SRI. SURESH Y T @ SURI vs STATE OF KARNATAKA

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ND
DATED THIS THE 2 DAY OF NOVEMBER, 2026


PRESENT

THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

AND

THE HON'BLE MR. JUSTICE B.PRAMOD

CRIMINAL APPEAL NO. 38 OF 2020 (C)


BETWEEN:

SRI. SURESH Y.T. @ SURI
S/O SRI. THIMMAIAH,
AGED ABOUT 28 YEARS, OCC: DRIVER,
R/A NEAR RAMAKRISHNA TENT,
SHARADA NILAYA BUILDING,
KATHRIGUPPE WATER TANK ROAD,
BANASHANKARI III STAGE,
BANGALORE-560 085.
AND NATIVE OF
YELEKADAKALU VILLAGE,
HULIYURDURGA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572 123.









Digitally
signed by
LAKSHMI T
Location:
High Court
of Karnataka
…APPELLANT

(BY SRI. GIRISH S. HEGDE, ADVOCATE)

AND:

STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
DR. AMBEDKAR ROAD,
HIGH COURT BUILDING,
BANGALORE-560 001.
…RESPONDENT
(BY SRI. SUDHINDRA B.S., HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING TO:
(A) CALL FOR ENTIRE RECORDS IN S.C.NO.390/2016 PENDING
ON THE FILE OF THE LXIII ADDL. CITY CIVIL AND SESSIONS
JUDGE, (CCH-64), BANGALORE; (B) REVERSE AND SET ASIDE
THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE
LXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, (CCH-64),
BANGALORE IN S.C.NO.390/2016 DATED 5-10-2019, AND
FURTHER BE PLEASED TO ACQUIT THE APPELLANT / ACCUSED
FOR THE ALLEGED OFFENCES UNDER SECTION 302 OF THE
INDIAN PENAL CODE.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR. JUSTICE B.PRAMOD

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

This appeal is preferred by the accused, against the
judgment and order of conviction and sentence dated

05.10.2019 passed by the Court of LXIII Additional City
Civil and Sessions Judge (CCH-64) at Bengaluru in
S.C.No.390/2016, wherein he has been convicted for the

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offence punishable under Section 302 of IPC and
sentenced to undergo imprisonment for life and to pay a
fine of Rs.10,000/-, in default of payment of fine amount,
to undergo R.I., for a period of 6 months.

2. Heard the learned counsel for the appellant,
learned High Court Government Pleader for the State and
perused the evidence and material on record.

3. The prosecution case in brief is that, in view of
the previous enmity in connection with taking of luggage
vehicle on hire basis, on 04.12.2015 at about 9.45 p.m.,
rd
near Burton Wines, 3 Stage, Banashankari, Katriguppe,
Bengaluru, the accused picked up a quarrel with deceased
Avinash and on the same night at about 11.15 p.m., near
Nandini Booth, he once again picked up a quarrel with the
deceased and assaulted on his head and face with a
bamboo club (MO1). On account of the said assault,
Avinash sustained grievous bleeding injury and died on

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05.12.2015 at about 11.50 p.m. at Victoria hospital, while
he was under treatment.

4. The complaint – Ex.P1 was lodged by one
Jagadeesh bin Kemparaju, a friend of the deceased and an
eyewitness to the incident. In Ex.P1 he has averred that
on 04.12.2015 at about 9.45 p.m., after consuming
alcohol at one Burton Wines, while he was coming out of
the said wine shop along with deceased Avinash, the
accused, working in the nearby Ramakrishna Tent House,
quarreled with Avinash. At about 11.15 p.m., when they
went to take their vehicle parked near nandini booth, the
accused assaulted Avinash with a bamboo stick on his
back and head and caused severe bleeding injuries and
ran away from the spot. On account of the said assault,
Avinash collapsed and he along with other friends who
came to the spot, shifted Avinash to Devegowda Hospital
for treatment.

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5. Based on the above complaint – Ex.P1, a case
was registered against the accused by PW.12 – PSI of
Chennammanakere achukattu Police Station, for an
offence punishable under Section 307 IPC. He forwarded
the FIR – Ex.P12 to the jurisdictional Court and proceeded
to the spot and conducted the spot mahazar – Ex.P2
between 5.00 a.m. and 6.00 a.m., and collected the blood
stains found at the spot.

