Sri Sathish @ Sachhu @ vs State Of Karnataka - Criminal Appeal

Select the following parts of the judgment
| Facts | Issues |
| Petitioner's Arguments | Respondent's Arguments |
| Analysis of the law | Precedent Analysis |
| Court's Reasoning | Conclusion |
For entire doc: Unmark Mark

## Unlock Advanced Research with PRISM AI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 19, Cited by 0 ] ### Karnataka High Court

Sri Sathish @ Sachhu @ vs State Of Karnataka on 11 March, 2026

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

-1-
NC: 2026:KHC:14535-DB
CRL.A No. 504 of 2018
C/W CRL.A No. 570 of 2018
CRL.A No. 1982 of 2018
HC-KAR

             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 11TH DAY OF MARCH, 2026

                                   PRESENT
               THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                     AND
                  THE HON'BLE MR. JUSTICE VENKATESH NAIK T
                     CRIMINAL APPEAL NO. 504 OF 2018 (C)
                                     C/W
                       CRIMINAL APPEAL NO. 570 OF 2018
                      CRIMINAL APPEAL NO. 1982 OF 2018

           IN CRL.A No. 504/2018

           BETWEEN:

              MR. YUVARAJ @ APPU
              S/O BHASKARA ACHARI,
              AGED ABOUT 29 YEARS,
              R/AT SHIBARUR VAISHNAVI NILAYA,
              DELANTHABETTU VILLAGE,
              SOORINJE VILLAGE,

Digitally
signed by MANGALURU TALUK, D.K.-575 025.
LAKSHMI T
...APPELLANT
Location:
High Court
of Karnataka (BY SRI. DINESH KUMAR K. RAO, ADVOCATE (P/H))

           AND:

              THE STATE OF KARNATAKA
              THROUGH SURATHKAL POLICE STATION,
              REPRESENTED BY
              THE STATE PUBLIC PROSECUTOR,
              HIGH COURT BUILDINGS,
              BANGALORE-560 001.
                                                      ...RESPONDENT
           (BY SMT. RASHMI JADHAV, ADDL. SPP (P/H))
                        -2-
                                  NC: 2026:KHC:14535-DB
                                 CRL.A No. 504 of 2018
                             C/W CRL.A No. 570 of 2018
                                CRL.A No. 1982 of 2018

HC-KAR

  THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING TO

SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 24.02.2018 AND SENTENCE DATED 27.02.2018 PASSED
BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
D.K., MANGALURU IN S.C.NO.68/2015 - CONVICTING THE
APPELLANT/ACCUSED NO.4 FOR THE OFFENCE P/U/S 143, 147,
148, 302, 506, 201 AND 202 R/W 149 OF IPC.

IN CRL.A NO. 570/2018

BETWEEN:

1. MR. LITHESH @ LITHU
   S/O RAGHUNATHA,
   AGED ABOUT 24 YEARS,
   R/AT PURNANUGRAHA,
   PAPADI KALLU KOTE,
   SOORINJE VILLAGE,
   MANGALURU TALUK, D.K.-575 025.

2. SHOBHARAJ @ SHOBHI
   S/O THIMMAPPA POOJARI,
   AGED 27 YEARS,
   R/AT KOTIYAN NIVAS,
   D.NO.1/76, VIJAYANAGAR,
   MADHYA VILLAGE,
   MANGALURU TALUK, D.K.-575 023.

3. BHARATH
   S/O SURESH KOTYAN,
   AGED 23 YEARS,
   R/AT SANJEEVINI NILAYA,
   KOTE, 5 CENTS SITE, KOTE,
   SOORINJE VILLAGE,
   MANGALORE TALUK, D.K.-575 025.
   ...APPELLANTS

(BY SRI. DINESH KUMAR K. RAO, ADVOCATE (P/H))
-3-
NC: 2026:KHC:14535-DB
CRL.A No. 504 of 2018
C/W CRL.A No. 570 of 2018
CRL.A No. 1982 of 2018
HC-KAR

AND:

THE STATE OF KARNATAKA
THROUGH SURATHKAL POLICE STATION,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE-560 001.
                                       ...RESPONDENT

(BY SMT. RASHMI JADHAV, ADDL. SPP (P/H))

THIS CRL.A. IS FILED U/ [S.374(2)](https://indiankanoon.org/doc/1459475/) CR.P.C., PRAYING TO

SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 24.02.2018 AND SENTENCE DATED 27.02.2018
PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K., MANGALURU IN S.C.NO.68/2015 - CONVICTING
THE APPELLANTS/ACCUSED NO.2 AND 3 FOR THE OFFENCE
P/U/S 143, 147, 148, 302, 506, 201 AND 202 R/W 149 OF IPC AND APPELLANT/ACCUSED NO.5 FOR THE OFFENCE P/U/S 201
AND 202 R/W 149 OF IPC.

