Karnataka High Court
Abhishek S/O Kallappa Javoor vs The State Of Karnataka on 24 July, 2025
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CRL.A No.100108 OF 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.100108 OF 2024
Between:
ABHISHEK S/O. KALLAPPA JAVOOR,
AGE: 27 YEARS, OCC. DOOR POLISH,
R/O. TALAWAR ONI, KESHWAPUR, HUBBALLI,
DIST. DHARWAD-580023.
...APPELLANT
(BY SRI. K.L. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH KESHWAPUR POLICE STATION,
HUBBALLI, DIST. DHARWAD,
Digitally signed
by YASHAVANT
NARAYANKAR
Location: HIGH
COURT OF
YASHAVANT KARNATAKA
NARAYANKAR DHARWAD
BENCH
DHARWAD
NOW REPRESENTED BY S.P.P.,
Date:
2025.07.24
14:13:30 +0530 HIGH COURT OF KARNATAKA,
AT DHARWAD BENCH.
...RESPONDENT
(BY SRI. A.M. GUNDAWADE, ADDITIONAL S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C 1973., SEEKING TO CALL FOR RECORDS IN
S.C.NO. 67/2017 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 13.01.2021 AND ORDER OF
SENTENCE DATED 16.01.2021 IN SESSIONS CASE NO.
67/2017 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND
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CRL.A No.100108 OF 2024
THEREBY ACQUIT THE APPELLANT/ACCUSED NO.1 FROM THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC, 1860.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT THIS DAY, JUSTICE
RAJESH RAI K, DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)
This appeal is directed against the judgment of conviction
dated 13.01.2021 and order of sentence dated 16.01.2021
passed in Sessions Case No.67/2017 by the I Addl. District and
Sessions Judge, Dharwad, Sitting at Hubballi (hereinafter
referred to as the 'learned Sessions Judge'), whereby the
learned Sessions Judge convicted the appellant/accused No.1
for the offence punishable under Section 302 of Indian Penal
Code, 1860 (for short 'IPC') and sentenced him to undergo
rigorous imprisonment for life and to pay a fine of Rs.55,000/-,
in default of payment of fine, to undergo simple imprisonment
for a period of 2 years.
2. Briefly stated, the facts of the prosecution case are
as follows:
CRL.A No.100108 OF 2024
The Complainant-PW.1 Pavan Kumar is the brother of
deceased-Akash Konnur. The marriage of PW.1 was fixed with
the sister of accused No.1 i.e., PW.15 on 24.04.2016. The
accused No.3 Vithal Kalagaggari is also a resident of same
locality. There was a quarrel between PW.1 and accused No.3
one day prior to Holi festival in 2016. Therefore, accused No.3
was grinding vengeance against PW.1 and his brothers.
Accused No.1 opposed the marriage proposal of his sister-
PW.15 with the complainant-PW.1. Hence, accused No.3
approached accused Nos.1 and 2, hatched a conspiracy to
commit the murder of PW.1 or any of his brothers. On
22.04.2016 at 5:30 p.m., the brother of PW.1 i.e., Akash was
playing with PWs.10 to 14 in the open ground of
Kadasiddeshwar Mutt, Talawar Oni, Keshwapur Hubballi. The
accused Nos.1 and 2 went to the said place and inflicted stab
injuries on the deceased with M.O.3-knife. The complainant-
PW.1 and PWs.10 to 14, who were present at the said spot,
chased the accused who fled from the spot. Later, PW.1 and
others shifted the injured to KIMS Hospital, Hubballi. However
the Doctor declared him as brought dead. Subsequently, PW.1
lodged a complaint against the accused on the same day at
about 08:30 p.m. before the respondent-Police as per Ex.P1.
CRL.A No.100108 OF 2024
On the strength of Ex.P1, FIR was registered against accused
Nos.1 and 2 in Crime No.58/2016 for the offence punishable
under Section 302 r/w Section 34 of IPC as per Ex.P22.
Subsequently, PW.19-Investigation Officer apprehended the
accused Nos.1 to 3 on the following day i.e., 23.04.2016 and
conducted further investigation by drawing relevant mahazars.
