Dismissed

The State of Karnataka v. Ambareesha

Karnataka HC22 Feb 2024CRL.A/1309/2018

Case brief

AI extract

What is this about?

High Court dismissed criminal appeal against acquittal. Court affirmatively confirmed trial court's refusal to accept prosecution evidence regarding recovery of gold ornaments and weapon due to witness inconsistencies. Held that findings were not perverse. Appeal dismissed.

What did the court decide?

Criminal Appeal dismissed; acquittal of respondent confirmed under Sections 302 and 201 IPC.

The State of Karnataka Vs Ambareesha — Murder and Culpable Homicide | Karnataka HC (2024)

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Crl.A.No.1309/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY 2024

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA

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CRIMINAL APPEAL No.1309 OF 2018 (A)

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BETWEEN:

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The State of Karnataka by K. M. Doddi police, Represented by State Public Prosecutor, High Court building, Bengaluru - 560 001. …Appellant

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(By Shri Vinay Mahadevaiah, HCGP)

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AND:

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Ambareesha S/o. Late Javarayigowda, Aged about 28 years, R/o. Lakshmisagara village, Pandavapura taluk, Mandya district - 571 434. …Respondent

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(By Shri K Abhinav Anand, Advocate)

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This Criminal Appeal is filed under sections 378(1)(3) of Cr.P.C praying to grant leave to appeal against the judgment and order of acquittal dated 06.04.2018, passed by V Additional District and Sessions Judge, Mandya in S.C.No.73/2016, acquitting the respondent for the offences punishable under Sections 302, 201 of IPC.

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This Criminal Appeal coming on for Further Arguments having been heard through Physical Hearing/Video Conference

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and reserved for judgment on 28.11.2023, coming on for pronouncement, this day, Umesh M Adiga J., delivered the following:

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JUDGMENT

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This is State’s appeal challenging judgment dated 06.04.2018 passed by the learned V Additional District and Sessions Judge Court at Mandya in S.C.No.73 of 2016 acquitting the accused for the offence punishable under Sections 302 and 201 of Indian Penal Code (for short ‘IPC’).

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Brief facts of the case of prosecution are that PW-1 - Kumara and PW-2 - Smt. Indira are children of deceased Smt. Jayamma. Both PW-1 and PW-2 are residing at Bengaluru. After death of her husband, Jayamma alone was residing at Lakshmisagara village of Pandavapura Taluk in Mandya District. She had agricultural lands and she was cultivating the said land with the help of labourers. Accused was driving Tata Ace vehicle standing in the name of his mother – PW6. He was plying the said vehicle as public carrier to transport goods from Laxmisagar to Bengaluru and other places.

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The house of deceased Smt. Jayamma, house of PW-3 - Annaiah A, PW-4 Arunakumar and the house of accused are situated in the same street at Lakshmisagar. PW-3 was looking after and cultivating the land belonging to Smt. Jayamma.

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It is the further case of the prosecution that on 19.02.2016, she telephonically informed PWs - 1 and 2 that she would be coming to Bengaluru on 20.06.2016 in the morning. Accordingly, on 20.06.2016, in the early morning at about 3 a.m., accused went to the house of deceased Jayamma to pick up her in Tata Ace goods vehicle, bearing registration number KA-11-A-8542 and parked the same in front of her house. Late Jayamma with the help of accused, was loading the coconut and rice bag in the vehicle of accused. PW-3 heard the sound of parking of the vehicle and conversation between Late. Smt. Jayamma and the accused. He came out of his house and enquired with the accused as well as Smt. Jayamma. Both of them told him that they were going to Bengaluru and PW-3 also assisted accused in loading the

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rice and coconut in the goods auto. PW-4, as usual was going towards his agriculture land, met both deceased and accused on the way and both of them told him that

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they were going to Bengaluru.

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It is the further case of prosecution that, Late Jayamma while going towards Bengaluru, as usual was wearing certain golden ornaments. Smt. Jayamma boarded in the cabin of the said Tata Ace vehicle. Accused was driving the said vehicle. At about 5.00 a.m., they reached near Chikkarasinakere, Hebbala canal. Late Smt. Jayamma was in deep sleep inside the cabin. Looking to the gold ornaments, accused thought of snatching said gold ornaments so that by sale proceeds of said gold ornaments, he could repay loan obtained while purchase of Tata Ace. With that intention, accused took his vehicle to the old bridge of Chikkarasinakere, which was not in use. He stopped the vehicle on the bridge; removed a hammer and with all the force assaulted on the left-side head of Smt. Jayamma. Due to the same Smt. Jayamma sustained grievous bleeding

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injury. The accused thereafter has taken golden ornaments worn by the deceased and threw her dead body, hammer used to assault her, rice bag and coconut belonging to Smt. Jayamma, in the canal. Thereafter, returned to Lakshmisagar.

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PWs-1 and 2 were waiting to receive Jayamma in their respective houses. However, Jayamma did not come to Bangalore or intimated them of her arrival to Bangalore. They waited for some time and at about 10.30 a.m, PW-1 contacted the accused and enquired him about Smt. Jayamma. The accused told PW-1 that he came to Bangalore and dropped Smt. Jayamma near “satellite bus stand” and thereafter in an auto rickshaw driven by a middle-aged Muslim, paying him fare of Rs.100, told him to drop Smt. Jayamma to her daughter's house. Both PWs - 1 and 2 searched Smt.Jayamma but they could not find her. At about 4.00 p.m, PW-2 lodged missing complaint in Byattrayanapura Police Station on that basis the concerned police registered missing complaint in Crime No.82/2016.

