[Cites 7, Cited by 0]
Karnataka High Court
Abubakkar @Monu vs The State on 2 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 1919 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND 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.1919 OF 2018
BETWEEN:
1. ABUBAKKAR @ MONU
S/O LATE ADAM K.,
AGED ABOUT 41 YEARS
RESIDING AT MARIYAMMA MANZIL
KUDLOOR, RAMANAGARA
HIREBANDADI VILLAGE
PUTTUR TALUK
D.K.DISTRICT-574 201.
...APPELLANT
Digitally signed
by DEVIKA M (BY SRI. S.RAJASHEKAR, ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE STATE
BY UPPINANGADY POLICE STATION
REPRESENTED BY S.P.P.
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
...RESPONDENT
(BY SMT. RASHMI PATEL, HCGP)
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CRL.A No. 1919 of 2018
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND JUDGMENT DATED 27.09.2018 PASSED BY
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU, SITTING AT PUTTUR, D.K. IN S.C.NO.5006/2017
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THIS 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)
1. Heard the learned counsel for the appellant and
also the learned High Court Government Pleader appearing
for respondent-State.
2. This appeal is filed against the judgment of
conviction and sentence for the offence punishable under
Section 302 of Indian Penal Code and imposing rigorous
imprisonment for life and also to pay fine of Rs.10,000/-
and accused is also entitled for benefit under Section 428
of Cr.PC.
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3. The factual matrix of case of prosecution before
the Trial Court that on 14.01.2017 at about 11 a.m., in the
vegetable shop of Adam.K near old bus stand of
Uppinangady Village of Puttur Taluk, the accused abused
the said Adam in a filthy language (¨ÉêÀ¹ð ªÀÄÄzÀÄPÀ £Á£ÀÄ
eÁUÀªÀ£ÀÄß ©lÄÖ ºÉÆÃUÀĪÀÅ¢®è). When the said Adam objected the
accused for doing business in the said shop, assaulted on
the head of Adam with iron rod with an intention to
murder him, as a result, he sustained injuries and
immediately he was shifted to the hospital and ultimately
succumbed to the injuries on 16.01.2017. It is the case of
the prosecution that while carrying the injured Adam in
the jeep to the Hospital at Mangalore, the accused
threatened the life of P.W.1 to state before the Doctor at
Mangalore as his father fell down from the tree and hence,
invoked the offence punishable under Section 504, 506
and 302 of IPC. The Police have registered the case based
on the complaint of Ex.P.1 and investigated the matter
and filed the charge sheet.
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4. The prosecution in order to prove the case,
examined P.W.1 to P.W.23 and also marked Ex.P.1 to
Ex.P.32 and also MO.1 to MO.6 are marked. The
defendants have not lead any evidence or marked any
documents. The Trial court having considered both oral
and documentary evidence available on record, answered
the issue with regard to the point No.1 and 3 that is abuse
made against the deceased as well as causing of threat to
the P.W.1 and answered as negative. However, answered
the point No.2 as affirmative in coming to the conclusion
that the prosecution has proved the case against the
accused and particularly in paragraph No.34 comes to the
conclusion that the accused enraged assaulted on the
head of his father with iron rod, as a result he sustained
injuries and later he died and thereby he committed the
murder of his father. In other words, the prosecution has
proved beyond reasonable doubt that accused has
committed the murder of his father by assaulting him with
iron rod and hence, answered the same.
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5. It is also the reasoning that on account of
assault made by the accused, his clothes were blood
stained and iron rod was also blood stained and it clearly
shows that accused assaulted on the head of his father
with iron rod and he sustained injuries and died due to the
said injuries and the same is observed in paragraph No.33
and relies upon Ex.P.12 seizure mahazar relating to the
cloths of the accused and iron rod used for assault and so
also the evidence of Doctors- P.W.10 to P.W.15 and so
also Ex.P.21- RFSL report, so also Ex.P.23-serology report
that clothes of the deceased and accused and iron rod are
bloodstained with human blood and belongs to 'B' group of
blood. However, the Court also makes note of it that blood
group of the accused and his deceased father Adam are
having 'B' positive blood group. The blood groups and the
blood stains found on their clothes and iron rod are all
matched and there is no explanation by the accused about
how his clothes and iron rod were blood stained and
hence, convicted and sentenced. Being aggrieved by the
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judgment of conviction and sentence, the present appeal
is filed before this Court.