Thereafter, he recorded the statement of witnesses and on
obtaining necessary documents from the concerned authorities,
he laid charge-sheet against accused Nos.1 to 3 before the
committal Court for the offences punishable under Sections
302, 120(B) and 109 r/w Section 34 of IPC. The appellant was
arraigned as accused No.1.
3. After committal of the case before the Sessions
Court, the learned Sessions Judge framed charges against the
accused for the aforementioned offences and the same was
read over to them. The accused denied the charges leveled
against them and claimed to be tried.
4. In order to prove the charges leveled against the
accused, the prosecution examined 21 witnesses as PW.1 to
PW.21, marked 28 documents as Ex.P1 to Ex.P28 and identified
CRL.A No.100108 OF 2024
10 material objects as M.O.1 to M.O.10. However, the accused
marked 1 document as Ex.D1 on their behalf.
5. On completion of the prosecution evidence, the
learned Sessions Judge read over the incriminating evidence of
material witnesses to the accused as stipulated in Section 313
of Cr.P.C. However, they refuted the same and claimed that
they were falsely implicated.
6. After assessing the oral and documentary evidence
placed before the Sessions Court, the learned Sessions Judge
convicted this appellant/accused No.1 for the charges leveled
against him and sentenced him as stated supra. The said
judgment of conviction and order of sentence is challenged in
this appeal.
7. We have heard the learned counsel Sri. K.L. Patil
for the appellant and learned Addl. State Public Prosecutor
Sri.A.M. Gundawade for the respondent-State.
8. The primary contention of the learned counsel for
the appellant is that the judgment of conviction and order of
sentence passed by the Sessions Court suffers from perversity
and illegality. The learned Sessions Judge has grossly erred
CRL.A No.100108 OF 2024
while convicting the appellant/accused without appreciating the
evidence in the right perspective. He contended that there are
material contradictions and omissions in the evidence of alleged
eyewitness to the incident i.e., PWs.1, 11 to 13. Moreover, they
are the relatives and friends of the deceased and most
interested witnesses to the prosecution case. He further
contended, the offence was allegedly committed in an open
area and there were several persons in and around the said
area. However, none of them were cited as charge sheet
witness nor examined before the Court. The independent
witnesses-PWs.10 and 14 turned hostile to the prosecution
case. In such circumstance, no credence can be attached to the
evidence of PWs.1, 11 to 13. He also contended that, the
prosecution failed to prove the recovery of M.O.3-knife and
M.O.4-motorbike of accused under Ex.P5 mahazar since PW.4
the witness for Ex.P5 turned hostile to the prosecution case. He
also contended that though PW.1 shifted the deceased to the
Hospital, there was no blood stain on his clothes and the same
were not recovered by the Police. The Investigation Officer also
failed to recover the clothes of accused allegedly worn at the
time of incident. Additionally, he contended that the
prosecution miserably failed to prove the motive for the alleged
CRL.A No.100108 OF 2024
incident. The accused No.1 had no ill-will against the deceased
to commit his murder. Per contra, it is the case of prosecution
that accused No.3 nursed ill-will against PW.1 and his brothers,
but no evidence available on record that accused No.3 hatched
conspiracy with this appellant to commit the murder of
deceased. He contended, on the same evidence the learned
Sessions Judge acquitted accused No.3 from the charges
leveled against him. In such circumstance, conviction against
this appellant cannot be sustained. Accordingly, he prays to
allow this appeal.
9. Per contra, the learned Addl. SPP for the
respondent-State contended that, judgment under this appeal
neither suffers from perversity nor illegality as the learned
Sessions Judge has meticulously examined the evidence on
record and passed a well-reasoned judgment which does not
call for any interference. He submitted that the evidence of
PWs.1, 11 to 13-the eyewitness to the incident is consistent
and corroborates each other. All these witnesses have
categorically deposed that on the fateful day, this appellant
along with child in conflict with law, came to the spot in a
motorbike and stabbed the deceased and fled away from the
spot. Though, PWs.1 and 11 made an attempt to chase them,
CRL.A No.100108 OF 2024
but they escaped in the motorbike. Further the prosecution also
examined PW.15 i.e., wife of PW.1 to prove the motive for the
alleged incident. According to PW.15, accused No.1 i.e., her
brother was opposing her marriage proposal with PW.1. The
accused No.3 was grinding ill-will against PW.1 and his
brothers. As such, at the instance of accused No.3, accused
No.1 and child in conflict with law murdered her brother-in-law
i.e., the deceased. Further, the weapon used for the
commission of offence was seized by the Investigation Officer
under Ex.P5. In such circumstance, the prosecution proved the
guilt of accused beyond all reasonable doubt. Accordingly, he
prays to dismiss the appeal.
