Dharma R @ Dalu vs State Of Karnataka
2025 Latest Caselaw 5310 Kant

Karnataka High Court

Dharma R @ Dalu vs State Of Karnataka on 21 March, 2025

                         -1-




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF MARCH, 2025

                      PRESENT

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

                        AND

        THE HON'BLE MR. JUSTICE K. V. ARAVIND

           CRIMINAL APPEAL No. 1559/2023

                        C/W

           CRIMINAL APPEAL No. 1940/2023

IN CRL.A No.1559/2023

BETWEEN:

1 . MANOJ M @ MANU,
    S/O MUNIRAJ,
    AGED ABOUT 19 YEARS,
    R/AT No. 16, MUNISWAMAPPA ROAD,
    NEAR USHA CLINIC, R. S. PALYA,
    BENGALURU - 560 033.

   (NOW IS IN JUDICIAL CUSTODY
   CENTRAL PRISON, BANGALORE)
                                        ...APPELLANT

(BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
SRI KARIAPPA N. A., ADVOCATE)

AND:

1 . STATE OF KARNATAKA,
    BANASWADI POLICE STATION,
    BANGALORE - 560043.
                           -2-




   (REPRESENTED BY LEARNED
   STATE PUBLIC PROSECUTOR
   HIGH COURT OF KARNATAKA,
   BANGALORE- 560001)
                                         ...RESPONDENT

(BY SRI VIJAYKUMAR MAJAGE, SPP-II)

     THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.PC BY THE ADVOCATE FOR THE APPELLANT PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 28.06.2023 AND SENTENCE DATED 10.07.2023
PASSED BY THE LX ADDL.CITY CIVIL AND SESSIONS JUDGE,
BENGALURU    IN   S.C.No.1335/2018,   CONVICTING   THE
APPELLANT/ACCUSED No.1 FOR THE OFFENCE P/U/S 302
R/W 34 OF IPC.


IN CRL.A No.1940/2023

BETWEEN:

1 . DHARMA R @ DALU,
    S/O RAJA,
    AGED ABOUT 19 YEARS,
    R/AT No.4/1,
    C/O RENTED HOUSE OF CHETTI,
    1ST CROSS, ITC ROAD,
    R. S. PALYA, KAMMANAHALLI,
    BENGALURU-560033.

   NOW IS IN JUDICIAL CUSTODY,
   CENTRAL PRISON, BANGALORE
                                          ...APPELLANT

(BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
SRI KARIAPPA N. A., ADVOCATE)
                           -3-




AND:

1 . STATE OF KARNATAKA,
    BANASWADI POLICE STATION,
    BANGALORE-560043.

   REPRESENTED BY LEARNED
   STATE PUBLIC PROSECUTOR,
   HIGH COURT OF KARNATAKA,
   BANGALORE 560001.
                                          ...RESPONDENT

(BY SRI VIJAYKUMAR MAJAGE, SPP-II)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.PC BY THE ADVOCATE FOR THE APPELLANT
PRAYING TO SET ASIDE THE JUDGEMENT DATED 28.06.2023
IN S.C.No.1335/2018 BY THE COURT OF THE HON'BLE LX
ADDITIONAL     CITY   CIVIL     AND   SESSIONS      JUDGE,
BANGALORE CITY AND CONSEQUENTLY ACQUIT HIM FROM
THE ALLEGED CHARGES AND HE MAY BE SET AT LIBERTY,
CONVICTING THE APPELLANT / ACCUSED No.3, FOR THE
OFFENCE U/S 302 OF IPC.


    DATE ON WHICH THE APPEALS
       WERE RESERVED FOR
                                       27.01.2025
            JUDGMENT

DATE ON WHICH THE JUDGMENT WAS PRONOUNCED 21.03.2025

THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS PRONOUNCED AS UNDER:

CORAM: HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR and HON'BLE MR. JUSTICE K. V. ARAVIND

C.A.V. JUDGMENT

(PER: HON'BLE MR. JUSTICE K. V. ARAVIND)

Accused Nos.1 & 3 in S.C.No.1335/2018 are in

appeal against the judgment of conviction and order on

sentence dated 28.06.2023 passed by the LX Additional

City Civil & Sessions Judge, Bangalore. Accused Nos.1 &

3 are convicted for offences punishable under Section 302

read with Section 34 of Indian Penal Code, 1860(for short

'IPC') and sentenced to undergo rigorous imprisonment for

life besides fine of Rs.15,000/- each and in default of

payment of fine, to undergo imprisonment for six months.

