Karnataka High Court
Kumar S/O Basappa Olekar vs State Of Karnataka on 11 August, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF AUGUST 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CRIMINAL APPEAL NO. 100320 OF 2020
(374(Cr.PC)/415(BNSS)-)
BETWEEN:
1. KUMAR S/O. BASAPPA OLEKAR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. CHINNAMULUGUNDA,
TQ: HIREKERUR, DIST: HAVERI.
2. HANUMANTHAPPA S/O. GUDDAPPA NADLER,
AGE: 41 YEARS, OCC: CYCLEREPAIR WORK,
R/O. CHINNAMULUGUNDA,
TQ: HIREKERUR, DIST: HAVERI.
...APPELLANTS
(BY SRI. S.G. NANDOOR AND
SRI. S.B. DODDAGOUDAR, ADVOCATES)
AND:
YASHAVANT
NARAYANKAR
STATE OF KARNATAKA,
Digitally signed by BY PSI OF HAUNSBHAVI POLICE STATION,
YASHAVANT
NARAYANKAR
Location: HIGH COURT
REPRESENTED BY SPP, HIGH COURT OF KARNATAKA,
OF KARNATAKA
DHARWAD BENCH
DHARWAD
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. 1973 PRAYING TO ALLOW THE PRESENT APPEAL AND SET
ASIDE THE JUDGMENT AND ORDER DATED ORDER 09/10/2020
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HAVERI, SITTING AT RANEBENNUR IN S.C.NO.76/2014, BY
ACQUITTING THE APPELLANTS FOR THE OFFENCES CHARGED UNDER
SECTION (120)B, 397, 302 READ WITH SECTION 34 OF IPC AND
ETC.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR)
This appeal by the appellants/accused No.2 and 3 in
S.C.No.76/2014 on the file of the II-Additional District and
Sessions Judge at Haveri (Sitting at Ranebennur)1 is directed
against the impugned judgment dated 09.10.2020 whereby the
appellants/accused No.2 and 3 were convicted along with
accused No.1-Satish for offences punishable under Sections
302, 397 and 120(B) read with Section 34 of the Indian Penal
Code, 18602.
2. Heard the learned counsel for the
appellants/accused No.2 and 3 and the learned Additional SPP
for respondent-State and perused the material on record.
1
Hereinafter referred to as ‘Trial Court’
2
Hereinafter referred to as ‘IPC‘
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3. A perusal of the material on record would indicate
that on 24.08.2014, PW2 (CW1), the son of one
Channabasappa Gokavi filed a complaint, which was registered
as an FIR in Crime No.106/2014 against the appellants/accused
No.2 and 3 and one Satish-accused No.1. The respondent-
police authorities conducted investigation and filed a charge
sheet against appellants herein as well as the aforesaid accused
No.1 for the offences punishable under Sections 302, 397 and
120(B) read with Section 34 of IPC.
4. According to the case of the prosecution, on
21.08.2014, the accused persons entered the house/godown of
aforesaid Channabasappa Gokavi3 at about 9.00 p.m., and all
of them assaulted him and took away ₹5,000/- and a mobile
phone. It is alleged that on 22.08.2014, the complainant
received a phone call from CW2 at around 8.30 p.m. that the
father of the complainant had expired and went to the spot only
to find the dead body of his father and on enquiry, he was told
that his father might have fallen down during the night.
Thereafter, on 24.08.2014, the grand-nephew of the deceased
makes a phone call to the complainant, who comes back to the
3
Hereinafter referred to as ‘deceased’
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same spot and upon enquiry, the accused No.1 as well as
accused No.2 and 3 are apprehended and the aforesaid
FIR/complaint is registered against them.
5. Pursuant to the Trial Court framing of charges as
against the appellants and the accused No.1-Satish, the
prosecution examined the complainant/CW1 as PW2 and the
grand-nephew of the deceased (CW2) as PW1 and other
witnesses as PW3 to PW30. The prosecution marked Exs.P1 to
49 by way of documentary evidence and M.O.1 to 6 in support
of their case. The appellants/accused did not adduce any oral
or documentary evidence. By the impugned judgment, the Trial
Court proceeded to convict the appellants as well as accused
No.1. Aggrieved by the impugned judgment of conviction and
sentence passed by the Trial Court, the appellants/accused
No.2 and 3 are before this Court by way of present appeal.
6. Heard learned counsel for the appellants and
learned Additional SPP for the respondent-State and perused
the material on record.