6. The learned counsel for the appellant would
vehemently contend that the Trial Court committed an
error in appreciating the evidence of prosecution witnesses
and fails to take note that complainant himself has not
supported the case of prosecution. The counsel also would
submits that even eye witnesses who have been quoted as
star witnesses of the prosecution also they have not
turned hostile and they have also not supported the case
of prosecution. The P.W.1 has deposed that his father-in-
law fell down from the coconut tree while climbing the
coconut trees and sustained injuries and died and he also
not supported the case of prosecution. Since the
complainant himself has turned hostile, the Court is not
justified in convicting the accused. The eye witnesses
named by the prosecution in the charge sheet are
examined as P.W.2 to P.W.4 and they also turned hostile.
The counsel also would vehemently contend that even
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though prosecution relies upon the evidence of P.W.11,
P.W.12, P.W.13 and P.W.14 is not proper especially when
P.W.11 has deposed that he has not treated the patient.
Further, Ex.P.29 clearly shows that the reason for the
incident is mentioned as fall from tree that being the
question of placing reliance on other documents so as to
convict the accused does not arise for consideration.
Merely because the Doctors deposed that deceased died
due to complications of injuries sustained to the head as a
result of blunt force, trauma, sustained the same does not
mean that the accused has committed the alleged offence.
The Court below is not justified in disbelieving the
evidence of P.W.1 in that way of the matter, the order of
conviction passed by the Court below is not proper. All the
eye witnesses have turned hostile and also only on the
basis of presence of blood stain in MO.1 and MO.2, the
Court below has convicted the above named accused
which is not proper and supported by oral and
documentary evidence and mahazar witness who has
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given the evidence as P.W.5 with regard to the recovery is
concerned and in the cross-examination, his evidence and
answer elicited on the mouth of P.W.5 is not sustainable in
the eye of law and the same does not inspires the
confidence of the Court.
7. Per contra, the counsel appearing for the
respondent-State would vehemently contend that there
was a threat on P.W.1 to give history in the Hospital as to
say that his father has fallen from coconut tree, if the said
history is not given, he will take away his life and hence,
at the first instance, the said history was given. The
counsel also would submits that before committing the
murder, the accused abused in a filthy language and the
same is witnessed by P.W.1 to P.W.4 and all of them were
very much present and though turned hostile, the Court
ought to have taken note of the evidence of these
witnesses. The counsel also would submits that the
evidence of the Doctors P.W.10 to P.W.15 also supports
the case of prosecution with regard to the homicidal death
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as well as nature of injuries sustained by the victim and
FSL report also supports the case of prosecution that there
were blood stains on the cloth of the accused as well as on
the weapon. When such being the case, the Trial Court
rightly convicted the accused and imposed the sentence in
respect of offence under Section 302 of IPC even though
there was no evidence in respect of offences punishable
under Section 504 and 506 of IPC and hence, the
judgment of conviction and sentence is sustainable in the
eye of law.
8. Having heard the learned counsel for the
appellant and also the learned counsel for the respondent-
State and also evaluation of the evidence available on
record, the point that would arise for the consideration of
this Court are:
1) Whether the Trial Court committed an error in
convicting the accused believing the evidence of
prosecution witnesses, particularly evidence of
P.W.1, medical evidence and FSL report
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evidence and the prosecution has proved
beyond reasonable doubt?
2) What order?
9. Having heard the learned counsel for the
appellant and the learned High Court Government Pleader
appearing for respondent-State and also having given
anxious consideration to the evidence available on record,
no doubt P.W.1 has given the complaint and also on
perusal of Ex.P.1, he has narrated how an incident was
taken place that accused inflicted the injury on the head of
the deceased with the iron rod. In order to substantiate
the case of prosecution, when the P.W.1 was examined, he
has turned completely hostile and not supported the case
of prosecution and turned out the case of the prosecution,
even not spoken anything about the incident in terms of
Ex.P.1.
