He has also
admitted that the learned Magistrate has put him
preliminary questions to ascertain his voluntariness
and he had specifically deposed of tendering evidence
voluntarily. It is also been submitted by him that he
512 Spl.CC No.565/2021
had not filed application seeking pardon before this
Court or before the Hon’ble High Court but it was at
the instance of the Investigating Officer, he had filed
so. By looking into the same, it does indicate that the
aforesaid accused person who was initially arraigned
as accused No.17 is taking the proceedings of the
Court in a casual manner so as to bring disrupt to the
proceedings.
166. Now with respect to considering the act of
accused No.17, who had turned hostile after granting
of pardon the provision of Sec.308 of Cr.P.C., is
required to be considered. For the sake of benefit, the
same is extracted which reads as follows;
308. Trial of person not complying with
conditions of pardon.
(1)Where, in regard to a person who has
accepted a tender of pardon made under
Section 306 or Section 307, the Public
Prosecutor certifies that in his opinion
such person has, either by wilfully
concealing anything essential or by
giving false evidence, not complied with
the condition on which the tender was
513 Spl.CC No.565/2021
made, such person may be tried for the
offence in respect of which the pardon
was so tendered or for any other offence
of which he appears to have been guilty
in connection with the same matter, and
also for the offence of giving false
evidence :Provided that such person shall
not be tried jointly with any of the other
accused :Provided further that such
person shall not be tried for the offence of
giving false evidence except with the
sanction of the High Court, and nothing
contained in Section 195 or Section 340
shall apply to that offence.
(2)Any statement made by such person
accepting the tender of pardon and
recorded by a Magistrate under Section
164 or by a Court under sub-section (4) of
Section 306 may be given in evidence
against him at such trial.
(3)At such trial, the accused shall be
entitled to plead that he has complied
with the condition upon which such
tender was made; in which case it shall
be for the prosecution to prove that the
condition has not been complied with.
(4)At such trial, the Court shall –
(a)if it is a Court of Session, before the
charge is read out and explained to the
accused;
(b)if it is the Court of a Magistrate, before
the evidence of the witnesses for the
prosecution is taken;ask the accused
whether he pleads that he has complied
with the conditions on which the tender
of pardon was made.
514 Spl.CC No.565/2021
(5)If the accused does so plead, the Court
shall record the plea and proceed with
the trial and it shall, before passing
judgment in the case, find whether or not
the accused has complied with the
conditions of the pardon, and, if it finds
that he has so complied, it shall,
notwithstanding anything contained in
this Code, pass judgment of acquittal.
167. On considering the aforesaid provision of
law a necessary Certificate is required to be issued by
the Public Prosecutor in this regard. In the instant
case, the learned Senior Public Prosecutor of CBI has
issued the Certificate that the aforesaid witness PW.9
Shivananda Shrishaila Biradar, who was granted
pardon and examined as PW.9 before this Court had
turned hostile. This Court had issued him a notice in
this regard to appear and explain the circumstances.
However, inspite of due service of notice he had not
appeared before the Court which in other words would
indicate that he does not have anything to say in this
regard.
515 Spl.CC No.565/2021
168. On considering the provisions, it would
indicate that in order to institute perjury proceedings
as per Sec.308 of Cr.P.C. against the person who had
turned hostile, the provisos indicate that he cannot be
jointly tried with any other accused and further the
said person shall not be tried for the offence of giving
false evidence except with the sanction of the High
Court, and nothing contained in Sec.195 or Sec.340
would apply to that offence. Hence, the provision
indicates that necessary sanction is required from the
Hon’ble High Court to try such a person. Even
otherwise, in the instant case, the present accused
No.17 Shivananda Shrishaila Biradar was granted
pardon by the kind orders of the Hon’ble High Court of
Karnataka. Under the circumstances, it would be
appropriate to grant necessary liberty to the
prosecution to move before the Hon’ble High Court of
Karnataka and obtain necessary sanction to prosecute
him.
516 Spl.CC No.565/2021
CHAPTER : XIX
CONTENTIONS URGED AGAINST THE
INVESTIGATING OFFICER OF CBI
169. It has been argued at length with respect to
the manner in which the investigation has been carried
out by the Investigating Officer PW.113 Rakesh
Ranjan. The learned Senior Counsel has taken this
Court through the evidence of PW.113 Rakesh Ranjan
recorded in the above case. It is his contention that a
faulty and biased investigation has been carried out by
the CBI to satisfy their political masters. In order to
substantiate his contention, the learned Senior
Counsel has relied upon the judgment of the Hon’ble
Apex Court reported in 2025 SCC Online SC 1439
(Kattavellai @ Devakar Vs. State of Tamilnadu) wherein it
has been held as follows;
42. A common thread that can be
seen to be running through the
entire process that has
culminated by way of this
judgment, is that of faulty
investigation. Since we have
517 Spl.CC No.565/2021
already discussed the evidence on
record in detail, we may only
point out various instances:
A) The identity of the accused
could not be sufficiently
protected leading to its
disclosure well before the T.I.P.
was conducted;
B) Although there is no straight-
jacket formula as to when T.I.P.
can be/cannot be conducted, the
delay in doing so has to be
examined in the facts and
circumstances of the case. The
nine-day delay herein is entirely
unexplained;
C) Lack of coordination between
investigating agencies.
Bhagyalakshmi has not been
arrayed as a witness, despite
examination by PW-56 who is the
person concerned at the CBCID.
The other investigating officer
did not examine her despite a
clear link to the deceased
persons and the star witness of
the prosecution;
D) Requisite care regarding the
sensitive evidence (DNA etc.) was
not taken in the slightest. There
are large gaps in the chain of
custody which are unexplained;
E) Surprisingly and shockingly,
we may say that the postmortem
of the deceased persons was
conducted at the spot of the
crime without due regard to the
518 Spl.CC No.565/2021
possibility of contamination,
effect of such examination being
conducted in the open, etc. None
of the Courts below have found
this to be objectionable;
F) Possibility of ruling out the
involvement of third party in the
crime.
170. Further it is argued by the learned Senior
Counsel that the entire investigation process is full of
flaws and also he has argued that the Investigating
Officer has made categorical admissions that certain
aspects were not entered into the CD files. Further it
is also argued that intentionally accused No.15 Vinay
Kulkarni has been roped into the above case in order
to satisfy the political vendetta. In order to
substantiate the aforesaid aspect, it is argued that the
manner in which the investigation came to be
entrusted to CBI is required to be looked into. He has
argued that immediately with the change of guard of
the State Government in the year 2019, the
investigation was entrusted to CBI. He has argued
519 Spl.CC No.565/2021
that just prior to the same, in a political rally the
prominent leader of a political party had specifically
contended that in the event of his party coming to
power, the investigation would be entrusted to CBI. By
pointing out to the same and also the manner in which
the alleged investigation has taken place, the learned
Senior Counsel has argued that the entire
investigation is nothing but a farce with respect to the
settled principles of law. He has argued that at each
and every step, the investigation process has lapsed.
The said submission is also adopted by the learned
Counsels appearing for accused No.2 to 6 Sri.
C.Parameshwarappa and also by Sri. S.Shankarappa.
The learned Counsel has argued that at the time of
conducting the TIP, the procedures were not followed
and even prior to that the identity of the accused were
disclosed. That apart, it is submitted that no
permission was obtained from the Court to arraign
additional accused in the above case. It is also argued
520 Spl.CC No.565/2021
that even during the course of trial, a method of cherry
picking was adopted by the prosecution wherein some
witnesses were examined.
171. The learned SPP has refuted to the aforesaid
contention and has submitted that mere non-
mentioning of certain aspects in the CD files cannot be
construed as the one which would vitiate the entire
investigation. In order to substantiate the same, he
has relied upon the judgment of the Hon’ble Apex
Court reported in (2015)9 SCC 588 (V.K.Mishra Vs.
State of Uttarkhand), wherein it has been held as
follows;
34. Refuting the contention of
the appellants on the lapses in
the investigation and
contending that any lapse in
the investigation does not affect
the core of the prosecution case,
the respondents have placed
reliance upon the judgment of
this Court in State of
Karnataka v. K. Yarappa Reddy
[(1999) 8 SCC 715 : 2000 SCC
(Cri) 61] , wherein this Court
held as under: (SCC p. 720, para
19)
521 Spl.CC No.565/2021
“19. … It can be a guiding
principle that as investigation
is not the solitary area for
judicial scrutiny in a criminal
trial, the conclusion of the court
in the case cannot be allowed to
depend solely on the probity of
investigation. It is well-nigh
settled that even if the
investigation is illegal or even
suspicious the rest of the
evidence must be scrutinised
independently of the impact of
it. Otherwise the criminal trial
will plummet to the level of the
investigating officers ruling the
roost. The court must have
predominance and pre-eminence
in criminal trials over the
action taken by investigating
officers. Criminal justice should
not be made a casualty for the
wrongs committed by the
investigating officers in the
case. In other words, if the
court is convinced that the
testimony of a witness to the
occurrence is true the court is
free to act on it albeit the
investigating officer’s suspicious
role in the case.”
172. When the aforesaid authority is compared
with the judgment which has been relied upon by the
learned Senior Counsel, the main aspect which can be
looked into is whether certain deviations can be
considered as vitiating the trial. Admittedly in the
522 Spl.CC No.565/2021
above case, the Court is looking into the entire
materials which has been placed before it and also the
manner in which the investigation has taken-place.
Initially, the investigation was entrusted to State Police
and thereafter a series of allegations were leveled
against the State Investigating Agency. Though it is
argued at length that the entrustment of investigation
to CBI itself is illegal and a connection is being given
with respect to an address made by the prominent
leader of a political party of entrusting investigation to
CBI as the one indicating of biased investigation, in my
humble opinion such aspects will not be sufficient to
cast aspersions against an Investigating Officer. It is
pertinent to note that during the course of cross-
examination it was elucidated by the defence counsels
themselves that there are two prominent political
parties at Dharwad which were at logger heads with
each other. Further it is also relevant to note that as
already discussed above, the wife of deceased Smt.
523 Spl.CC No.565/2021
Mallavva Goudar had initially contested elections on
the ticket of a political party immediately after the
murder of her husband. It was also elucidated from
her that after losing the elections, she was asked by
the Member of Parliament to return back the money.
However, during the course of cross-examination by
the learned SPP it was elucidated from her that the
money from selling the land was not given to the
political leader and in fact a categorical admission was
also obtained from her of receiving money from the
supporters of accused No.15 Vinay Kulkarni. Even
otherwise, as already discussed supra, the deceased’s
wife herself had given a public interview that the
investigation being conducted by the State Police was
not proper and was required to be entrusted to CBI.
Though later on she had refuted the same and during
the course of her evidence she has deposed that she
was pressurized by PW.2 Gurunatha Goudar and also
PW.11 Anjana Basavaraja Dollin to give such a
524 Spl.CC No.565/2021
statement, it is rathe astonishing to note that a women
who had intended to become a people’s representative
was perturbed and pressurized. In normal
circumstances, if the said contention was raised, it
would have been accepted. However, by noticing the
fact that after tendering such interview she admits of
joining the rival political party of which accused No.15
was a Minister and at the time of joining the party she
even admits of meeting the Chief Minister of the State
and also sharing dais with them. If a political
personality deposes in such a manner, the question
which remains is whether such contentions can be
accepted. Even otherwise, as it is noticed in the
society, every now and then a statement would be
given by the opposition party against any scam or
incident to hand-over the investigation to CBI. In my
humble opinion, mere such statement in a political
rally cannot be construed as a hidden agenda being
entertained to settle the political scores. It is relevant
525 Spl.CC No.565/2021
to note at this juncture that in the Court of law, the
question of settling political scores does not arises and
all that it matters is the evidence which is placed in
the Court. Even otherwise, I have compared the
investigation of the State Police and also the
investigation conducted by the CBI. As already
discussed in my earlier part of my discussions supra,
it is noticed that several lapses were found in the
investigating process of accused No.19 Chennakeshava
Tingrikar. Under the circumstances, when the entire
materials are looked into, the same cannot be
construed as a ground to hold that the investigation
conducted by PW.113 Rakesh Ranjan is a flawed one.
173. Now coming to the other limb of submission,
that no permission was obtained for arraigning
additional accused persons. In this regard, it would be
fruitful to rely upon the judgment of the Hon’ble Apex
Court reported in (2014)3 SCC 92 (Hardeep Singh Vs.
State of Punjab), wherein it has been held as follows;
526 Spl.CC No.565/2021
42. To say that powers under Section
319 CrPC can be exercised only during
trial would be reducing the impact of
the word “inquiry” by the court. It is a
settled principle of law that an
interpretation which leads to the
conclusion that a word used by the
legislature is redundant, should be
avoided as the presumption is that the
legislature has deliberately and
consciously used the words for
carrying out the purpose of the Act.
The legal maxim a verbis legis non est
recedendum which means, “from the
words of law, there must be no
departure” has to be kept in mind.
47. Since after the filing of the charge-
sheet, the court reaches the stage of
inquiry and as soon as the court
frames the charges, the trial
commences, and therefore, the power
under Section 319(1) CrPC can be
exercised at any time after the charge-
sheet is filed and before the
pronouncement of judgment, except
during the stage of Sections 207/208
CrPC, committal, etc. which is only a
pre-trial stage, intended to put the
process into motion. This stage cannot
be said to be a judicial step in the true
sense for it only requires an
application of mind rather than a
judicial application of mind. At this
pre-trial stage, the Magistrate is
required to perform acts in the nature
of administrative work rather than
judicial such as ensuring compliance
527 Spl.CC No.565/2021
with Sections 207 and 208 CrPC, and
committing the matter if it is
exclusively triable by the Sessions
Court. Therefore, it would be legitimate
for us to conclude that the Magistrate
at the stage of Sections 207 to 209
CrPC is forbidden, by express provision
of Section 319 CrPC, to apply his mind
to the merits of the case and determine
as to whether any accused needs to be
added or subtracted to face trial before
the Court of Session.
92. Thus, in view of the above, we hold
that power under Section 319 CrPC can
be exercised at the stage of completion
of examination-in-chief and the court
does not need to wait till the said
evidence is tested on cross-examination
for it is the satisfaction of the court
which can be gathered from the
reasons recorded by the court, in
respect of complicity of some other
person(s), not facing the trial in the
offence.