7. In addition to reiterating the various contentions
urged in the memorandum of appeal and referring to the
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material on record, the learned counsel for the appellants
invited our attention to the impugned judgment in order to
point out that despite the fact that there are no eyewitnesses to
the incident in question involving the appellants/accused No.2
and 3 or any evidence as regards their role in the incident in
question, the Trial Court committed an error in convicting the
appellants/accused No.2 and 3 based on the sole alleged
confession statement by accused No.1. In this context, our
attention is invited to the complaint in order to point out that
even according to PW2 (complainant), he made allegations
against the appellants/accused No.2 and 3 only based on the
sole confession statement of accused No.1 and upon accused
No.2 and 3 allegedly admitting their guilt in the presence of the
villagers. It is also submitted that apart from the fact that there
is no circumstantial evidence to incriminate the appellants for
the alleged offences, the mobile phone of the deceased was not
recovered from the custody or the possession of the
appellants/accused No.2 and 3 and there was also no evidence
to establish that they were last seen at the spot or near the
deceased at the time of the incident. It was therefore,
submitted that the impugned judgment passed by the Trial
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Court convicting the appellants/accused No.2 and 3 based on
the sole/solitary confessional statement of accused No.1 is
contrary to law and facts and as well as to the principles laid
down by the Hon’ble Apex Court in the case of Bishnu Prasad
Sinha and another v. State of Assam4 and Kalinga Alias
Kushal v. State of Karnataka5.
8. Per contra, learned Additional SPP, would support
the impugned judgment and submits that there is no merit in
the appeal and that the Trial Court is fully justified in convicting
the appellants/accused No.2 and 3 for alleged offences
punishable under Sections 302, 397 and 120(B) read with
Section 34 of IPC and seeks dismissal of the appeal.
9. The points arise for our consideration in the present
appeal are as under:
i) Whether the Trial Court was justified in
convicting the appellants/accused No.2 and
3 for the alleged offences punishable under
Sections 302, 397 and 120(B) read with
Section 34 of IPC?
4
(2007) 11 SCC 467
5
(2024) 4 SCC 735
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ii) Whether the impugned judgment passed by
the Trial Court warrants interference in the
present appeal?
10. Since both points are interlinked, they are taken up
together for consideration.
11. A perusal of the material on record will indicate that
it is an undisputed fact that there is no eyewitness, who speaks
about either the role or involvement of the appellants/accused
No.2 and 3 in the alleged offences. In fact, it is relevant to
state that even according to the complainant himself, who
lodged the complaint after about two days after the alleged
incident, it was the accused No.1, who stated as regards the
involvement of accused No.2 and 3, as can be seen from the
confession statement of accused No.1, which is extracted
below:
“DgÉÆæAiÀÄ ¸Àé-EZÁÒ ºÉýPÉ:
£Á£ÀÄ ¸ÀwñÀ vÀAzÉ ¯ÉÃmï £ÁUÀ¥Àà PÀħ¸ÀzÀ, 19 ªÀµÀð,
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ºÁªÉÃj f¯Éè.
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12. A perusal of the complaint will indicate that even
according to the complainant himself, his father expired on
21.08.2014 and it was only on 24.08.2014, when he went to
the spot of demise of his father, he found accused No.1, who in
turn gave alleged confession statement confessing not only
about his own guilt but also about the guilt of accused No.2 and
3, who were thereafter brought to the spot and in the first
instance they denied their guilt. But later after being coerced
and beaten by the villagers, they admitted their guilt. It is
therefore clear that at the earliest point of time the complaint
insofar as accused No.2 and 3 was based on mere sole/solitary
extra-judicial confessional statement alleged to have been
made by accused No.1 as well as the subsequent extra-judicial
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statement and the admission by accused No.2 and 3 after being
beaten by the villagers, who were present at the spot.
13. In order to prove the guilt of the appellants/accused
No.2 and 3 as well as accused No.1, the prosecution examined
the grand-nephew of the deceased as PW1 (CW2), who is
neither an eyewitness nor has stated anything as regards the
guilt of the appellants/accused No.2 and 3. The original
complainant/PW2 (CW1) is also not an eyewitness and does not
speak anything as regards the alleged guilt or involvement or
role of the appellants/accused No.2 and 3 in the alleged
incident. Similarly, none of the other witnesses, examined as
PW3 to PW30 state anything as regards them witnessing the
incident involving accused No.2 and 3 or their role in the
incident in question, as can be seen from the extractions of the
depositions of all the witnesses, which is forthcoming in the
impugned judgment. Suffice it to state the Trial Court does not
record a finding that the testimonies of any of the witnesses
indicate that the appellants/accused No.2 and 3 were either
involved in the incident in question or had they any role or that
they were guilty of the alleged offences.
