Karnataka High Court
Venkatesh vs The State Of Karnataka on 21 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2026:KHC:11008-DB
CRL.A No. 978 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.978 OF 2025 (C)
BETWEEN:
VENKATESH
S/O. RAMESH
AGED ABOUT 26 YEARS
RESIDING AT 2ND CROSS
KURI NARAYANAPPA LAYOUT
LINGARAJAPURA
BENGALURU-560 084.
...APPELLANT
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally BY BANASWADI P.S.
signed by REPRESENTED BY
ANJALI M
STATE PUBLIC PROSECUTOR
Location: HIGH COURT OF KARNATAKA
High BENGALURU-560 001.
Court of
Karnataka ...RESPONDENT
(BY SMT. RASHMI PATEL, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED
28-6-2023 AND SENTENCE DATED 10-7-2023 IN SESSIONS CASE
NO.1335 OF 2018 BY THE LX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY, FOR THE OFFENCE UNDER
SECTION 302 R/W 34 OF IPC REGISTERED BY THE BANASWADI
POLICE IN CRIME NO.561 OF 2017 AND CONSEQUENTLY THE
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NC: 2026:KHC:11008-DB
CRL.A No. 978 of 2025
HC-KAR
APPELLANT MAY BE ACQUITTED FROM ALL THE CHARGES LEVELLED
AGAINST HIM AND ETC.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH) Heard learned counsel for the appellant/accused and learned H.C.G.P appearing for the respondent/State.
This appeal is filed by the appellant/accused No.2 praying to set-aside the Judgment of conviction dated 28.06.2023 and order of sentence dated 10.07.2023 passed in Sessions Case No.1335/2018 by learned LX Additional City Civil and Sessions Judge, Bengaluru City, whereby accused Nos.1 to 3 were convicted for the offence under Section 302 IPC.
2. The factual matrix of case of the prosecution is the first informant is the proprietor of Hotel Delicious Momos situated at No.1783, Nehru road extension, Kammanahalli, behind Mahabazar, Bangalore. He had provided accommodation to his hotel workers near Kammanahalli Church. Sanjay Tamang was -3- NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR one of the workers in the said hotel. On 06.10.2017, at 11.00 p.m., the hotel was closed and hence, the first informant reached home and slept. One of the hotel workers viz., Sabin had made a phone call to the first informant on 07.10.2017 at 01.55 hours, however, the first informant could not immediately receive the call and later at 02.15 a.m., when a return call was made by first informant to Sabin, it was informed to first informant that Sanjay Tamang had not gone to room. Hence, first informant asked Sabin and other roommates to check in the hotel. As instructed by first informant, Sabin and other roommates checked in the hotel and informed the first informant that Sanjay Tamang was not in the hotel. Thereafter, the first informant went to the hotel at 02.40 a.m. and he found blood stained on the road and near the hotel, he saw Sanjay Tamang having full of wounds on the body, he was in critical condition and unconscious. Hence, the first informant tried to shift the injured to the hospital, but Sanjay Tamang was dead within seconds. Later, the first informant came to know from one Kaushik that three unknown persons came in a white colour Honda Deo vehicle and stabbed on the body of Sanjay with a knife and threw a stone on his head and that the -4- NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR incident happened around 00.30 hours and hence, the first informant lodged the complaint with the police and crime was registered in Crime No.561/2017 for the offence punishable under Section 302 IPC. The police having registered the case, took up investigation and spot mahazar was conducted on 07.10.2017 between 04.30 hours to 06.00 hours, where the body of deceased Sanjay was found and also at the time of conducting panchanama, seized the articles at the spot and inquest was conducted at Dr. B.R. Ambedkar Hospital and so also post-mortem examination was conducted. Accused Nos.1 and 3 were arrested in Crime No.430/2016 and in the said case, accused Nos.1, 3 and other accused were caught hold and the above persons revealed the name of accused No.2 in this case and during the course of investigation, these persons revealed about commission of the offence i.e., murder of Sanjay and thereafter, accused Nos.1 and 2 gave voluntary statements stating that they would show the spot, where the weapon used by them for committing the murder of deceased was concealed and thereafter, the same was recovered at the instance of accused No.2 and other investigation part was also conducted and charge sheet was filed. Accused Nos.1 to 3 were -5- NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR secured before the Court and accused did not plead guilty and claimed trial and hence, the prosecution relied upon the evidence of PW Nos.1 to 11 and also Exs.P1 to 57 and MOs.1 to 11 were got marked.