174. The aforesaid judgment aptly describes the
situation which would indicate of the situation where
the Investigating Agency are having power to arraign
additional accused persons. Hence, the contention of
the defence in this regard is not accepted.
Accordingly, the prosecution has established that
528 Spl.CC No.565/2021
accused No.2 to 16, 18 and 19 had entered into a
criminal conspiracy as contemplated under Sec.120-B
of IPC and in furtherance of the same accused No.7 to
14 had formed an unlawful assembly armed with
deadly weapons and had committed rioting in
furtherance of the common object to commit the
murder of Yogesh Goudar, thereby committing the
offences punishable under Sec.143, 147, 148, 149 of
IPC and in furtherance of the criminal conspiracy, they
had committed the murder and thereby accused No.1
to 16 and 18 have committed the offence punishable
under Sec.302 r/w Sec.120-B of IPC and further the
accused No.1 to 16, 18 and 19 have committed an
offence punishable under Sec.201 r/w Sec.120-B of
IPC and the prosecution has also established that
accused No.19 has committed an offence punishable
under Sec.218 r/w Sec.120-B of IPC. Accordingly,
points for considerations are answered accordingly. It
is held that the prosecution have failed to establish the
529 Spl.CC No.565/2021
allegations leveled against accused No.20 Vasudev
Rama Nilekani and accused No.21 Somashekar
Basappa Nyamagoudar and they are acquitted by
granting the benefit of doubt.
SUMMATION
175. In the instant case it has been established
by the prosecution that the accused No.15 Vinay
Kulkarni had entertained a vengeance against Yogesh
Goudar, who was a Zilla Panchayath Member and due
to a quarrel that had taken place on 23.04.2016, the
same was intensified due to which he had sought the
assistance of the then accused No.1 Basavaraja
Muttagi, to eliminate Yogesh Goudar and initially
Basavaraja Muttagi had sought the assistance of
accused No.2 to 6 who had refused to do so and
thereafter it was conveyed to Vinay Kulkarni who had
stated that since his intention to commit murder was
now published to some other person, he has to go
ahead with his plan. Accordingly, Basavaraja Muttagi
530 Spl.CC No.565/2021
had sought the assistance of accused No.7 to 14, who
had demanded Rs.20 lakhs for committing the murder
with a condition that they should not be made to
surrender nor made to face the trial. The prosecution
has proved that in order to overcome the same,
accused No.1 to 6 had stood in the place of the real
assailants i.e., accused No.7 to 14 and in the
commission of the offence, logistic support and other
active support was provided by accused No.18.
Further the prosecution proves the angle of conspiracy
and the identity of the accused through the CCTV
footage which was produced before the Court and also
the evidence of the approver Basavaraja Muttagi has
played as a chain of link to establish the
circumstances in the above case. The prosecution has
further proved that in furtherance of larger conspiracy
which accused No.19 Chennakeshava Tingarikar had
entertained being the Investigating Officer of Dharwad
Sub-Urban Police Station with accused No.15 Vinay
531 Spl.CC No.565/2021
Kulkarni had conducted sloppy investigation to
support the case of accused No.15 than discharging
his duty. Further the prosecution has established the
fact that accused No.15 in order to project the murder
due to a land dispute, had got the then accused No.1
Basavaraja Muttagi to enter into a Agreement of Sale
with PW.6 Nagaraj Todkar and also the tampering of
the witness and the inducement given to them to turn
hostile before the Sessions Court at Dharwad is
established.
176. Point No.13: In view of my findings on point
No.1 to 12, I proceed to pass the following :
ORDER
Acting under Sec.235(2) of Cr.P.C., the
accused No.2 Vikram Bellary, accused No.3
Kirthi Kumar Basavaraj Kurahatti, accused
No.4 Sandeep Saudatti, accused No.5
Vinayaka Katagi, accused No.6
Mahabaleshwar Hongal @ Muduka, accused
No.7 Santhosh Saudatti, accused No.8
Dinesh.M, accused No.9 Ashwath, accused
532 Spl.CC No.565/2021No.10 Sunil, accused No.11 Nazeer Ahmed,
accused No.12 Shahanawaz, accused No.13
Nuthan, accused No.14 Harshith, accused
No.16 Chandrashekar Indi, accused No.18
Vikas Kalburgi, accused No.19
Channakeshava B. Tingarikar and accused
No.15 Vinay Kulkarni are hereby convicted
for having entered into a criminal conspiracy
to commit the murder of Yogesh Goudar and
thereby are convicted for the offence
punishable under Sec.120(B) of IPC.
Further, accused No.2 to 14 and 18 are
convicted for the offences punishable under
Sec.143, 147, 148 r/w Sec.149 r/w Sec.120-
B of IPC.
Further, accused No.2 to 16 and accused
No.18 are hereby convicted for committing
the offences punishable under Sec.302 r/w
Sec.120-B of IPC.
Further, accused No.2 to 16, accused
No.18 and 19 are convicted for committing
the offences punishable under Sec.201 r/w
Sec.120-B r/w Sec.149 of IPC.
Further, accused No.19 is hereby
convicted for committing the offence
533 Spl.CC No.565/2021punishable under Sec.218 r/w Sec.120-B
and Sec.149 of IPC.
Further, the accused No.15 Vinay
Kulkarni and accused No.16 Chandrashekar
Indi are hereby acquitted for the offences
punishable under Sec.3, 5, 8 punishable
under Sec.25 and Sec.29 of Arms Act, 1959,
since prosecution sanction was not obtained
against them.
The accused No.20 Vasudeva Rama
Nilekani and accused No.21 Somashekar
Basappa Nyamagouda are hereby acquitted
from the above case by giving benefit of
doubt.
The prosecution is hereby granted liberty
to file necessary application seeking sanction
to prosecute the approver turned witness
PW.9 Shivanand Shrishaila Biradar, who had
turned hostile before this Court.
Further it is hereby directed to the
Registrar, City Civil Court, to register case of
perjury acting under Sec.340 of Cr.PC.,
against the witnesses who were the Police
Officers i.e., PW.24 Shivananda Chalavadi,
PW.44 Babu Katagi, PW.54 Shankaragouda
Basanagouda Patil and other independent
534 Spl.CC No.565/2021witnesses i.e., PW.1 Dr.Dattatreya
Gudaganti, PW.32 Anand Irappa
Uddannavar, PW.33 Vinayaka Binjiyavar,
PW.34 Mohan Echarappa Mulmuttal,
PW.35 Vivekananda Dalawai and PW.20
Natraj Sarj Desai and PW.53 Vijay
Kulkarni.
For hearing on quantum of sentence.
(Dictated to the Stenographer Grade-I, typed by her
directly on Computer, revised and corrected by me and then
pronounced in the Open Court on this the 15th day of April,
2026)(Santhosh Gajanan Bhat)
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected former and
sitting MPs/MLAs in the State of Karnataka)
535 Spl.CC No.565/2021EPILOGUE
159. In the present case, the trial spanned an
uninterrupted period of over three months, marking a
prolonged and intricate legal process. It is crucial to
recognize the indefatigable efforts of the distinguished
Senior Public Prosecutors–Smt.Hema K.S., Sri.
Shivananda Perla, and Sri. Gangadhara Shetty–along
with the diligent team from the CBI, including the
Pairavi Officers, who tirelessly ensured the appearance
of witnesses and played an instrumental role in
facilitating the swift progression and resolution of the
trial.
160. Equally deserving of commendation is the
exemplary cooperation extended by the learned
defense counsels, led by Sri. C.V. Nagesh, learned
Senior Counsel, alongside his esteemed colleagues, Sri.
M.S. Shyam Sundar, learned Senior Counsel, Sri. S.
Shankarappa, Sri.Sunil Kumar, Sri. C.
536 Spl.CC No.565/2021Parameshwarappa, Sri. S. Balakrishnan, Sri. K.B.K.
Swamy, Sri. Nithin Ramesh, and their entire team.
Their professional approach and unwavering support
ensured the smooth and efficient handling of an
exceptionally voluminous case, marked by an extensive
array of legal documentation.
161. In conclusion, the Court extends its
appreciation to both the prosecution and defence
teams. Their collaborative spirit and tireless efforts
were pivotal in bringing this protracted trial to a fair
and timely conclusion, demonstrating the highest
standards of legal professionalism and integrity.
ORDER REGARDING QUANTUM OF SENTENCE
162. Heard the Learned Additional Solicitor
General of India and Special Public Prosecutors Sri.
S.V.Raju and also the learned Senior Counsel
Sri.M.S.Shyamsundar and also the Learned Counsel
for accused persons.
537 Spl.CC No.565/2021
163. The Learned Additional Solicitor General of
India/Special Public Prosecutor has vehemently
argued that in the instant case the Court is required to
appreciate special facts and circumstances and should
weigh the aggravating and mitigating circumstances. It
is his submission that the aggravating and mitigating
facts are required to be considered in the offences
which are punishable with death sentence, the Court
is also required to balance the equities and ensure that
just sentence would be awarded. Further it is
submitted that the Court is also required to take into
consideration of the manner in which the incident had
taken-place. It is the submission of the learned ASG
that the manner of commission of murder in the broad
day light which was a pre-planned cold blooded
murder of Yogesh Goudar was executed by accused
No.7 to 14 due to the conspiracy being hatched and at
the instance of accused No.15 Vinay R. Kulkarni due
to political rivalry. It is contended that though accused
538 Spl.CC No.565/2021
No.2 to 6 were not the assailants, their role of taking
active part and standing in the place of real assailants
to thwart the administration of justice have to be taken
into account. Further he has argued that the
implanted weapons and the tampering of record to
shield the real assailants by the concerned
Investigating Officer himself is required to be
considered. It is his submission that though in the
written synopsis they have sought for maximum
capital punishment, he has fairly submitted that the
above case cannot be brought into the bracket of
rarest of rare cases and hence the same cannot be a
case for awarding the capital punishment. However,
considering the might of the accused persons and also
the manner in which the commission of murder had
taken place and also the manner in which tampering
of witness had also been noticed during the course of
trial would definitely indicate that the above case is
required to be considered as a special case wherein all
539 Spl.CC No.565/2021
efforts were made to disrupt the administration of
justice. Hence, he has sought for life imprisonment
without remission to the accused persons. In order to
buttress his submission, the learned ASG has relied
upon the judgment of the Hon’ble Apex Court reported
in (1980)2 SCC 684 (Bachan Singh Vs. State of Punjab) ,
wherein it has been held as follows;
164. Attuned to the legislative policy
delineated in Sections 354(3) and
235(2), propositions (iv)(a) and (v)(b) in
Jagmohan [(1973) 1 SCC 20 : 1973 SCC
(Cri) 169 : (1973) 2 SCR 541] shall have
to be recast and may be stated as
below:
“(a) The normal rule is that the offence
of murder shall be punished with the
sentence of life imprisonment. The court
can depart from that rule and impose
the sentence of death only if there are
special reasons for doing so. Such
reasons must be recorded in writing
before imposing the death sentence.
(b) While considering the question of
sentence to be imposed for the offence
of murder under Section 302 of the
Penal Code, the court must have regard
to every relevant circumstance relating
to the crime as well as the criminal. If
the court finds, but not otherwise, that
540 Spl.CC No.565/2021the offence is of an exceptionally
depraved and heinous character and
constitutes, on account of its design
and the manner of its execution, a
source of grave danger to the society at
large, the court may impose the death
sentence.”
165. The soundness or application of
the other propositions in Jagmohan
[(1973) 1 SCC 20 : 1973 SCC (Cri) 169 :
(1973) 2 SCR 541] , and the premises on
which they rest, are not affected in any
way by the legislative changes since
effected. On the contrary, these changes
reinforce the reasons given in
Jagmohan [(1973) 1 SCC 20 : 1973 SCC
(Cri) 169 : (1973) 2 SCR 541] , for
holding that the impugned provisions of
the Penal Code and the Criminal
Procedure Code do not offend Articles
14 and 21 of the Constitution. Now,
Parliament has in Section 354 (3) given
a broad and clear guide-line which is to
serve the purpose of lodestar to the
court in the exercise of its sentencing
discretion. Parliament has advisedly
not restricted this sentencing discretion
further, as, in its legislative judgment,
it is neither possible nor desirable to do
so. Parliament could not but be aware
that since the Amending Act 26 of
1955, death penalty has been imposed
by courts on an extremely small
percentage of persons convicted of
murder — a fact which demonstrates
that courts have generally exercised
their discretion in inflicting this
541 Spl.CC No.565/2021extreme penalty with great
circumspection, caution and restraint.
Cognizant of the past experience of the
administration of death penalty in
India, Parliament, in its wisdom,
thought it best and safe to leave the
imposition of this gravest punishment
in gravest cases of murder, to the
judicial discretion of the courts which
are manned by persons of reason,
experience and standing in the
profession. The exercise of this
sentencing discretion cannot be said to
be untrammelled and unguided. It is
exercised judicially in accordance with
well recognised principles crystallised
by judicial decisions, directed along the
broad contours of legislative policy
towards the signposts enacted in
Section 354(3).
164. Further he has also relied upon the
judgment of the Hon’ble Apex Court wherein guidelines
has been laid down with respect to imposition of death
penalty. The judgment reported in (1983)3 SCC 470
(Machhi Singh and others Vs. State of Punjab), wherein it
has been held as follows;
33. When the murder is committed in
an extremely brutal, grotesque,
diabolical, revolting or dastardly
542 Spl.CC No.565/2021
manner so as to arouse intense and
extreme indignation of the community.
For instance,
(i) when the house of the victim is set
aflame with the end in view to roast
him alive in the house.
(ii) when the victim is subjected to
inhuman acts of torture or cruelty in
order to bring about his or her death.
(iii) when the body of the victim is cut
into pieces or his body is dismembered
in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for
a motive which evinces total depravity
and meanness. For instance when (a) a
hired assassin commits murder for the
sake of money or reward (b) a cold-
blooded murder is committed with a
deliberate design in order to inherit
property or to gain control over
property of a ward or a person under
the control of the murderer or vis-a-vis
whom the murderer is in a dominating
position or in a position of trust, or (c)
a murder is committed in the course
for betrayal of the motherland.