10. Having heard the learned counsel for the respective
parties and also on perusing the entire evidence on record
including the impugned judgment, the following points arise for
our consideration:
1. Whether the judgment under this appeal
suffers from either perversity or illegality?
2. Whether the learned Sessions Judge is
justified in convicting the appellant/accused
No.1 for the offence punishable under
Section 302 of IPC?
CRL.A No.100108 OF 2024
11. In order to prove the homicidal death of deceased,
the prosecution predominantly relied on the evidence of PW.17-
Doctor who conducted the autopsy on the body of deceased
and postmortem report as per Ex.P18. On careful perusal of
Ex.P18, PW.17 opined that the cause of death is due to
'hemorrhage and shock as a result of injuries sustained'. Apart
from that, he stated that all the injuries sustained by the
deceased are ante-mortem in nature. Further, the prosecution
also relied on Ex.P8-inquest panchanama, drawn on the body of
deceased by PW.19-Investigating Officer. PWs.7 and 8 are the
witnesses for the same. Both these witnesses identified the
injuries on the body of deceased. Hence, on a collective reading
of the evidence of PWs.17, 19, 7 and 8 coupled with Exs.P8 and
P18, we are of the view that the prosecution has proved the
homicidal death of deceased. Even otherwise, the defence has
not seriously disputed the homicidal death of the deceased.
12. To connect the accused with the homicidal death of
the deceased, the prosecution significantly relied on the
evidence of PWs.1, 11, 12, 13, 15 and the evidence of PW.19-
Investigating Officer. On a careful examination of the evidence
of these witnesses, PW.1-brother of the deceased set the
criminal law into motion by lodging complaint-Ex.P1 soon after
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CRL.A No.100108 OF 2024
the incident. It is stated in the complaint that on 22.04.2016 at
about 5:30 p.m., the accused No.1 along with the child in
conflict with law stabbed his brother i.e., deceased at Talavara
Oni, Kadasiddeshwara Mutt. Thereafter, he and others shifted
the inured to Hospital, but the Doctor declared him brought
dead. Hence he lodged a complaint. PW.1 has reiterated the
averments of Ex.P1 in his evidence before the Court. He also
stated that accused No.3 was grinding ill-will against him and
his brothers in connection with a quarrel between them prior to
the incident. However, on perusal of cross-examination of PW.1
he has stated that there was no ill-will between accused No.1
and deceased. He also admitted in his cross-examination, at
the time of incident when he saw the deceased, he was sitting
on the ground and he was already stabbed. Thereafter, he and
his brother one Abhilash shifted the deceased to the Hospital.
This evidence of PW.1 is quite contrary to the testimony of
PW.12, who was allegedly playing with the deceased at the
time of incident. According to him, after the incident, one of the
boys who were in the ground informed PW.1 and he came to
the spot and they shifted the deceased to the Hospital. Further
PW.1 also admitted in his cross-examination that the place of
incident i.e., Kadasiddeshwara Mutt is not visible from his
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CRL.A No.100108 OF 2024
house. Further, on perusal of the complaint lodged by PW.1
i.e., Ex.P1, he stated that at the time of incident he was
standing near Kadasiddeshwara Mutt and after hearing the
commotion at Kadasiddeshwara Mutt, he went to the said spot.
Moreover, on perusal of the Inquest Panchanama-Ex.P8, the
column No.4 reveals that PW.1 had seen the deceased finally
when he was alive and shifting him to the Hubballi Hospital in
an auto rickshaw. Hence, on careful analysis of the evidence of
PW.1 along with the evidence of PW.12, there arises a doubt
about the presence of PW.1 at the spot at the time of incident.