IN CRL.A NO. 1982/2018

BETWEEN:

SRI. SATHISH @ SACHHU @
SATHISH SOORINJE
AGED ABOUT 36 YEARS,
S/O LATE SESHAPPA,
PERMANENT RESIDENT OF
KOTE HOUSE,
SOORINJE VILLAGE AND POST,
VIA: KATIPALLA,
MANGALURU TALUK-560 712.
                                         ...APPELLANT

(BY SRI. DINESH KUMAR K. RAO, ADVOCATE (P/H))
-4-
NC: 2026:KHC:14535-DB
CRL.A No. 504 of 2018
C/W CRL.A No. 570 of 2018
CRL.A No. 1982 of 2018
HC-KAR

AND:

STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER,
SURATKAL POLICE STATION,
MANGALURU-560 712.
REP BY SPP,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU-01.
                                        ...RESPONDENT

(BY SMT. RASHMI JADHAV, ADDL. SPP (P/H))

THIS CRL.A. IS FILED U/ [S.374(2)](https://indiankanoon.org/doc/1459475/) CR.P.C., PRAYING TO

SET ASIDE THE JUDGMENT OF CONVICTION DATED
24.02.2018 AND SENTENCE DATED 27.02.2018 PASSED BY
THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE IN S.C.NO.68/2015 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 143,
147, 148, 302, 506, 201, 202 R/W 149 OF IPC.

THESE APPEALS, COMING ON FOR HEARING, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR. JUSTICE VENKATESH NAIK T

                 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

   These three appeals arise out of the judgment dated

24-02-2018 and order on sentence dated 27-02-2018

passed by the Court of IV Additional District and Sessions

Judge, Dakshina Kannada, Mangalore in SC.No.68/2015.

NC: 2026:KHC:14535-DB

HC-KAR

1. Vide impugned judgment, the Trial Court has

convicted accused Nos.1 to 4 for the offence punishable

under Sections 143, 147, 148, 302, 506, 201 and 202 read with Section 149 of Indian Penal Code (for short,

' IPC ') and accused No.5 for the offence punishable under Sections 201 and 202 read with Section 149 of IPC.

1. Crl.A.No.1982/2018 is preferred by accused

No.1, Crl.A.No.570/2018 is preferred by accused Nos.2, 3

and 5 and Crl.A.No.504/2018 is preferred by accused

No.4.

1. Heard Sri Dinesh Kumar K. Rao, learned

counsel for the appellants, Smt.Rashmi Jadhav, learned

Additional SPP for the State and perused the evidence and

materials on record.

1. It is the case of prosecution that, accused No.1

was demanding money from deceased-Keshava Shetty

and since he had not obliged to the demand of accused

No.1, a quarrel had taken place. The deceased had lodged

                                 NC: 2026:KHC:14535-DB

HC-KAR

a complaint against accused No.1 at Surathkal Police

Station and accused No.1 was arrested in the said case

and he was sent to jail. Hence, accused No.1 had enmity

against the deceased. Further, the deceased along with his

friends had gone to the house of accused No.2 and scolded

him and his mother and therefore, accused No.2 was also

nurturing ill-will against the deceased. Due to the said

enmity, accused Nos.1 and 2 decided to commit the

murder of Keshava Shetty and conspired with accused

Nos.3 and 4 and a child-in-conflict with law (CCL). In

furtherance of the said conspiracy hatched by them, on

06.01.2015 at about 6.30 a.m., they formed an unlawful

assembly, armed with deadly weapons like Talwars and

came near the play ground at Janatha Bettu, in Kuthethur

village, Mangalore taluk, wherein the deceased Keshava

Shetty was playing badminton with Sampath V. - first

informant (PW.3). They chased the deceased towards the

forest and assaulted him with the weapons they were

carrying, on the head, back, leg, face and other parts of

                                 NC: 2026:KHC:14535-DB

HC-KAR

the body and committed his murder. After committing the

murder, to cause disappearance of the evidence, accused

No.5 concealed the motorcycle bearing Reg.No.KA-19/EH-

0061, with an intention to screen the accused from legal

punishment.

1. The incident took place at about 6.25 a.m. on

06.01.2015. Ex.P3 is the complaint lodged by PW.3 -

Sampath V. In Ex.P3, it is stated that the deceased

Keshava Shetty is the friend of the complainant. Everyday

in the morning, they used to play shuttle badminton at

Janatha Bettu, situated near the house of the complainant.

As usual, the complainant went to play shuttle at about

6.20 a.m. and after five minutes, Keshava Shetty also

came to play. When they were playing, at about 6.25

a.m., accused Nos.1 and 2 and two others holding

Talwars, came to the place where they were playing. When

the complainant tried to stop them, the accused started to

attack the deceased. When the deceased started running,

all the four chased him and assaulted him with Talwars

                                        NC: 2026:KHC:14535-DB

HC-KAR

indiscriminately on his face, head and other parts of the

body. Thereafter, the accused ran towards Kote Soorinje.

Immediately, the complainant telephoned to the police and

the police came to the spot.

1. In Ex.P3, the complainant has stated that he

has seen the accused and he can identify them. He has

further stated that since the deceased had not given

money to accused No.1 - Sathish, there was a quarrel

between them and in this connection, the deceased had

lodged a complaint against him and accused No.1 was in

prison. Hence, due to the said enmity, accused No.1 along

with other accused persons committed the offence. It is

further stated that while running away, the accused

threatened the complainant with dire consequences,

saying that, they will not leave him alone, if he inform

others over phone.

1. PW.20, ASI of Surathkal Police Station, on

receiving the written complaint sent by the Investigating

Officer-CW.37 (PW.29) through ASI-Shivaprakash,

                                  NC: 2026:KHC:14535-DB

HC-KAR

registered a case against accused Nos.1 and 2 and others

and forwarded the FIR to the jurisdictional Court. PW.29-

CPI, continued with the investigation and on completion of

investigation, filed charge sheet against the accused.

1. Before the Trial Court, to establish the guilt of

the accused, the prosecution in all examined 30 witnesses

and got marked 42 documents and 26 material objects.

The defense of the accused was total denial. However, no

defense evidence was led.