10. It is the case of the prosecution that there was
a threat on P.W.1, but P.W.1 has not stated anything
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about the threat, but the injured was taken to the hospital
on the very day of the incident that is on 14.01.2017. The
history was given as fall from coconut tree that is fall from
height, but the Police have recorded the statement of
P.W.1 on 17.01.2017 and at that time, P.W.1 in his
statement says the nature of the incident. The prosecution
also relies upon the evidence of P.W.2 to P.W.4 as eye
witnesses to the incident and these eye witnesses have
also turned hostile. When the P.W.1 to P.W.4 have turned
hostile, now the case rests upon the circumstantial
evidence. Now, the Court has to take note of the
circumstantial evidence which clinches the very case of the
prosecution and it is settled law as held in the judgment of
Sharad Birdichand Sarda V/s State of Maharashtra
reported in (1984) 4 SCC 116, as well as in the case of
Raja Naykar v. State of Chhattisgarh reported in
(2024) 3 SCC 481 and also the recent judgment of
Supreme Court in case of Subramanya v. State of
Karnataka reported in 2022 SCC Online SC 1400,
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reiterated Panchasheela of the judgment in respect of the
circumstantial evidence is concerned. No doubt in a case
of circumstantial evidence, motive is significant and in
order to commit the murder, motive attributed by the
prosecution is that when the deceased refused to give site
in favour of the accused and he enraged and assaulted
with iron rod. But, in order to prove the said fact, the eye
witnesses P.W.1 to P.W.4 have turned hostile and no
material before the Court with regard to the motive is
concerned, the same is taken note of by the Trial Court
while considering the material aspect. The prosecution
mainly relies upon the evidence of the I.O as well as P.W.5
who is the recovery witness. No doubt recovery witness for
recovery of iron rod and also the clothes of the accused, in
his chief evidence supports the case of prosecution and his
evidence is consistent in paragraph No.6 that on
17.01.2017, he was called to Police Station, accordingly,
he himself and other witnesses went to the Police Station
where the accused was found and accused informed them
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that he is going to show the place of the assault and all of
them went in jeep and when they reached near the
vegetable shop, accused instructed to stop the vehicle.
The accused produced the iron rod which was kept in the
gunny bag and also informed that he assaulted with the
said rod and there were blood stains and also produced
the cloth telling that he was wearing the cloth on
14.01.2017 and the same is produced from vegetable rack
and also there were blood stains and the same also seized
and took the signature of himself and also the other
witness Zakariya and the mahazar was drawn in between
10:00 a.m., to 11:00 a.m. The Police during the mahazar
taken the photos and he identifies the signature and
Ex.P.12 and also the signature of the other panch Zakariya
and also the photograph which is marked as Ex.P.13 and
also identifies MO.1 to MO.3, but in the cross-examination,
in respect of this recovery is concerned, in his evidence he
says that on 17.01.2017, Police called him to Police
Station over the phone and he went at around 9:30 and
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when they went to the vegetable shop, P.W.1 was present.
After conducting the mahazar, the shop was not sealed,
but he cannot tell when the iron rod was produced in the
gunny bag, whether it contains the blood stains or not and
though in the chief evidence he says that it contains the
blood stains, but in the cross-examination he says that he
is not aware of the same, but he deposed that the same
was seized by the Police and Police did not show the rod
again in the Police Station. He also says that in his
presence Police have not seized the same covering the
paper or a white colour cloth. He identifies the rod and
says no blood stains in the iron rod, but it was there in the
earlier, but not present now and Police also in his presence
not removed the blood stains and he cannot tell whether
P.W.1 has signed or not, but also he says that he did not
sign the slip which was pasted on the iron rod. However,
he says that blood stains were found on the front portion
of the shirt and also on the stomach portion. But, he did
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not notice whether blood stains are found in the pant or
not and photos were taken on 17.01.2007.