Further, accused Nos.1 & 3 are directed to pay

Rs.25,000/- each to kith and kin of the deceased.

2. Crl.A.No.1559/2023 is by Accused No.1, while

Crl.A.No.1940/2023 is filed by Accused No.3. Though

separate appeals have been filed, common arguments

were advanced, and a common paper book was referred

to. Hence, both appeals were heard together and are

disposed of by a common judgment.

3. The case of the prosecution is that the deceased,

Sanjay Tamang, was employed at Delicious Momos

Restaurant, owned by P.W.1, who had also provided

accommodation to his hotel workers near Kammanahalli

Church. On 06.10.2017, the restaurant was closed at

11:00 P.M. On 07.10.2017, at 01:55 A.M., hotel worker

Sabin attempted to contact P.W.1, but the call went

unanswered. P.W.1 returned the call at 02:15 A.M., and

Sabin informed him that Sanjay Tamang had not returned

to the room. P.W.1 instructed Sabin and other roommates

to check the hotel premises. Upon inspection, it was

confirmed that Sanjay Tamang was not present at the

hotel, and P.W.1 was accordingly informed. P.W.1 arrived

at the hotel at 02:40 A.M. and observed bloodstains on the

road near the hotel. He then noticed that Sanjay Tamang

was lying unconscious on the road with injuries. P.W.1

attempted to shift him to the hospital; however, he

succumbed to his injuries. The death was reported to the

police station, and an FIR was registered.

4. Further, during the course of the investigation

conducted by the Hennur Police in Crime No. 430/2017,

the accused disclosed their involvement in the murder of

Sanjay Tamang, which had been registered with the

Banaswadi Police in Crime No. 561/2017. The prosecution

also recovered the weapon allegedly used in the

commission of the offence.

5. The trial court, based on the evidence of P.W.2, who

testified to having witnessed Accused Nos. 1 to 3 inflicting

fatal injuries on the deceased while attempting to commit

robbery and murder, held that the accused had committed

an offence punishable under Section 302 of the IPC and

sentenced them to undergo rigorous imprisonment for life.

6. Heard Hashmath Pasha, learned Senior Counsel

appearing for the appellants-accused and Shri Vijaykumar

Majage, learned SPP-II for the respondent-State.

7. Shri Hashmath Pasha, learned Senior Counsel made

the following submissions:

(i) P.W.1 filed a complaint as per Ex.P1, which was

received at 3:30 A.M. on 07.10.2017. According to the

evidence of P.W.2, the incident occurred between 12:00 to

12:30 A.M. on 06.10.2017. The FIR was registered on

07.10.2017 at 3:30 A.M. and was sent to the Magistrate at

4:30 A.M. The inquest mahazar, as per Ex.P30, was

drawn on 07.10.2017 between 8:30 A.M. and 10:30 A.M.,

recording the presence of the dead body. It is further

noted that the dead body would be sent for post-mortem

examination to Ambedkar Medical College through P.C.

7086 with Form No. 146(1)(ii) after 10:30 A.M. on

07.10.2017. However, the unidentified dead body was

sent to the mortuary at Ambedkar Medical College at 4:45

A.M. by the Police Inspector of Banasawadi Police Station.

(ii) P.W.2 was considered as an eyewitness to the crime.

However, his statement was not recorded on the date of

the incident. If P.W.2 had been present at the crime

scene, he would have witnessed the inquest mahazar.

(iii) The deceased was found wearing a hotel uniform.

It is likely that the incident occurred inside the hotel and

the body was later placed on the road.

(iv) The knife, allegedly used in the commission of the

crime, was recovered. However, no bloodstains were found

on it.

(v) Exs.P3 to P5 are photographs of the deceased.

However, these photographs were taken in the hospital

mortuary and not at the crime scene.