1. The learned Sessions Judge, vide impugned

judgment, came to the conclusion that the evidence of the

prosecution witnesses substantiate that accused Nos.1 to

4 along with a juvenile, in furtherance of their common

object, formed an unlawful assembly, holding deadly

weapons and committed the murder of deceased-Keshava

Shetty at Kuthethur, Soorinje village and after committing

the murder, accused Nos.1 to 4 and a juvenile have

escaped. Further, accused No.5 has hidden the motorcycle

and thus the prosecution is able to establish that accused

• 10 -

NC: 2026:KHC:14535-DB

HC-KAR

Nos.1 to 4 have committed the murder and they are liable

to be convicted for the offence punishable under [Sections

143](https://indiankanoon.org/doc/1096965/), 147, 148, 302, 506, 201 and 202 read with [Section

149](https://indiankanoon.org/doc/999134/) of IPC and accused No.5 along with other accused

have caused disappearance of evidence and omitted to

give information and thereby committed the offence under Sections 201 and 202 read with Section 149 of IPC.

1. Assailing the impugned judgment, the learned

counsel appearing for the appellants vehemently

contended as under:

(i) All the material witnesses including the

complainant examined as PW.3, have been treated hostile

and they have not supported the case of the prosecution.
The complainant examined as PW.3 has not corroborated

the complaint averments; his testimony before the Court

being the substantial evidence, he has given a goby to the

prosecution case;

• 11 -

NC: 2026:KHC:14535-DB

HC-KAR

(ii) PW.3 has not identified the accused who have

committed the offence. According to him, he identified

accused No.3 in the Test Identification Parade, whereas

PW.18, the Tahsildar has stated that accused No.3 was not

identified by PW.3;

(iii) According to PW.3, he gave a complaint at the

spot and one more written complaint in the police station

and therefore, the first complaint given at the spot has

been suppressed;

(iv) The recovery of bloodstained clothes and

weapons are not proved in accordance with law. The

recovery is not from all the accused. On the other hand,

the recovery of weapons has been effected from accused

No.2 and recovery of clothes from accused No.3. Further,

as per the evidence of panch witness, it is the police who

showed the place from where the weapons were

concealed. Therefore, the recovery of weapons and

bloodstained clothes is doubtful;

• 12 -

NC: 2026:KHC:14535-DB

HC-KAR

(v) The panch witnesses, PWs.12 and 13 to Exs.P16

and P17 under which the Talwars and clothes recovered,

have turned hostile and therefore the recovery is not

proved;

(vi) The panch witnesses, PWs.10 and 11 for the

recovery of mobile phone from accused Nos.1 and 2 under

Exs.P14 and P15 have turned hostile;

(vii) Both PWs.1 and 2 have turned hostile and

therefore, the case of prosecution that accused No.5

concealed the bike in the house of accused No.2 is also not

proved;

(viii) The recovery of talwar - MO.7 from accused

No.1 under Ex.P7 is also not proved since PW.17 has

turned hostile and the evidence of PW.4 is full of

contradictions;

(ix) The complainant - PW.3 has not corroborated

the complaint averments in his evidence and there are

material discrepancies. He has not identified the accused

• 13 -

NC: 2026:KHC:14535-DB

HC-KAR

persons who have committed the offence. There are

contradictions in the evidence of PWs.3 and 18.

1. Per contra, the learned Additional SPP

vehemently contended as under:

(i) PW.3 is the star witness, wherein he has lodged

the complaint as per Ex.P1, giving minute details of the

incident, and he has also identified accused Nos.1 and 2

and named them in the complaint. Further, he has stated

that there were two more accused along with accused

Nos.1 and 2;

(ii) PW.3 has stated about the money dispute

between accused No.1 and the deceased. The motive is

also spoken by PWs.7 and 8 - wife and elder brother of the

deceased respectively. Hence, the prosecution has proved

the motive for accused No.1 to commit the offence, along

with other accused persons;
- 14 -

NC: 2026:KHC:14535-DB

HC-KAR

(iii) There is recovery of bloodstained Talwars and

bloodstained clothes belonging to the accused and the FSL

report at Ex.P42 supports the prosecution case;

(iv) PW.3 - complainant has given evidence that he

has identified accused No.3 in the Test Identification

Parade and PW.18 - Tahsildar has clearly deposed that

PW.3 has identified accused No.4 - Shobharaj in the Test

Identification Parade and therefore, the identification of

the said accused is firmly established.

(v) PW.23 - The Doctor who conducted PM report

has given opinion regarding the weapons - MOs.4 to 7

stating that the injuries on the dead body is possible with

the said weapons;

(vi) The Trial Court, after considering the entire oral

and documentary evidence on record has convicted the

accused. The reasons assigned by the trial Court are in

accordance with law;

• 15 -

NC: 2026:KHC:14535-DB

HC-KAR

1. The dead body was subjected to postmortem

examination. The postmortem was conducted by PW.23.