11. The counsel appearing for the appellant would
vehemently contend that in the complaint itself, P.W.1 has
stated that P.W.1 and his brother-in-law i.e., accused only
taken the injured to the hospital and also contend that
history was given that his father fall from coconut tree at
the first instance and naturally the blood stains will be
there in the Clothes of the accused and having considered
Ex.P.1 and the said averment is found that both of them,
P.W.1 and the accused took the injured to the Hospital and
hence, the evidence of P.W.5 with regard to the recovery
is concerned is not consistent. In the cross-examination,
he admits that he cannot tell whether there was blood
stains in the iron rod or not and the same was also not
seized with seal using either the paper or also the white
cloth. No other witness is examined with regard to the
recovery of iron rod and the cloth of the accused and no
doubt the FSL report is positive that there were blood
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stains, but blood was also drawn from the accused as well
as the deceased and both the blood of the accused and the
deceased are 'B' group of blood and the same 'B' group of
blood is found on the clothes of the accused and deceased,
but there is no any inspiring evidence before the Court
with regard to the recovery is concerned.
12. It is also important to note that at the first
instance, history was given that it is a case of fall from the
coconut tree and evidence of Doctor is also very clear that
history was given as a fall from the coconut tree. When
such being the case and also the eyewitnesses have
turned hostile, only based on the report of FSL, the Court
cannot comes to a conclusion that accused only committed
the murder and no doubt if any other circumstances are
clinching the evidence of the prosecution. Apart from the
clothes, the Court can comes to a conclusion that accused
only committed the murder, but there is no any other
circumstantial evidence either for the last seen that
accused was along with the deceased, but eye witnesses
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P.W.1 to P.W.4 completely turned hostile and only
believing the evidence of P.W.5 regarding recovery, the
Court cannot come to a conclusion when the evidence of
P.W.5 not inspires the Court that recovery was made at
the instance of the accused.
13. The prosecution also relies upon the evidence of
P.W.7 to P.W.9 as eye witnesses and they also turned
hostile and they have not supported the case of
prosecution and having considered the material on record,
there is a weak piece of evidence before the Court except
the FSL report and when the P.W.1 makes the statement
in terms of Ex.P.1 that both accused as well as the P.W.1
took the injured to the Hospital at the first instance, there
is a force in the contention of the counsel appearing for
the appellant that naturally blood stains will be there in
the clothes of the accused. It is also important to note that
the evidence of the witness is also on the front portion of
the cloth of the accused is blood stained, but witness says
that he did not notice the blood stains on the pant, but he
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noticed the blood stains on the shirt that is the evidence of
P.W.5 and that evidence also corroborates the very
contention of the counsel appearing for the accused that
both P.W.1 and accused shifted the injured to the hospital
immediately after the incident.
14. It is also important to note that P.W.23 who has
been examined before the Trial Court i.e., I.O in his
evidence, he says that no blood stains were found in the
place where the alleged incident was taken place i.e.,
within the vegetable shop premises and the evidence of
P.W.23-I.O also not supports the case of prosecution and
the same is elicited from the mouth of P.W.23. The
admissions given by P.W.23 is very clear that on
14.01.2017 before lodging of complaint Ex.P.1, no
information was given to him, but he categorically admits
that on the date of incident everyday Police gasth will be
there and Police have not reported him who are on gasth
duty, but he says that on 14.01.2017, Mangalore Police
given the information to his Police Station and also admits
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that intimation No.085 and admits that he did not enclose
the same along with the charge sheet but he claims that
even today also the said document is along with the
investigation records and also he admits that in the said
intimation there was a reference fall from tree and no
difficulty to produce that document before the Court and
also he identifies Ex.P.29 and so also numbered as 086
and in Ex.P.29 in column No.6 it is mentioned as fall from
tree/assault and also a suggestion was made that later it
was inserted as assault, but witness did not deny the
same, but he says he is not aware of the same and also he
categorically admits that the intimation that fall from tree
is not brought to the notice in his investigation. The
admissions on the part of the P.W.23 is also take away the
case of the prosecution with regard to the genesis of the
crime is concerned. Having re-assessed the material
available on record and on appreciation of both oral and
documentary evidence and particularly taking into note of
the reasoning given by the Trial Court and Trial Court only
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carried away in convicting the accused based on the FSL
report which is discussed in paragraph No.33. Even though
made all observations with regard to the prosecution