(vi) There is no requisition on record to establish the

shifting of the dead body after the preparation of the

inquest mahazar (Ex.P30). If the letter at page 59 of the

record bearing an acknowledgment issued by Ambedkar

Medical College for the preservation of the dead body in

the mortuary is to be treated as a requisition, certain

discrepancies arise as Ex.P30 records the name and age of

the deceased, whereas the letter at page 59 does not

mention the name. Furthermore, the age appears to

have been left blank initially and filled in later.

Additionally, while Ex.P30 records that the dead body was

sent to Ambedkar Medical College through P.C. 7086, the

relevant portion in the document at page 59 has been left

blank.

(vii) P.W.1 has admitted that the hotel was equipped with

CCTV surveillance and a biometric attendance system.

However, the police did not examine the CCTV recordings

or biometric data. These records could have provided

crucial evidence regarding the true facts of the case. The

CCTV recording was seized by the police. The deceased,

who was employed by P.W.1, was found dead while still

wearing the hotel uniform. By not producing this critical

evidence, Investigating Officer has withheld the best

available proof. Therefore, an adverse inference is to be

drawn against him.

(viii) P.W.1 stated that he received a call from his

employee at 1:55 A.M. on 07.10.2017, which he missed,

and that upon calling back, he was informed that Sanjay

Tamang had not returned to the room. However, to

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substantiate this claim, the mobile phone of P.W.1 and

call details were not recovered.

(ix) Ex.P2, the spot mahazar, records the presence of the

dead body and bloodstains on the road. It further records

the position of the dead body as found and the injuries

sustained. Additionally, it evidences that the body was

sent to Ambedkar Medical College for autopsy along with

the necessary authorization. The time of recording the

mahazar is noted as between 4:30 A.M. and 6:00 A.M.

However, there is an alteration in the recorded timing in

Ex.P2.

(x) The test identification parade was conducted by

P.W.7. However, all three accused were presented

together instead of being shown separately, as required.

Furthermore, the accused were exposed prior to the

conduct of the test identification parade, which is contrary

to the prescribed procedure.

(xi) Ex.P28 is the spot sketch, wherein only the location

is marked. However, the position of the dead body has not

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been indicated in the sketch, thereby failing to establish

the presence of the dead body at the scene.

(xii) P.W.2 stated that he witnessed the incident on

06.10.2017 at 12:00 to 12:30 A.M. As per his evidence,

he remained at the spot until the Hoysala Police arrived.

However, this statement contradicts the evidence of

P.W.1.

(xiii) The time gap between the incident and P.W.2

returning back to the crime scene has not been explained.

This omission raises doubt regarding testimony of P.W.2.

(xiv) The evidence of P.W.2 mentions the presence of the

Hoysala Police and the ambulance at the scene. However,

neither the Hoysala Police personnel nor the ambulance

staff was examined. Furthermore, P.W.2 stated that

Mr. Prashanth was present with him at the scene. The

examination of Mr. Prashanth is essential to corroborate

the testimony of P.W.2. Mr. Prashanth is not examined by

prosecution.

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(xv) The incident was reported on 07.10.2017, whereas

the accused were connected to the crime in December

2017, resulting in a delay of about two months. The

prosecution has not offered any explanation regarding the

investigation carried during this period in relation to the

alleged death of Sanjay Tamang.

8. Shri Vijayakumar Majage, learned SPP-II for the

respondent-State made the following submissions:

(i) The letter dated 17.10.2017 at page 59 of the record

is not authentic and hence, cannot be considered.

(ii) The complaint was received as per Ex.P1 at 3:30

A.M. on 07.10.2017. The FIR was registered and

forwarded to the Magistrate by 6:00 A.M. The FIR

explicitly records P.W.2 as an eyewitness to the crime.

Hence, there is no delay in the registration of the FIR.

(iii) In the inquest mahazar (Ex.P30), P.W.2 has been

recorded as an eyewitness; however, he was not made a

witness to the inquest proceedings.

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(iv) P.W.2 identified the accused in the test identification

parade and his testimony remained consistent during

cross-examination.

(v) The evidence of P.W.2 establishes the presence of

Prashanth at the scene, making him an eyewitness to the

incident. However, the prosecution has not examined

Prashanth. This omission is not of significant consequence,

as one eyewitness has been examined.