The PM report is marked as Ex.P25. The following external

injuries were noticed:

a. Obliquely placed chop wound, 17 x 12 cm x
bone deep on the face involving the both
eyes and nose with underlying fracture of
nasal and facial bones;

b. Obliquely placed chop wound, 12 x 2 cm x
bone deep located on the face, 1.5 cm
below injury No.1 with underlying fracture
of the nasal and facial bones;

c. Obliquely placed chop wound, 20 x 3 cm x
bone deep located on the face, over both
the cheeks and philtrum, with underlying
fracture of facial bones including the
maxilla;

d. Obliquely placed chop wound, 14x5 cm x
oral cavity deep, over the lower lip. The
underlying upper and lower jaw showed
comminuted fracture with loss of teeth;

• 16 -

NC: 2026:KHC:14535-DB

HC-KAR

e. Incised wound, 3 x 1 cm x muscle deep on
the left temple;

f. Incised wound 3 x 0.5 cm on the left
cheek;

g. Incised wound 9 x 1 cm on the left cheek
with chop wound of the left ear;

h. Incised wound, horizontally placed on the
chin, measuring 7 x 0.5 cm x muscle deep;

i. Two chop wounds angled at 25 degree to
each other on the back of the head, left
side, one measuring 10 x 1 cm x bone deep
and the other measuring 10 x 1 cm x bone
deep.

j. Multiple chop wound over lapping each
other, over an area of 10 x 14 cm x bone
deep on the back of left side of neck and
head;

k. Chop wound, 4 x 1 cm x muscle deep on
the back of left side of neck, 0.5 cm below
injury No.10;

l. Stab injury, 5 x 2 cm x muscle deep on the
back of left side of neck, 3 cm below injury
No.11.

• 17 -

NC: 2026:KHC:14535-DB

HC-KAR

m. Chop wound, 6 x 1 cm x bone deep on the
back of head on the right side;

n. Obliquely placed incised wound, 2 x 0.5 cm
x muscle deep on the front of left side of
neck above the clavicle, tailing downwards
and medially;

o. Obliquely placed incised wound, 2.5 x
0.5 cm x muscle deep on the front of left
shoulder, tailing downwards and medially;

p. Stab injury, 3 x 1 cm x muscle deep, on the
front of left side of chest, corresponding to
2nd intercostals space;

q. Stab injury, 2 x 1 cm x muscle deep, on the
front of left side of chest, corresponding to
3rd and 4th intercostals space, tailing
downwards and medially;

r. Obliquely placed incised wound, 6 x 1 cm x
muscle deep, tailing upwards and medially
on the front of right shoulder;

s. Contusion, reddish, 7 x 2 cm on the front of
right arm in its upper third;

t. Contusion, reddish, 6 x 2 cm on the front of
right arm, 6 cm below injury No.19;

• 18 -

NC: 2026:KHC:14535-DB

HC-KAR

u. Incised wound, 4 x 0.2 cm on the front of
right arm, in its lower third;

v. Obliquely placed stab injury, 3 x 1 cm x
bone deep on the back of right forearm in
its lower third;

w. Chop wound, 10 x 3 cm x bone deep
involving the back of right fingers at their
base (excluding the thumb) with partial
amputation of fingers;

x. Multiple superficial lacerations over an area
of 14 x 8 cm, varying in sizes from 5 x 0.5
cm to 1 x 0.2 cm involving the front and
outer aspect of left arm and elbow;

y. Stab injury 3 x 1.5 cm x muscle deep on
the back of left forearm in its middle third;

z. Laceration, 6 x 2 cm x muscle deep, on the
back of left forearm in its middle third;

aa. Chop wound, 4 x 2 cm x bone deep
involving the back of left thumb;

bb. Two incised wounds, 1 x 0.5 cm and 3 x
0.3 cm on the back of left middle finger;

• 19 -

NC: 2026:KHC:14535-DB

HC-KAR

cc. Stab wound, 4 x 2 cm cavity deep on the
front of right side of chest among the
anterior axillary line corresponding to 5th
intercostals space;

dd. Stab wound, 3 x 1.5 cm x muscle deep, on
the right flank of abdomen;

ee. Stab injury, 2 x 1.5 cm x muscle deep on
the pubic area at the root of penis;

ff. Stab injury, 2.5 cm 2 cm x muscle deep on
the front of left side of chest along mid
axillary line corresponding to 6th
intercostals space;

gg. Chop wound, 10 x 1 cm x bone deep
involving the left palm;

hh. Stab wound, 2.5 x 1 cm x muscle deep on
the back of right side of neck;

ii. Incised wound, 10 x 0.1 cm x muscle deep
on the back of right shoulder;

jj. Stab wound, 6 x 2 cm x muscle deep on
the back of chest (right side),
corresponding to 7th intercostals space.

• 20 -

NC: 2026:KHC:14535-DB

HC-KAR

PW.23 - The Doctor has opined that the deceased

died due to haemorrhage as a result of multiple injuries

sustained due to sharp force trauma;
14. According to the prosecution, both accused

Nos.1 and 2 were nurturing ill-will against the deceased,

since he had not obliged to their demand of money and he

had also lodged a complaint against accused No.1 at

Surathkal Police Station and accused No.1 was arrested in

connection with the said case. Further, the deceased had

gone to the house of accused No.2 and scolded him and

his mother.

1. Insofar as the earlier quarrel and registration of

a case against accused No.1 on a complaint lodged by the

deceased, the prosecution has got marked Exs.P40 and

41, the FIR and complaint in Crime No.215/2014. The said

documents were marked through the Investigating Officer

• PW.29. The said FIR was registered against accused No.1

for the offence punishable under Sections 504, 506 and 387 of IPC on 03.08.2014.

• 21 -

NC: 2026:KHC:14535-DB

HC-KAR

1. In Ex.P1, the complainant has stated about

some money dispute between the deceased and accused

No.1 and lodging of the complaint by the deceased against

the said accused. PWs.7 and 8 are the wife and elder

brother of the deceased respectively. PW.7 has deposed

that accused No.1 had telephoned to her husband

demanding money and he was threatening him and in this

connection, her husband had lodged a complaint at

Surathkal Police Station in the month of August, 2014 and

accused No.1 was arrested. PW.8 has also stated that

accused No.1 was threatening the deceased to give money

and in this connection there was a complaint lodged by the

deceased at Surathkal Police Station.