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14. It is also pertinent to note that apart from the fact
that there are no eyewitnesses to incriminate the
appellants/accused No.2 and 3 for the alleged offences, there is
no evidence whatsoever to establish that the
appellants/accused No.2 and 3 were last seen at the spot or
with the deceased or with accused No.1 at the time of the
incident and the Trial Court clearly fell in error in coming to the
conclusion that the appellants were guilty, without appreciating
this aspect of the matter.
15. A perusal of the impugned judgment would also
indicate that there is absolutely no circumstantial evidence
available on record to incriminate the appellants/accused No.2
and 3 in the alleged offences. As stated earlier, even a reading
of the testimonies of the various witnesses as extracted by the
Trial Court in the impugned judgment will also indicate that
neither any evidence is given as against the appellants/accused
No.2 and 3 nor any finding recorded by the Trial Court so as to
come to the conclusion that the appellants-accused No.2 and 3
were guilty of the alleged offences. In fact, all that the Trial
Court has said is that as per the confessional statement of
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accused No.1, all the accused persons came to know that the
deceased possessed huge cash and they wanted to rob him and
accordingly finished him, as can be seen from the findings
recorded by the Trial Court, which is as under:
“87. From the above material evidence, it is
established that it is a clear case of murder for
gain. Accused No.1 was well aware that
deceased was always possessed with money,
hence, he colluded with the other accused
persons and conspired to murder
Channabasappa. The accused No.1 had selected
the shed in which Channabasappa was doing his
business. It is not in dispute that
Channabasappa was used to reside in the said
shed and he was not residing with his family
members. It is an admitted fact that,
Channabasappa was residing alone and used to
has had food in the house of the villagers.
88. As per the confession statement by accused
No.1, he assaulted Channabasappa with wooden
reaper, robbed cash of Rs.5,000/ and mobile
phone. The Bank Manager has categorically
deposed that, prior to the incident,
Channabasappa had deposited cash of
Rs.50,000/ in his S.B. Account. It appears that,
the accused persons believed that
Channabasappa had possessed huge cash and
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hence, planned to finish him.
89. The prosecution has proved the motive,
preparation and conduct of the accused persons
before and after the incident. The accused
persons in furtherance of common intention,
conspired to murder the aged man
Channabasappa Gokavi, accordingly, they
murdered the victim and committed the offence
of robbery. Except the denial, the accused
persons have not placed any defence to
disprove the case of the prosecution. It may be
true that, some of the witnesses are turned
partially hostile. The hostility of some of the
witnesses does not come in the way of the
prosecution to prove the guilt of the accused
persons. The chain of circumstances clearly
demonstrate the motive of the accused persons.
Moreover, I.O. has contended that, the accused
persons were involved in other criminal activities
prior to the incident. So, the prosecution has
proved the guilt of the accused persons
beyond reasonable doubt. Accordingly, I answered
all the points in the affirmative.”
16. The aforesaid findings recorded by the Trial Court
clearly indicate that it did not advert to any piece of oral or
documentary evidence to arrive at the said conclusion. The
Trial Court, in an omnibus manner, proceeded to convict all the
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three accused persons without there being any evidence
regarding either the involvement or role of appellants/accused
Nos.2 and 3 or any proof of conspiracy between accused No.1
on one hand and accused Nos.2 and 3 on the other. The entire
findings recorded in the aforesaid paragraphs are based on
surmises and conjunctions, and without there being any legal
or acceptable evidence in this regard. The Hon’ble Apex Court,
in the case of Bishnu Prasad Sinha and Another Vs. State
of Assam6, held as under:
43. The question has been considered in State of
M.P. vs. Paltan Mallah7, stating (SCC pp. 17778, para
18):
“Under Section 30 of the Evidence Act, the extra
judicial confession made by a coaccused could be
admitted in evidence only as a corroborative piece of
evidence. In the absence of any substantive evidence
against these accused persons, the extrajudicial
confession allegedly made by the ninth accused loses its
significance and there cannot be any conviction based on
such extrajudicial confession.”
44. In Sidhartha8 (supra), this Court held: (SCC
pp. 55758, para 19)
6
(2007) 11 Supreme Court Cases 467
7
(2005) 3 SCC 169 : 2005 SCC (Cri) 674
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“19. It is true that the confession made by a co
accused shall not be the sole basis for a conviction. This
Court in Kashmira Singh v. State of M.P9. held that the
confession of an accused person is not evidence in the
ordinary sense of the term as defined in Section 3. It
cannot be made the foundation of a conviction and can
only be used in support of other evidence. The proper
way is, first, to marshal the evidence against the
accused excluding the confession altogether from
consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is capable of
belief independently of the confession, then of course it
is not necessary to call the confession in aid. But cases
may arise where the judge is not prepared to act on the
other evidence as it stands, even though, if believed, it
would be sufficient to sustain a conviction. In such an
event the judge may call in aid the confession and use it
to lend assurance to the other evidence and thus fortify
himself in believing what without the aid of the
confession he would not be prepared to accept.”