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On 25.06.2016, PW-1 received information from KM Doddi Police Station about finding of a dead body of a woman within jurisdiction of KM Doddi Police Station and said dead body was kept in the mortuary of Mandya District Hospital. The concerned police asked PW-1 to see the dead body. Accordingly, PW-1 went to Mandya District Hospital and identified the dead body as of his mother. Thereafter, he lodged a complaint in KM Doddi Police Station as per Ex.P.1 and on the basis of Ex.P.1, the complainant police registered a case in Crime No.33/2016 for the offence Punishable Under Section 302 of IPC.

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The complainant - police investigated the matter, collected the materials and found that accused has committed said offences. Hence, they submitted final report against accused for the offences punishable under Sections 302 and 201 of IPC to JMFC Court to Madduru. The learned magistrate took cognizance of offence and registered as C.C.No.711 of 2016. The learned magistrate secured presence of accused; supplied copy

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of charge sheet and enclosure to the accused as provided under Section 207 of CR.P.C. The offence Punishable Under Section 302 and 201 of IPC are triable by Court of Sessions, therefore, the learned magistrate committed the case to the court of Sessions for trial, as provided under Section 209 of Cr.P.C.

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The Sessions court after receiving the charge sheet and enclosures, registered it as Sessions Case No.73/2016 and made over the case to V Additional District and Sessions Court, Mandya for trial. The learned Sessions Judge heard the arguments of both the sides on charge; framed charges for the offence Punishable under Section 302 and 201 of IPC. The accused pleaded not guilty and claimed to be tried.

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The prosecution in support of its case examined PW- 1 to 19 and got marked Exs.P1 to 23 and material objects as M.Os.1 to 13. The learned Sessions thereafter examined the accused under Section 313 of Cr.PC and his answers were recorded. The accused did

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not lead defence evidence and got marked Ex.D1.

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The learned Sessions Judge heard the

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arguments of the learned public prosecutor and the defence counsel. The learned Sessions Judge formulated

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following points for determination.

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1) Whether prosecution proves beyond reasonable doubt that Smt. Jayamma died homicidal death?

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2) Whether the prosecution proves beyond all reasonable doubt that on 20.02.2016 in the early morning the accused had taken the deceased Jayamma in his Tata ACE vehicle bearing No. KA11 A-8542 with the intention of having wrongful gain saying that he will take her to Bengaluru, while doing so at about 5-45 a.m. the accused stopped the vehicle on a old bridge of Chikkarasinakere Hebbala canal and assaulted the deceased on her head with hammer causing her death and taken one gold chain, one pair of studs, Matti, gold finger ring worth Rs.75.000/- and thereby committed the offence punishable U/Sec. 302 of I.P.C.?

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3) Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused in order to destroy the proof of commission of offence threw the rice bag, coconut bag, hammer and the dead body into the canal and thereby committed an offence punishable U/Sec. 201 of I.P.C?

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4) What order?

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The learned Sessions judge appreciating

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evidence on record answered Point 1 in the affirmative,

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Point 2 and 3 in the negative and by impugned judgment dated 06.04.2018 acquitted the accused of the charges Punishable under Section 302 and 201 of the IPC.

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We have heard the arguments of learned HCGP and learned advocate for respondent.

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The learned High Court Government Pleader, has vehemently contended that prosecution to prove its case, examined PW-1 to 19. The relevant witnesses and most important witnesses have supported the case of prosecution. There are three strong circumstances to believe that accused had committed the said crime. As per the evidence of PWs-1 to 4, the deceased was last seen in the company of the accused while going in the Tata Ace of accused by the PWs-3 and 4. PWs-1 and 2 received telephonic information from the deceased on the previous night, that she would be coming with accused in his Tata Ace vehicle to Bangalore. However, she did not come to their house, therefore both PWs - 1 and 2 have suspected about the accused. The dead body of Smt.Jayamma was found in the canal of

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Chikkarasinakere and the said dead body was identified by PWs-1 to 4. The accused had not denied that the dead body found was of Smt. Jayamma.

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The HCGP would further submit that the accused was arrested on the same day and on interrogation, accused confessed the guilt gave voluntary statement. On the basis of the said confession of the accused, the investigating officer recovered the golden ornaments belonging to the deceased from the agricultural land belonging to the accused; Similarly, seized hammer, empty rice bag from Chikkarasinakere river.

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Inquest and post-mortem report reveal that the death of Smt. Jayamma was caused due to severe injuries on her head with a blunt object. There were no contrary evidence to disbelieve the said evidence. From all these evidences, prosecution is able to prove the guilt of accused beyond reasonable doubt that the accused had murdered Smt. Jayamma and stolen her golden ornaments and threw the dead body in the said

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canal/river. The learned trial judge did not appreciate the evidence in right perspective and hence came to a wrong conclusion and acquitted the accused by the impugned judgment, which needs to be reversed by this court.

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The learned advocate for respondent/ accused

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has contended that the prosecution is not able to prove that death of Smt. Jayamma was homicidal death. In the cross-examination of PW-14, he has stated that such injury caused on the dead body could be possible by falling from height. Late Jayamma might have fallen from the bridge and sustained such kind of injuries. Therefore, it cannot be held that the death of Late. Jayamma was homicidal death. The learned counsel for accused / respondent has further submitted that theory of last seen is not proved. PWs- 1 and 2 are not eyewitnesses or they had not personally seen accused in the company of deceased. The evidence of PWs-3 and 4 do not inspire confidence about their presence or witnessing the accused going along with the deceased on the said early morning. It is pertinent to note that houses of both PWs-

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3 and 4 are situated in the same lane. However, in their evidence, they did not say about presence of each other. The seizure witnesses of the alleged ornaments have not supported the case of prosecution. According to their evidence, when they came to the alleged spot of recovery of the golden ornaments, the said golden ornaments were in the hands of police; and both of them had no idea how the golden ornaments came in the hands of police. It clearly reveal that the said golden ornaments were not recovered at the instance of accused from his land. Therefore, mere recovery of the golden ornaments do not connect accused with guilt.