1. From the above material on record, prosecution

has been able to show that there was some financial

dispute between the deceased and accused No.1 and in

this connection, the deceased had lodged a complaint

against the said accused and a case was registered and in

connection with the said case, accused No.1 was arrested.

• 22 -

NC: 2026:KHC:14535-DB

HC-KAR

However, there is no material placed on record to show

any dispute, quarrel or enmity between the deceased and

accused No.2.

1. It is the specific case of the prosecution that in

view of the said enmity between the accused and the

deceased, accused No.1 held a conspiracy along with other

accused persons and on the date of incident, all the

accused formed an unlawful assembly armed with Talwars

and went to the spot where deceased was playing shuttle

badminton with PW3 and they chased the deceased and

assaulted him indiscriminately and committed the murder.

1. PW3 is the star witness in this case. As per

Ex.P1, he has identified accused Nos. 1 and 2, who came

along with two other accused, holding Talwars. He has

stated that all the four accused chased the deceased and

assaulted him with the weapons they were holding and

committed the murder. Further, in Ex.P1, he has stated

that he has seen all the accused and he is able to identify

them.

• 23 -

NC: 2026:KHC:14535-DB

HC-KAR

1. In his deposition, PW3 has stated that on

06.01.2015 at about 06.20 a.m. deceased came to play

shuttle and at about 06.20-06.30 a.m. when they were

ready to play, four accused came holding Talwars and

tried to assault the deceased and he tried to stop them.

The deceased ran towards the hill and all the four accused

chased him and he shouted. He then telephoned to the

police. One Jayaprakash (PW4) also came to the spot. By

that time, the accused had assaulted the deceased and ran

away. He went and saw the deceased and by that time he

was already dead. He has further stated that three of the

accused ran together and he is not aware as to where

another accused ran. He has stated that the police came

to the spot in a while and he gave a complaint to them at

the spot and he gave a written complaint at the police

station, marked as Ex.P3.

1. PW3 has further stated that he was called to

identify the two accused in the prison. The Tahsildar

conducted the Test Identification Parade. He identified one

• 24 -

NC: 2026:KHC:14535-DB

HC-KAR

Sobharaj (accused No.3) and the other two accused were

not shown to him. He has stated that he has given

evidence in respect of the case registered against the Child

in Conflict with Law (CCL) and the police told him that the

said CCL was keeping a watch at the spot. Further, he

came to know about accused No.5 after his arrest.

1. PW3 identified MOs.1 to 3, the articles

belonging to the deceased. However, he failed to identify

MOs.4 to 7, the weapons as well as the clothes of the

accused-Mos.19 to 25. PW3 was treated hostile and he

was cross-examined by the Public Prosecutor.

1. In the cross-examination, PW3 has admitted

that in the complaint he has stated that four accused

assaulted the deceased and committed the murder and in

his further statement, he has mentioned the name of

accused No.2. However, he has denied having stated

before the police that he has properly seen accused Nos.1

and 2 at the time of incident and that he came to know

• 25 -

NC: 2026:KHC:14535-DB

HC-KAR

the names of other accused as Shobharaj (A3) and

Yuvaraj (A4).

1. In the cross-examination conducted by the

defence, PW3 has admitted that the face of the accused

were not visible since in the month of January it is little bit

dark and he was not able to say as to which direction, the

deceased ran. He has stated that the place where the dead

body was lying was not visible from the playground and he

did not follow the deceased. He has stated that he has

seen four persons running away but he has not given their

description in the complaint and it took ten minutes to go

to the place where the dead body was lying, which was

about 80 feet away from the playground. He further

stated that he has seen the dead body, but he has not

seen as to who assaulted the deceased and he telephoned

to the police when the four accused were chasing the

deceased and at that time it was about 6.30 a.m. PW3

has further stated that he has seen Shobharaj (accused

No.3) in the police station.

• 26 -

NC: 2026:KHC:14535-DB

HC-KAR

1. PW3 being the sole eye witness to the incident,

the testimony of PW3 has to be examined carefully.

1. Perusal of the evidence of PW3 clearly goes to

show that, in his evidence he has not corroborated the

complaint averments. As per Ex.P3, he has identified

accused Nos.1 and 2 who came to the spot along with two

other accused, holding Talwars. In his testimony, he has

stated that four accused came armed with Talwars and

they chased the deceased towards the hill. He has not

named the said four accused. According to him, in the

prison, the Test Identification Parade was conducted by

the Tahsildar, wherein he identified one Shobharaj i.e.,

accused No.3. He has stated that he is not aware of the

name of another accused. Further, in the cross-

examination conducted by the defence, he has only stated

that he has seen four accused running away, but, he has

not given their descriptions. Further, stated that the face

of the accused were not properly visible. He has stated

that it took 10 minutes to reach the place where the dead

• 27 -

NC: 2026:KHC:14535-DB

HC-KAR

body was lying and he did not see as to who assaulted the

deceased. He has also stated that he has seen accused

No.3-Shobharaj in the police station.

1. PW3 was treated hostile by the prosecution, as

he stated in his evidence that he did not see the four

accused assaulting the deceased. In the cross-examination

conducted by the public prosecutor, he denied having

given statement as per Ex.P5, that he saw accused Nos.1

and 2 properly and came to know the names of accused

Nos.3 and 4.