III. Anti-social or socially abhorrent
nature of the crime
35. (a) When murder of a member of a
Scheduled Caste or minority
community etc., is committed not for
personal reasons but in circumstances
which arouse social wrath. For
543 Spl.CC No.565/2021
instance when such a crime is
committed in order to terrorize such
persons and frighten them into fleeing
from a place or in order to deprive
them of, or make them surrender,
lands or benefits conferred on them
with a view to reverse past injustices
and in order to restore the social
balance.
(b) In cases of “bride burning” and what
are known as “dowry deaths” or when
murder is committed in order to
remarry for the sake of extracting
dowry once again or to marry another
woman on account of infatuation.
IV. Magnitude of crime
36. When the crime is enormous in
proportion. For instance when multiple
murders say of all or almost all the
members of a family or a large number
of persons of a particular caste,
community, or locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an
innocent child who could not have or
has not provided even an excuse, much
less a provocation, for murder (b) a
helpless woman or a person rendered
helpless by old age or infirmity (c)
when the victim is a person vis-a-vis
whom the murderer is in a position of
domination or trust (d) when the victim
is a public figure generally loved and
respected by the community for the
services rendered by him and the
544 Spl.CC No.565/2021
murder is committed for political or
similar reasons other than personal
reasons.
38. In this background the guidelines
indicated in Bachan Singh case [(1980)
2 SCC 684 : 1980 SCC (Cri) 580 : AIR
1980 SC 898 : 1980 Cri LJ 636] will
have to be culled out and applied to
the facts of each individual case where
the question of imposing of death
sentence arises. The following
propositions emerge from Bachan
Singh case [(1980) 2 SCC 684 : 1980
SCC (Cri) 580 : AIR 1980 SC 898 : 1980
Cri LJ 636] :
“(i) The extreme penalty of death need
not be inflicted except in gravest cases
of extreme culpability.
(ii) Before opting for the death penalty
the circumstances of the ‘offender’ also
require to be taken into consideration
along with the circumstances of the
‘crime’.
(iii) Life imprisonment is the rule and
death sentence is an exception. In
other words death sentence must be
imposed only when life imprisonment
appears to be an altogether inadequate
punishment having regard to the
relevant circumstances of the crime,
and provided, and only provided, the
option to impose sentence of
imprisonment for life cannot be
conscientiously exercised having
regard to the nature and
545 Spl.CC No.565/2021circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and
mitigating circumstances has to be
drawn up and in doing so the
mitigating circumstances have to be
accorded full weightage and a just
balance has to be struck between the
aggravating and the mitigating
circumstances before the option is
exercised.
Accordingly, he has sought for imposing
maximum punishment i.e., life imprisonment without
remission to the accused persons.
165. I have heard the learned counsels
appearing for the accused persons in seriatim. Sri.
C.Parameshwarappa, the learned Counsel for accused
No.2 to 6 and also on behalf of accused No.18 has
vehemently argued that they are the sole bread
earners in their family. Further it is submitted that
they do not have any criminal antecedents. Hence, he
has sought for taking a lenient view.
546 Spl.CC No.565/2021
166. Sri.S.Shankarappa, the learned counsel for
accused No.8 to 14 has vehemently argued that the
Court has to balance the equities and has to take into
account about the manner in which the case has
traversed. It is his submission that the entire case of
the prosecution is based upon circumstantial evidence
and further there are no aggravating factors to indicate
that the prosecution is entitled to seek for maximum
punishment. That apart, it is submitted that the
sentence which is awarded should be a balanced one
and also the age of the accused, their family conditions
and their responsibility to take care of their aged
parents is also a factor to determine the quantum of
punishment. Accordingly, he has sought for imposing
minimum sentence as contemplated under law.
167. The learned Counsel Sri.Sunil Kumar K.S.,
has vehemently argued that the request of the
prosecution to impose life imprisonment without
547 Spl.CC No.565/2021
remission is not justifiable. He has also argued that
there are no criminal antecedents against accused
No.7 and also he has to take care of his aged parents.
Accordingly, he has sought for imposing minimum
sentence.
168. The learned Senior Counsel Sri. M.S.Shyam
Sundar, on behalf of the learned counsel for accused
No.15 and 16 in his usual flamboyant manner has
taken this court with respect to the allegations leveled
and also the manner in which the prosecution had
proved their case. He has argued that though the case
of the prosecution is proved, that doesn’t mean that
maximum penalty is required to be imposed. It is his
submission that when the entire case is looked
through a magnifying lens, it would indicate that it is
not a rarest of rare case. He has also argued at length
about the intention of the legislature to impose just
and appropriate punishment. He has argued that in
548 Spl.CC No.565/2021
the present prevailing situation, we follow an
adversarial system wherein reformative theory is
preferred and the intention is to ensure that the
person would be reformed. Further he has argued that
it cannot be a case where retributive theory of
imprisonment can be imposed. Further he has pointed
out that the background of the person, his standing in
the society, his contribution to the society and also his
criminal antecedents is required to be looked into. He
has argued that accused No.15 had led a exemplary
life wherein he had an unblemished political career of
27 years and his entire family was depending upon
him. He has also highlighted the philanthropic activity
being carried out by the accused No.15. The learned
Senior Counsel has relied upon the judgment of the
Hon’ble Apex Court reported in 2025 SCC Online SC
2863 (Kiran Vs. State of Karnataka) and also another
judgment of the Hon’ble High Court of Karnataka
reported in Crl.Apl.No.69/2018 dated 23.01.2026. By
549 Spl.CC No.565/2021
pointing to the same, he has argued that the
maximum punishment as sought by the prosecution is
not justified and a lenient view is required to be
imposed upon.
169. The learned counsel Sri. S.Balakrishnan,
on behalf of accused No.19 has argued at length that
there are no aggravating circumstances available
against accused No.19 and further it is his submission
that when aggravating and mitigating factors are
weighed, the mitigating factors are more than that of
the aggravating factors. By pointing out about the
family condition of accused No.19 and also of the fact
that he had put in a service of nearly 20 years wherein
he was awarded with medal by the Government on
various occasions, he has required the Court to pass
minimum sentence as contemplated under law.
170. The Court had afforded an opportunity to all
the accused persons to make their submissions on the
550 Spl.CC No.565/2021
quantum of sentence individually. The submissions
made by the accused are as hereunder;
ï‚· Accused No.2 Vikram Bellary has submitted
that he is having a child of 5 months and he
is running a laundry shop and he is the sole
bread earner of his family.
ï‚· Accused No.3 Kirthi Kumar Kurahatti has
submitted that he is the sole bread earner in
his family and he has to take care of his child
aged about 1 year and his entire family is
depending on him.
ï‚· Accused No.4 Sandeep Saudatti has
submitted that he had married about 3 days
ago and has to take care of his family.
ï‚· Accused No.5 Vinayaka Katagi has submitted
that he has got 3 children and his father is a
heart patient and he is the sole bread earner
in his family.
ï‚· Accused No.6 Mahabaleshwar Hongal @
Muduka has contended that he is the sole
bread earner of his family who is having 2
children aged about 3 years and 1 year and
also he is working as a agricultural labourer
who is not having any definite source of
income.
551 Spl.CC No.565/2021
ï‚· Accused No.7 Santhosh Saudatti has
submitted that he is working as an Auto
Driver and he is suffering from spinal chord
problem since 2012.
ï‚· Accused No.8 Dinesh has submitted that he
is working as a Driver and he is having 2
daughters and he is the sole bread earner of
his family.
ï‚· Accused No.9 Ashwath has submitted that he
has got 2 young children and has to take care
of his aged mother.
ï‚· Accused No.10 Sunil K.S., has submitted that
he has got 8 years old child and he is the sole
bread earner in his family.
ï‚· Accused No.11 Nazeer Ahmed has submitted
that he is the sole bread earner in his family
which consists of 4 children who are entirely
depending on him.
ï‚· Accused No.12 Shahanawaz has submitted
that he has got 2 daughters and he is tailor
by profession.
ï‚· Accused No.13 Nuthan has submitted that he
had underwent heart operation recently and
has to take care of his 2 minor daughters and
he is sole bread earner of his family.
552 Spl.CC No.565/2021
ï‚· Accused No.14 Harshith has submitted that
he works as a Driver and has to take care of
his aged mother.
ï‚· Accused No.15 Vinay R Kulkarni has
submitted that he was into politics for the
last 27 years and he was 3 times MLA and
was also a Minister in the Government of
Karnataka and has stated that he had also
acted as District In-charge Minister. It is his
submission that he was looking after his
livestock and is having more than 3500 calf
and was also required to take care of the
grievances of the general public. He has also
submitted that he was known for
philanthropic activities and at no point of
time there were any allegations against him of
having a criminal antecedent.
ï‚· Accused No.16 Chandrashekar Indi has
submitted that he has lost his daughter and
even his son was not taking care of him. It is
also submitted by him that he and his wife
were heart patients suffering from various
ailments.
ï‚· Accused No.18 Vikas Kalburgi has submitted
that he has got 2 children and aged parents
to be taken care of and it has been submitted
by him that he is the sole bread earner in his
family.
553 Spl.CC No.565/2021
ï‚· Accused No.19 Chennakeshava Tingarikar
has submitted that he has got 3 children and
has put-in unblemished service of 20 years
for which he has been awarded for good
service throughout his service. It is also
submitted by him that apart from the above
case there are no other allegations against
him and he has to take care of his aged
parents. Accordingly, he has sought for
imposing minimum sentence as contemplated
under law.
171. Time and again, it has been reiterated by
the Hon’ble Apex Court that in the matters pertaining
to awarding sentence, the court should be cautious
and sift and weigh the factors which are relevant for
arriving at a just conclusion. It is also the cardinal
principle of law that the nature and gravity of the
crime is important than the criminality. The court at
the time of passing an order on quantum of sentence
has to look into the materials in a different manner
than that of the appreciating evidence for passing of
judgment. The court is not against the criminal but
554 Spl.CC No.565/2021
against the criminal act and at the time of considering
the quantum of sentence, the court is required to look
into the manner in which the crime is committed.
There is no specific legislation with respect to passing
of quantum of sentence. However, the parameter which
is required to be considered is based on the case laws
which are required to be looked into. Apart from that
the Hon’ble Apex Court has also held that at the time
of passing of sentence, an exercise has to be made by
the court by pointing the aggravating and mitigating
factors and balance has to be secured in order to
arrive at a conclusion to award appropriate sentence
that could be imposed upon the parties. By keeping
the same in mind, I have bestowed my anxious reading
to the submissions made by the Learned Counsel for
the accused, Learned Special Public Prosecutor and
also the submissions of the accused person. What
could be the criteria for imposing just and appropriate
sentence is laid down by the Hon’ble Apex court in the
555 Spl.CC No.565/2021
judgment rendered in (2022) 7 SCC 628 (Jaswinder
Singh V Navjot Singh Sidhu) wherein it is held as:
25. We would like to deliberate a
little more in detail on the
necessity of maintaining a
reasonable proportion between the
seriousness of the crime and the
punishment. While a
disproportionately severe sentence
ought not to be passed,
simultaneously it also does not
clothe the law courts to award a
sentence which would be
manifestly inadequate, having due
regard to the nature of the
offence, since an inadequate
sentence would fail to produce a
deterrent effect on the society at
large. Punishments are awarded
not because of the fact that it has
to be an eye for an eye or a tooth
for a tooth, rather having its due
impact on the society; while
undue harshness is not required
but inadequate punishment may
lead to sufferance of the
community at large. [Jai
Kumar v. State of M.P., (1999) 5
SCC 1 : 1999 SCC (Cri) 638]
26. An important aspect to be kept
in mind is that any undue
sympathy to impose inadequate
sentence would do more harm to
justice system and undermine the
public confidence in the efficacy
of law. The society cannot long
endure under serious threats and
if the courts do not protect the
injured, the injured would then
556 Spl.CC No.565/2021resort to private vengeance and,
therefore, it is the duty of every
court to award proper sentence
having regard to the nature of the
offence and the manner in which
it was executed or committed.
[Sumer Singh v. Surajbhan Singh,
(2014) 7 SCC 323 : (2014) 3 SCC
(Cri) 184] It has, thus, been
observed that the punishment to
be awarded for a crime must not
be irrelevant but it should
conform to and be consistent with
the atrocity and brutality with
which the crime has been
perpetrated. [Ravji v. State of
Rajasthan, (1996) 2 SCC 175 :
1996 SCC (Cri) 225]
27. A three-Judge Bench of this
Court in State of
Karnataka v. Krishnappa [State of
Karnataka v. Krishnappa, (2000)
4 SCC 75 : 2000 SCC (Cri) 755]
while discussing the purpose of
imposition of adequate sentence
opined in para 18 that : (SCC p.
83)
“18. … Protection of society and
deterring the criminal is the
avowed object of law and that is
required to be achieved by
imposing an appropriate
sentence.”
28. The sentencing philosophy for
an offence has a social goal that
the sentence has to be based on
the principle that the accused
must realise that the crime
committed by him has not only
created a dent in his life but also
a concavity in the social fabric.
557 Spl.CC No.565/2021
[Shyam Narain v. State (NCT of
Delhi), (2013) 7 SCC 77 : (2013) 3
SCC (Cri) 1] While opportunity to
reform has to be kept in mind, the
principle of proportionality also
has to be equally kept in mind.
29. Criminal jurisprudence with
the passage of time has laid
emphasis on victimology, which
fundamentally is a perception of a
trial from the viewpoint of the
criminal as well as the victim.
Both are viewed in the social
context and, thus, victim’s rights
have to be equally protected
[Rattiram v. State of M.P., (2012) 4
SCC 516: (2012) 2 SCC (Cri) 481] .
It would be useful to rely on the
observations of this Court
in Gopal Singh v. State of
Uttarakhand [Gopal Singh v. State
of Uttarakhand, (2013) 7 SCC
545 : (2013) 3 SCC (Cri) 608] that
just punishment is the collective
cry of the society and while
collective cry has to be kept
uppermost in mind,
simultaneously the principle of
proportionality between the crime
and punishment cannot be totally
brushed aside. Thus, the principle
of just punishment is the bedrock
of sentencing in respect of a
criminal offence. No doubt there
cannot be a straitjacket formula
nor a solvable theory in
mathematical exactitude. An
offender cannot be allowed to be
treated with leniency solely on the
ground of discretion vested in a
court. Similarly, in Alister
Anthony Pareira v. State of
558 Spl.CC No.565/2021
Maharashtra [Alister Anthony
Pareira v. State of Maharashtra,
(2012) 2 SCC 648 : (2012) 1 SCC
(Civ) 848 : (2012) 1 SCC (Cri) 953 :
AIR 2012 SC 3802] , the twin
objective of the sentencing policy
to be kept in mind was
emphasised as deterrence and
correction and, thus, principle of
proportionality in sentencing a
convict were held to be well
entrenched in the criminal
jurisprudence.