3. The trial Court having considered both oral and documentary evidence available on record convicted accused Nos.1 to 3 for the offence punishable under Section 302 r/w 34 IPC.
4. Being aggrieved by the judgment of conviction and order on sentence, two appeals were filed by accused Nos.1 and 3 before this Court in Crl.A.No.1559/2023 connected with Crl.A.No.1940/2023 and the Coordinate Bench having considered the material available on record, particularly considering the evidence of PW.1, who is an eyewitness to the incident and also that the Test Identification Parade having been conducted belatedly, an observation was made in paragraph No.27 by the Co-ordinate Bench that when Test Identification was conducted, the accused were taken to the crime scene and they were known to everyone and hence Test Identification cannot be accepted and the Coordinate Bench in -6- NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR paragraph Nos.12 and 13 also held that the presence of PW.2 eye witness is doubtful as there are contradictions in the narration of the incident by PW.2, when compared to the evidence of PW.1 and that according to PW.2, another individual, his friend Prashanth was also an eyewitness to the incident. However, the prosecution has not examined him. Having regard to the inconsistencies in the testimony of PW.2, the non-examination of other eye witness assumes considerable significance, as his testimony could have corroborated or contradicted the version of PW.2. Having considered the material available on record and also on re- appreciation of evidence, the Co-ordinate Bench acquitted accused Nos.1 and 3 for the offence punishable under Section 302 read with Section 34 IPC. Hence, the present appeal is filed by accused No.2.
5. The main contention of learned counsel for the appellant/accused No.2 is that when accused Nos.1 and 3 are already acquitted by the Coordinate Bench of this Court and the Coordinate Bench having come to the conclusion that the very presence of the PW.2 is doubtful and also not having accepted -7- NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR the Test Identification parade and also that the complaint was lodged by the employer of the deceased at the instance of PW.2, though PW.2 claims to be an eye witness, he did not lodge any complaint and there is delay in lodging the complaint i.e., the complaint was lodged at 03.30 hours and the incident had taken place at 00.30 hours to 00.45 hours, and if really PW.2 had witnessed the incident, he would have given the complaint. Learned counsel also would submit that the evidence of PW.2 is also not clear with regard to as to which of the accused had inflicted injury with knife and which accused inflicted injury with stone. However, PW.2 says that one person was holding the motorcycle and hence the evidence of PW.2 is clear that one only accused assaulted with stone and another accused inflicted injury to deceased Sanjay with knife and the allegation against accused No.1 was that he inflicted injury with knife to deceased Sanjay and said accused No.1 has already been acquitted by this Court. So also, accused No.3 is also acquitted by this Court by not accepting the evidence of the prosecution and hence this appellant/who is accused No.2 also entitled for the same benefit.
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6. Learned counsel for the appellant/accused No.2 in support of his argument, relies upon the judgment in the case of Suresh Chaudhary v. State of Bihar reported in (2003) 4 SCC 128 and brought to the notice of this Court to paragraph No.14 of the judgment which reads as follows:-
14. This leaves us to consider the case of one other accused, namely, Sona @ Sonwa Chaudhary who was one of the accused before the learned Sessions Judge who came to be convicted by him vide his judgment in Sessions Trial No. 417 of 1993. He along with other appellants herein had preferred the criminal appeal before the High Court of Patna which is Crl. A. No. 88 of 1995 which came to be dismissed by the impugned judgment.