1. According to prosecution, after the arrest of the

accused, PW18-Taluka Executive Magistrate conducted the

Test Identification Parade on 13.02.2015 to enable PW3 to

identify accused Nos.3 and 4 who came along with

accused Nos.1 and 2 to the spot. PW3 has stated that in

the Test Identification Parade, he identified Shobharaj i.e.,

accused No.3.

• 28 -

NC: 2026:KHC:14535-DB

HC-KAR

1. Firstly, PW3 has admitted in the

cross-examination that he has seen the said Shobharaj in

the police station. When he has already seen Shobharaj in

the police station i.e., prior to conducting of the Test

Identification Parade, then the credibility of the said Test

Identification Parade wherein, PW3 is said to have

identified the said accused will loose credence. Secondly,

according to PW18-Tahsildar, PW3 has failed to identify

Shobharaj, i.e., accused No.3, which evidence is contrary

to the evidence of PW3. On the other hand, PW18 has

stated that PW3 has identified Yuvaraj-accused No.4, on

the contrary PW3 has nowhere stated in his evidence that

he has identified accused No.4 in the Test Identification

Parade.

1. We have also noticed that the Test

Identification Parade conducted by PW18 is not in

accordance with law. PW18 has admitted that he has

conducted Test Identification Parade in respect of each

accused only once and there was variance in the height

• 29 -

NC: 2026:KHC:14535-DB

HC-KAR

and clothes of other persons who were asked to be

present along with the accused, for the purpose of

identification.

1. The learned Additional SPP contended that

PW4 has corroborated the evidence of PW3. She

contended that PW4 came to the spot immediately and he

saw the accused returning after the incident holding

Talwars. Hence, she contended that participation of four

accused in the crime is established.

1. According to PW4, the complainant-PW3

telephoned to him stating that the deceased Keshava

Shetty and accused No.2 are quarreling. He informed him

that about 4 to 5 persons are present. He has stated that

he went to the spot from his house which is situated about

50 to 60 meters away. He has stated that by the time he

first saw the deceased-Keshav Shetty was murdered and

the accused were going away holding Talwars. When he

enquired with PW3, he informed him that along with

Lithesh-accused No.2 about 4 to 5 persons were present.

• 30 -

NC: 2026:KHC:14535-DB

HC-KAR

He has stated that by the time he saw, Keshav Shetty was

dead and many people came to the spot. He has further

stated that he has identified one of the accused who was

holding Talwar and that was accused No.2, whom he knew

earlier.

1. According to PW4, he was informed about the

incident by PW3 over phone. In Ex.P1, though PW3 has

stated that he informed about the incident to the police,

he has not at all stated that he called PW4 and informed

him about the incident. Even in his evidence, PW3 has not

stated that he telephoned to PW4 and informed him about

the incident. He has only stated in his evidence that even

PW4 came to the spot. If his evidence is carefully

examined, after PW3 telephoned to the police, PW4 came

to the spot and by that time the incident was already over

and therefore, the testimony of PW4 that when he came to

the spot, he saw four accused going away holding

weapons, is difficult to accept.

• 31 -

NC: 2026:KHC:14535-DB

HC-KAR

1. PW4 is also a witness to Ex.P7 i.e., seizure of a

Talwar from accused No.1. He has stated that he cannot

identify the said Talwar. He was treated hostile by the

prosecution.

1. In the cross-examination conducted by the

defense, it is elicited that by the time he reached the spot

where the deceased was lying, PW3 was present and

thereafter PW3 telephoned to the police and he informed

him about Lithesh-(accused No.2) and did not give the

description of other accused persons.

1. A perusal of his entire evidence goes to show

that by the time PW4 went to the spot, the incident had

already taken place and the deceased was lying dead and

the name of accused No.2 was told to him by PW3. His

testimony that he has seen four accused holding weapons

and going away and he identified one of the accused as

Lithesh is therefore, it is difficult to believe. Further, PW3

himself has denied having stated before the police as per

Exs.P5 and 6 wherein he has stated that he has seen

• 32 -

NC: 2026:KHC:14535-DB

HC-KAR

accused Nos.1 and 2 and he came to know the names of

two other accused i.e., accused Nos.2 and 3.

1. The Trial Court has failed to appreciate the

above aspects, on the contrary held that PW.3 has

identified one of the accused in the Test Identification

Parade and though turned hostile in identifying the

accused Yuvaraj before the Court, PW.18, Tahsildar has

deposed that he has conducted Identification Parade and

PW.3 has identified the said accused Yuvaraj. The learned

Sessions Judge has accepted the evidence of PW.18

holding that he substantiate that PW.3 has identified

accused Yuvarja in Identification Parade and his evidence

is corroborated with the evidence of DNA test, which

shows talwar and cloths of accused Shobharaj and Yuvaraj

and other two accused Sathish and Lithesh were blood

stained.

1. In the case on hand, Test Identification Parade

was conducted in respect of accused Nos.3 and 4 by

PW.18 on 13.02.2015. PW.3 was asked to identify the said

• 33 -

NC: 2026:KHC:14535-DB

HC-KAR

accused namely accused Nos.3 and 4. As per PW.3, he

identified Shobharaj i.e., accused No.3 in the identification

parade and has not at all stated that he has identified

accused Nos.4 i.e., Yuvaraja. Whereas, PW.18 has stated

that PW.3 has failed to identify Shobharaj but he identified

Yuvaraj. Further, PW.3 in his evidence has stated that he

has seen accused Shobharaj in the police station, which is

obviously prior to conducting Test Identification Parade.