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It was further submitted that it is defence of the accused that to falsely implicate the accused in this case, due to enmity, PW-1 handed over the golden ornaments of deceased to the police and implicated him in this case. The said defence of the accused is probable.

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The learned advocate for the respondent / accused has further submitted that the prosecution has

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failed to prove and establish that on the confession of the accused, the hammer and bag containing the rice was seized by the police. The relevant witnesses did not support the case of prosecution during their evidence. He further submitted that looking to the evidence of PWs-1 and 3 which are not consistent; the accused was in the police station on 22.02.2016 and on 25.02.2016 he was handed over to the K.M. Doddi police. If that is the case, the contention of the prosecution that on 24.02.2016 the accused was arrested from different place and investigating Officer interrogated him and recorded his confession, are all created and concocted, only to file false case against the accused. The evidence of prosecution is not consistent and reliable. The learned Sessions judge properly appreciated evidence and came to right conclusion. There is no need to interfere. In view of these reasons, the learned advocate for the accused prayed to dismiss the appeal.

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Following points emerges for our

determination:-

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i. Whether Prosecution proved beyond reasonable doubt that on 20.02.2016 at 5.45 a.m., near over bridge of Chikkarasinakere Hebbala Canal coming within a jurisdiction of K.M.Doddi Police Station, accused with an intention to grab golden ornaments belonging to Smt. Jayamma, who was travelling in his Tata Ace vehicle, bearing registration number KA-11-A-8542, towards Bangalore, assaulted her with hammer, with an intention to murder her and caused her death. And thereby committed an offence punishable Under section 302 of IPC?

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ii. Whether prosecution proved beyond reasonable doubt on above said place, date and time accused after commission of the murder of Smt. Jayamma with an intention to destroy the evidence, threw hammer, rice bag, and coconuts along with the dead body in the river/canal and thereby committed an offence punishable under section 201 of IPC?

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iii. Whether finding of Sessions Court is perverse, absurd and arbitrary and interference is required?

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iv. What order ?

In this case there is no eye witnesses to the incident. The prosecution has charge sheeted the accused on the basis of circumstantial evidence. On considering the evidence on record, we find that following circumstances to be proved by the prosecution to connect the accused with the guilt.

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(i) That, the deceased on 19.02.2016 informed PW-1 and 2 about her intention to go to Bangalore in the Tata Ace vehicle belonging to accused No.2.

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(ii) The last seen theory of accused in the company of the deceased, i.e., accused took the deceased in his vehicle on 20.02.2016 in the early morning.

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(iii) Gold ornaments were seized on the basis of confession of accused, belonging to deceased.

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(iv) On the confession of the accused, seizure

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of the weapon of offence was made.

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(v) Death of Smt. Jayamma was homicidal death.

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Prosecution examined PW-1 , who is

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complainant as well as son of deceased Jayamma. In his evidence he has stated that he and his sister PW-2 have been residing in Bangalore and his ancestral property i.e., property of his father is situated in Lakshmi Sagar village of Pandavapura Taluk. His mother, Smt. Jayamma had been residing in Lakshmi Sagar village. Accused is also resident of Lakshmi Sagar village and his house is situated next to the house of his mother. On 19.2.2016 his mother informed him that on the next day she would come along with Accused in his Tata Ace vehicle to Bengaluru and she would leave in early morning. She would also bring rice and coconut to give to PW-2. However on the next day, she did not come to the house of PW-2. He enquired with accused and accused told him that “he came to Bangalore along with Jayamma and he

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dropped her in satellite bus stop; he hired an autorickshaw by paying `150, to drop the deceased to the house of PW-2.” Inspite of his best efforts, he could not find her. Thereafter he along with PW-2 went to Byatrayanapura police station on 20.02.2016 and PW-2 lodged missing complaint of their mother.

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PW-1 in his further evidence has stated that on 25-2-2016 police informed him to see dead body of a lady, kept in Mortuary of Mandya district hospital for identification, accordingly on 25-2-2016 he went to mortuary of district hospital Mandya and saw the dead body, identified that it was dead body of his mother. He also identified the tattoo mark of “Krishna Gowda” written in Kannada, on the right shoulder of his mother. He found that the golden ornaments, normally worn by his mother were missing. He strongly suspected on the accused for murder of his mother and he lodged the complaint in K.M. Doddi police station as per Ex.P.1.

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PW-1 has also stated that PW-3 and 4 i.e., Annayya and Arun Kumar have told him that both of

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them had seen the accused taking deceased to Bengaluru in his Tata Ace Vehicle. PW-1 identified golden articles / ornaments of his mother as M.O.1 to 4 He identified Tata Ace Vehicle belonging to Accused as M.O.2.

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In his cross-examination by the accused, PW-

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1 has elaborated his evidence. He has stated that on 20.02.2016 since his mother did not reach Bangalore, he enquired with some of the resident of his village, including accused over telephone. In the cross examination the accused tried to make out a case that relationship of mother of PW-1 and members of his family were not cordial. They have dispute regarding right over a wall of the house. Hence question of deceased travelling in his vehicle does not arise. PW-1 admitted that his mother had some dispute with mother of accused, but further says that accused was in good relation with his mother.

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The defence of accused is inconsistent with his earlier suggestions. In paragraph 3 of the cross examination of PW-1, it was suggested that next to his

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house, in the Lakshmi Sagar village, house belonging to his uncle by name Ramanna and thereafter house of accused was situated. The said answer of PW-1 indicates that the house of accused as well as house of the deceased had no common wall. When both the houses were not adjacent to each other, question of dispute in respect of common wall may not arise. Therefore the said suggestion of accused is not probable.