30. We may also take note of the
recent judgment of this Court
decided by a three-Judge Bench on
18-4-2022 in Jagjeet
Singh v. Ashish Mishra [Jagjeet
Singh v. Ashish Mishra, (2022) 9
SCC 321 : 2022 SCC OnLine SC
453] albeit, on the issue of bail. It
emphasised the victim’s right to be
heard. What is relevant for us to
note is that the victim being the
de facto sufferer of a crime had
no participation in the
adjudicatory process. The current
ethos of criminal justice
dispensation to prevent and
punish crime had surreptitiously
turned its back on the victim. No
doubt in the present case at every
stage the victim has been heard
and the present application is
also by the victim. The near and
dear ones whether as guardians
or legal heirs are required to be
treated as victims. It was, thus,
observed in SCC para 22 as under:
“22. It cannot be gainsaid that the
right of a victim under the
559 Spl.CC No.565/2021amended CrPC are substantive,
enforceable, and are another facet
of human rights. The victim’s
right, therefore, cannot be termed
or construed restrictively like a
brutum fulmen. We reiterate that
these rights are totally
independent, incomparable, and
are not accessory or auxiliary to
those of the State under the CrPC.
The presence of “State” in the
proceedings, therefore, does not
tantamount to according a
hearing to a “victim” of the
crime.”
31. In the similar vein in Criminal
Appeal No. 579 of 2022
titled State of
Rajasthan v. Banwari Lal [State of
Rajasthan v. Banwari Lal, (2022)
12 SCC 166 : 2022 SCC OnLine SC
428] , this Court has again
frowned upon the tendency of
courts to reduce the sentence to
the period already undergone. An
earlier judgment of this Court
in Soman v. State of
Kerala [Soman v. State of Kerala,
(2013) 11 SCC 382 : (2012) 4 SCC
(Cri) 1] was referred to, more
specifically para 27, which reads
as under : (Soman
case [Soman v. State of Kerala,
(2013) 11 SCC 382 : (2012) 4 SCC
(Cri) 1] , SCC p. 393)
“27.1. Courts ought to base
sentencing decisions on various
different rationales — most
prominent amongst which would
be proportionality and deterrence.
560 Spl.CC No.565/2021
27.2. The question of
consequences of criminal action
can be relevant from both a
proportionality and deterrence
standpoint.
27.3. Insofar as proportionality is
concerned, the sentence must be
commensurate with the
seriousness or gravity of the
offence.
27.4. One of the factors relevant
for judging seriousness of the
offence is the consequences
resulting from it.
27.5. Unintended
consequences/harm may still be
properly attributed to the offender
if they were reasonably
foreseeable. In case of illicit and
underground manufacture of
liquor, the chances of toxicity are
so high that not only its
manufacturer but the distributor
and the retail vendor would know
its likely risks to the consumer.
Hence, even though any harm to
the consumer might not be
directly intended, some
aggravated culpability must
attach if the consumer suffers
some grievous hurt or dies as
result of consuming the spurious
liquor.”
37. In a nutshell, the aspects of
sentencing and victimology are
reflected in the following ancient
wisdom:
561 Spl.CC No.565/2021
It means : The person dispensing
justice as per Dharmashastra
should prescribe a penance
appropriate to the age, the time
and strength of the sinner, the
penance being such that he may
not lose his life and yet he may be
purified. A penance causing
distress should not be prescribed.
172. The court has also taken into account of the
submissions made by the learned Senior Counsel for
accused that the accused person is required to take
care of his family members and also his aged parents
and they are sole bread earners in their family. In this
regard, the judgment of the Hon’ble Apex Court
reported in (2003) 8 SCC 13 (State of M.P. Vs. Ghanshyam
Singh) wherein it is held as follows:
10. The crucial question which
needs to be decided is the proper
sentence and merely because of
lapse of time, whether the
accused is to be waived from
undergoing it. It is to be noted
that the sentences prescribed for
offences relatable to Section 304
562 Spl.CC No.565/2021Part I are imprisonment for life or
up to a period of 10 years. It is
true that no minimum sentence
has been prescribed. The
sentences can be compared with
prescription of similar sentences
and other provisions like Section
326 IPC and Section 307 IPC when
hurt is caused. Section 304 Part I
is a species of homicidal death. It
is statutorily described as
culpable homicide though not
amounting to murder as defined
under IPC. Taking note of the
purpose for which a sentence is
imposed, it cannot be laid down
as a rule of universal application
that a long passage of time in all
cases would justify minimal
sentence. Long pendency of a
matter by itself could not justify
lesser sentence.
11. The law regulates social
interests, arbitrates conflicting
claims and demands. Security of
persons and property of the people
is an essential function of the
State. It could be achieved
through instrumentality of
criminal law. Undoubtedly, there
is a cross-cultural conflict where
living law must find an answer to
the new challenges and the courts
are required to mould the
sentencing system to meet the
challenges. The contagion of
lawlessness would undermine
social order and lay it in ruins.
Protection of society and stamping
out criminal proclivity must be the
object of law which must be
achieved by imposing appropriate
563 Spl.CC No.565/2021
sentence. Therefore, law as a
cornerstone of the edifice of
“order” should meet the
challenges confronting the
society. Friedman in his Law in
Changing Society stated that,
“State of criminal law continues
to be — as it should be — a
decisive reflection of social
consciousness of society.”
Therefore, in operating the
sentencing system, law should
adopt the corrective machinery or
the deterrence based on factual
matrix. By deft modulation
sentencing process has to be stern
where it should be, and tempered
with mercy where it warrants to
be. The facts and given
circumstances in each case, the
nature of the crime, the manner in
which it was planned and
committed, the motive for
commission of the crime, the
conduct of the accused, the nature
of weapons used and all other
attending circumstances are
relevant facts which would enter
into the area of consideration. For
instance, a murder committed due
to deep-seated mutual and
personal rivalry may not call for
penalty of death. But an
organised crime or mass murder
of innocent people would call for
imposition of death sentence as
deterrence. In Mahesh v. State of
M.P. [(1987) 3 SCC 80 : 1987 SCC
(Cri) 379 : (1987) 2 SCR 710] this
Court while refusing to reduce the
death sentence observed thus :
(SCC p. 82, para 6)
564 Spl.CC No.565/2021It will be a mockery of justice to
permit the accused to escape the
extreme penalty of law when
faced with such evidence and
such cruel acts. To give the lesser
punishment for the accused would
be to render the justicing system
of the country suspect. The
common man will lose faith in
courts. In such cases, he
understands and appreciates the
language of deterrence more than
the reformative jargon.
12. Therefore, undue sympathy to
impose inadequate sentence would
do more harm to the justice
system to undermine the public
confidence in the efficacy of law
and society could not long endure
under such serious threats. It is,
therefore, the duty of every court
to award proper sentence having
regard to the nature of the offence
and the manner in which it was
executed or committed etc. This
position was illuminatingly stated
by this Court in Sevaka Perumal v.
State of T.N. [(1991) 3 SCC 471 :
1991 SCC (Cri) 724 : AIR 1991 SC
1463]
13. Criminal law adheres in
general to the principle of
proportionality in prescribing
liability according to the
culpability of each kind of
criminal conduct. It ordinarily
allows some significant discretion
to the Judge in arriving at a
sentence in each case, presumably
to permit sentences that reflect
more subtle considerations of
culpability that are raised by the
565 Spl.CC No.565/2021special facts of each case. Judges,
in essence, affirm that
punishment ought always to fit
the crime; yet in practice
sentences are determined largely
by other considerations.
Sometimes it is the correctional
needs of the perpetrator that are
offered to justify a sentence,
sometimes the desirability of
keeping him out of circulation,
and sometimes even the tragic
results of his crime. Inevitably,
these considerations cause a
departure from just deserts as the
basis of punishment and create
cases of apparent injustice that
are serious and widespread.
14. Proportion between crime and
punishment is a goal respected in
principle, and in spite of errant
notions, it remains a strong
influence in the determination of
sentences. The practice of
punishing all serious crimes with
equal severity is now unknown in
civilized societies, but such a
radical departure from the
principle of proportionality has
disappeared from the law only in
recent times. Even now for a
single grave infraction drastic
sentences are imposed. Anything
less than a penalty of greatest
severity for any serious crime is
thought then to be a measure of
toleration that is unwarranted
and unwise. But in fact, quite
apart from those considerations
that make punishment
unjustifiable when it is out of
proportion to the crime, uniformly
disproportionate punishment has
566 Spl.CC No.565/2021
some very undesirable practical
consequences.
173. In the aforesaid judgment the Hon’ble Apex
Court has clearly held that undue sympathy to impose
inadequate sentence would do more harm to the
justice system to undermine the public confidence in
the efficacy of law and society do not endure such
threats. Once again at the cost of repetition, it is to be
recalled that the above case was a classic case wherein
blatant violation of law and procedures were made by
mighty and powerful people. The question of showing
leniency on the ground that the accused has to take
care of their family members and their aged parents, in
my humble opinion does not augurs well. At the same
time, the duty of the Court is to balance the equities
urged. I am also fortified in this regard by the
judgment rendered by the Hon’ble Apex Court in (2006)
10 SCC 673 (Siddarama and others Vs. State of Karnataka)
wherein it is held as follows:-
567 Spl.CC No.565/2021
9. Law regulates social interests,
arbitrates conflicting claims and
demands. Undoubtedly, there is a
cross-cultural conflict where
living law must find answer to the
new challenges and the courts are
required to mould the sentencing
system to meet the challenges.
The contagion of lawlessness
would undermine social order and
lay it in ruins. Friedman in his
Law in Changing Society stated
that, “State of criminal law
continues to be — as it should be–
a decisive reflection of social
consciousness of society”.
Therefore, in operating the
sentencing system, law should
adopt the corrective machinery or
the deterrence based on factual
matrix. By deft modulation,
sentencing process be stern where
it should be, and tempered with
mercy where it warrants to be.
The facts and given circumstances
in each case, the nature of the
crime, the manner in which it was
planned and committed, the
motive for commission of the
crime, the conduct of the accused,
and all other attending
circumstances are relevant facts
which would enter into the area of
consideration.
10. Undue sympathy to impose
inadequate sentence would do
more harm to the justice system,
to undermine the public
confidence in the efficacy of law
and society could not long endure
under such serious threats. It is,
therefore, the duty of every court
568 Spl.CC No.565/2021
to award proper sentence having
regard to the nature of the offence
and the manner in which it was
executed or committed, etc. This
position was illuminatingly stated
by this Court in Sevaka Perumal v.
State of T.N. [(1991) 3 SCC 471 :
1991 SCC (Cri) 724 : AIR 1991 SC
1463]
12. Proportion between crime and
punishment is a goal respected in
principle, and in spite of errant
notions, it remains a strong
influence in the determination of
sentences. The practice of
punishing all serious crimes with
equal severity is now unknown in
civilised societies, but such a
radical departure from the
principle of proportionality has
disappeared from the law only in
recent times. Even now for a
single grave infraction drastic
sentences are imposed. Anything
less than a penalty of greatest
severity for any serious crime is
thought then to be a measure of
toleration that is unwarranted
and unwise. But in fact, quite
apart from those considerations
that make punishment
unjustifiable when it is out of
proportion to the crime, uniformly
disproportionate punishment has
some very undesirable practical
consequences.
13. After giving due consideration
to the facts and circumstances of
each case, for deciding just and
appropriate sentence to be
awarded for an offence, the
569 Spl.CC No.565/2021aggravating and mitigating
factors and circumstances in
which a crime has been committed
are to be delicately balanced on
the basis of really relevant
circumstances in a dispassionate
manner by the court. Such act of
balancing is indeed a difficult
task. It has been very aptly
indicated in Dennis Councle
McGautha v. State of California
[402 US 183 : 28 L Ed 2d 711
(1971)] that no formula of a
foolproof nature is possible that
would provide a reasonable
criterion in determining a just
and appropriate punishment in
the infinite variety of
circumstances that may affect the
gravity of the crime. In the
absence of any foolproof formula
which may provide any basis for
reasonable criteria to correctly
assess various circumstances
germane to the consideration of
the gravity of crime, the
discretionary judgment in the
facts of each case, is the only way
in which such judgment may be
equitably distinguished.
14. The object should be to protect
the society and to deter the
criminal in achieving the avowed
object to law by imposing
appropriate sentence. It is
expected that the courts would
operate the sentencing system so
as to impose such sentence which
reflects the conscience of the
society and the sentencing process
has to be stern where it should be.
570 Spl.CC No.565/2021
15. Imposition of sentence without
considering its effect on the social
order in many cases may be in
reality a futile exercise. The
social impact of the crime e.g.
where it relates to offences
relating to narcotic drugs or
psychotropic substances which
have great impact not only on the
health fabric but also on the
social order and public interest,
cannot be lost sight of and per se
require exemplary treatment. Any
liberal attitude by imposing
meagre sentences or taking too
sympathetic view merely on
account of lapse of time or
personal inconveniences in respect
of such offences will be resultwise
counterproductive in the long run
and against societal interest
which needs to be cared for and
strengthened by a string of
deterrence inbuilt in the
sentencing system.
174. By considering the aforesaid judgments, the
points which are required to be appreciated by this
Court pertains to the following;
a) Is there something uncommon about
the crime which renders sentence for
imprisonment for life inadequate and
calls for a death sentence?
571 Spl.CC No.565/2021
b) Are the circumstances of crime such
that there is no alternative but to
impose death sentence even after
according maximum weight-age to the
mitigating circumstances which speak
in favour of the offender?