1. In Umesh Chandra & Others V/s. State of

Uttarakhand in Crl.A.No.801/2021 disposed of on

11.08.2021, the Apex Court has held that a Test

Identification Parade under Section 9 of the Evidence Act

is not substantive evidence in a criminal prosecution but is

only corroborative evidence. The purpose of holding a test

identification parade during the stage of investigation is

only to ensure that the investigating agency prima-facie

was proceeding in the right direction where the accused

may be unknown or there was fleeting glance of the

accused. Mere identification in the test identification

• 34 -

NC: 2026:KHC:14535-DB

HC-KAR

parade, therefore cannot form the substantive basis for

conviction unless there are other facts and circumstances

corroborating the identification. Further, test identification

parade being a part of the investigation, has to be proved

by the prosecution as having been held in accordance with

law. The onus lies on the prosecution to establish that the

test identification parade was held in accordance with law.

It is only after the prosecution prima-facie establishes a

valid test identification parade having been held, the

question of considering any objection to the same arises.

If the prosecution has failed to establish that a test

identification parade was properly held by examining the

witnesses to the same, there is nothing for the accused to

disprove.

1. In the instant case, we have no hesitation to

hold that the test identification parade was not conducted

in accordance with law, and there is material discrepancy

in the evidence of eye witness PW.3 and the

Tahsildar - PW.18 with regard to identification of accused

• 35 -

NC: 2026:KHC:14535-DB

HC-KAR

Nos.3 and 4. Hence, PW.3 having seen accused Nos.3 and

4 at the time of incident and also identifying them is

doubtful. His evidence does not inspire the confidence of

the Court. The findings of the trial Court that there is

proper identification of accused Nos.3 and 4 by the witness

is therefore, not sustainable.

1. While appreciating the evidence of PW.3,

learned Sessions Judge observed that though PW.3 did not

support the case of prosecution in its entirety in identifying

the accused and departed from the statement purportedly

given during the course of investigation, however, his

admission is that he had lodged the complaint as per

Ex.P3, which indicates that he asserts the existence of the

facts mentioned therein. The learned Sessions Judge went

on to cull out the contents of Ex.P3-complaint, to hold that

there was enmity between the accused and deceased,

accused Nos.1 and 2 along with two other persons holding

talwar came to the spot and brutally murdered Keshava

Shetty and motive behind the murder is money matter. On

• 36 -

NC: 2026:KHC:14535-DB

HC-KAR

the basis of Ex.P3, the learned Sessions Judge, has given

a finding that there is no iota of doubt regarding identity of

the accused Sathish.

1. It is well settled that the complaint is not

substantive evidence by itself, but it is to be corroborated

by its maker. The Apex Court way back in the judgment

reported in AIR 1957 SC 366, in the case of Nisar Ali

V/s. State of Uttar Pradesh has held that a first

information report is not substantive piece of evidence and

can only be used to corroborate the statement of the

maker under Section 157 of the Evidence Act or to

contradict it under Section 145 of the Act. It cannot be

used as evidence against the maker at the trial if he

himself becomes an accused, nor to corroborate or

contradict other witnesses. Further, in the judgment

reported in AIR 1966 SC 119, in the case of Aghnoo

Nagesia V/s. State of Bihar, it is held that Section 154 of Cr.P.C. provides for recording of the first information.

The said information report as such is not substantive

• 37 -

NC: 2026:KHC:14535-DB

HC-KAR

evidence. It may be used to corroborate the informant

under Section 157 of the Evidence Act or to contradict him

under Section 145 of the Act, if the informant is not called

as a witnesses.

1. In the present case PW.3 has not corroborated

the contents of Ex.P3. In his chief examination, he has

not at all named 4 accused who are alleged to have

chased the deceased and committed his murder. He has

not named accused Nos.1 and 2. There is discrepancy

with regard to the identification of accused Nos.3 and 4, as

held supra.

1. In Joseph V/s. State of Kerala reported in

(2003) 1 SCC 465, it is held that where there is a sole

witness his evidence has to be accepted with an amount of

caution and after testing it on the touchstone of other

material on record. In State of Haryana V/s. Inder

Singh and Others reported in (2002) 9 SCC 537, it was

held that the testimony of the sole witness must be

• 38 -

NC: 2026:KHC:14535-DB

HC-KAR

confidence-inspiring and beyond suspicion, thus, leaving

no doubt in the mind of the Court.

1. It is well settled that the testimony of the sole

eye witness should be reliable, should not leave any doubt

in the mind of the Court and has to be corroborated by

other evidence produced by the prosecution in relation to

commission of the crime and involvement of the accused

in committing such a crime. Thus the evidence of the sole

witness needs to be considered with the caution after

testing it against other material. Further, such evidence

should inspire confidence. At the same time, deposition of

the sole witness can be acted upon, provided it is found to

be trustworthy and reliable and there are no material

contradictions or omissions or improvements in the case of

the prosecution.

1. In Inder Singh (supra) reported in (2002) 9

SCC 537, it is held that it is not the quantity but the

quality of the witnesses which matters for determining

guilt or innocence of the accused. The testimony of the

• 39 -

NC: 2026:KHC:14535-DB

HC-KAR

sole witness must be confidence-inspiring and beyond

suspicious, thus leaving no doubt in the mind of the Court.