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During the cross examination of PW-1, accused had also taken a defence that due to dispute between members of the family of the accused and Smt. Jayamma, PWs-1 and 2 as well as deceased Jayama were intending to take revenge against Accused and hence PW-1 to 4 joined their hands; handed over golden ornaments belonging to the deceased, to the police and filed a false case against accused. The said suggestion was denied by PW-1. As already stated above, PW-1 denied that there was dispute between Accused and deceased in respect of a common wall and hence question of taking of revenge by PW-1 and 2 against

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accused do not arises. Accused has also suggested that to falsely implicate the Accused in this case, the golden ornaments belonging to them were handed over to the police and fabricated a story. By the said suggestion accused admits that the golden ornaments seized by the police i.e., M.O. 1 to 4 are belonging to the deceased.

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In the cross examination of PW-1, he has stated that police of Byatarayanapura informed him about finding of a dead body and keeping it in government hospital. He went to said police station, along with accused and three or four friends of accused. There after PW-2 come to Byatarayanapura police station. And on the same day, he along with his friends, went to K.M. Doddi police station. When he left Byatarayanapura police station the accused and his friends were still in Byatarayanapura police station. On the basis of said evidence, the learned advocate for accused would submit that if accused was already in the custody of Byatarayanapura Police, question of his arrest by K.M. Doddi Police from some other place do not arise.

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The said fact indicate that false case was foisted against accused.

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The said contention is not acceptable. PWs-1 or 2 have not stated that on that day accused was in prison or police custody. On the contrary PW.1 has stated that accused also came to police station along with him. No where it came in evidence that accused was arrested on the day of filing of missing complaint. Hence evidence about presence of accused in the police station cannot be presumed as accused was in police custody.

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The prosecution examined daughter of the deceased as PW-2. In her evidence, she has corroborated evidence of PW-1 as stated in the above paragraphs and no need to restate the same. PW-2 has stated that she asked accused to come to police station, so that she could file a complaint of missing of her mother. She went to Byatarayanapura police station, however accused did not come to police station. She lodged the missing complaint.

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PW-2 in her further evidence has stated that on the

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next day again police called her and accused to the police station. She went to the police station but accused did not come. Police verified CCTV camera footage of satellite town bus stop and they could not see her mother boarding any auto rickshaw.

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PW-2 in her further evidence has identified dress materials of her mother as MOs.5 to 7 and gold ornaments as MO.Nos.8 to 10. She has further stated that to grab ornaments of the deceased as well as to take revenge accused murdered her mother.

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In the cross examination of PW-2, she had elaborated her evidence given in the examination in chief. She has stated that two days after she lodged the missing complaint of her mother, she saw accused in Byatarayanapura police station, thereafter, she did not see Accused in the said police station. On 24th she got information from Byatarayanapura police station about finding of dead body of her mother by K.M. Doddi police station. When she got information of finding of dead body

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of her mother, Accused was in the said police station. She saw the accused when accused came along with the police, while recovering golden ornaments. The accused removed golden ornaments which were hidden in his land and handed over to police. PW-2 denied suggestion of the accused that deceased and Accused have serious dispute regarding common wall and due to the said dispute, they filed a false case against the accused.

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Looking to the evidence of PW-2, there is some improvements from the facts which she had stated from the cross examination of PWs-1 and 2, one point is clear that there is some dispute between deceased and family members of accused and she did not have good relationship with members of family of accused. Hence, the said improvement may not be fatal to the case of prosecution but create doubt that said improvements are after thought.

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PW-3, PW-4, accused and deceased are residents of same locality of Lakshmisagara village. House of PW-3 is situated opposite to house of Jayamma. PW-3 was supervising and managing agriculture land

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belonging to late Jayamma. In his evidence, he has stated that his house, house of deceased and PW-4 are situated in the same street, this fact is not disputed by accused.

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PW-3 in his evidence has stated that accused is an agriculturalist and as on the date of incident, he was also driving Tata Ace vehicle, bearing registration number KA 11 A 8542. On 19.02.2016 around 2 p.m. deceased Jayamma came to his house and told him that on the next day she would go to Bangalore and therefore asked him to pack certain quantity of rice and coconuts to take to house of PW-2. Accordingly he packed rice and coconuts and gave it to the house of Jayyamma. On 20.02.2016 at about 3 a.m. when he was sleeping in his house, he heard sound of vehicles and also of conversation. He came out of the house and saw that accused parked his vehicle in front of house of Jayamma and was loading bags in the said Tata Ace vehicle. He helped accused to load the said articles in his vehicle and talked with both accused and deceased. Accused told him

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that he was going to Bangalore along with Smt. Jayamma and both accused as well as Smt. Jayamma were sitting in the cabin of Tata Ace vehicle and they left for Bangalore.

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PW-3 in his further evidence has stated that on 20.02.2016 around at 9 a.m., accused participated in the election of the village. 3 to 4 days thereafter the dead body of the deceased Jayamma was found near Chikkarasinakere canal and her body was shifted to District Hospital Mandya. He along with two others went to mortuary of District Hospital Mandya and saw the dead body of Smt. Jayyamma. He also identified dead body of deceased Jayamma. He identified the photo of dead body as Ex.P.3 and 4. According to his belief, accused murdered Smt. Jayamma for robbing her golden ornaments.

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In his cross examination, PW-3 has stated that he did not inform the police or PW-1 and 2 that he saw accused going along with deceased Smt. Jayyamma. He also stated that he has not given statement to police

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that on 21.02.2016 accused and deceased were going in the Tata Ace vehicle of accused. He has also not stated before the police that and 19.02.2016 at about 2.00 p.m. Jayamma came to his house and told him that she had intended to go to Bengaluru on the next day, therefore asked him to pack some quantity of rice as well as the coconut and accordingly he gave rice and coconut to Jayyamma. According to cross examination of PW3, he had not given such statement to investigating officer and stated before Court. Hence, the said evidence are improvements made by him during evidence from 20^th onwards till finding of dead body, PWs-1 and 2 were said to be searching for the deceased. However, PW3 did not inform them about facts that he had seen both accused and deceased went together on 20.02.2016, though he is neighbour of deceased and looking after her agricultural lands. He is witness to last seen theory and not an eye witness. Hence, said improvement will not damage credibility of his evidence.