(vi) The rough sketch (Ex.P28) was prepared to identify

the location of the incident. The marking of the dead

position of dead body in the sketch is not a legal necessity.

Any procedural lapses in the investigation cannot be

construed to the advantage of the accused.

9. We have considered the submissions of learned

Counsel on both sides and perused the record.

10. The entire controversy centers around the death of

Sanjay Tamang. The evidence presented by the

prosecution is inconsistent regarding both the cause of

death and the identity of the perpetrator. However, the

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fact that the deceased Sanjay Tamang suffered a

homicidal death remains undisputed. Ex.P17, the

post-mortem report, confirms the presence of injuries on

the body. The injuries are certified as ante-mortem, fresh,

and homicidal in nature. The report further states that the

injuries were inflicted using a double-edged sharp weapon,

such as a knife, along with a fairly heavy blunt object. The

cause of death is certified as due to shock and hemorrhage

resulting from the homicidal injuries sustained. In light of

the above, the prosecution has successfully established

that the death of Sanjay Tamang was homicidal.

11. The accused are linked to the crime based on their

voluntary statements and the testimony of P.W.2.

However, the voluntary statements of the accused are

inadmissible as evidence, except to the extent permitted

under Section 27 of the Indian Evidence Act, 1872.

Therefore, the evidence of P.W.2 must be evaluated to

determine whether it sufficiently establishes the

involvement of accused in the crime as alleged by the

prosecution.

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12. The prosecution has examined P.W.2 as an

eyewitness to the incident. P.W.2 stated that he witnessed

two individuals assaulting the deceased while a third

person was holding a motorcycle. He observed this

incident while returning from Sherlock Hotel with his friend

Prashanth on 06.10.2017 at approximately 12:00 to

12.30 A.M. P.W.2 further deposed that he chased the

three individuals on his Honda Activa for about 200

meters. He stated that one of the accused was using a

stone and another was wielding a knife to attack the

deceased. After an unsuccessful chase, he returned to the

spot and found the deceased was bleeding from injuries

sustained on his stomach and head. While attempting to

contact the Hoysala police and an ambulance, the Hoysala

police arrived at the scene. Subsequently, other

individuals gathered at the spot and informed him that the

deceased was a worker at Delicious Momos. The body was

then shifted in a 108 ambulance. His statement was

recorded by the police the following day. He identified the

accused in the test identification parade conducted at

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Parappana Agrahara Central Prison on 19.01.2018. He

admitted his signature on Ex.P11 and further identified the

accused in open court.

13. The presence of P.W.2 at the crime scene is seriously

disputed by the defence. P.W.2 has admitted that he

approached the scene from behind the assailants but later

turned and saw them. This raises doubts regarding his

presence and his claim of witnessing the incident more

particularly the identity of accused. P.W.2 has stated that

he saw the accused by turning back while he was riding

his motor cycle between 12.30 A.M. to 1.00 A.M. i.e., in

the midnight. The prosecution has led evidence to prove

that there was no power cut of electricity supply in the

area of crime scene during the alleged time of incident.

However, there is no evidence to prove that there was

sufficient light to enable PW.2 to clearly see and

remember the face of the accused. In the absence of

evidence to prove any possible error in P.W.2 seeing the

accused, the reliability of evidence of P.W.2 would be

doubtful. Furthermore, there are contradictions in

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narration of the incident by PW.2 when compared to the

evidence of P.W.1. According to P.W.2, another individual,

his friend Prashanth, was also an eyewitness to the

incident. However, the prosecution has not examined

Prashanth as a witness. Having regard to the

inconsistencies in testimony of PW.2, the non-examination

of Prashanth assumes considerable significance, as his

testimony could have corroborated or contradicted the

version of P.W.2.

14. Ex.P1 is the complaint lodged by P.W.1, who is the

employer of the deceased. P.W.1 arrived at the crime

scene at approximately 2:40 a.m., where P.W.2 informed

him that three unidentified individuals had stabbed injured

Sanjay Tamang using a knife and stones. According to

P.W.2, the incident took place between 12:30 a.m. and

1:00 a.m., and he left the scene at around 1:45 a.m.

However, P.W.2 has not explained how he came to know

that the deceased was an employee of Delicious Momos.