6. The deceased Avinash was referred to BGS
Global Hospital for further treatment and from there he
was shifted to Victoria Hospital. He died, while undergoing
treatment on 05.12.2015 at about 11.50 p.m. On
receiving the death memo – Ex.P8, PW12 gave requisition
to the Court to incorporate Section 302 IPC in the place of
Section 307 of IPC. The inquest mahazar – Ex.P3 was
prepared and the dead body was subjected to post-
mortem examination.

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7. The accused was arrested on 06.12.2015. His
voluntary statement – Ex.P28 was recorded by the Police
Inspector – PW14. A blood stained bamboo stick (MO1)
was seized at his instance, in the presence of panch
witnesses. On completion of investigation charge sheet
was filed.

8. The entire case of the prosecution revolves around
the evidence of the complainant, examined as PW.2, who is the
sole eyewitness to the incident. In the chief examination, he
reiterated the averments in the complaint, i.e., the quarrel
which took place between the accused and the deceased at
about 9.45 p.m. on 04.12.2015 and then accused going away
from the spot. He has stated that, when the deceased and
himself went to Nandini Booth to take the autorickshaw, the
accused once again picked up a quarrel with the deceased and
assaulted him with a bamboo stick on his head. He has further
stated that the accused even tried to assault him but he ran
away from the spot and informed the matter to his friends and
when they returned to the spot, the accused was not present.

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Thereafter his friends shifted the deceased to Devegowda
Hospital and he went to the police station and lodged the
complaint-Ex.P1.

9. In the cross-examination conducted by the defence,
PW.2 has given a complete go-by to the prosecution case and
resiled from the averments made in the complaint and the
chief-examination. He admitted that on the date of incident at
about 07.30 - 08.00 p.m., he met the deceased and a few of
his friends and all of them went to the wine store and had
drinks. However, stated that, they were present in the wine
store for about half an hour and thereafter, he returned to his
room. He has stated that at about 12.00 in the midnight,
someone telephoned to him and informed that Avinash
(deceased) had quarrelled with his friends and in the said
quarrel he sustained injuries and admitted in the hospital.
Hence, he went to Devegowda Hospital wherein, at about
01.00 a.m., the police enquired him and took his signatures at
two three places. He has further stated that at about 3.00 to
4.00 a.m., Avinash was taken to BGS Hospital for higher

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treatment and from there, he was taken to Victoria Hospital.
He pleaded his ignorance regarding the actual incident and
stated that he had not witnessed the same and he was not
aware as to what happened after he had left the spot. He has
further stated that the police had taken his signatures on Ex.P1
(complaint) and Ex.P2 (spot mahazar), when he was in the
hospital and he do not know the contents of the said
documents. He has further stated that he had not seen the
accused prior to the incident and that he is seeing MO.1-
bamboo stick for the first time before the Court.

10. PW.2 was cross-examined by the prosecution. He
has denied the suggestion that he had given a complaint as per
Ex.P1 and denied conducting of spot mahazar Ex.P2. He has
denied having witnessed the incident and the accused
assaulting the deceased with Mo.1 bamboo stick.

11. The trial Court has oberved that, PW.2 in his chief-
examination has deposed before the Court that he had seen
the quarrel that had taken place between Avinash and the

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accused on the said day, time and place. He has also deposed
that, he had seen the assault on the head of Avinash by the
accused with MO.1-bamboo stick on the aforesaid day, time
and place. Other eyewitnesses have not supported the case of
the prosecution in this regard, however, evidence of PW.2
about the injuries caused to the deceased Avinash has been
clearly supported by the evidence of the doctor and the
contents and the documents marked at Ex.P10 as well as the
Wound Certificate marked at Ex.P13. Further, the doctor has
specifically deposed that, Avinash died in view of the head
injuries. Therefore, it is clear that the death of Avinash is
homicidal in nature. The trial Court further held that in Ex.P1,
PW.2 has specifically stated almost all the facts as deposed by
him before the Court at the time of his chief-examination.
Therefore, his evidence cannot be disbelieved. His evidence is
clear that the accused has committed the murder of Avinash.
Therefore, held him guilty of the offence punishable under
Section 302 of IPC.