For some reason or the other he has not preferred any appeal and has accepted the judgments of the courts below. We, in these appeals, have come to the conclusion that the prosecution has failed to establish its case against the appellants which finding is applicable to all the accused. The question then arises whether the benefit of this judgment of ours should be extended to the non- appealing accused, namely, Sona @ Sonwa Chaudhary or not. This Court in a catena of cases has held where on the evaluation of a case this Court reaches the conclusion that no conviction of any accused is possible, the benefit of doubt must be extended to the co-accused similarly situated though he has not challenged the order of conviction by way of an appeal. (See Bijoy Singh v. State of Bihar [(2002) 9 SCC 147] .) This Court while rendering the above judgment has placed reliance on some other judgments of this Court in Raja Ram v. State of M.P. [(1994) 2 SCC 568 : 1994 SCC (Cri) 573] , Dandu Lakshmi Reddy v. State of A.P. [(1999) 7 SCC 69 : 1999 SCC (Cri) 1176] and Anil Rai v. State of Bihar [(2001) 7 SCC 318 : 2001 SCC (Cri) 1009] wherein this Court had taken a similar view. Following the above dictum of this Court in the judgments noticed by us hereinabove, we are of the opinion since we have come to the conclusion that no conviction of any accused is possible based on the -9- NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR prosecution case as presented, it becomes our duty to extend the benefit of acquittal in these appeals also to a non-appealing accused, therefore, Sona @ Sonwa Chaudhary who is the first accused before the Sessions Court in Sessions Trial No. 417 of 1993 and who was the first appellant before the High Court in Crl. A. No. 88 of 1995 will also be acquitted of all the charges of which he is found guilty by the two courts below." [
7. Learned counsel for the appellant further contended that though PW.2 is the sole eyewitness, who is the witness to the crime, however, his statement is not recorded on the date of the incident. It is also the case of the prosecution that deceased was working in Delicious Memos hotel and the incident is likely to have occurred inside the hotel, however, the body was found later on the road and also the knife allegedly used in the offence of crime was recovered and no blood stains were found on it. As per Ex-P3 to P5 photographs of the deceased, they were taken in the mortuary and not at the crime scene and that PW.1 has admitted that the Hotel Delicious Memos had CCTV surveillance and bio-metric attendance, however, the police did not examine the CCTV recordings footages or biometric data and the same would have given some evidence. The deadbody of deceased Sanjay was not found inside the hotel, but on the road and hence in the
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NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR absence of stains on the knife, the Coordinate Bench has given benefit of doubt in favour of accused Nos.1 and 3 and hence accused no. 2 is also entitled for the same.
8. Per-contra, learned HCGP appearing for the respondent/State would submit that the very specific case of the prosecution is that accused Nos.1 to 3, on particular date of the incident, inflicted injury with knife and also with stone and also the same is witnessed by PW.1 and though this Court expressed doubt about the very presence of PW.2 at the spot, but, the Test Identification was also conducted and the accused persons were identified and mere delay of one month, is not a ground to extend the benefit in favour of the accused and so also on the ground that the Test Identification is not in accordance with law and also already the accused were taken to custody and they was taken to the particular place and they were exposed to the general public and hence this Court has to consider and evaluate the evidence available against this appellant in proper perspective.
9. Having heard learned counsel for the appellant/accused No.2 and also learned HCGP appearing for
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NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR the respondent/State, considering the material available on record, the point that would arise for consideration of this Court are:-
1. Whether the Trial Court committed an error in convicting the appellant/accused No.2 along with other accused in believing the evidence of PW.2 and other material? and whether it requires interference of this Court?
2. Whether the benefit of judgment passed by this Court in respect of accused Nos.1 and 3 could be extended to the present appellant/accused No.2?
and
3. What order?
Point Nos.1 and 2:
10. Having considered the material on record, the prosecution mainly relies upon the evidence of PW.2 and we have perused the evidence of PW.2. PW.2 in this case speaks about the involvement of three accused persons, but says that two persons inflicted injury with a knife and stone and another
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NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR accused was holding the motorcycle. But, the case of the prosecution is that accused No.1 assaulted deceased with knife and accused Nos.2 and 3 inflicted injury to deceased by using a stone. Apart from the said material, the Coordinate Bench while appreciating the evidence available on record in the judgment, which was filed by accused Nos.1 and 3, particularly in paragraph Nos.11, 12 and 13, comes to the conclusion that the very presence of PW.2 is doubtful and there are contradictions in the narration of the incident by PW.2 compared to the evidence of PW.1 and according to PW.2, another individual, his friend Prashanth was also an eye witness to the incident, but he was not examined before the Court and a detailed discussion was made in paragraph Nos.11 and 12 with regard to the linking of the accused persons with the crime and the Co-ordinate Bench while considering the case of the prosecution, particularly in paragraph No.27 with regard to the Test Identification Parade is concerned, comes to the conclusion that the statement of the accused was recorded on 06.12.2017 and they were taken to the crime scene for the recovery of knife as per Ex.P13. The evidence of PW.1 further indicates that accused were taken to the crime scene on