P.W.1, the employer of deceased, reached the crime scene

at approximately 2:40 a.m. and, in his complaint (Ex.P1),

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stated that P.W.2 had informed him that the deceased was

assaulted and stabbed by three unidentified individuals.

The prosecution failed to clarify how P.W.2 could provide

this information regarding the assailants to P.W.1 when

P.W.2 had already left the crime scene before P.W.1

arrived. This inconsistency casts doubt on the version of

events as explained by prosecution and the credibility of

P.W.2 testimony.

15. The discrepancy in the evidence of P.Ws.1 and 2

assumes much significance as not corroborated with other

evidence. Ex.P30, the inquest mahazar, was drawn

between 8:30 a.m. and 10:30 a.m. on 07.10.2017.

Column No.3 of Ex.P30 records that P.W.1, along with

P.W.2, was the first to notice the dead body at

approximately 2:30 a.m. Additionally, Column No.10 of

Ex.P30 records the presence of P.W.2 and his narration of

the incident. However, two significant omissions are

noticeable. Firstly, when P.W.2 claims to have left the

crime scene at 1:45 a.m., the prosecution has not

explained how his presence was secured while drawing the

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inquest mahazar. Secondly, if Ex.P30 was prepared in the

presence of P.W.2, he has not been made a witness to the

document. These discrepancies raise serious doubts about

the actual presence of P.W.2 at the crime scene.

16. Furthermore, P.W.2 stated that he was 10 to 15 feet

away from the scene of the incident and observed the

assailants from behind. He further deposed that the

motorcycle used by the accused was a Dio scooter;

however, he did not mention its color. During the trial, he

identified the bike through Ex.P12, a photograph. Despite

claiming to have chased the accused for over 200 meters,

he failed to note the vehicle registration number and

colour. This inconsistency further weakens the case of

prosecution and casts doubt on the reliability of the

testimony of PW.2.

17. Ex.P2, the spot mahazar, was prepared between

4:30 a.m. and 6:00 a.m. on 07.10.2017, recording the

position of the dead body, the description of the deceased

clothing and the injuries found on the body. According to

Ex.P2, the mahazar was conducted with the assistance of

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streetlights and emergency lights. The prosecution has

produced spot photographs under Ex.P5; however, these

photographs appear to have been taken during day time in

natural sun light and without any markings and blood

stains. Notably, Ex.P2 is silent regarding the taking of

photographs at the scene during the mahazar. There is no

explanation as to why it was practically difficult to capture

photographs at the spot. A significant omission is that the

photographs of the deceased body, marked as Exs.P3, P4,

and P5, were taken in the hospital mortuary. In the

absence of any evidence establishing the presence of the

dead body at the alleged crime scene, the case of

prosecution that the deceased was killed at a specific

location is not free from doubt. Furthermore, the

prosecution has not provided any explanation as to why

photographs were not taken before the dead body was

shifted.

18. The credibility of Ex.P2 is further questioned by the

contents of the document at page 59 of the records, which

state that the unidentified dead body, in reference to

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Crime No.561/2017, was kept in the mortuary at

Ambedkar Medical College at 4:45 a.m. on 07.10.2017.

Ex.P2 was prepared in the presence of P.W.1, an employee

of the deceased. If the details in Ex.P2 were to be

considered reliable, then the document at page 59 should

have recorded the name of the deceased. Additionally,

the age of the unidentified dead body in the document at

page 59 was initially left blank and later filled in, whereas

Ex.P2 records the age of deceased as 35 years. Moreover,

the time recorded in Ex.P2 appears to have been inserted

later, as it is evident from the different handwriting and

ink used. These discrepancies raise serious doubts

regarding the prosecution case.

19. The prosecution relies on the testimony of P.W.1 as

material evidence. P.W.1 stated that the hotel operated

between 10:30 a.m. and 11:00 p.m. On 07.10.2017, he

received a call from his worker at 1:55 a.m., which he did

not attend. Later, he returned the call at 2:15 a.m. and

was informed that one of his workers, Sanjay Tamang,

had not returned to his room. He then instructed his other

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workers to search for Sanjay Tamang in the hotel. Upon

being informed that he was not found, P.W.1 reached the

hotel at approximately 2:40 a.m. Upon his arrival, he

noticed bloodstains on the road and found Sanjay Tamang

lying with severe injuries just a short distance away from

the hotel. However, the testimony of P.W.1 version raises

doubts regarding its credibility. According to him, before

his arrival, his workers had already searched for the

deceased at the hotel. It is highly improbable that the

workers failed to notice the bloodstains and the injured

body, yet P.W.1 was able to locate them upon his arrival.