45. In Ram Parkash vs. The State of Punjab10, it
was held : (SCR p. 1219)
“That a voluntary and true confession made by an
accused though it was subsequently retracted by him,
can be taken into consideration against a coaccused by
virtue of Section 30 of the Evidence Act, but as a matter
8
Sidharth v. State of Bihar, (2005) 12 SCC 545: (2006) 1 SCC (Cri) 175
9
AIR 1952 SC 159 : 1952 Cri LJ 839
10
AIR 1959 SC 1 : 1959 SCR 1219 : 1959 Cri LJ 90
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of prudence and practice the court should not act upon it
to sustain a conviction of the coaccused without full and
strong corroboration in material particulars both as to
the crime and as to his connection with that crime.
The amount of credibility to be attached to a
retracted confession would depend upon the
circumstances of each particular case.”
It was further opined : (SCR p. 1219)
“On the evidence in the case the confession of P was
voluntary and true and was strongly corroborated in
material particulars both concerning the general story
told in the confession concerning the crime and the
appellant’s connection with crime.”
(See also Navjot Sandhu11 (supra) and Jaswant Gir vs.
State of Punjab12.)
46. Both the appellants had accepted their
presence at the place of occurrence. Appellant No.2 had
accepted that there were injuries on his face. He also
accepted that there were stains in his seized
undergarment.
47. Ms. Makhija may be correct in saying that all
the witnesses to the seizure are not truthful, but, apart
from the investigating officer, seizure has been proved
by P.W.4 and P.W.26. They were themselves suspects;
11
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC
(Cri) 1715
12
(2005) 12 SCC 438 : (2006) 1 SCC (Cri) 579
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they were brought to the police station. They must have
been interrogated and if they were witnesses to the
seizure, we do not find any reason as to why we should
completely ignore the seizure of the said
undergarments, particularly in regard to its relevance,
visàvis, the statement of the manager of the bus that
he had changed his dress within the probable time of
commission of the offence.
17. The Hon’ble Apex Court, in the case of Kalinga
Alias Kushal Vs. State of Karnataka by Police Inspector,
Hubli13, held as under:
28. It may be noted that the entire case of the
prosecution is based on circumstantial evidence. The
principles concerning circumstantial evidence are fairly
settled and are generally referred as the “Panchsheel”
principles. Essentially, circumstantial evidence comes
into picture when there is absence of direct evidence.
For proving a case on the basis of circumstantial
evidence, it must be established that the chain of
circumstances is complete. It must also be established
that the chain of circumstances is consistent with the
only conclusion of guilt. The margin of error in a case
based on circumstantial evidence is minimal. For, the
chain of circumstantial evidence is essentially meant to
enable the court in drawing an inference. The task of
fixing criminal liability upon a person on the strength of
13
(2024) 4 SCC 735
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an inference must be approached with abundant caution.
As discussed above, the circumstances sought to be
proved by the prosecution are inconsistent and the
inconsistencies in the chain of circumstances have not
been explained by the prosecution. The doubtful
existence of the extrajudicial confession, unnatural
conduct of PW1, recovery of dead body in the presence
of an unreliable witness PW2, contradictions regarding
arrest, unnatural prior and subsequent conduct of PW1,
incredible testimony of the witnesses in support of the
last seen theory etc. are some of the inconsistencies
which strike at the root of the prosecution case. To draw
an inference of guilt on the basis of such evidence would
result into nothing but failure of justice. The evidence on
record completely fails the test laid down for the
acceptability of circumstantial evidence. Therefore, in
light of the consolidated discussion, all three issues are
hereby answered in negative.
29. Before parting, we consider it our duty to refer to
the catena of judgments relied upon by the respondent
to contend that minor inconsistencies could not be
construed as reasonable doubts for ordering acquittal.
Reference has been made to Sucha Singh v. State of
Punjab14, Mallikarjun15 and Hari Singh v. State of Uttar
Pradesh16.