175. In order to appreciate the same, it would be
appropriate to consider the imprisonment and
sentences prescribed for the offences for which the
accused are convicted. The aforesaid aspect is
extracted and they are as follows;
Minimum
Sl. Maximum
Section Punishme Fine
No. Punishment
nt
1. 143 of IPC imprisonment of -- With fine or
either description with both
for a term which
may extend to 6
months
2. 147 of IPC imprisonment of -- With fine or
either description with both
for a term which
may extend to 2
years
3. 148 of IPC imprisonment of -- With fine or
either description with both
for a term which
may extend to 3
years
572 Spl.CC No.565/2021
4. 120-B of IPC Death Life Shall impose
(Same as Imprisonm fine
Sec.302 IPC) ent
5. 302 of IPC Death Life Shall impose
Imprisonm fine
ent
6. 201 of IPC imprisonment of -- Shall impose
either description fine
for a term which
may extend to 7
years
7. 218 of IPC imprisonment of -- With fine or
either description with both
for a term which
may extend to 3
years
176. After looking into the aforesaid aspect and
also the judgment rendered by the Hon’ble Apex Court
wherein all the postulates of law has been settled with
respect to rendering maximum sentence by the Hon’ble
Apex Court in Machhi Singh Vs. State of Punjab,
which is discussed supra and also in Bachan Singh’s
case. The Hon’ble Apex Court has observed that the
Judges should not be blood thirsty. Further a real and
abiding concern for the dignity of human life
postulates resistance to take him life through laws
573 Spl.CC No.565/2021
instrumentality. Further in the case of Machi Singh,
the Hon’ble Apex Court has laid down the two tests
which are to be considered by the Court. It is in this
background the factual aspects is required to be
considered.
177. By relying upon the aforesaid authorities,
the Court is required to prepare a chart consisting of
aggravating and mitigating circumstances. The
following aggravating factors can be noticed in the
instant case.
Aggravating Factors:
1. The accused No.15 being the Member of
Legislative Assembly and also District In-
charge Minister has entertained a grudge
against his political opponent and had
committed the horrendous act which cannot
be ignored.
2. The accused No.15 being the Member of
Legislative Assembly and also District In-
charge Minister was from a affluent family
had committed the offence which is nothing
but showing disgrace to the society who had
reposed faith in him by getting him elected.
574 Spl.CC No.565/2021
3. The accused No.15 being the Member of
Legislative Assembly and also District In-
charge Minister had entered into a criminal
conspiracy and the murder was committed in
a pre-determined cold blooded manner which
cannot be easily brushed aside.
4. The act of the accused persons in committing
the murder in a broad day light in a brutal
manner shakes the conscience of the society.
5. The act of accused person is not a common
criminal incident which had taken place
accidentally but it is an act which had taken
place in a cold blooded manner for which able
support was provided by the law enforcement
agency and also implanting and screening of
evidence had taken place.
6. The conduct of the accused No.15 in
committing such an offence being a people’s
representative will send a wrong message to
the society that the persons in power can do
anything.
7. The act of accused persons erodes the faith
and belief of general public in the social
fabric of the society.
8. If any lenient view is to be taken, the act
would further erode the faith and may lead to
draw an inference that such kind of
horrendous offences affecting the society
would be dealt liberally.
Mitigating Factors:
1. The accused persons are not habitual
offenders.
575 Spl.CC No.565/2021
2. The accused persons are not having any
criminal antecedents.
3. The accused persons have to take care of
their family members.
4. The accused persons are having deep roots
in the society and had enjoyed good
reputation in the society.
5. The accused No.15 being in politics can help
several people.
178. By looking into the aforesaid aggravating
and mitigating factors and also on consideration of the
materials which has been produced before the Court, it
indicates that the act of accused persons could be
construed as an offence which is committed towards
the society at large.
179. Now the question which falls for
consideration is whether it falls under the category of
rarest of rare case. In order to better appreciate the
same, the aforesaid aspect is required to be considered
by relying upon the judgment of the Hon’ble Apex
Court reported in Machi Singh case. The first aspect
which is to be determined is, is there something
576 Spl.CC No.565/2021uncommon about the crime which renders the
imprisonment of life as inadequate. It is pertinent to
note that the aforesaid incident is proved to have
taken-place due to political rivalry and as such
committing of murder for political reasons cannot be
called as rarest of rare case. As such, the facts and
circumstances of the case does not fall within the
category of rarest of rare case. The second aspect
which is to be determined is whether there are no
other alternative available than to impose death
sentence even after according maximum weight-age to
the mitigating circumstances. It is relevant to note that
in the above case it cannot be held that there is no
other alternative than to impose death sentence.
180. I have also considered the submission of
the learned ASG that the accused are required to be
imposed with maximum life imprisonment which is
without remission for their life. In my humble opinion,
577 Spl.CC No.565/2021the said kind of imprisonment cannot be imposed by
this Court, since this Court is not having power to
impose maximum sentence of life imprisonment
without remission as per the judgment of the Hon’ble
Apex Court reported in 2025 SCC Online SC 2863 and
as per the judgment rendered in Crl.Apl.No.69/2018
delivered by the Hon’ble High Court of Karnataka.
181. Further, the maxim “Nullum crimen sine
lege” which means, the principle of legality in the rule
of construing criminal statute is to be in favour of
citizens and also the approach towards the social
welfare. The important aspect of offences committed
against the society is to be emphasized with the gravity
of the harm caused to the society and also the nature
of the offences themselves. In many instances, the
gravity of the offence cannot be easily deciphered and
same requires to be considered in a manner which
would indicate the mode of execution in secrecy by
578 Spl.CC No.565/2021shrewd and snollygoster persons with sophisticated
means. Time and again, it has been held by the
Hon’ble Apex Court that the cry of the victim is also to
be appreciated at the time of imposing punishment. In
the instant case, the society at large is to be
considered as the main victim due to the act
committed by the accused persons.
182. In my humble opinion, committing of
murder by showing disdain towards them is a grave
offence which cannot be brushed aside lightly and
such kind of a conduct cannot be accepted as a
normal one. It is to be kept in mind of the apt quote of
Lord Denning wherein it is stated as “Be ye never so
high, the law is above you”.
183. In the instant case it is noticed that the
allegations against the accused No.15 which is leveled
was when he was enjoying power. The question of
commission of an offence by a Legislator is a serious
579 Spl.CC No.565/2021aspect which is to be taken note of. In fact, the society
looks at legislature with a fond hope of transforming
the society. They are the supreme Authority of making
laws towards the welfare of the citizenry. The concept
of supremacy of law [Dharma] was laid down in
Brihadaranyaka Upanishad, wherein it is held as;
Which means the law (Dharma) is the king of
kings. No one is superior to the law (Dharma); the law
(Dharma) aided by the power of the king enables the
weak to prevail over the strong. Further murder is a
crime which is an anathema in a civilized society
which would totally deprive the family members of the
deceased. Further law after all is an instrument which
aims at social order and aberrant elements would
inherently destroy the social fabric of the society.
580 Spl.CC No.565/2021
184. That apart, the Court has also taken note of
the financial condition of the children of the deceased.
During the course of trial, PW.50 Smt.Mallavva had
filed an application with a prayer to consider her as
the victim and also with necessary authorisation to
submit her case. However, by looking into the records
her prayer came to be rejected. It is also relevant to
note that in the instant case PW.2 Gurunatha Goudar
who is the brother of deceased had fought valiantly
throughout the case for the purpose of justice. At the
same time the children of the deceased cannot be
disregarded as victims in the above case. They have
lost the love and affection of their father which was
essentially required for their upbringing in the society.
Hence, the children of Yogesh Goudar and PW.2
Gurunatha Goudar are considered as victims in the
above case.
581 Spl.CC No.565/2021
185. In this regard, I have also looked into
various dictum of the Hon’ble Apex Court, wherein it is
specifically directed that the Court is required to pass
suitable order towards compensating the victim as per
Sec.357-A of Cr.P.C. In this regard, it is noticed that
awarding of compensation shall not be shouldered
upon the State for the reason that the accused are
quite capable and economically stable. What would be
the just compensation that can be awarded is a
question which requires being determined. I have also
considered the Authority of the Hon’ble Apex Court
reported in (2013)6 SCC 770 (Ankush Shivaji Gayakwad
Vs. State of Mahabharata), wherein a duty has been
casted upon the Court to mandatorily award just and
appropriate compensation which is noticed as below:
61. Section 357 CrPC confers a duty on
the court to apply its mind to the question
of compensation in every criminal case. It
necessarily follows that the court must
disclose that it has applied its mind to
this question in every criminal case.
In Maya Devi v. Raj Kumari Batra [Maya
Devi v. Raj Kumari Batra, (2010) 9 SCC
582 Spl.CC No.565/2021
486 : (2010) 3 SCC (Civ) 842] this Court
held that the disclosure of application of
mind is best demonstrated by recording
reasons in support of the order or
conclusion. The Court observed : (SCC p.
495, paras 28-30)
“28. … There is nothing like a power
without any limits or constraints. That is
so even when a court or other authority
may be vested with wide discretionary
power, for even discretion has to be
exercised only along well recognised and
sound juristic principles with a view to
promoting fairness, inducing
transparency and aiding equity.
29. What then are the safeguards against
an arbitrary exercise of power? The first
and the most effective check against any
such exercise is the well-recognised legal
principle that orders can be made only
after due and proper application of mind.
Application of mind brings
reasonableness not only to the exercise of
power but to the ultimate conclusion
also. Application of mind in turn is best
demonstrated by disclosure of the mind.
And disclosure is best demonstrated by
recording reasons in support of the order
or conclusion.
30. Recording of reasons in cases where
the order is subject to further appeal is
very important from yet another angle. An
appellate court or the authority ought to
have the advantage of examining the
reasons that prevailed with the court or
the authority making the order.
Conversely, absence of reasons in an
appealable order deprives the appellate
court or the authority of that advantage
and casts an onerous responsibility upon
583 Spl.CC No.565/2021
it to examine and determine the question
on its own.”
(emphasis supplied)
66. To sum up : while the award or
refusal of compensation in a particular
case may be within the court’s discretion,
there exists a mandatory duty on the
court to apply its mind to the question in
every criminal case. Application of mind
to the question is best disclosed by
recording reasons for awarding/refusing
compensation. It is axiomatic that for any
exercise involving application of mind,
the Court ought to have the necessary
material which it would evaluate to arrive
at a fair and reasonable conclusion. It is
also beyond dispute that the occasion to
consider the question of award of
compensation would logically arise only
after the court records a conviction of the
accused. Capacity of the accused to pay
which constitutes an important aspect of
any order under Section 357 CrPC would
involve a certain enquiry albeit summary
unless of course the facts as emerging in
the course of the trial are so clear that
the court considers it unnecessary to do
so. Such an enquiry can precede an order
on sentence to enable the court to take a
view, both on the question of sentence and
compensation that it may in its wisdom
decide to award to the victim or his/her
family.
186. Last but not the least, it is rather
unfortunate and disheartening to note that the
protector of law i.e., the Police Department in the State
584 Spl.CC No.565/2021
of Karnataka, which is recognized as highly competent
and efficient in the entire nation has been made to
bear the heat of the act caused by some of its Officers.
The Police officials of whom mention has been made in
the judgment have blatantly and in a cavalier manner
have deposed before the Court that they had tendered
false evidence under oath. The Police Department in
Karnataka is known for braveness and courage and for
their unflinching dedication towards their duty. But,
strangely some of its officers have openly admitted of
tendering false evidence before the Court which cannot
be tolerated. As such, the administration of justice and
the proceedings before the Court cannot be taken
lightly since it is the basic edifice in the realm of
justice to be delivered to the society. As such, some
punitive action is required to be initiated to prevent
people committing such blunders of deposing falsely
before the Court which would erode the faith of general
public in the administration of justice.
585 Spl.CC No.565/2021
187. Before parting it would be appropriate to
quote the apt words extracted from Raja Dharma with
lessons on Raja Neeti by Justice Dr.M.Rama Jois,
which is extracted;
Which means Dharma protects those who protect
it, those who destroy Dharma get destroyed.
Therefore, Dharma should not be destroyed so that we
may not be destroyed as a consequence thereof. As
such, it would not be appropriate to accept the version
of the accused persons to show leniency. Ergo, I
proceed to pass the following;
ORDER
Acting under Sec.235(2) of Cr.P.C.,
accused No.2 Vikram Bellary, accused No.3
Kirthi Kumar Basavaraj Kurahatti, accused
No.4 Sandeep Saudatti, accused No.5 Vinayaka
Katagi, accused No.6 Mahabaleshwar Hongal @
Muduka, accused No.7 Santhosh Saudatti,
586 Spl.CC No.565/2021
accused No.8 Dinesh.M, accused No.9
Ashwath, accused No.10 Sunil, accused No.11
Nazeer Ahmed, accused No.12 Shahanawaz,
accused No.13 Nuthan, accused No.14
Harshith, accused No.16 Chandrashekar Indi,
accused No.18 Vikas Kalburgi, accused No.19
Channakeshava B. Tingarikar and accused
No.15 Vinay Kulkarni are hereby convicted for
the offences mentioned below and sentenced to
undergo punishment as follows;
For the offence punishable under Sec.302
r/w Sec.120-B of IPC, accused No.2 to 16 and
18 are hereby sentenced to undergo life
imprisonment and to pay a fine of Rs.30,000/-
each and in default of payment of fine, they
shall undergo imprisonment for 3 months.
For the offence punishable under Sec.143
r/w Sec.120-B of IPC, accused No.2 to 14 and
18 are hereby sentenced to undergo simple
imprisonment for period of 6 months with fine
of Rs.2,000/- each and in default of payment
of fine, they shall undergo imprisonment for 1
month.
For the offence punishable under Sec.147
r/w Sec.120-B of IPC, accused No.2 to 14 and
587 Spl.CC No.565/2021
18 are hereby sentenced to undergo rigorous
imprisonment for period of 1 year with fine of
Rs.2,000/- each and in default of payment of
fine, they shall undergo imprisonment for 1
month.
For the offence punishable under Sec.148
r/w Sec.120-B of IPC, accused No.2 to 14 and
18 are hereby sentenced to undergo rigorous
imprisonment for period of 1 year with fine of
Rs.2,000/- each and in default of payment of
fine, they shall undergo imprisonment for 1
month.
For the offence punishable under
Sec.120-B, accused No.2 to 16 and 18 are
hereby sentenced to undergo life imprisonment
and to pay a fine of Rs.30,000/- each and in
default of payment of fine, they shall undergo
imprisonment for 3 months. For the offence
punishable under Sec.120-B r/w Sec.201 and
218 of IPC with respect to accused No.19, he is
sentenced to undergo rigorous imprisonment
for a period of 7 years and fine of Rs.30,000/-
and in default to undergo imprisonment for 3
months.