13. Further, on perusal of the evidence of other
eyewitness-PWs.11 to 13, the statement of PWs.11, 12 were
recorded on 24.04.2016 i.e., after lapse of two days from the
date of incident. The statement of PW.13 was recorded on
21.06.2016 i.e., after lapse of two months. On perusal of the
evidence of PWs.11 and 12, they only shifted the deceased to
the Hospital along with PW.1 and they were present at the time
of inquest panchanama. Despite that the Police did not record
their statement for a period of 2 days, though they were
eyewitnesses to the incident. PW.11 was allegedly playing with
the deceased at the time of incident. There was no reason why
his statement was recorded belatedly. Hence, their evidence
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CRL.A No.100108 OF 2024
cannot be believed at any stretch of imagination. If PWs.11 to
13 were really present at the scene of occurrence and
witnessed the incident, then the Police left them without
enquiring on the date of incident or at the time of inquest
panchanama. Moreover, in the complaint-Ex.P1, PW.1 has
stated that the incident was witnessed by some persons, but he
did not remember their names. PWs.11 to 13 are close friends
of deceased and PW.1 and according to them on the date of
incident, they and PW.1 distributed the marriage invitation card
of PW.1. Hence, it is impossible to accept that PW.1 forgotten
their names while lodging complaint. This generates doubt
whether PWs.11 to 13 were present at the spot of incident.
14. As rightly contended by the learned counsel for the
appellant, there are material contradictions in the evidence of
PWs.11 to 13 and PW.1 in respect of the incident in question.
There is no explanation offered by the Investigation Officer-
PW.19 for the inordinate delay in recording the statement of
eyewitnessses-PWs.11 to 13 who were present at the time of
drawing inquest panchanama. The Hon'ble Apex Court in the
case of Jafaruddin and Others vs. State of Kerala in
reported in 2022 INSC 464 held that there may be adequate
circumstance for not examining a witness at an appropriate
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CRL.A No.100108 OF 2024
time. However, non examination of witness despite being
available may call for an explanation from the Investigation
Officer. It only causes doubt in the mind of the Court, which is
required to cleared. When witnesses are available for
examination when Investigation Officer visited the scene of
occurrence or soon thereafter, non recording of their statement
may be itself amount to a serious infirmity in the prosecution
case. It may assume such a character if there is concomitant
circumstance to suggest that the investigator was deliberately
marking time with a view to decide about the shape to be given
to the case and the eyewitnesses to be introduced.
15. The Hon'ble Apex court in the case of Darya Singh
v. State of Punjab reported in 1963 SCC OnLine SC 123,
held in paragraph No.6 as under:
"6. There can be no doubt that in a murder
case when evidence is given by near relatives of
the victim and the murder is alleged to have
been committed by the enemy of the family,
criminal courts must examine the evidence of
the interested witnesses, like the relatives of the
victim, very carefully. But a person may be
interested in the victim, being his relation or
otherwise, and may not necessarily be hostile to
the accused. In that case, the fact that the
witness was related to the victim or was his
friend, may not necessarily introduce any
infirmity in his evidence. But where the witness
is a close relation of the victim and is shown to
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CRL.A No.100108 OF 2024
share the victim's hostility to his assailant, that
naturally makes it necessary for the criminal
courts examine the evidence given by such
witness very carefully and scrutinise all the
infirmities in that evidence before deciding to act
upon it. In dealing with such evidence. Courts
naturally begin with the enquiry as to whether
the said witnesses were chance-witnesses or
whether they were really present on the scene of
the offence. If the offence has taken place, as in
the present case, in front of the house of the
victim, the fact that on hearing his shouts, his
relations rushed out of the house cannot be
ruled out as being improbable, and so, the
presence of the three eyewitnesses cannot be
properly characterised as unlikely. If the criminal
court is satisfied that the witness who is related
to the victim was not a chance-witness, then his
evidence has to the examined from the point of
view of probabilities and the account given by
him as to the assault has to be carefully
scrutinised. In doing so, it may be relevant to
remember that though the witness is hostile to
the assailant, it is not likely that he would
deliberately omit to name the real assailant and
substitute in his place the name of the enemy of
the family out of malice. The desire to punish
the victim would be so powerful in his mind that
he would unhesitatingly name the real assailant
and would not think of substituting in his place
the enemy of the family though he was not
concerned with the assault. It is not improbable
that in giving evidence, such a witness may
name the real assailant and may add other
persons out of malice and enmity and that is a
factor which has to be borne in mind in
appreciating the evidence of interested
witnesses. On principle, however, it is difficult to
accept the plea that if a witness is shown to be a
relative of the deceased and it is also shown that
he shared the hostility of the victim towards the
assailant, his evidence can never be accepted
unless it is corroborated on material particulars.
