[Cites 8, Cited by 0]

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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                                                   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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                                         CRL.A No. 978 of 2025


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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

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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

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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

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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

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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

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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

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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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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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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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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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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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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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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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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