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In the cross examination of PW-3, he has stated that when he came to know about keeping of dead body of Smt. Jayamma in the mortuary he went to the mortuary at about 2 p.m. and had seen the dead body and identified the body. PW-3 has elaborated the facts in his cross-examination. Nothing is brought out to discard his evidence. During the cross-examination of PW-1 and 2 they have also stated that after seeing the dead body of their mother, they met PW-3 and 4 in the village and they got information that PWs – 3 and 4 had seen deceased was going in the Tata Ace vehicle driven by the accused on the early morning of 20th February 2016. The evidence of PWs-1 and 2 is corroborated by PW-3.

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PW-3 in his further cross examination has again stated that on the date of burial of the dead body of Smt. Jayamma after 5.30 p.m., accused was brought to the village by the police and on that day, he had seen the accused, thereafter he saw the accused in the court. In his further cross examination, the accused denied his evidence and also it was suggested that he was giving

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false evidence before the Court. PW-3 denied suggestion of the accused that due to political rivalry he was deposing falsely against the accused. In the said cross examination, the accused was unable to bring out that he had any political rivalry against the accused. The evidence of PW-3 is reliable.

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PW-4 has corroborated evidence of PW-3. In his evidence, he has stated that on 20.02.2016, as usual at 3 a.m. he got up to go to his agriculture land and while going to his agriculture land, on the way he saw Tata Ace vehicle of accused parked in front of house of Smt. Jayamma and accused was loading rice and coconut in the said vehicle. He asked Smt. Jayamma, as to where she was going in the early morning and Smt. Jayamma informed him that she was going to Bengaluru to meet her children and she was also carrying rice and coconut to hand it over to her daughter. 4 to 5 days thereafter, he got information that near Chikkarasinakere canal, dead body of Smt. Jayamma was found and said dead body was shifted to Mortuary of Mandya district hospital.

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Accordingly, he went to Mandya District Government Hospital and saw the dead body and he also identified the dead body. He has identified photographs of the dead body of Smt. Jayamma as Exs.P3 and P4.

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In his cross examination, PW4 has elaborately

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explained the facts which he has stated in the examination-in-chief. He denied the suggestions of the learned advocate for accused that he was giving false evidence. Nothing is brought out to discard his evidence. It is pertinent to note that PW-4 is also residing in the same lane, wherein house of accused and deceased are situated. It was suggested to him that he and accused are belonging to different political party, therefore, to grind axe against the accused, he has given false evidence and he denied the said suggestion. The said suggestion was not substantiated by the accused in his cross examination. Therefore, there is nothing on record

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to discard or disbelieve evidence of PW-4 and his evidence is reliable and believable. PWs-3 and 4 are

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probable witnesses to see that deceased was going in the vehicle of accused along with him on 20.02.2016.

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From the evidence of PWs-1 to 4, prosecution

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is able to prove that on 19.02.2016, in the night deceased telephonically informed PWs-1 and 2 that, she was visiting Bangalore on 20.02.2016 and going to Bangalore in the Tata Ace of accused. At about 3.00 a.m., on 20.02.2016, accused loaded rice and coconut belonging to Smt. Jayamma, with the help of PW-3 and both of them left for Bangalore in the Tata Ace vehicle of accused, both were sitting in cabin of the said vehicle and accused was driving the vehicle and going towards Bangalore. Thereafter deceased Smt. Jayamma did not reach Bengaluru on 20.02.2016 in the morning. They enquired with accused and he told both that he brought Smt. Jayamma to Bengaluru. Hence, PW-2 has filed complaint to police. Thereafter within 3 to 4 days, PWs1 to 4 found dead body of late Smt. Jayamma was kept in Mortuary of Mandya Government Hospital and all of them had seen the said body in the Mortuary and

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identified it. By the said evidence, the prosecution is able to prove beyond all reasonable doubt that accused was last seen in the company of the deceased on 20.02.2016 in the early morning. Merely last seen theory is proved is not sufficient. Prosecution has to be proved chain of circumstances to prove the guilt of accused.

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PW-5, resident of Chikkarasinakere village has deposed before the court that on 22.02.2016 at about 12.00 noon, he went to his agricultural land, the villagers informed him, a dead body was found near his agricultural land. Therefore, he went and saw the dead body and it was dead body of a female. He gave a written information to police as per Ex.P.5 and signed at Ex.P5(a). He was not cross-examined by the accused. His evidence supports finding of a dead body of a lady near his agricultural land situated in Chikkarasinakere. Later on, it was identified as of Smt. Jayamma.

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PW-7 Raju is witness to inquest mahazar. In

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his evidence he has stated that on 22.02.2016 at Chikkarasinakere village, near Kalabhairaveshwara

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Swami Temple in a big canal, they found a dead body of a lady. Police came to the said place, drew inquest on the dead body in the presence of himself, CWs-8 and 9 as per Ex.P8 and obtained his signature as per Ex.P8(a). His evidence is not denied and he was not cross-examined. PW-17 – A.S.I of K.M. Doddi Police Station in his evidence has stated that on 22.02.2016, he received information from CW-1 and on that basis he registered UDR No.7 of 2016 and submitted the file to SDM Court. He went to the place wherein dead body was found and in the presence of witnesses he drew inquest on the dead body as per Ex.P8. The said dead body was of a lady aged between 55-60 years. Thereafter, he sent the dead body to the District Government Hospital, Mandya to preserve it in the mortuary. Ex.P8 reveals at Paragraph 7,about injuries and the status of the dead body. It also reveals about the article seized by the police found on the dead body, during inquest.