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12. The death of Avinash on account of the injuries
sustained to his head, is not in dispute. As per prosecution, the
victim was shifted from the spot to Devegowda Hospital and
from there, he was shifted to BGS Hospital for higher treatment
and then shifted to Victoria Hospital, wherein he succumbed to
the injuries. Ex.P13 is the intimation sent from BGS Global
Hospital wherein, it is stated that the injured was brought to
the casualty of the Hospital with the alleged history of assault
with a wooden stick (bamboo) by known person. The patient
sustained head injury and unresponsive, referred to BGS Global
Hospital.

13. Ex.P10 is the PM report. The autopsy was
conducted by PW.11. As per Ex.P10, following external injuries
were noticed on the dead body:
“1. Surgically saturated wound 3 cms in length
present over left tem (torn) region of head
situated 2 cm above left ear and 16 cms
away from midline.

2. Abrasion 6.5 cm x 1.8 cm present over left
side of face situated just lateral to the
outer angle of left eye and 5.5 cms in
(torn) left ear.

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3. Contusions three in number measuring 6
cm x 5 cm, 1 cm x 1 cm and 1 cm x 1 cm
present over front of right upper chest.

4. Contusions two in number measuring
1 x 1 cm and 0.5 x 0.5 cm present over
front of left upper chest.

5. Abrasion 2.5 cm x 0.3 cm present over
left forehead.”


14. PW.11 has opined that the death is due to head
injury. He has furnished his opinion as per Ex.P11, regarding
the bamboo stick (MO.1), stating that the injuries No.2 to 5
and the injuries on the head are possible if assaulted with the
said wooden club.

15. In this case, PW.2 is the star witness. According to
the prosecution, he is an eyewitness to the incident. However,
in the cross-examination conducted by the defense, he has
given a complete go-by to the prosecution case stating that he
was not at all present at the scene when the incident of assault
took place. He has further stated that he do not know the
contents of Exhibit P1-complainant as well as the contents of
Ex.P2-spot mahazar.

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16. It is well settled that the evidence of a hostile
witness cannot be treated as completely effaced just because a
part of it or the whole stance has turned against the
prosecution. The Court is legally empowered and duty bound to
separate the grain from the chaff. The parts of a hostile
witness's testimony that are trustworthy, coherent and
consistent with other reliable evidence, such as medical
reports, forensic evidence, or other eyewitnesses accounts can
still be legally relied upon by either the prosecution or the
defense. Portions of the testimony that support the core case of
the prosecution or conversely, help the accused can be used by
the Court provided they pass judicial scrutiny. If a witness
supported the prosecution during the chief-examination but
was influenced, threatened, or won over during a long delayed
cross-examination, Courts should look closely at the underlying
reasons and may still credit the earlier version, if corroborated.
It is also well settled that while the testimony of a hostile
witness remains admissible, a conviction cannot safely rest
solely on the uncorroborated portion of a hostile witness's

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statement unless it finds firm backing from independent,
credible material on record.

17. In the case on hand, the trial Court held that the
evidence of PW.2, given in chief-examination is corroborated by
the medical evidence, and relying on the same, convicted the
accused. It is relevant to see as to whether the evidence of
PW.2 finds corroboration from independent, credible material
on record.

18. In Ex.P1, PW.2 has stated that he shifted the
injured (deceased) to the hospital along with other friends who
came to the spot. In his chief-examination, PW.2 has stated
that when the accused assaulted the deceased, he ran away
from the spot and brought other friends. He along with his
friends Avinash S/o Shankar, Vinod and Kishore shifted the
deceased to the hospital. Avinash is examined as PW.6 and
Kishore is examined as PW.4. Both the said witnesses have
turned hostile and not supported the case of the prosecution.

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19. PW.4-Kishore has deposed that at about 01.00
a.m., he was informed by someone over the phone that
Avinash had been assaulted. Immediately he went near the
shop and saw several people had gathered there. Avinash was
lying on the ground with bleeding injuries on the head. He took
him to Devegowda Hospital. He feigned ignorance regarding
the assailant and stated that he does not know who assaulted
Avinash.

20. Similarly, PW.6 has deposed that at about 11.30
p.m., someone telephoned and informed that Avinash had
been assaulted by someone and he along with Kishore (PW.4)
went to the spot and shifted Avinash to Devegowda Hospital.
He has also stated that he is not aware who assaulted Avinash
and for what reason he was assaulted.