This discrepancy raises doubt on his testimony.

Furthermore, P.W.2 has deposed that he saw the accused

assaulting the deceased, following which Hoysala Police

arrived at the spot, and the deceased was shifted to the

hospital in a 108 Ambulance. P.W.2 also stated that he

left the crime scene at 1:45 a.m. The prosecution primarily

relies on the testimonies of P.Ws.1 and 2, yet their

statements are inconsistent and contradictory. The alleged

meeting between P.Ws.1 and 2 and their exchange of

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information, as projected by the prosecution, appears to

be doubtful and improbable.

20. P.W.1 deposed that he locked the hotel at 11:00

p.m. when Sanjay Tamang and other co-workers left the

premises. He further stated that he later instructed the

workers to search for Sanjay Tamang inside the hotel.

However, there is no evidence to corroborate the

testimony of PW.1. In the absence of any evidence

adduced by the prosecution regarding how the hotel was

reopened to facilitate the search for the deceased, this

aspect of the testimony remains improbable and

unconvincing.

21. P.W.1 stated that his hotel was equipped with

biometric attendance and CCTV cameras. The DVR of the

CCTV camera was seized by the police. The CCTV footage

would have corroborated the version of P.W.1 that the

deceased left the hotel along with other co-workers at

11:00 p.m. on 06.10.2017. This footage would have been

a crucial and valuable piece of evidence to support the

prosecution. However, the prosecution has not produced

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or relied upon the CCTV footage, raising doubts about the

completeness of the investigation and reliability of the

version of the prosecution.

22. Furthermore, the testimony of P.W.10 contradicts

that of P.W.1 regarding the presence of CCTV footage.

While P.W.10 deposed that no CCTV cameras were found

near the crime scene, P.W.1 admitted that the DVR

containing CCTV footage from Delicious Momos, a hotel

owned by him, was seized by the police. Notably, the

prosecution failed to record any mahazar documenting the

seizure of the CCTV footage. Despite admission of PW.1

regarding the DVR, the prosecution has not provided any

further clarification on this aspect. This omission gives rise

to an adverse inference that the CCTV footage obtained

from the hotel premises has been withheld from the Court.

23. The Hon'ble Supreme Court in the case of Tomaso

Bruno and another v. State of U.P., (2015) 7 SCC

178 held as,

26. The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all

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records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.

.....

28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 CrPC and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW 1, PW 12 and PW 13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."

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24. The evidence of P.W.1 indicates that he was informed

by Sabin Pujari that Sanjay Tamang had not reached his

room. However, the prosecution has not examined Sabin

Pujari as a witness. Furthermore, the mobile phone used

by P.W.1 to receive and make calls to Sabin Pujari has not

been examined, nor have the call detail records been

produced. This evidence would have been crucial in

corroborating the version of P.W.1 and supporting the

prosecution. Additionally, P.W.1 has stated that the

deceased left the hotel at 11:00 p.m. on 06.10.2017 along

with other co-workers. Despite this, the prosecution has

not examined any co-worker to corroborate evidence of

PW.1. Their testimony would have been vital, particularly

since the deceased was found wearing the hotel apron.

Ordinarily, a worker would remove the apron upon leaving

the hotel unless there was a specific reason to retain it.

The prosecution or PW.1 has not explained why the

deceased was still wearing the apron at the time of his

death as it was after closure of Hotel. This omission raises

serious doubts regarding the testimony of P.Ws.1 and 2,

as well as the overall case of the prosecution.