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PWs-1, 3 and 4 have identified the said dead body of Smt. Jayamma and the said evidence is not denied by the accused.

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PW-14 - Dr. Puttaswamy conducted postmortem the said dead body and gave report as per Ex.P13. External injuries visible on the dead body are mentioned in the post-mortem report as Ex.P.13.

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The injuries found on skull and spinal cord are also referred in the Ex.P.13 and doctor has given his opinion for cause of death as “death was due to head injury by hard and blunt force impact”. The said evidences are not denied by the accused. In his cross examination, the accused suggested that if a person falls from height on hard surface, then he could sustain such injuries and it is accepted by PW-14. The accused has not denied the external injuries as well as internal injuries found on the dead body. However, the accused has suggested that such injuries could also be possible, if a person fall from height, on a hard surface. From the evidence of PW-14, the prosecution is able to prove that

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death was caused due to injuries found on the dead body, which are mentioned in Ex.P.13. PW-14, in his evidence has not ruled out that injuries found on dead body could be possible, if a person falls from height. There is no evidence that MO-12 had any blood stains to connect MO-12 with injury. There is also no evidence that there were any blood stains inside Tata Ace vehicle. If case of prosecution as narrated in the charge sheet is true, there are possibilities of finding blood stains inside auto. Hence, a doubt arises as to whether death of Smt.Jayamma is homicidal or suicidal. Both could be possible as per evidence of PW.14. It creates doubt regarding death of Smt. Jayamma as homicidal.

¶185

The next circumstances to prove the case of prosecution is that after arrest of the accused, Investigating Officer has recorded his confession statement, wherein he has stated that after commission of crime he had taken golden ornaments worn by the deceased and hidden them in his agricultural land, he would show the said spot, if he were taken there.

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Thereafter, accused had taken police, witness to the said spot and accused removed the said golden ornaments from the hidden spot of his agricultural land and handed over to the police. They were seized under mahazar in the presence of witnesses. The accused had denied the said allegations.

¶189

PW-15 – Yoganna, who was Head Constable serving in K.M. Doddi police station has stated that on 26.06.2016, the SHO of police station directed him and CW-21 to search for the accused in Cr.No.33 of 2016. Accordingly, both of them contacted informants and while tracing out the accused, they found the accused was at Pandavpura Tempo stand, along with his vehicle, bearing registration number KA-11-A-8542. Both of them have taken the accused and vehicle to the police station and reported to Station House Officer as per Ex.P.15. He has identified photograph of the said vehicle as per Ex.P6.

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46 In his cross examination, he has reiterated the

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said facts and it was suggested to him that “accused was not arrested as stated by him, on the contrary, he was

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arrested by Byatarayanapura police station and thereafter, the said police handed over the accused to K.M. Doddi police station on 25.02.2016”. He denied the said suggestions.

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The learned advocate for accused vehemently contended that as per evidence of PW-1 and 2, accused was arrested on 24.02.2016 and the said Byatarayanapura police station had handed over the accused to the custody of K.M. Doddi Police Station. Therefore, the story fabricated by PW-15 that he was arrested accused in the Tempo stand is not probable and believable.

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In this regard, it is already discussed while discussing the evidence of PWs-1 and 2. It is pertinent to note that complaint was given in Byatarayanapura police station regarding missing of Smt. Jayamma on 20.02.2016 and name of accused was not mentioned in the said complaint. The complainant had asked accused to come to Police Station to identify the driver of auto which was hired by him to send Jayamma to house of PW-2. Mere presence of accused in the in police station does not mean that he was detained in police custody. Moreover in the missing complaint, his name was not

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shown as accused. Hence question of his arrest by Byatarayanapura Police is not probable.

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PW-1 and 2 have not at all stated that

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accused was in custody or in the cell of the prison as on that date. According to PW-2, police called accused to identify the driver with whom the accused alleged to have sent deceased to her house in Bengaluru. Under such circumstances, the said vague evidence of PWs-1 and 2 cannot be considered that the accused was in judicial custody or in the custody of the concerned police as on that day. It is not the case of accused that illegally he was detained in custody from 22.02.2016 till 25.02.2016. It is also not brought out that when he was produced before Court, he has given any such statement to learned Magistrate. Nothing is placed on record by the accused to substantiate his contention that he was illegally detained by the police in custody. It appears that after considering vague answers given by PWs-1 and 2, this new case is made out by the accused and hence not probable.

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PW-19 in his evidence stated that on

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25.02.2016, he has taken file from CW-25 and continued

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further investigation. He has also stated that on the same day at about 7.00 p.m., accused -Ambareesha and the vehicle bearing TATA Ace No.KA-11-A-8542 was secured by him through PW-15. From the evidence of PWs-15 and 19, prosecution is able to prove that accused was taken to the custody and arrested by PW-19 on 25.02.2016 and not earlier to that.

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PW-19 in his evidence has stated that, he

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arrested the accused following the prescribed procedures and recorded the confession of the accused. Accused confessed before him stating that, he has taken golden ornament worn by deceased and hidden them in his agricultural land and he would show the said place, wherein he had hidden the golden ornaments. PW-19 has further stated that he has secured presence of CWs-13 and 14 and explained to them about confession of accused and called them to witness the recovery. Accordingly, accused took police, CW13 and 14 to his

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agricultural lands. He had shown the place wherein he had hidden the golden articles. Police removed the M.Os.1 to 4 and recovered them under Ex.P10 and witnesses subscribed their signature at Ex.P10.

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PWs-9 and 10 are witnesses to the said Mahazar in their examination have stated about recovery of gold ornaments.