588 Spl.CC No.565/2021
For the offence punishable under Sec.201
r/w Sec.120-B of IPC, the accused No.2 to 16,
18 and 19 are hereby sentenced to undergo
rigorous imprisonment for a period of 7 years
with a fine of Rs.30,000/- and in default to
undergo simple imprisonment for a period of 3
months.
For the offence punishable under Sec.218
r/w Sec.120-B of IPC, accused No.19
Chennakeshava Tingarikar is hereby sentenced
to undergo rigorous imprisonment for 3 years
with fine of Rs.20,000/- and in default of
payment of fine, shall undergo imprisonment
for 1 month.
Acting under Sec.235(1) of Cr.P.C., the
accused No.15 Vinay Kulkarni and accused
No.16 Chandrashekar Indi are acquitted for
the offences punishable under Sec.25 r/w
Sec.3, 5, 8 and Sec.29 of Arms Act, 1959.
Acting under Sec.235(1) of Cr.P.C.,
accused No.20 Vasudeva Rama Nilekani, is
hereby acquitted for the offences punishable
under Sec.201 r/w Sec.120-B of IPC, Sec.218
r/w Sec.120-B of IPC.
589 Spl.CC No.565/2021
Acting under Sec.235(1) of Cr.P.C.,
accused No.19 Chennakeshava Tingarikar and
accused No.20 Vasudeva Rama Nilekani, are
hereby acquitted for the offences punishable
under Sec.7, 13(1)(d) r/w Sec.13(2) of the
Prevention of Corruption Act, 1988.
Acting under Sec.235(1) of Cr.P.C.,
accused No.21 Somashekar Basappa
Nyamagoudar, is hereby acquitted for the
offences punishable under Sec.120-B of IPC
and Sec.302 r/w Sec.120-B of IPC.
The pardon granted to the approver
Basavaraja Muttagi is made final.
The prosecution are granted with liberty
to file necessary application seeking sanction
to prosecute the approver PW.9 Shivananda
Shrishaila Biradar, for turning hostile before
this Court.
Acting under Sec. 340 of Cr.P.C., the
Registrar of City Civil Court is hereby directed
to register case of perjury against the Police
Officers PW.24 Shivananda Chalavadi, PW.44
Babu Katagi, PW.54 Shankaragouda
Basanagouda Patil and other independent
590 Spl.CC No.565/2021
witnesses i.e., PW.1 Dr.Dattatreya
Gudaganti, PW.32 Anand Irappa
Uddannavar, PW.33 Vinayaka Binjiyavar,
PW.34 Mohan Echarappa Mulmuttal,
PW.35 Vivekananda Dalawai and PW.20
Natraj Sarj Desai and PW.53 Vijay
Kulkarni, for tendering false evidence before
the Court in relation to the aforesaid
proceeding.
MO.1 to 4, 6 to 11, 23, 27, 30 and 31
being worthless, are ordered to be destroyed on
completion of the appeal period and in the
event of preferring the appeal the same shall be
destroyed only on the disposal of the appeal.
MO.5, MO.12 to 22, MO.24 to 26, 28, 29,
32 and 33 are hereby ordered to be confiscated
to the State.
It is hereby made clear that even if the
accused persons undergoes the default
sentence, they will not be absolved of their
liability to pay fine amount in view of the
provisos to Sub-Section (1) of Sec.421 of
Cr.P.C. The substantive sentences of
imprisonment shall run concurrently.
591 Spl.CC No.565/2021
The accused are entitled for set-off for the
period of detention which they have undergone
in the above case as under trial prisoners.
Out of the fine amount, the children of
deceased Yogesh Goudar and Gurunath
Goudar are entitled for compensation of
Rs.16,00,000/- and the remaining amount
shall be forfeited to the State.
Send the copy of this Judgment and
sentence to the District Magistrate concerned
as per Sec.365 of Cr.P.C.
Office is hereby directed to furnish the
copy of the Judgment to the accused persons
forthwith.
(Dictated to Stenographer Grade-I, typed by her
directly on computer, revised and corrected by me and then
pronounced in open court on 17th day of April, 2026)
(SANTHOSH GAJANAN BHAT)
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal
cases related to former and elected MPs/ MLAs
in the State of Karnataka)
592 Spl.CC No.565/2021
ANNEXURES
1. Witnesses examined by the prosecution:-
PW1 CW1 Dattatreya Hanumantha
Gudagunti
PW2 CW21 Gurunath Goudar
PW3 CW85 Siddalingana Gouda
PW4 CW42 Shivananda Basappa Salagatti
PW5 CW43 Gangappa Shivappa Kallagaudthi
PW6 CW6 Nagaraj Thodkar
PW7 CW7 Veeresh Amrutheshwar Byhatti
PW8 CW8 Nataraj Makki Goudar
PW9 Pardon Shivanand Shrishail Biradar
A17
PW10 Pardon Basavaraj Muttagi
A1
PW11 CW127 Anjana Basavaraj Dollin
PW12 CW129 Suma Subhash Goudar
PW13 CW13 Pramod Narahari Rao Deshpande
PW14 CW14 Anand Kumar.H
PW15 CW48 Thimmnna Ningappa Bahur
PW16 CW50 Mahesh Totad
PW17 CW51 P.Roopendra Rao
PW18 CW52 Yogesh Kumar
PW19 CW53 Srivatsa Dattatreya Patil
PW20 CW54 Nataraj Saraj Desai
PW21 CW58 Manikantan Acharya
PW22 CW59 Syed Hasham
PW23 CW103 Ashok Veeranna Gouda Patil
593 Spl.CC No.565/2021
PW24 CW152 Shivanand H. Chalavadi
PW25 CW56 Nagappa Mallikarjun Byragonde
PW26 CW57 Suresh Jagadev Hulle
PW27 CW9 Bharath Kalsur
PW28 CW10 Anup Churi
PW29 CW11 Girish Pathri
PW30 CW5 Lakshmi Benakatti
PW31 CW111 Shashank Jain
PW32 CW1 Anand Irappa Uddannavar
PW33 CW4 Vinayak Binjiyavar
PW34 CW3 Mohan Yethrappa Mulmuttal
PW35 CW135 Vivkenanda Shivashankar
Dalawai
PW36 CW118 Smt. Shwetha Kulkarni
PW37 CW143 Thyagaraja N.
PW38 CW146 Balu.M
PW39 CW147 Kushal A. Master
PW40 CW102 Logendra.C
PW41 CW105 Mahesh Shetty
PW42 CW65 Shivanand Bhimappa Janmatti
PW43 CW73 Shivakumar Nijaguni Bendigeri
PW44 CW109 Babu Ningappa Katagi
PW45 CW33 Suresh Ramegowda
PW46 CW34 Gowda Prakash Devendra
PW47 Addl. Bhavin Kumar Jeram Sathwara
Witness
594 Spl.CC No.565/2021
PW48 CW36 Nagaraj
PW49 CW37 Raghavendra
PW50 CW20 Mallavva Yogesh Gouda Goudar
PW51 PW90 Ramesh Mudukanagouda
PW52 CW12 N.Bhoosa Reddy
PW53 CW55 Vijay Kulkarni
PW54 CW.95 Shankaragouda Basanagouda
Patil
PW.55 CW.94 Chandrashear Thippanna
PW.56 CW.97 Musthaq Ahmed
PW.57 CW.60 Mahesh
PW.58 CW.98 Rajesab S. Gunjal
PW.59 CW.134 Mallikarjun Chikkamatt
PW.60 CW.61 Mahindra Kumar
PW.61 CW.71 Ananth Kaskar
PW.62 CW.62 Anand Gouda F Badiyavar
PW.63 CW.130 Vishal Ballari
PW.64 CW.151 Holabasavaya G. Mattapati
PW.65 CW.22 Lakshman Thimmanna Karekal
PW.66 CW.24 Mahendra Nilekani
PW.67 CW.35 Umapathy
PW.68 CW.25 Sanjeeva.K
PW.69 CW.82 Anil Kumar B.S.
PW.70 CW.15 Chandrashekar Pujar
PW.71 CW.80 Prabhu Shankar
PW.72 CW.84 G.Shyama Holla
595 Spl.CC No.565/2021
PW.73 CW.88 Jamuna P. Balraj
PW.74 CW.100 Sanjeev Kumar
PW.75 CW.87 Ramesh.C
PW.76 CW.17 Mohammed Sadiq
PW.77 CW.18 Sathish Narayan Taleker
PW.78 CW.110 Akshay Katagi
PW.79 CW.27 Mohammed Zubair.N
PW.80 CW.128 Gadigeyapa Balloli @ Praveen
PW.81 CW.117 G.Suresh
PW.82 CW.116 Sathish Somashekar Saudatti
PW.83 CW.144 Rajesh S. Sulikeri
PW.84 CW.142 Pramod Balagouda Panade
PW.85 CW.75 Harish Shetty
PW.86 CW.76 Santhosh R. Jadhav
PW.87 CW.77 Dr.M.Kiran Kumar
PW.88 CW.79 Fairoz Khan Jhangirdhar
PW.89 Addl. Sangamesh Mallappa
Witness Madivalara
PW.90 – Do – Ravi Morey
PW.91 – Do – Basavaraj Mallappa
PW.92 – Do – Basavaraj Bheemappa Maykar
PW.93 CW.153 Dr. Kumuda Rani.M
PW.94 Addl. Dr. Santhosh Kumar.P
Witness
PW.95 CW.136 Ravi Noronha
PW.96 Addl. Leaster Albuquerque
Witness
596 Spl.CC No.565/2021
PW.97 – Do – Eshwarappa Madivalappa
Kondikoppa
PW.98 – Do – Hanumantha Jakkannavar
PW.99 – Do – Basavaraj Dayanand
Thondikatt
PW.100 CW.28 Yousuff Shariff
PW.101 CW.78 Vijay Dutt
PW.102 CW.141 Kishor Kumar Maloth
PW.103 CW.47 Jagadeesh Burlabaddi
PW.104 CW.45 R.Sridharan
PW.105 CW.138 Prachi Gajendra Khade
PW.106 CW.46 Prakash.G
PW.107 CW.124 Motilal Pawar
PW.108 CW.30 P.S.Gopalakrishna
PW.109 CW.44 Johnson Tom
PW.110 CW.121 Vijay Kumar.M
PW.111 Addl. Yogappa Gujjananavar
Witness
PW.112 CW.106 Kempegouda Rudragouda Patil
PW.113 CW.32 Rakesh Ranjan
2. Witnesses examined by the defence/accused:- Nil
3. Documents exhibited by the prosecution:
Ex.P1 Complaint Ex.P1(a) Signature of PW.1 Ex.P2 Note Book Ex.P2(a) Signature of PW.3 597 Spl.CC No.565/2021 Ex.P3 Production Memo Ex.P3(a) Signature of PW.3 Ex.P4 161 statement of PW.3 Ex.P5 161 statement of PW.3 Ex.P6 Postal cover Ex.P7 Letter inside the postal cover Ex.P8 Document consists of PW2's signature (Ex.P4 in SC No.50/2017) Ex.P8(a) Signature of PW.2 Ex.P8(b) Signature of PW.111 Ex.P9 Production Memo Ex.P9(a) Signature of PW.2 Ex.P10 Agreement of Sale (Ex.P69 in SC No.50/2017) Ex.P10(a) Signature of PW.10 Ex.P11 6 RTC's Ex.P12 Portion of 161 statement of PW.8 Ex.P13 Register at Hotel Amita Residency Ex.P13(a) Signature of PW.10 Ex.P14 Specimen writings (45 sheets) Ex.P15 Specimen writings (12 sheets) Ex.P15(a) Signature of PW.100 Ex.P16 Search List Ex.P16(a) Signature of PW.10 Ex.P16(b) Signature of PW.10 Ex.P16(c) Signature of PW.10 Ex.P16(d) Signature of PW.71 Ex.P17 Production Memo/Receipt Memo 598 Spl.CC No.565/2021 Ex.P17(a) Signature of PW.15 Ex.P18 Certified copy of Sale Deed Ex.P19 Portion of statement of PW.16 Ex.P20 Portion of statement of PW.17 Ex.P21 Portion of statement of PW.18 Ex.P22 Portion of statement of PW.19 Ex.P23 Portion of statement of PW.20 Ex.P24 Portion of statement of PW.21 Ex.P25 Portion of statement of PW.24 Ex.P26 Portion of statement of PW.25 Ex.P27 Portion of statement of PW.26 Ex.P28 Portion of statement of PW.27 Ex.P29 Portion of statement of PW.27 Ex.P30 Portion of statement of PW.27 Ex.P31 Hotel Register Book Ex.P31(a) Page No.198, Room No.109 Ex.P31(b) Signature of PW.28 Ex.P32 Hotel Register Book Ex.P32(a) Relevant entry Ex.P32(b) Signature of PW.29 Ex.P33 Test Identification Parade of accused No.9 dated 05.05.2020 Ex.P33(a) Signature of PW.30
Ex.P33(b) to Signature of PW.79
(d)
Ex.P34 Test Identification Parade dated
05.05.2020
599 Spl.CC No.565/2021
Ex.P34(a) Signature of PW.30
Ex.P34(b) to Signature of PW.79
(d)
Ex.P35 Test Identification Parade dated
05.05.2020
Ex.P35(a) Signature of PW.30
Ex.P35(b) to Signature of PW.79
(d)
Ex.P36 Test Identification Parade dated
06.05.2020
Ex.P36(a) Signature of PW.30
Ex.P36(b) to Signature of PW.79
(d)
Ex.P37 Test Identification Parade dated
06.05.2020
Ex.P37(a) Signature of PW.30
Ex.P37(b) to Signature of PW.79
(d)
Ex.P38 Test Identification Parade dated
06.05.2020
Ex.P38(a) Signature of PW.30
Ex.P38(b) to Signature of PW.79
(d)
Ex.P39 Test Identification Parade dated
06.05.2020
Ex.P39(a) Signature of PW.30
Ex.P39(b) to Signature of PW.79
(d)
Ex.P40 Test Identification Parade dated
11.03.2020
Ex.P40(a) Signature of PW.1
600 Spl.CC No.565/2021
Ex.P40(b) to Signature of PW.78
(d)
Ex.P41 Test Identification Parade dated
12.03.2020
Ex.P41(a) Signature of PW.1