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25. P.W.10 is the Investigating Officer who explains the

course of the investigation and the process of gathering

evidence. He has deposed that he visited the crime scene

at 4:00 a.m. and found P.W.2 present at the spot. He

observed that the crime scene was bloodstained and that

the dead body was still at the location. He further stated

that photographs of the dead body were taken at the

crime scene, which was marked as Ex.P3 to Ex.P5, before

the body was shifted to Ambedkar Medical College. He also

stated that an inquest mahazar was conducted on

07.10.2017 and that Ex.P2 was prepared at the crime

scene in the presence of P.W.2. However, the evidence of

P.W.10 is inconsistent and contradictory. According to his

testimony, the dead body was present at the crime scene,

and photographs were taken there. However, Ex.P3,

Ex.P4, and Ex.P5 depict the dead body placed on a

stretcher in the hospital, rather than at the alleged crime

scene. Furthermore, the second photograph, marked as

Ex.P5, is produced to establish the crime scene. A

comparison of Ex.P2, testimony of PW10, and Ex.P5

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discredits his version, as there are no visible bloodstains in

Ex.P5, despite his claim that the crime scene was blood

stained. Additionally, P.W.10 stated that the description of

the accused was provided by P.W.2 and that P.W.2 was

present when he visited the crime scene at 4:00 a.m.

However, this contradicts the evidence of P.W.2, who

categorically stated that he left the crime scene at 1:45

a.m. This contradiction raises doubts about the reliability

of P.W.10 testimony. P.W.10 further deposed that after

Ex.P2 was drawn, the dead body was shifted to Ambedkar

Medical College along with Form 145 (Ex.P31). However,

Ex.P31 is not the requisition as claimed by P.W.10. The

document at Page No.59 of the record contradicts his

statement, as it proves that an unidentified dead body was

kept in the mortuary at Ambedkar Medical College at 4:45

a.m. on 07.10.2017. The prosecution has not provided any

explanation regarding this document, further weakening

the credibility of the testimony of PW.10. These

inconsistencies and contradictions raise serious doubts

regarding the acceptability of the evidence of P.W.10 and

the overall case presented by the prosecution.

- 29 -

26. Ex.P2 is the spot mahazar, witnessed by P.W.1.

However, P.W.1 has admitted that Ex.P2 was prepared at

the police station. Ex.P2 records the presence of the dead

body at the crime scene, along with its position and the

nature of injuries observed. In light of admission of PW.1,

Ex.P2 cannot be given significant evidentiary value.

27. The prosecution conducted test identification parade

of the accused by P.W.2. The test identification parade

report, Ex.P11, is one of the pieces of circumstantial

evidence relied upon by the prosecution. However, Ex.P11

suffers from irregularities, the nature of which cannot be

ignored. The statement of the accused was recorded on

06.12.2017, following which they were taken to the crime

scene for the recovery of the knife, as per Ex.P13. The

evidence of P.W.1 further indicates that the accused were

taken to the crime scene on 24.12.2017, where they

allegedly confessed to committing the murder of Sanjay

Tamang. However, the test identification parade was

conducted much later, on 19.01.2018, raising doubts

about its reliability.

- 30 -

28. The Hon'ble Supreme Court in the case of Gireesan

Nair and others v. State of Kerala reported in (2023)

1 SCC 180 has laid down the parameters to evaluate the

evidence of test identification parade. Paragraph No.31

reads as,

31. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. [Lal Singh v. State of U.P., (2003) 12 SCC 554] and Suryamoorthi v. Govindaswamy, (1989) 3 SCC

24.

29. In the present case, the test identification parade

was conducted one month after the arrest of the accused.

During this period, the accused were taken to the crime

scene. The evidence of P.W.1 clearly establishes that the

- 31 -

accused were exposed to the public well before the test

identification parade. Under such circumstances, the

possibility of P.W.2 having seen the accused prior to the

parade cannot be ruled out. This assumes importance in

light of the testimony of P.W.2, who is the sole eyewitness

examined by the prosecution. Notably, P.W.2 did not

provide any description of the accused. Given these

omissions and contradictions, the test identification parade

cannot be relied upon to establish the guilt of the accused

beyond reasonable doubt.