theory cannot be believed and prosecution proved beyond
all reasonable doubt that accused has committed murder
of father by assaulting him with iron rod, but answered the
same as affirmative only extracting the paragraph No.34
and before coming to such a conclusion, discussion was
made in paragraph No.33 with regard to the 'B' blood
group found in the cloth of the accused as well as the
deceased but also comes to the conclusion that there is no
explanation by the accused about how his clothes and iron
rod were blood stained. There is also no evidence by him
to disprove the same, but we have already pointed out
that in the complaint Ex.P.1 itself, P.W.1 himself says that
injured was taken by himself as well as the accused and
shifted him to the hospital and when such statement is
made in Ex.P.1 itself, the benefit of doubt goes in favour
of the accused. Even though there was no any explanation
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on the part of the accused in 313 statement that only one
circumstances cannot be a ground to convict the accused
in a case of circumstantial evidence and each chain link
must be established to prove the case of the prosecution
and the Trial Court though in detail discussed, but it
appears the Trial Court was under confusion in considering
the evidence available on record and only carried away in
paragraph No.33 in coming to such a conclusion and only
based on the FSL report, the accused cannot be convicted
when other circumstances has not been proved and hence,
we are of the opinion that Trial Court committed an error
in convicting the accused solely based on blood stains
found in the article which discloses the blood stains found
in the clothes of the deceased and the accused and also
found on the weapon. Hence, it requires interference of
this Court.
15. The P.W.23 in his evidence with regard to the
recovery is concerned, he categorically admits that in
paragraph No.23 that in the spot where the alleged crime
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was taken place, did not found any blood stains and so
also while securing panchas also he categorically deposes
that other shops were also opened in the vicinity but he
did not request them to become the panchas instead of
that called P.W.5 and P.W.6 and also he categorically says
that while conducting the Mahazar as per Ex.P.2, he did
not verify the place, but according to the prosecution that
the very weapon was there in the very shop itself and also
he did not seize the shop, but he says in paragraph No.27
that the weapon which was used for committing the crime
was available in the gunny bag of the very same vegetable
shop, but no blood stains were found in the gunny bag and
also he says in MO.3-iron rod which he verified and no
such blood stains in the MO.3 and the same answer is
given by the P.W.6 in his evidence and when all these
contradictions are found, the very case of the prosecution
cannot be believed and so also in paragraph No.31 he says
that he found the wound certificate - Ex.P.16 and in the
Ex.P.16, history was given that initially fall from height
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and the same is mentioned in the 4th line, but he did not
conduct any investigation in respect of the initial stage it
was mentioned as fall from height and ought to have
investigated the same whether it is a case of fall from
height or murder, being a investigating officer and no such
effort was made by I.O. Instead of mentioning the history
as fall from height is suppressed by the I.O and all these
circumstances which leads to the doubtful case of the
prosecution and the same is also not taken note of by the
Trial Court while appreciating the evidence available on
record. We have already pointed out that when the eye
witnesses evidence is not available before the Court and
ought to have taken note of circumstantial evidence
whether each circumstances establishes the link to comes
to a conclusion that accused only committed the murder in
view of the principles laid down in the judgments of
Sharad Birdichand Sarda's case as well as the Raja
Naykar's case and also the discussions made in the
judgment of Subramanya's case referred supra and
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those panchasheela of the circumstantial case has not
been proved by the prosecution and hence, having
considered the material available on record which is
inconsistent to each other. The very case of prosecution in
view of the admission on the part of P.W.23 takes away
the case, particularly when the history was given as fall
from the coconut tree and the same is not investigated by
the Investigating Officer. No doubt any lapses on the part
of the Investigating Officer cannot be ground to acquit the
accused. But, in the case on hand, there is no any material
before the Court inspiring the credence of witnesses
evidence account to comes to a conclusion that accused
only committed the murder. When such being the facts
and circumstances of the case, we answered the point
accordingly.
16. In view of the discussions made above, we pass
the following:
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ORDER
i) The Criminal Appeal is allowed.
ii) The impugned judgment of conviction and
sentence dated 27.09.2018 passed in
S.C.No.5006/2017 is set-aside. If any fine
amount is deposited, ordered to be released in
favour of the accused on proper identification.
The bail bond executed by the accused stand
cancelled.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
RHS
List No.: 1 Sl No.: 17