Ex.P41(b) to Signature of PW.78
(d)
Ex.P42 Test Identification Parade dated
12.03.2020
Ex.P42(a) Signature of PW.1
Ex.P42(b) to Signature of PW.78
(d)
Ex.P43 Test Identification Parade dated
12.03.2020
Ex.P43(a) Signature of PW.1
Ex.P43(b) to Signature of PW.78
(d)
Ex.P44 Test Identification Parade dated
13.03.2020
Ex.P44(a) Signature of PW.1
Ex.P44(b) to Signature of PW.79
(d)
Ex.P45 Test Identification Parade dated
13.03.2020
Ex.P45(a) Signature of PW.1
Ex.P45(b) to Signature of PW.79
(d)
Ex.P46 Test Identification Parade dated
05.05.2020
Ex.P46(a) Signature of PW.33
601 Spl.CC No.565/2021
Ex.P46(b) to Signature of PW.79
(d)
Ex.P47 Test Identification Parade dated
05.05.2020
Ex.P47(a) Signature of PW.33
Ex.P47(b) to Signature of PW.79
(d)
Ex.P48 Test Identification Parade dated
05.05.2020
Ex.P48(a) Signature of PW.33
Ex.P48(b) to Signature of PW.79
(d)
Ex.P49 Test Identification Parade dated
06.05.2020
Ex.P49(a) Signature of PW.33
Ex.P49(b) to Signature of PW.79
(d)
Ex.P50 Test Identification Parade dated
06.05.2020
Ex.P50(a) Signature of PW.33
Ex.P51 Test Identification Parade dated
06.05.2020
Ex.P51(a) Signature of PW.33
Ex.P51(b) to Signature of PW.79
(d)
Ex.P52 Test Identification Parade dated
06.05.2020
Ex.P52(a) Signature of PW.33
Ex.P52(b) to Signature of PW.79
(d)
Ex.P53 Rent Agreement
602 Spl.CC No.565/2021
Ex.P53(a) Signature of PW.35
Ex.P54 Extract of Julie Jolly Resort at Goa
Ex.P54(a) Signature of PW.35
Ex.P54(b) Signature of PW.40
Ex.P54(c) Signature of PW.32
Ex.P54(d) Signature of PW.96
Ex.P55 FSL Test Report
Ex.P55(a) Signature of PW.37
Ex.P56 Sample Seal
Ex.P57 Hard Disc
Ex.P57(a) Signature of PW.37
Ex.P58 DVD
Ex.P58(a) Signature of PW.37
Ex.P59 Sec.65(B) Certificate
Ex.P60 Letter dated 03.02.2021
Ex.P60(a) Signature of PW37
Ex.P60(b) Sample Seal
Ex.P61 Letter dated 15.06.2016 (Call details
requisition Form)
Ex.P61(a) Signature of PW37
Ex.P62 CDR Report
Ex.P62(a) Signature of PW37
Ex.P63 Sec.65(B)(4)(c) Certificate
Ex.P63(a) Signature of PW37
Ex.P64 Certificate of examination by FSL dated
20.08.2020
Ex.P64(a) Signature of PW38
Ex.P64(b) Sample Seal
603 Spl.CC No.565/2021
Ex.P65 Pendrive
Ex.P66 Sealed cover containing Pendrive
Ex.P67 Sec.65(B)(4)(c) Certificate
Ex.P67(a) Signature of PW.8
Ex.P68 Portion of 161 Statement of PW.34
Ex.P69 Portion of 161 Statement of PW.34
Ex.P70 Test Identification Parade dated PW.34
dated 05.05.2020
Ex.70(a) Signature of PW.34
Ex.P70(b) to Signature of PW.79
(d)
Ex.P71 Another Test Identification Parade dated
05.05.2020
Ex.P71(a) Signature of PW.34
Ex.P71(b) to Signature of PW.79
(d)
Ex.P72 Test Identification Parade dated
06.05.2020
Ex.P72(a) Signature of PW.34
Ex.P72(b) to Signature of PW.79
(d)
Ex.P73 Test Identification Parade dated
06.05.2020
Ex.P73(a) Signature of PW.34
Ex.P73(b) to Signature of PW.79
(d)
Ex.P74 System generated details containing the
Drive, SI Number and hash value
Ex.P74(a) Signature of PW38
Ex.P75 Sec.65(B)(4) Certificate
604 Spl.CC No.565/2021
Ex.P75(a) Signature of PW38
Ex.P76 Forwarding letter dated 16.07.2020
Ex.P77 FSL Report dated 15.07.2020 along with
65(B) Certificate of Photography Division
and Annexure
Ex.P77(a)(b) Signature of PW.39
Ex.P77(c) Signature of PW.47
Ex.P77(d) Signature of Addl. Witness PW.39
Ex.P78 Hard Disc
Ex.P79 Sealed cover which is opened in the Court
Ex.P80 HP USB Pen Drive 32 GB
Ex.P81 DVD
Ex.P82 Register Book of Rashi Farms
Ex.P82(a) Signature of PW33
Ex.P83 Portion of 161 statement
Ex.P84 Portion of 161 statement
Ex.P85 Portion of 161 statement
Ex.P85(a) Portion of 161 statement
Ex.P85(b) Portion of 161 statement
Ex.P85(c) Portion of 161 statement
Ex.P85(d) Portion of 161 statement
Ex.P86 Pendrive
Ex.P87 161 Statement of PW.32
Ex.P87(a) 161 Statement portion of PW.32
Ex.P87(b) 161 Statement portion of PW.32
Ex.P87(c) 161 Statement portion of PW.32
Ex.P87(d) 161 Statement portion of PW.32
Ex.P87(e) 161 Statement portion of PW.32
605 Spl.CC No.565/2021
Ex.P87(f) 161 Statement portion of PW.32
Ex.P87(g) 161 Statement portion of PW.32
Ex.P88 161 Statement of PW.36
Ex.P88(a) 161 Statement portion of PW.36
Ex.P88(b) 161 Statement portion of PW.36
Ex.P89 Test Identification Parade of Shanawaz
Ex.P89(a) Signature of PW.32
Ex.P89(b) to Signature of PW.78
(d)
Ex.P90 Portion of Statement of PW.34
Ex.P90(a) Portion of Statement of PW.34
Ex.P90(b) Portion of Statement of PW.34
Ex.P90(c) Portion of Statement of PW.34
Ex.P91, 92 Medicine prescription slip of Chirayu
Clinic
Ex.P93 Portion of 161 statement of PW.1
Dr.Dattatreya
Ex.P93(a) to Portion of 161 statement of PW.1
(i) Dr.Dattatreya
Ex.P94 Portion of 161 statement of PW.1
Dr.Dattatreya
Ex.P94(a) Portion of 161 statement of PW.1
Dr.Dattatreya
Ex.P94(b) Portion of 161 statement of PW.1
Dr.Dattatreya
Ex.P95 Bus Ticket booking to Dharwad on
16.11.2017
Ex.P96 Portion of 161 statement of PW.33
Ex.P96(a) to Portion of 161 statement of PW.33
(e)
606 Spl.CC No.565/2021
Ex.P97 Portion of 161 statement of PW.33
Ex.P97(a) Portion of 161 statement of PW.33
Ex.P97(b) Portion of 161 statement of PW.33
Ex.P98 Recovery mahazar dated 17.06.2016
Ex.P98(a) Signature of PW.10
Ex.P98(b) Signature of PW.90
Ex.P98(c) Signature of PW.98
Ex.P99 Photograph
Ex.P100 Letter dated 19.11.2016 of Smt. Mallavva
to Police Commissioner, Hubli-Dharwad
regarding re-investigate the case
Ex.P101 Letter dated 16.01.2017 of Smt. Mallavva
to District SP
Ex.P102 Affidavit of Smt.Mallavva filed in High
Court, Dharwad in Crl.Petition
No.101434/2016 dated 30.01.2017
Ex.P103 Pendrive
Ex.P104 65B Certificate
Ex.P105 Statement of Mallavva Goudar under
Sec.164 of Cr.P.C.
Ex.P105(a) Portion of statement under Sec.164 Cr.PC
Ex.P106 Recovery mahazar
Ex.P106(a) Signature of PW.51
Ex.P106(b) Signature of Hanumanthappa
Jakkannavar
Ex.P107 Recovery mahazar
Ex.P107(a) Signature of PW.51
Ex.P107(b) Signature of Basavaraj Thodikatti Singh
Ex.P108 Seizure photo of Rod
Ex.P109 Seizure photo of Koitha
607 Spl.CC No.565/2021
Ex.P110 Seizure mahazar
Ex.P110(a) Signature of PW.51
Ex.P110(b) Signature of Ishwarappa Kodikappa
Ex.P111 Photograph
Ex.P112 Seizure mahazar
Ex.P112(a) Signature of PW.51
Ex.P112(b) Signature of Basavaraja Godeppanavar
Ex.P113 Portion of 161 Statement of PW.53
Ex.P113(a) Portion of 161 Statement of PW.53
to (d)
Ex.P114 Portion of 161 statement of PW.54
Ex.P114(a) Portion of 161 statement of PW.54
& (b)
Ex.P115 Portion of 161 statement of PW.55
Ex.P115(a) Portion of 161 statement of PW.55
Ex.P116 Portion of 161 statement of PW.56
Ex.P116(a) Portion of 161 statement of PW.56
Ex.P117 Production cum Receipt Memo dated
24.09.2019 and 09.10.2020
Ex.P117(a) Signature of PW.57
Ex.P118 Travel Tickets
Ex.P119 Sec.65B Certificate of Mahesh.B related
to print of tickets
Ex.P119(a) Signature of PW.57
Ex.P120 Travel Tickets
Ex.P121 Sec.65B Certificate of Mahesh.B related
to travel tickets
Ex.P121(a) Signature of PW.57
608 Spl.CC No.565/2021
Ex.P122 Portion of 161 statement of PW.58
Ex.P122(a) Portion of 161 statement of PW.58
(b)
Ex.P123 Covering letter dated 18.06.2020
Ex.P124 Covering letter dated 05.09.2020
Ex.P125 Covering letter dated 17.10.2020
Ex.P126 Production Memo dated 19.06.2020
Ex.P126(a) Signature of PW.62
Ex.P127 Portion of 161 statement of PW.63
Ex.P127(a) Portion of 161 statement of PW.63
Ex.P128 ‘B’ Extract of Bike
Ex.P129 Portion of 161 statement of PW.64
Ex.P129(a) Portion of 161 statement of PW.64
Ex.P130 Seizure proceedings dated 06.03.2020
Ex.P130(a) Signature of PW.68
Ex.P130(b) Signature of PW.76
Ex.P131 Proceedings drawn
Ex.P131(a) Signature of PW.68
Ex.P131(b) Signature of PW.113
Ex.P132 ‘B’ Extract
Ex.P133 Seizure Memo
Ex.P133(a) Signature of PW.70
Ex.P134 Portion of 161 statement of PW.70
Ex.P134(a) Portion of 161 statement of PW.70
to (d)
Ex.P135 Covering letter dated 13.01.2021
Ex.P135(a) Signature of PW.72
Ex.P136 Covering letter dated 13.01.2021
609 Spl.CC No.565/2021
Ex.P137 Production Memo dated 27.01.2021
Ex.P137(a) Signature of PW.75
Ex.P138 Guest entry accommodation details at
Maurya Hotel
Ex.P139 Mahazar dated 20.03.2020
Ex.P139(a) Signature of PW.77
Ex.P140 Portion of 161 statement of PW.78
Ex.P141 Test of Identification Parade
Ex.P141(a) Signature of PW.79
to (c)
Ex.P142 Test of Identification Parade
Ex.P142(a) Signature of PW.79
to (c)
Ex.P143 Test of Identification Parade
Ex.P143(a) Signature of PW.79
to (c)
Ex.P144 Test of Identification Parade
Ex.P144(a) Signature of PW.79
to (c)
Ex.P145 Test of Identification Parade
Ex.P145(a) Signature of PW.79
to (c)
Ex.P146 Test of Identification Parade
Ex.P146(a) Signature of PW.79
to (c)
Ex.P147 Test of Identification Parade
Ex.P147(a) Signature of PW.79
to (c)
Ex.P148 Test of Identification Parade
Ex.P148(a) Signature of PW.79
610 Spl.CC No.565/2021
to (c)
Ex.P149 Test of Identification Parade
Ex.P149(a) Signature of PW.79
to (c)
Ex.P150 CD
Ex.P150(a) Signature of PW.79
Ex.P151 Test of Identification Parade
Ex.P151(a) Signature of PW.79
to (c)
Ex.P152 Covering letter dated 20.03.2020
Ex.P152(a) Signature of PW.79
Ex.P153 Test of Identification Parade
Ex.P153(a) Signature of PW.79
to (c)
Ex.P154 Test of Identification Parade
Ex.P154(a) Signature of PW.79
to (c)
Ex.P155 Test of Identification Parade
Ex.P155(a) Signature of PW.79
to (c)
Ex.P156 Covering Letter dated 07.05.2020
Ex.P156(a) Signature of PW.79
Ex.P157 Portion of 161 statement of PW.82
Ex.P158 Proceeding of the Government of
Karnataka
Ex.P158(a) Signature of PW.83
Ex.P159 Proceeding of the Government of
Karnataka
Ex.P159(a) Signature of PW.83
Ex.P160 Production cum Receipt Memo dated
611 Spl.CC No.565/2021
08.08.2020
Ex.P160(a) Signature of PW.84
Ex.P161 Hotel Register of Praveen Deluxe
Ex.P162 Production cum Receipt Memo dated
15.06.2020
Ex.P162(a) Signature of PW.85
Ex.P163 Hotel Register of Central Park
Ex.P163(a) Signature of PW.85
to (s)
Ex.P164 Production Memo dated 18.06.2020
Ex.P164(a) Signature of PW.86
Ex.P165 Register of Ankitha Residency
Ex.P165(a) Signature of PW.86
Ex.P165(b) Signature of PW.86
Ex.P166 FSL Report
Ex.P166(a) Signature of PW.87
to (g)
Ex.P167 Mahazar
Ex.P167(a) Signature of PW.89
Ex.P168 FSL Cover
Ex.P169 Production Memo dated 15.11.2020
Ex.P169(a) Signature of PW.90
Ex.P170 Sanction under Arms Act, 1959 in RC
17(S) 2019
Ex.P171 Seizure mahazar dated 17.06.2016