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NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR 24.12.2017, where they have allegedly confessed to committing the murder of Sanjay Tamang. However, the Test Identification was conducted on 19.01.2018 raising doubts about its reliability and also taken note of the judgment of the Apex Court in the case of Gireesan Nair and Others v State of Kerala reported in (2023) 1 SCC 180 and paragraph No.31 was extracted and also discussed in-detail in paragraph No.29 with regard to Test Identification Parade is concerned and that the evidence of PW.1 clearly establishes that the accused were exposed to the public, well before the identification. Under such circumstances, the possibility of PW.2 having seen the accused prior to the incident cannot be ruled out. This assumes importance in light of the testimony of PW.2, who is the sole witness examined by the prosecution. Notably, PW2 did not provide any description of the accused. Even these omissions and contradictions, the Test Identification Parade cannot be relied upon to establish the guilt of the accused beyond reasonable doubt and also in paragraph No.32 with regard to the motive is concerned, held that the motive for causing death of deceased as narrated by the prosecution is the robbery. Though the prosecution alleges robbery as motive to the crime,
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NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR no articles are recovered from the accused. Regarding robbery is concerned, there is no attempt by the prosecution to explain the articles robbed by the accused. It is not the case of the prosecution that the deceased and accused were known to each other and there exists an enmity between them. So even this possibility to consider as motive to cause death of the deceased is not possible to be viewed. Having considered the material available on record and also considering the reasoning given by this Court and also considering paragraph No.14 of the judgment of the Apex Court in Suresh Chaudhary's case referred supra, even the Apex Court gone to the extent of stating that the question arises whether the benefit of the Judgment of Apex Court should be extended to the non- appealing accused, namely, Sona alias Sonwa Choudhary or not. This Court in a catena of cases has held that on the evaluation of a case, this Court reaches to the conclusion that no conviction of any accused is possible, the benefit of doubt must be extended to the co-accused similarly situated though he has not challenged the order of conviction by way of an appeal. Having considered the principles laid down in the judgment of Suresh Choudhary v State of Bihar, which has
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NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR been extracted above and considering the material available on record, this Court also takes note of the fact that the Co-ordinate bench of this Court already comes to the conclusion that the very presence of PW.2 is doubtful and also the Test Identification Period also cannot be accepted and having re-analysed the materials available on record and also taking note of the corroboration of the testimonies of PW.1, 2 and 10 alongwith documentary evidence Exs-P1, P2, the document at page No.59, Exs-P20 and P12, the Coordinate Bench held that it is evident that the prosecution has failed to establish the offences committed by the accused beyond reasonable doubt. Even recovery of M.O.8 is concerned, mere suspicion of doubt is not sufficient to sustain a conviction. Having taken note of these materials available on record, this Court can extend the benefit in favour of accused No.2, who is similarly placed like that of accused No.3 and also the principles of the judgment of the Apex Court in the case of Suresh Choudhury referred supra comes to the aid of the appellant, who is accused No.2. Having considered all these materials available on record, we are also of the opinion that there cannot be any sustenance of conviction against accused No. 2,
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NC: 2026:KHC:11008-DB CRL.A No. 978 of 2025 HC-KAR when the other accused viz., accused Nos.1 and 3 have already been acquitted by the Coordinate Bench by extending the benefit of doubt as well as not believing the evidence of PW.2 and also with regard to Test Identification Parade is concerned and no other evidence against this appellant and similar evidence is available against this appellant also. Hence we answered the points accordingly.
In view of the discussions made above, we pass the following:-
ORDER
1. The appeal is allowed.
2. The judgment of conviction dated 28.06.2023 and order of sentence dated 10.07.2023 passed in Sessions Case No.1335/2018 by learned LX Additional City Civil and Sessions Judge, Bengaluru City is set-aside, in so far as appellant/accused No.2 is concerned. The appellant/accused No.2 is acquitted of the charges levelled against him for the offence punishable under Section 302 IPC.
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3. The appellant/accused No.2 shall be set at liberty, if he is not required in any other case/s.
4. Registry is directed to communicate this order to the concerned Jail authorities and the Jail authorities are hereby directed to release the appellant/accused No.2 forthwith, if he is not required in any other case.
5. If any fine amount is deposited by appellant/accused No.2, the same shall be refunded to him on proper identification.
6. Registry is directed to send back the trial Court records with a copy of this judgment.
Sd/-
(H.P.SANDESH) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 15