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In the cross examination of PW-9, he has stated that police were present in the land of accused before he could reach the said spot. When he went to spot, he saw that gold ornaments were in the hands of police. He has stated that he had no idea how the said golden ornaments came in the hands of the police. It was suggested to him that he does not know anything of this case and only to harass the accused he was giving false evidence before the court and he denied the said suggestions. The learned advocate for respondent - accused has submitted that, in the cross examination, PW-9 has stated that for the first time when he saw the accused, golden ornaments were in the hands of police

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and he has no idea how the police came in custody of the said golden ornaments. It clearly indicates that the golden ornaments were not handed over to the police by the accused, on the contrary, the police themselves were holding the said golden ornaments. The said submission of learned advocate for respondent accused is acceptable.

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PW-10 - Venkatesh is also witness to Ex.P10. He has also supported the case of prosecution and he has stated that on 26.02.2016 at about 8.00 a.m., accused and police came to the land of accused and accused in his presence removed the golden ornaments which were hidden in the said land. They were M.Os.1 to 4 . The police drew mahazar of recovery of said articles and took his signature on M.O.P10 at P.10(b). In his cross examination, he has stated that, while he was returning from his agriculture land on the way, he went to the land of accused, wherein police and accused were present. He and PW-9 went together to the said spot. When they reached spot, police were holding gold ornaments in their

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hands. He does not know how police came in possession of the same. Police did not write document in his presence. Except signing on a document, he does not know anything. He has not seen bringing of accused to the village. PW-1 and 2 have identified that M.Os. 1 to 4 were belonging to deceased and she was normally wearing the said golden articles. It is pertinent to note that in the cross-examination of PW-1, accused has suggested that “M.Os.1 to 4 were in their house and they have handed over them to police to falsely implicate the accused.” The said suggestion indicates that accused has admitted that M.Os. 1 to 4 were belonging to the deceased.

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It is a case of prosecution that accused during his confession has also stated that “after the incident, he had thrown the dead body, hammer, rice bag and coconut carried in the auto brought by the deceased, in the river/canal from the Chikkarasinakere bridge and he would take them to the said place. Accordingly, he voluntarily took PW-19, PW-12 and 13 to the said place

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and showed spot. PW-13 searched in the river at the said spot and found hammer as well as the rice bag.

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PW-19 during his evidence has stated above

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facts and further stated that accordingly, he secured presence of witnesses PW-12 and 13 and another witness by name Ramesh. Accused took all of them to the said spot on 26.02.2016 between 12.00 to 1.00 pm. The accused showed them the place, wherein he threw the said articles. PW-13 searched inside the river and recovered rice bag as well as hammer. However, they could not trace out coconut. The said articles were seized by PW-19 under Mahazar as per Ex.P12. It was signed by PW-12 and 13 at Ex.P.12(A) and 12(B) respectively.

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PW-12 in his evidence has stated that about a year

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prior to his evidence was recorded, police brought accused near Chikkarasinakere bridge between 12.00 to 1.00 p.m. Police took accused under the bridge and accused showed the said place. Someone searched the said articles in the river and found hammer as well as rice bag. He identified the same as M.Os.12 and 13.

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In his cross examination by the accused, he has stated that he was standing on the bridge and police and accused and some others went under the bridge and they were searching in the river. The height of the bridge was about 50 to 60 feet from ground. He could not hear the conversation between accused and the witnesses and police. He did not talk to the accused. In the further cross-examination, he has admitted the suggestions of the accused that he never went to the said bridge and in his presence, accused had not taken out M.Os.12 and 13. He has also admitted the suggestion that he was a driver of Tata Ace and he used to park his vehicle in the compound of police station, therefore, as instructed by the police, he deposed before Court. He has also admitted that he was giving false evidence before the Court about recovery of MOs. 12 and 13.

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PW-13, his examination in chief has corroborated the case of prosecution and supported the case of prosecution. However, in his cross examination, he admitted the suggestions that accused never took him

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or police to the said spot, he also stated that normally police call him whenever any dead body was found in the river. He also removed one of the dead body in another case. However, for further suggestions that he did not remove MOs-12 and 13 from the river was denied by him. He has also denied that at the instance of the police, he had given false evidence before the Court. In the cross-examination, PW-13 has not supported the case of prosecution. Therefore, both the witnesses to Ex.P12 have not supported the case of prosecution and corroborated evidence of PW-19. Hence, seizure of MOs.12 and 13 on the confession of accused is also not proved.

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According to evidence of PW-14, police sent him M.O.12 and to give opinion; accordingly, he verified the said M.O.12 and gave opinion as per Ex.P14. According to him, the wounds described in the postmortem report of Smt. Jayamma could be possible by assaulting with M.O.12. In Ex.P13 also, he has stated that the death was due to head injury by hard and blunt

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force impact. Seizure of MO-12, as narrated in the case of prosecution is doubtful. Hence, opinion of PW-14 is not much help to the case of prosecution to prove the guilt of accused.

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PW-18 is not important witness. He registered FIR on the basis of complaint of PW-1. Searched the accused as well as vehicle and reported to the police station under report as per Ex.P15. The S.H.O. of police station has taken into the custody of accused as well as the said vehicle. PW-19 has arrested the accused and also seized the said Tata Ace vehicle under mahazar Ex.P.9, in the presence of witnesses that is PWs-8 and 11. The investigating officer had also seized mobile phone belonging to the accused under Ex.P.9 that is M.O.11.