Ex.P171(a) Signature of PW.91
Ex.P172 Spot mahazar dated 18.06.2016
Ex.P172(a) Signature of PW.91
Ex.P173 Mahazar dated 19.06.2016
612 Spl.CC No.565/2021
Ex.P173(a) Signature of PW.91
Ex.P174, Photographs
175
Ex.P176 Inquest mahazar dated 15.06.2016
Ex.P176(a) Signature of PW.91
Ex.P177 FSL Report
Ex.P177(a) Signature of PW.93
Ex.P178 Reasons for FSL opinion
Ex.P178(a) Signature of PW.93
Ex.P179 Specimen Handwriting/Signatures of
Vikram Ballari
Ex.P180 Specimen Handwriting/Signatures of
Kirti Kumar
Ex.P180(a) Signature of PW.100
Ex.P181 Specimen Handwriting/Signatures of
Sandeep Savadatti
Ex.P181(a) Signature of PW.100
Ex.P182 Specimen Handwriting/Signatures of
Vinayaka Katagi
Ex.P183 Specimen Handwriting/Signatures of
Mahabaleshwar
Ex.P183(a) Signature of PW.100
Ex.P184 Specimen Handwriting/Signatures of
Santhosh Savadatti
Ex.P185 Specimen Handwriting/Signatures of
Vikas Kalburgi
Ex.P185(a) Signature of PW.100
Ex.P186 Specimen Handwriting of Vanashree B
Shisanllimath/Signatures of PW.93
613 Spl.CC No.565/2021
Ex.P186(a) Signature of PW.100
Ex.P187 Certificate of FSL examination dated
17.02.2017
Ex.P187(a) Signature of PW.93
Ex.P187(b) Sample seal
Ex.P188 DVD
Ex.P189 DVD
Ex.P190 Certificate under Sec.65B of Evidence Act
Ex.P191 Postmortem Report
Ex.P191(a) Signature of PW.94
Ex.P191(b) Signature of PW.94
Ex.P192 Request letter to Medical Officer for
conducting Inquest
Ex.P192(a) Signature of PW.94
Ex.P193 Office Order dated 15.06.2016
Ex.P194 Form No.146(i) sent by Dharwad Sub-
Urban Police Station
Ex.P195 Requisition dated 15.06.2016
Ex.P196 Final Report
Ex.P196(a) Signature of PW.94
Ex.P197 Customer application Form of Sandeep
Saudatti
Ex.P198 CDR
Ex.P199 CDR
Ex.P200 Certificate under Sec.65B of Evidence Act
Ex.P200(a) Signature of PW.95
Ex.P201 Production Memo dated 24.09.2019
Ex.P201(a) Signature of PW.96
Ex.P202 Certified copy of ID
614 Spl.CC No.565/2021
Ex.P203 Proceedings dated 08.05.2020
Ex.P203(a) Signature of PW.100
Ex.P203(b) Specimen signature
Ex.P204 Registration Form along with documents
Ex.P205 Production Memo dated 24.09.2019
Ex.P205(a) Signature of PW.103
Ex.P206 Vijayavani Newspaper
Ex.P206(a) Relevant portion
Ex.P207 Covering letter dated 24.06.2020
Ex.P207(a) Signature of PW.104
Ex.P208 Certificate under Sec.65B of Evidence Act
Ex.P209 CD
Ex.P210 Covering letter dated 07.07.2021
Ex.P210(a) Certificate under Sec.65B of Evidence Act
Ex.P210(b) Signature of PW.113
Ex.P211 CDR
Ex.P211(a) Signature of PW.106
Ex.P212 Customer details e-mail dated 09.05.2020
Ex.P213 CDR 30 Pages
Ex.P214 CDR 8 Pages
Ex.P215 CDR 27 Pages
Ex.P216 CDR 21 Pages
Ex.P217 CDR 10 Pages
Ex.P218 CDR 65 Pages
Ex.P219 CDR 77 Pages
Ex.P220 CD
615 Spl.CC No.565/2021
Ex.P221 Certificate under Sec.65B of Evidence Act
Ex.P222 FIR of Dharwad Sub-Urban Police Station
Ex.P223 Sketch of the place of incident
Ex.P223(a) Covering letter dated 19.08.2016
Ex.P224 Photographs
Ex.P225 Inquest Panchanama
Ex.P226 & Photographs
Ex.P227
Ex.P228 Spot Mahazar dated 18.06.2016
Ex.P229 Spot Mahazar dated 20.06.2016
Ex.P230 Photograph
Ex.P231 Photograph
Ex.P232 Recovery Mahazar dated 01.07.2016
Ex.P233 Photograph
Ex.P233(a) Photographs
to (e)
Ex.P234 CDR and Analysis Report
Ex.P235 CDR and Analysis Report
Ex.P236 FSL Report
Ex.P237 Photographs recovering video footage
Ex.P238 Gazette Notification dated 28.03.2016
Ex.P239 B Extract of vehicle bearing Reg. No.KA-
25-EV-2609
Ex.P240 FSL Acknowledgment
Ex.P241 E-mail correspondence
Ex.P242 Cell ID Chart Karnataka Vodafone
Ex.P243 Cell ID Chart Idea
Ex.P244 Cell ID Chart Airtel
616 Spl.CC No.565/2021
Ex.P245 Pendrive
Ex.P246 Certificate under Sec.65B of Evidence Act
Ex.P246(a) Signature of PW.108
Ex.P247 Analysis Chart
Ex.P247(a) Signature of PW.113
Ex.P247(b) Certificate under Sec.65B of Evidence Act
Ex.P247(c) Signature of PW.113
Ex.P248 Call details
Ex.P248(a) Certificate under Sec.65B of Evidence Act
Ex.P248(b) Signature of PW.113
Ex.P249 Covering letter dated 11.08.2020
Ex.P250 Certificate under Sec.65B of Evidence Act
Ex.P251 Covering letter dated 31.03.2021
Ex.P251(a) Signature of PW.108
Ex.P252 & CD’s
Ex.P253
Ex.P254 Covering letter dated 20.05.2020 along
with Certificate
Ex.P254(a) Signature of PW.109
Ex.P255 Covering letter dated 16.10.2020
Ex.P256 CD
Ex.P257 Portion of 161 statement of PW.112
Ex.P257(a) Portion of 161 statement of PW.112
Ex.P258 FIR of CBI
Ex.P259 Copy of complaint in Crime No.135/2016
Ex.P260 Recovery Mahazar dated 15.06.2016
Ex.P260(a) Signature of PW.113
Ex.P261 Mahazar
617 Spl.CC No.565/2021
Ex.P261(a) Signature of PW.113
Ex.P262 Voluntary statement of accused No.8
Ex.P262(a) Signature of PW.113
Ex.P263 Photograph
Ex.P264 Photograph
Ex.P265 Certificate under Sec.65B of Evidence Act
Ex.P266 Voluntary statement of accused No.8
Ex.P266(a) Signature of accused
Ex.P266(b) Signature of IO
Ex.P267 Proceedings dated 03.03.2020
Ex.P267(a) Signature of PW.113
Ex.P268 Receipt Memo dated 04.03.2020
Ex.P268(a) Signature of PW.113
Ex.P269 Receipt Memo
Ex.P269(a) Signature of PW.113
Ex.P270 Photographs
Ex.P271 Certificate under Sec.65B of Evidence Act
Ex.P272 Photographs
Ex.P273 Certificate under Sec.65B of Evidence Act
Ex.P273(a) Signature of PW.113
Ex.P274 Disclosure Statement
Ex.P274(a) Signature of accused No.8
Ex.P274(b) Signature of CBI Investigating Officer
Ex.P275 Certificate under Sec.65B of Evidence Act
Ex.P275(a) Signature of PW.113
Ex.P276 Covering letter
Ex.P277 B Extract of vehicle No.KA-05-MD-696
Ex.P278 Receipt Memo
618 Spl.CC No.565/2021
Ex.P278(a) Signature of PW.113
Ex.P279 Covering letter dated 13.05.2020
Ex.P280 Production Memo dated 24.09.2020
Ex.P280(a) Signature of PW.113
Ex.P281 Two Rent Agreements
Ex.P282 Letter dated 20.10.2020
Ex.P283 Certificate under Sec.65B of Evidence Act
Ex.P284 Letter dated 13.11.2020
Ex.P285 Letter dated 17.11.2020
Ex.P286 Statement of A-3 Keerthi Kumar
Ex.P286(a) Sealed Cover
Ex.P287 Statement of A-6 Mahabaleshwar
Ex.P287(a) Sealed Cover
Ex.P288 Statement of accused No.17
Ex.P289 Certified copy of Ex.P6 and Ex.P7
Ex.P290 Production Memo dated 15.06.2020
Ex.P290(a) Signature of PW.113
Ex.P291 Acknowledgment of Registration
Ex.P292 Station House Diary
4. Do cuments exhibited by the Defence/Accused:-
Ex.D1 Portion of statement of PW6
Ex.D2 Meeting Notice
Ex.D3 Proceedings dated 23.04.2016
Ex.D3(a) Portion of proceedings
Ex.D3(b) Portion of proceedings
619 Spl.CC No.565/2021Ex.D4 Photographs
Ex.D5 Test Identification Parade Report dated
11.03.2020
Ex.D6 Test Identification Parade Report dated
12.03.2020
Ex.D7 Portion of statement under Sec.161 Cr.PC
of PW.32
Ex.D8 Portion of statement under Sec.161 Cr.PC
of PW.30
Ex.D9 Portion of statement under Sec.161 Cr.PC
of PW.40
Ex.D9(a) Portion of statement under Sec.161 Cr.PC
of PW.40
Ex.D9(b) Portion of statement under Sec.161 Cr.PC
of PW.40
Ex.D10 Portion of statement under Sec.161 Cr.PC
of PW.11
Ex.D11 Portion of statement under Sec.161 Cr.PC
of PW.11
Ex.D12 Portion of statement under Sec.161 Cr.PC
of PW.11
Ex.D13 Portion of statement under Sec.161 Cr.PC
of PW.10
Ex.D13(A) Portion of statement under Sec.161 Cr.PC
of PW.10
Ex.D14 Crl.Petition No. 101434/2016
Ex.D15 Bail application in SC No.50/2017
Ex.D16 WP No.51012/2019 along with affidavit
Ex.D17 Application under Sec.306 of Cr.P.C.
Ex.D18 Application under Sec.306 of Cr.P.C.
Ex.D19 Application under Sec.306 of Cr.P.C.
620 Spl.CC No.565/2021
Ex.D20 Objections to application under Sec.231
of Cr.P.C.
Ex.D21 WP No.18539/2024
Ex.D22 Request to tender pardon
Ex.D23 Enquiry Register of Vidhana Soudha
dated 01.11.2016 to 30.06.2016
Ex.D24 Certified copy of affidavit in WP
No.383/2025 along with affidavit
Ex.D25 Certified copy of affidavit in WP
No.5102/2019
Ex.D26 Certified copy of charge-sheet in
Cr.No.128/2011 of Dharwad Rural Police
Station
Ex.D27 Certified copy of CC Register of the 4th
Addl. District and Sessions Judge and
JMFC-II, Dharwad in Crime No.238/2013
Ex.D28 Certified copy of FIR in Crime
No.238/2013 of Dharwad Rural Police
Station
Ex.D29 Certified copy of FIR, Title Sheet and
charge sheet in Crime No.35/2017 of
Dharwad Rural Police Station
Ex.D30 Certified copy of FIR and charge sheet in
Crime No.1/2018 of Dharwad Rural
Police Station
Ex.D31 Certified copy of FIR and charge sheet in
Crime No.152/2018 of Dharwad Rural
Police Station
Ex.D32 Charge sheet in Crime No.176/2019 of
Dharwad Rural Police Station
Ex.D33 Copy of charge in SC No.72/1999 of
1st Addl. District and Sessions Judge,
Dharwad
621 Spl.CC No.565/2021
Ex.D34 Certified copy of charge-sheet in Crime
No.107/2004 of Navalagunda Police
Station
Ex.D35 RTI application of Sri. Prakash
Bhavikatti, Advocate
Ex.D36 Portion of statement under Sec.161 Cr.PC
of PW.2
Ex.D37 Portion of statement under Sec.161 of
Cr.PC
Ex.D38 Indian Express Newspaper
5. List of Material Objects marked by the prosecution:-
MO.1 Coloured full arm shirt
MO.2 Mat Red in colour
MO.3 Black colour slippers
MO.4 Chilly powder
MO.5 Black and silver colour Mobile
MO.6 Plastic cover
MO.7 Sando Baniyan
MO.8 Towel
MO.9 Black colour half T-Shirt
MO.10 Blue colour Track Pant
MO.11 Red Thread
MO.12 Black colour Pistol
MO.13 Wood in the pistol handle
622 Spl.CC No.565/2021
MO.14 Pistol black handle
MO.15 Hard Disc
MO.16 Samsung Duo C 3322 Mobile Phone
MO.17 One Gionee S6 Mobile Phone
MO.18 Samsung Galaxy Star Pro Mobile Phone
MO.19 HTC Desire 616 Dual Sim Mobile Phone
MO.20 Samsung Galaxy Mobile Phone
MO.21 Samsung Galaxy Grand Neo Mobile Phone
MO.22 RedMi Note 3 Mobile Phone
MO.23 Bamboo stick
MO.24 Koita (in vernacular language)
MO.25 Rod
MO.26 Long
MO.27 Iron Jambe
MO.28 Samsung Mobile Phone
MO.29 Cartridge box
MO.30 Cover along with signature
MO.31 Underwear
MO.32 Chevrolet Tavera Car bearing No. KA-25-
D-0420
MO.33 Honda Splendor Motorbike bearing No.
KA-25-EA-6230
623 Spl.CC No.565/2021
6. List of Court Documents:
Ex.C1 Signature of PW.62 on Ex.P126
Ex.C2 Signature of PW.79 on Ex.D5
Ex.C2(a)(b) Signature of PW.79 on Ex.D5
Ex.C3 Signature of PW.79 on Ex.D6
Ex.C3(a)(b) Signature of PW.79 on Ex.D6
Ex.C4 FSL CoverLXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal
cases related to elected former and sitting
MPs/MLAs in the State of Karnataka)Digitally signed by
SANTHOSHGAJANANABHAT
SANTHOSHGAJANANABHAT
Date: 2026.04.18 17:33:35
+0530
