Acquits man accused of killing 2.5-yr-old nephew

Supreme Court: In a criminal appeal against Karnataka High Court’s decision whereby, the Trial Court’s decision acquitting the accused/ appellant was reversed, and the accused was found guilty of offences under Sections 201, 302, 363, 364 of the Penal Code, 1860 (‘IPC’), the Division Bench of Bela M. Trivedi and Satish Chandra Sharma*, JJ. allowed the appeal and set aside the impugned judgment and restored the Trial Court’s decision of acquittal.

Factual Matrix

On 03-11-2002, at around 11 A.M., the complainant’s son aged 2.5 years had gone out playing and went missing. Upon finding no trace of the child till evening, a missing complaint was lodged at around 10 P.M. by the complainant. On 14-11-2002, the complainant’s brother (accused) came to the complainant’s house in a drunken state and started blabbering about his nephew and about mishappening with the child. However, it was late in the night, so the complainant did not pursue the matter. On 15-11-2002, the complainant with his wife and mother asked about the child from the accused, and it was revealed that he murdered his nephew (deceased child) and threw his body in the well. Hence, a First Information Report (FIR) was registered.

The accused confessed to the commission of crime, as to throwing the child in the well, and the said voluntary statement was recorded by the Investigating Officer (IO). The dead body of the deceased child was found floating in the well. Thereafter, two other accused persons namely accused 2 and 3 were arrested. Charges were framed against the three accused persons, including the present accused under Sections 201, 302, 363, 364 read with 34 of the IPC. The Trial Court acquitted all the accused persons vide order dated 30-04-2004. In an appeal by the State, the High Court partially allowed the appeal by holding the accused guilty, however, the High Court agreed with the Trial Court’s decision in acquitting the accused 2 and 3.


Extra judicial confession

The Court said that an extra judicial confession is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to the other evidence on record. The Court stated that if the extra judicial confession is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt.

In the present case, the Court said that the conviction of the accused was mostly based on the extra judicial confession allegedly made by him before the complainant. However, the Court said that the complainant’s testimony was fatal to the prosecution case on multiple parameters, being an interested witness. Regarding the complainant’s deposition that the accused arrived at his residence on 14-11-2002 and mentioned the deceased child and despite so, the accused was allowed to leave the residence and no action whatsoever was taken by the complainant. The Court said that on the eleventh day when the complainant had no clue about the deceased child and when the accused mentioned his deceased son, the complainant did nothing about the same. Moreover, the Court said that on the next day as well, the complainant started off normally and went to his shop in a routine manner.

Further, the Court said that the extra judicial confession was made before the complainant, his mother and wife, however, the complainant’s mother and wife were never examined as witnesses by the prosecution.

Discrepancies in Testimonies

The Court noted that when the accused confessed to the act of throwing the deceased child in the well along with accused 2 and 3, there was no mention of the co-accused persons in the original statement of the accused, as per the complainant’s examination-in-chief and said that three versions of the same fact were before the Court.

Regarding the arrest of the accused, the Court noted that the complainant had stated that he had taken the accused to the police station, and he was arrested there. Contrarily, the IO deposed that after recording the complaint, he had arrested the accused from his house. The Court said that this contradiction raised a question on the aspect of confession, as to whether the confession was recorded when the accused himself visited the police station with the complainant or when he was arrested from his house and was taken to the police station by the IO. The Court said that both these variations raised a doubt on the voluntariness of the statement.

Evidence of recovery of dead body

Regarding the evidence of recovery of dead body, the Court said that it was based on the confession of the accused which failed to inspire the confidence of the Court, as a doubt was raised on the aspect of the voluntariness of the confession of the accused. The Court said that the Trial Court had rightly analyzed the evidence regarding the recovery of dead body and the High Court erred in accepting the evidence on its face value, without addressing the reasonable doubts raised by the Trial Court. Regarding the waiter’s testimony to prove the recovery of the dead body, the Court said that it was difficult to accept that he just happened to visit the police station on his own and ended up becoming a witness. The Court said that his visit to the police station did not fit in with the normal chain of circumstances as it is completely unexplained. The Court stated that a police station is not per se a public space where people happen to visit in the ordinary course of business and therefore, an explanation was warranted. Further, the Court said that a normal person would generally be hesitant in becoming a witness to the recovery of a dead body. Hence, the Court did not consider it safe to rely upon the waiter’s testimony and said that he could reasonably be a stock witness of the IO.

Identity of the dead body

The Court said that the description of the deceased child given by the complainant did not match the description of the dead body recovered from the well and the clothes found on the dead body were substantially different from the clothes in the complaint. Further, the Court said that the identification of the dead body by face was not possible as the body had started decomposing due to lapse of time. Therefore, the Court held that the prosecution case regarding the identity of the dead body was not free from doubts. The Court also noted that when the complainant was informed about the fact that the deceased child was thrown into the well, there was deafening silence on his part.

Reversal of Trial Court’s decision by the High Court

The Court said that the Trial Court appreciated the entire evidence in a comprehensive sense and the High Court reversed the view without arriving at any finding of perversity or illegality in the order of the Trial Court. The Court stated that “it is settled law that the High Court, in exercise of appellate powers, may reappreciate the entire evidence, however, reversal of an order of acquittal is not to be based on mere existence of a different view or a mere difference of opinion”. The Court said that permitting so would be in violation of the two views theory, as reiterated by the Court from time to time in cases of this nature. The Court explained that to reverse an order of acquittal in appeal, it is essential to arrive at a finding that the order of the Trial Court was perverse or illegal; or that the Trial Court did not fully appreciate the evidence on record; or that the view of the Trial Court was not a possible view.

The Court noted that the entire case of the prosecution was based on circumstantial evidence and said that to prove a case on basis of the same, it must be established that the chain of circumstances is complete. The Court also reiterated that it must also be established that the chain of circumstances is consistent with the only conclusion of guilt. The Court highlighted that the doubtful existence of the extra judicial confession, unnatural conduct of the complainant, recovery of dead body in the presence of an unreliable witness (waiter), contradictions regarding arrest, were some of the inconsistencies which strike at the root of the prosecution case and drawing an inference of guilt on basis of the same would be failure of justice. The Court said that the evidence of the prosecution, made out a case for suspicion, and not for conviction.


The Court held that the High Court erred in reversing the decision of acquittal of the accused, hence the impugned order and judgment were set aside. The Court also held that there was no infirmity Trial Court’s order and the same stands restored. Consequently, the accused was acquitted of all the charges and was directed to be released forthwith, if lying in custody.

[Kalinga v. State of Karnataka, 2024 SCC OnLine SC 164, Decided on: 20-02-2024]

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