14
(2003) 7 SCC 643 : 2003 SCC (Cri) 1697
15
Mallikarjun v. State of Karnataka, (2019) 8 SCC 359 : (2019) 3 SCC (Cri) 563
16
(2021) 17 SCC 111
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30. No doubt, it is trite law that a reasonable doubt is
essentially a serious doubt in the case of the prosecution
and minor inconsistencies are not to be elevated to the
status of a reasonable doubt. A reasonable doubt is one
which renders the possibility of guilt as highly doubtful.
It is also noteworthy that the purpose of criminal trial is
not only to ensure that an innocent person is not
punished, but it is also to ensure that the guilty does not
escape unpunished. A judge owes this duty to the
society and effective performance of this duty plays a
crucial role in securing the faith of the common public in
rule of law. Every case, wherein a guilty person goes
unpunished due to any lacuna on the part of the
investigating agency, prosecution or otherwise, shakes
the conscience of the society at large and diminishes the
value of the rule of law. Having observed so, the
observations in this regard may not advance the case of
the respondent in the present appeal. It is so because
the inconsistencies in the case of the prosecution are not
minor inconsistencies. As already discussed above, the
prosecution has miserably failed to establish a coherent
chain of circumstances. The present case does not fall in
the category of a lighthearted acquittal17, which is
shunned upon in law.
18. In the light of the principles laid down by the
Hon’ble Apex Court, the finding of conviction recorded by the
Trial Court, based on the sole/solitary confessional statement of
17
Glanville Williams, Proof of Guilt.
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accused No.1, is clearly erroneous, and especially having
regard to the fact that the same does not stand corroborated
by any other evidence adduced by the prosecution coupled with
the fact that the said sole/solitary statement of accused No.1
was the basis for the FIR, being registered against the
appellants, and without noticing the fact that even the alleged
admission of guilt by appellants/accused Nos.2 and 3 was after
they were beaten by the villagers, who are at the spot.
19. The Trial Court also failed to consider and
appreciate that, according to the prosecution’s case, mobile
phone of the deceased Channabasappa was found in the
custody of accused No.1. The theory of conspiracy between
accused No.1 and appellant Nos.2 and 3 has been accepted by
the Trial Court. However, the Trial Court failed to appreciate
that, apart from the fact that nothing whatsoever was
recovered from the custody or possession of appellant Nos.2
and 3, even the alleged mobile phone, which is sought to be
linked to the alleged homicidal death of Channabasappa, was
not recovered from the custody or possession of
appellants/accused Nos.2 and 3. This is yet another
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circumstance that establishes the Trial Court conclusion that
the appellants are guilty of the offences alleged against them is
erroneous.
20. Under these circumstances, upon re-appreciation,
re-evaluation and re-consideration of the entire material on
record, we are of the considered opinion that the Trial Court
clearly erred in convicting the appellants/accused Nos.2 and 3
for the alleged offences, which have not been proved beyond
reasonable doubt as alleged by the prosecution.
21. Insofar as the contention urged by the learned
Additional State Public Prosecutor that the post mortem report,
autopsy report and other documents (Ex.P39, Ex.P40 and
Ex.P41) established that the demise of Channabasappa was a
homicidal death, and the Trial Court judgment deserves to be
upheld is concerned, merely because the demise/death of
deceased Channabasappa was a homicidal one, in the absence
of any evidence to incriminate the appellants for the alleged
offences, it cannot be said that the homicidal death of deceased
Channabasappa will lead to sole conclusion that the appellants
are guilty of the alleged offences.
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22. In fact we make it clear that the present appeal and
the findings recorded herein are restricted to accused Nos.2 ad
3 and we have not expressed any opinion in relation to the
appeal in Criminal Appeal No.100250/2021 filed by accused
No.1, which shall be dealt with and decided on merits in
accordance with law.
23. Hence the following:
ORDER
i) The appeal is allowed.
ii) The judgment and order dated 09.10.2020
passed in S.C.No.76/2014 on the file of II
Additional District and Sessions Judge, Haveri
(Sitting at Ranebennur) insofar as it relates to
the conviction and sentence of accused No.2 and
3 is hereby set aside.
iii) The appellants/accused Nos.2 and 3 are
acquitted of the alleged offences.
iv) It is made clear that the present appeal and
this order is restricted to the appellants/accused
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Nos.2 and 3 only and we have not expressed any
opinion on the merits/demerits of the rival
contentions in Criminal Appeal No.100250/2021
filed by accused No.1, which shall be decided in
accordance with law.
v) The fine amount of Rs.12,000/- deposited by
the appellants is directed to be refunded to the
appellants immediately upon receipt of copy of
this order.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
YAN Para Nos: 1 to 15
PMP Para Nos: 16 till end.
CT-MCK
List No.: 1 Sl No.: 31
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