1. PW.3 was treated hostile by the prosecution as

he was unable to identify the weapon held by the accused

and also failed to identify the accused present before the

Court. He has stated that he has not seen the 4 accused

assaulting the deceased. In the cross examination

conducted by the Public Prosecutor, he has denied that in

his further statement, he has stated that he had properly

seen accused Nos.1 and 2 and he came to know about the

names of accused Nos.3 and 4. Hence, PW.3 has not at all

corroborated with the contents of Ex.P3. He has clearly

stated that he has not seen the 4 accused assaulting the

deceased and he has also denied having given further

statement as per Ex.P5 that he has properly seen accused

Nos.1 and 2, committing the murder and that he came to

know about the names of two other accused i.e., accused

Nos.3 and 4. There is discrepancy with regard to

identification of accused Nos.3 and 4, in the Test

• 40 -

NC: 2026:KHC:14535-DB

HC-KAR

Identification Parade. Hence, we find that the evidence of

sole eye witness is not reliable and trustworthy to convict

the accused.

1. The prosecution is also relying on the recovery

of blood stained weapons cloths at the instance of the

accused.

1. Accused No.1 is alleged to have produced the

talwar which was seized under mahazar Ex.P7. The

prosecution has examined PW-4 and PW-17, panch

witnesses under mahazar - Ex.P7. PW-17 has completely

turned hostile and not supported the case of the

prosecution. He has stated that the police have not seized

any articles and accused No.1 - Sathish has not produced

anything in his presence. PW-4 has deposed that accused

No.1-Sathish has produced the talwar from the bush and

police conducted the mahazar - Ex.P7. In the cross-

examination, he has stated that he is not aware as to the

contents of Ex.P7.

• 41 -

NC: 2026:KHC:14535-DB

HC-KAR

1. The prosecution has examined PW-12 and

PW-13, panch witnesses to the seizure mahazar-Ex.P16

and Ex.P17, the seizure of blood stained clothes (MOs.19

to 25) and the seizure of three blood stained Talwars

(MOs.-4 to 6).

1. PW-12 has totally turned hostile and not

supported the case of the prosecution. He has denied the

accused having produced the blood stained weapons and

clothes.

1. PW-13 has stated that 2 to 3 Talwars were

produced by the three accused, but he is not able to

identify them. He has stated that the accused produced

the clothes from a bush, but he cannot identify those

clothes. He has stated that he has signed Ex.P17 in the

police station.

1. PW.13 was treated hostile. In the

cross-examination conducted by the Public Prosecutor, he

has stated that accused No.2 produced three Talwars and

• 42 -

NC: 2026:KHC:14535-DB

HC-KAR

accused No.3 produced the blood stained clothes.

However, according to prosecution, accused Nos.2 and 4

were present in the Police Station who led the Police and

Panchas to the spot.

1. In the cross-examination conducted by the

defence, he admitted that police have called him in two

cases to act as panchas and it was the police who showed

the bush to the accused.

1. Though PW-13 has supported the case of

prosecution to some extent, in the cross-examination

conducted by the Public Prosecutor, he has clearly stated

that the bush from where the weapons and clothes were

seized, was shown by the police and the police had called

him to act as pancha in two cases. His evidence regarding

seizure of the weapons and clothes does not inspire

confidence of the Court.

1. Further according to prosecution one of the

accused i.e., accused No.2 showed all three weapons

• 43 -

NC: 2026:KHC:14535-DB

HC-KAR

concealed in the bush and accused No.3 showed all the

clothes worn by the accused. The evidence regarding

seizure of blood stained Talwars and blood stained clothes

at the instance of the accused is not convincing. The

seizure of blood stained Talwars and blood stained clothes

alone will not lead to a conclusion that the prosecution has

proved the guilt of the accused beyond reasonable doubt

and to hold that the said weapons were used by the

accused for committing the offence.

1. When the oral evidence of PW-3 and PW-4 is

held to be not reliable and trustworthy, the conviction

cannot be based on the basis of serology or FSL report

indicating that the weapons seized in the case were blood

stained and they are matching with the blood group of the

deceased.

1. We have reappreciated the entire evidence and

material on record. On a careful scrutiny, we find that the

prosecution has not established the guilt of the accused

beyond reasonable doubt. The evidence of sole

• 44 -

NC: 2026:KHC:14535-DB

HC-KAR

eyewitness suffers from material contradiction and is not

reliable and trustworthy. Hence, the judgment and order

of conviction passed by the trial Court is not sustainable

and is accordingly liable to be set aside. Hence, we

proceed to pass the following:

ORDER

i) Appeals are allowed.

ii) The judgment dated 24.2.2018 and the order

on sentence dated 27.2.2018 passed by the

Court of 4th Additional District and Sessions

Judge, D.K., Mangaluru in Sessions Case

No.68/2015 convicting the accused Nos.1 to 4

for the offences punishable under Sections 143, 147, 148, 302, 506, 201, 202 r/w Section 149 of IPC and in respect of accused No.5 for the

offence punishable under Sections 201 and 202

read with Section 149 of IPC are set aside.
- 45 -

NC: 2026:KHC:14535-DB

HC-KAR

iii) The accused Nos.1 to 5 are acquitted of the

          said charges levelled against them.

iv) The fine amount if any deposited shall be

          refunded to the accused.

v) The order passed on the application filed under

          Section 451 and 457 is made absolute.

vi) Bail bond executed by the accused shall be in

          force for a period of six months.

vii) Pending applications, if any, stand disposed of.

Sd/-

(MOHAMMAD NAWAZ)
JUDGE

                                   Sd/-

(VENKATESH NAIK T)
JUDGE

MKM/TL/LDC/PRS
List No.: 1 Sl No.: 9