30. M.O.3 and M.O.8 are the objects allegedly used to

inflict injuries on the deceased. M.O.3 is a stone, and

M.O.8 is a knife. The FSL report (Ex.P51) records the

presence of B-group human blood on M.O.3. However, no

bloodstains were found on M.O.8.The post-mortem report

(Ex.P17) certifies that the cause of death was due to shock

and hemorrhage resulting from homicidal injuries

sustained by the deceased. The report further states that

the injuries could have been caused by a sharp, double-

edged weapon like a knife and a fairly heavy blunt

- 32 -

weapon. While Ex.P17 and Ex.P51 establish the homicidal

nature of the death, they do not conclusively link the

accused to the crime.

31. Ex.P1, the complaint lodged by P.W.1, identifies the

vehicle involved as a white Honda Dio. P.W.1 has

consistently maintained in his evidence that the vehicle in

question was a white Honda Dio. The source of this

information, as stated by P.W.1, is P.W.2.The prosecution

has examined P.W.2 as an eyewitness. However, P.W.2

identified the vehicle as a black and orange Honda Dio.

Ex.P12, which is a photograph of the vehicle, confirms that

the vehicle is indeed a black and orange Honda Dio.

Furthermore, Ex.P20, the requisition sent to the Tahsildar

to conduct a test identification parade dated 11.01.2018,

also refers to a white Honda Dio. The prosecution has not

produced the registration details of the vehicle. When the

evidence of P.Ws.1 and 2 is considered alongside Ex.P20,

Ex.P12, and Ex.P53, the involvement of the vehicle in the

alleged incident becomes doubtful. Ex.P53 is the list of

- 33 -

properties sent to the Magistrate in Crime No.103/2017 by

Hennur Police.

32. The motive for causing death of deceased as

narrated by the prosecution is the robbery. Though

prosecution alleged robbery as motive to the crime, no

articles are recovered from the accused. There is no

attempt by the prosecution to explain the articles robbed

by the accused. It is not the case of prosecution that the

deceased and accused were known to each other and

there exists an enmity between them. Even, this

possibility to consider as motive to cause death of the

deceased is not possible to be viewed. In that view, the

prosecution has failed to prove any motive that exists to

cause death of deceased by the accused.

33. The trial court accepted the testimony of the

eyewitness, P.W.2, in identifying the accused as the

persons who assaulted the deceased. M.O.8 was accepted

as the weapon used to inflict injuries on Sanjay Tamang

based on the evidence of P.W.2. The presence of P.W.2 at

the scene of the crime, as well as the use of a Honda Dio

- 34 -

scooter by the accused with the alleged intention to

commit robbery against Sanjay Tamang, was also

accepted by the trial court.

34. Upon analyzing the corroboration of testimonies of

P.Ws.1, 2 and 10, along with the documentary evidence,

including Exs.P1, P2, the document at page No.59 of the

record, Ex.P20, and Ex.P12, it is evident that the

prosecution has failed to establish the offence committed

by the accused beyond reasonable doubt. While the

recovery of M.O.8 may raise some suspicion, mere

suspicion or doubt is insufficient to sustain a conviction.

Any doubt arising from the evidence presented by the

prosecution must be resolved in favour of the accused. In

light of the above discussion, the prosecution has failed to

prove that the accused committed the murder of the

deceased, Sanjay Tamang. The findings recorded by the

trial court is contrary to the evidence on record and is,

therefore, unsustainable.

- 35 -

35. Accordingly, the following,

ORDER

(i) Crl.A.No.1559/2023 filed by accused No.1 and

Crl.A.No.1940/2023 filed by accused No.3 are

allowed;

(ii) The judgment of conviction and order of

sentence dated 28.06.2023 passed by the

LX Additional City Civil & Sessions Judge,

Bengaluru City, in S.C.No.1335/2018 is set

aside;

(iii) Accused Nos.1 & 3 are hereby acquitted of the

charges leveled against them for the offence

punishable under Section 302 read with Section

34 of IPC.

(iv) The 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.1 forthwith, if he is

not required in any other cases.

- 36 -

(v) The bail and surety bond executed by the

accused No.3 is hereby cancelled.

(vi) If the accused have deposited the fine amount

before the trial Court, the same shall be

refunded to them on proper identification.

(vii) Registry is directed to send back the trial court

records with a copy of this judgment.

Sd/-

(SREENIVAS HARISH KUMAR) JUDGE

Sd/-

(K. V. ARAVIND) JUDGE

Yn/vbs