21. A perusal of the evidence of PWs.4 and 6 goes to
show that they went to the spot after coming to know about
the incident and shifted Avinash (deceased) to the hospital.
They have not mentioned regarding the presence of PW.2 at

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the spot. This assumes importance because in the cross-
examination conducted by the defense, PW.2 has stated that
he along with Avinash and other friends had been to the wine
store wherein, all of them had drinks. Further stated that he
was present with them for half an hour and then returned to
his room and at about 12 in the midnight, he came to know
that Avinash and his friends had quarreled and in the said
quarrel, Avinash had sustained injuries and admitted to the
hospital. Hence, the evidence of PW.2 given in the chief-
examination, regarding the incident and he witnessing the
accused assaulting the deceased with a bamboo stick, do not
inspire the confidence of the Court. It is well settled that the
conviction cannot safely rest solely on the uncorroborated
testimony of a witness, who has resiled from the earlier
statement or turned hostile, unless the same finds
corroboration from independent, credible material on record.
We do not find any corroboration to the evidence given by PW2
in his chief examination from independent, credible material on

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record. Further, the prosecution has failed to show that PW.2
was either won over, influenced or threatened by the accused.

22. The learned HCGP contended that after the arrest
of the accused, a bamboo stick (MO.1) was seized at his
instance and the said bamboo stick was blood stained, as per
the FSL report.

23. We have perused the evidence regarding the
recovery of MO.1. As per prosecution, the accused led the
police and panchas to a vacant site and showed the bamboo
stick-MO.1. The panch witness examined as PW.5 to the
seizure mahazar- Ex.P4 has turned hostile.

24. The Investigation Officer- PW.14 has stated that
the accused was arrested on 06.12.2015 and on
interrogation, he confessed to the crime and gave a
voluntary statement as per Ex.P28, to the effect that he
would show the wooden club. On 07.12.2015, the accused
took them to the spot and from beneath the old sheets,

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produced MO.1-wooden club, which was seized under a
mahazar-Ex.P4.

25. PW14 has not stated that, the voluntary
statement-Ex.P28 of the accused was recorded by him in
the presence of the panch witnesses. He has deposed that
he had called the panch witnesses to the spot, but not
stated that when the voluntary statement of the accused
was recorded, the panchas were present. In his
deposition, PW14 has stated that the accused produced
MO.1-wooden club from beneath the old sheets, whereas
contents of Ex.P4-mahazar, do not show that the wooden
club was concealed beneath the old sheets. It is stated
therein that the accused confessed to have thrown the
wooden club in a vacant site and produced the said
wooden club which was lying near the compound. Hence,
the recovery of MO.1-wooden club also does not inspire
the confidence of the Court.

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26. In the cross examination of PW12-PSI, who
registered the case, he has admitted that there is some
space between the contents of the complaint and the
signature of the complainant. Further admitted that in
th rd
Ex.P2-spot mahazar, in the 5 line of 3 para, he had
corrected the name as ‘Suresh’ instead of ‘Nagesh’. The
said admission casts a serious doubt on the prosecution
case. He has further admitted that he did not notice
as to whether the clothes of PW2 was blood stained.
According to the prosecution, PW2 along with other friends
shifted the deceased to the hospital. Admittedly, the blood
stained clothes of PW2 was not seized by the police.
Hence, the evidence given by him in the cross-
examination that, he went to the hospital to see the
deceased, on coming to know about the incident, is more
probable.

27. In the light of the above discussion, we find
that the evidence tendered by PW2 is not sufficient to
establish the guilt of the accused. The evidence of PW2,

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the sole eyewitness to the incident, given in the chief
examination is not corroborated by any other independent
and material evidence to hold that the prosecution has
established the charge levelled against the accused. The
accused is entitled to the benefit of doubt. Accordingly, we
pass the following:
ORDER
i. Appeal is allowed.
ii. The Judgment and Order dated 5.10.2019
passed by the Court of LXIII Additional City Civil and
Sessions (CCH-64) at Bengaluru in SC No.390 of 2016,
convicting and sentencing the accused/appellant for the
offence punishable under Section 302 of IPC is set aside.
iii. The appellant/ accused, is acquitted and he
shall be released from prison, if not required in any other
case.

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iv. The fine amount, if any deposited, shall be
refunded to him.
v. Registry shall communicate this order to the
concerned jail authority, forthwith.

Sd/-
(MOHAMMAD NAWAZ)
JUDGE



Sd/-
(B.PRAMOD)
JUDGE





HB,BSV,TL
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