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PWs-15, 19, 8 and 11 have stated these facts about seizure of Tata Ace vehicle as well as mobile phone. In the cross-examination of said witnesses, nothing is brought out to disbelieve or discard their evidence. It is also pertinent to note that PW-6 got it

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released from the court. It is the case of accused that the said vehicle was not seized as stated by the prosecution. But the accused must explain from where and when it was seized since it is within his personal knowledge as to where it was seized. The accused did not bring out the said facts in the cross examination of PW-8, 11, 15 and 19 or stated about said facts in his statement recorded under Section 313 of Cr.P.C. The said vehicle or M.O.11 is not of much relevance in this case. The investigating officer has not obtained CDR to show that as on the date of incidence i.e., on 20.02.2016, accused did not go to Bangalore and the tower location of the said mobile was at Chikkarasanakere village. PW-19 could have secured certain scientific evidence to show the presence of the accused in the spot of incidence. However, it was not done.

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PW-6 is mother of accused and owner of the

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said Tata Ace vehicle. In her evidence, she has turned hostile to the case of prosecution. Even she pleads ignorance about the reason of seizure of the said vehicle

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by the police or arrest of her son / accused in this case.

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Her evidence is not helpful to the case of prosecution.

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Prosecution has secured copy of registration

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extract of the said vehicle bearing registration number KA-11-A-8542 and produced at Ex.P20. Said document revealed that said vehicle was registered in the name of PW-6 on 15.11.2014. In column number 6, it is mentioned that the said vehicle was hypothecated to L&T Finance Ltd. Mumbai, dated 15.11.2014. The incident had taken place on 20.02.2016. It is a case of the prosecution that accused obtained loan while purchasing the said vehicle and he was re-paying the loan amount in instalments; however, he could not repay the said loan amount in time, therefore, he thought of robbing the golden ornaments worn by the deceased Smt. Jayamma by killing her and pay loan amount by the sale proceeds of ornaments. Contents of Ex.P.20 show that the said vehicle was purchased by PW-6 by obtaining the loan. The investigating officer has not collected status report of said loan obtained by PW-6/accused, to prove the case of

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prosecution. Hence, it is not proved that as on the date of incident, loan amount was not repaid and accused was unable to pay the same from his income. It is motive for the accused to commit the crime and it is not proved, beyond reasonable doubt.

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The learned trial Judge disbelieved the recovery of golden ornaments as well as weapon of offence on the confession of the accused, on the ground that as on the date of alleged arrest of the accused by PW-19, he was in the custody of Byatarayanapura Police for which he relied on vague evidence of PWs-1 and 2. The learned trial judge misread the evidence of PWs-1 and 2. This point is discussed in detail in above paragraphs.

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PWs.1 and 2 have not stated that when they were in the Police Station, accused was arrested and detained in the custody of Byatarayanapura police station. On the contrary, they have stated that they went to the said police station along with accused and his

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followers to explain identify the driver of auto-rickshaw. Till finding of the dead body, both PW-1 and PW-2 had no idea that their mother was dead. They were under belief that their mother reached Bengaluru in the vehicle of accused but did not come home. They were suspecting against unknown auto driver. When there was no such materials available to the Byatarayanapura police station, how could they arrest accused on the basis of a missing complaint? Moreover, accused did not complain about his illegal arrest about three days prior to the registration of

¶261

the case against him, when he was produced before the Magistrate for the first time.. Therefore, the findings of the learned Trial Judge about date of arrest is not tenable.

¶262

The learned Trial judge has not accepted the evidence of PW-2 on the ground that she had made lot of improvement in her evidence. As already discussed in the relevant places, as to how such improvements has to be considered while appreciating the evidence. It is pertinent to note that PW-1 and 2 have set the law into

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motion and they were not eyewitness to the incident. The evidence of relative witness should not be discarded but should be appreciated carefully.

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The learned Trial Judge disbelieved the

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evidence of PW-3, on the ground that, in his crossexamination, he has stated that he had not given such statement before Police. It is true that he did not corroborate his previous statement but only on such count his evidence cannot be completely discarded.

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The learned Trial Judge disbelieved the evidence of PW-4 on the ground that though both of them have stated that they had seen accused and deceased going in Tata Ace on 20.02 2016 at early morning of 3.00 a.m., but the presence of each other were not deposed by them while giving the evidence. The said reason also not tenable. It is not the case of prosecution that both of them went together and met accused and Smt. Jayamma in the early morning on 20.02.2016. Under these circumstances, PWs-3 and 4

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have not stated presence of each other cannot be ground to disbelieve or discard their evidence.

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The trial judge disbelieved the evidence of

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recovery of golden ornament from the land of the accused on the ground that there was some discrepancies in the evidence of PWs-9 and 10 both the witnesses have stated that when they went to the agriculture land, the police were holding the golden ornaments. As discussed in the above paragraph, the said reasoning is tenable. Seizure of MOs.1 to 4 not proved beyond reasonable doubt.

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It is settled principle of law that the Appellate Court should be slow in reversing of trial Court judgment in case of acquittal. If two views are possible and view of trial Court is also possible then the Appellate Court normally should not interfere with the findings of the trial Court in respect of acquittal. The Appellate Court can only interfere in the trial Court judgment, if the findings are perverse, arbitrary and illegal. In this case, for the reasons, stated above, the findings of the learned trial

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Judge is not perverse and arbitrary. It is in accordance with law. The grounds of appeal are not tenable. Hence, we concur with findings of the trial Court.

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ORDER

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i. Appeal is dismissed .

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ii. Impugned judgment passed by learned V Additional District and Sessions Court at Mandya in S.C.No.73 of 2016 dated 06.04.2018 acquitting the accused of the offence punishable under Sections 302 and 201 of Indian Penal Code is confirmed.

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iii. Office shall send back the Sessions Court records forthwith along with the copy of this judgment.

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Sd/JUDGE

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Sd/JUDGE

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The State of Karnataka v. Ambareesha

Case brief

What is this about?

What did the court decide?

The State of Karnataka v. Ambareesha

Case brief

What is this about?

What did the court decide?

What the court decided

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