We do not think it would be possible to hold that
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CRL.A No.100108 OF 2024
such witnesses are no better than accomplices
and that their evidence, as a matter of law, must
receive corroboration before it is accepted. That
is not to say that the evidence of such witnesses
should be accepted light-heartedly without very
close and careful examination; and so, we
cannot accept Mr Bhasin's argument that the
High Court committed an error of law in
accepting the evidence of the three eye
witnesses without corroboration."
16. In the instant case, the two independent
eyewitnesses-PWs.10 and 14 have turned hostile to the
prosecution case. It is admitted by PWs.1, 11 to 13 there were
50-60 persons in the ground i.e., at the spot of the offence.
Despite, that the Investigation Officer chose to record the
statement of close friends and relatives of the deceased.
Hence, applying the principles laid down by the Hon'ble Apex
Court in the above judgment to the facts and evidence of this
case, we are of the view that the evidence of PW.1, 11 to 13
was not reliable to prove the charges leveled against the
accused since they were chance witnesses to the incident.
Further, the prosecution also failed to prove the recovery of
M.O.3-knife used by the accused for the commission of offence,
since PW.4-the panch witness for Ex.P5-recovery mahazar
turned hostile to the prosecution case. Further, PW.2-the panch
witness for spot mahazar-Ex.P4 also turned hostile to the
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CRL.A No.100108 OF 2024
prosecution case. Though the prosecution examined PW.15 to
prove the motive for the incident, she is totally a hearsay
witness to the incident. Moreover, according to the prosecution
this appellant i.e., accused No.1 committed the murder of
deceased at the instigation of accused No.3. However, the
prosecution failed to prove the guilt of accused No.3 that he
had conspired with accused No.1 to commit the murder of
deceased. Accordingly, the accused No.3 was acquitted for the
charges leveled against him. The said judgment of acquittal is
not challenged by the State. In such circumstance, as rightly
contended by the learned counsel for the appellant, since
accused No.1 had no ill-will or motive against the deceased, the
prosecution failed to connect this appellant/accused No.1 to the
homicidal death of deceased by placing cogent evidence.
17. Hence, on an overall analysis of the evidence and
the material witnesses, we are of the view that the prosecution
failed to prove the charges leveled against the appellant
beyond reasonable doubt. The Hon'ble Apex Court in the case
of Nagendra Singh and Another vs. State of Madhya
Pradesh and others reported in (2004) 10 SCC 699 held
that, the prosecution has to prove its case beyond reasonable
doubt and there is a difference between place of proof "may
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CRL.A No.100108 OF 2024
be" and "must be". In the case on hand, on careful perusal of
the entire evidence on record, the prosecution has not passed
the test of must prove the charges leveled against the accused.
18. Hence, in view of the above discussion, we are of
the view that interference with the impugned judgment is
warranted. Accordingly, we answer the point No.1 raised above
in the 'affirmative' and point No.2 in the 'negative' and proceed
to pass the following.
ORDER
i. The Criminal Appeal No.100108/2024 is
hereby allowed.
ii. The judgment of conviction dated 13.01.2021
and order of sentence dated 16.01.2021
passed in S.C.No.67/2017 by the I Addl.
District and Sessions Judge, Dharwad, Sitting
at Hubballi is set-aside.
iii. The appellant/accused No.1 is acquitted for
the offence punishable under Section 302 of
IPC.
iv. The fine amount, if any, paid by the accused
shall be refunded to him.
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CRL.A No.100108 OF 2024
v. The concerned Jail Authority is directed to
release the appellant/accused No.1, if he is
not required in any other case.
vi. Registry is directed to communicate the
operative portion of the judgment to the
concerned Jail Authority, forthwith.
SD/-
(R.NATARAJ)
JUDGE
SD/-
(RAJESH RAI K)
JUDGE
HKV
CT:PA
