Smt. Jyothsna Bangara Vs Sri Sachin @ Sachidananda

SRI SACHIN @ SACHIDANANDA S/O. LATE SHANKARA SHETTY AGED ABOUT 45 YEARS RESIDING AT PALTHODI HOUSE SIRIBAGILU POST AND VILLAGE KASARGOD TALUK AND DISTRICT KERALA STATE-671 124.

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Digitally signed by MOUNESHWARAPPA NAGARATHNA

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Location: High Court of Karnataka

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SRI S. SHIVARAJ S/O. SUBRAMANI AGED ABOUT 48 YEARS RESIDING AT C-COPE AIVERNAD VILLAGE SULLIA TALUK-574210 DAKSHINA KANNADA DISTRICT.

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SRI DEVIPRASAD S/O. KUSHALAPPA AGED ABOUT 36 YEARS RESIDING AT ARTHAJE HOUSE SONANGERI POST JALSOOR VILLAGE SULLIA TALUK - 574 239 DAKSHINA KANNADA DISTRICT.

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SRI S. MAHAVEER S/O. S. SUBRAMANYA AGED ABOUT 48 YEARS RESIDING AT KUKKANDOOR QUARTERS SONANGERI POST JALSOOR VILLAGE SULLIA TALUK - 574 239 DAKSHINA KANNADA DISTRICT.

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SRI RAVIKIRAN S/O. NARAYANA POOJARY AGED ABOUT 34 YEARS RESIDING AT PAICHAR HOUSE SONANGERI POST, JALSOOR VILLAGE SULLIA TALUK - 574 239 DAKSHINA KANNADA DISTRICT.

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THE STATE OF KARNATAKA THROUGH DEPUTY SUPERINTENDENT OF POLICE (H AND B) C.I.D CARLTON HOUSE PALACE ROAD BENGALURU - 560 001 REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING HIGH COURT OF KARNATAKA BENGALURU-560 001.

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…RESPONDENTS

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(BY SRI VENKATESH SOMAREDDI AND SRI YOGESHWARAN K., ADVOCATES, FOR R-1, 2 AND 4; SRI GOPALAKRISHNA GOWDA I., ADVOCATE, FOR R-3; SRI S. RAJASHEKAR, ADVOCATE, FOR R-5; SMT. RASHMI JADHAV, ADDL. S.P.P., FOR R-6)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF THE CR.PC PRAYING TO ALLOW THE PRESENT APPEAL AND SET ASIDE THE JUDGEMENT DATED 25-2-2025 OF THE LEARNED V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU, SITTING AT PUTTUR, DAKSHINA KANNADA, IN SESSIONS CASE NO.5001 OF 2014, AND CONVICT RESPONDENT NOS.1 TO 5 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120B, 397, 448, 396 AND 302 READ WITH 34 OF IPC.

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THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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Though the matter is listed for admission, learned counsel for the appellant, learned counsel for respondent Nos.1, 2, and 4, learned counsel for respondent No.3, learned counsel for respondent No.5 and learned Addl. State Public Prosecutor for respondent No.6 were heard.

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This appeal is filed by the appellant/victim against the judgment of acquittal passed by the V Additional District and Sessions Judge, D.K. Mangaluru, sitting at Puttur, D.K

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( hereinafter referred to as the 'trial Court' ). The State has not preferred any appeal.

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The brief facts of the prosecution case are that the PSI of Sullia Police Station registered FIR in Crime No.53/2008 for the offences punishable under Sections 448, 323, 302 read with Section 34 of the Indian Penal Code, 1860 ( for short, “IPC”) against the accused persons.

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In the complaint, it is alleged that Smt. Meera Balakrishna was living alone in her house situated at Paleppady, Ivarnadu Village, and she owned rubber and arecanut farm (estate). Accused No.3 was working in her farm and knew that she kept a large amount of money in her house. Hence, on 02.03.2008 at about 8.00 a.m., with an intention of robbing the house of Meera Balakrishna, he took the other accused persons along with him to her house.

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When they saw the complainant, namely Smt. Vimala, the maid servant working in the house of Meera Balakrishna, coming towards the house, they called her to come quickly. When she went there, accused Nos.2 and 4 dragged her, pressed her to the floor, choked her neck, and

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tried to kill her. Assuming her to be dead as she had become unconscious, they left her there. Thereafter, with an intention of robbing the house of Meera Balakrishna, accused Nos.1, 2, 4, and 6 trespassed into the house, tied the hands and legs of Meera Balakrishna, with a rope, who was in the kitchen, stuffed her mouth with clothes, and killed her.

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Subsequently, while they were searching the house for money after taking the key from Meera Balakrishna, the complainant regained consciousness and shouted. At that time, the accused persons fled from the spot. She then went inside the house and saw Meera Balakrishna lying in the kitchen with her hands tied with a rope. On hearing her cries, the workers came there, and on seeing Meera Balakrishna, they declared her dead. Hence, she lodged the complaint. On the basis of the complaint, Sullia Police registered the case.

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The Investigating Officer cited in all 50 witnesses to prove the allegations made against the accused persons. After investigation, cognizance was taken and the case was committed to the trial Court. The trial Court framed the charges, and the accused persons did not plead guilty but

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claimed to be tried. Hence, the prosecution proceeded with the trial.

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Out of 50 witnesses, examined 30 witnesses i.e.,

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PW1 to PW30 and got marked documents as per Exs.P1 to P55 and got marked 20 material objects as MO.1 to MO.20. During the course of cross-examination, defence counsel got marked four documents which are marked as Exs.D1 to D4. The trial Court, having considered the evidence, recorded the statement of accused persons under Section 313 of the Code of Criminal Procedure. The accused persons did not choose to lead any defence evidence.

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The trial Court, having considered both oral and documentary evidence, particularly the evidence of the eyewitness PW1–Vimala, who is the complainant and was examined before the Court, found that she had completely turned hostile, her evidence is extracted in paragraph No.12 of its judgment. She stated that she was a housekeeper and that she went to the house of Meera Balakrishna at 8.00 a.m. She

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deposed that she does not know what had happened on that day and that she was not injured when she went for work to

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their house. She further stated that she went to the hospital as she was suffering from fever and that no one had harmed her in the house. She also stated that the police did not interrogate her and did not record her statement.

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However, she admitted her signature on the complaint, Ex.P1, which is marked as Ex.P1(a). She further stated that she does not remember whether in the year 2012 the Tahsildar had called her to Mangaluru Jail to identify the accused. She also denied the seizure mahazar dated 04.03.2008. However, she admitted her signature on the seizure mahazar, which was marked before the Court.

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The trial Court also took note of the evidence of PW2–Kusamadhara with regard to the inquest mahazar in terms of Ex.P4 and also considered the evidence of PW3– Achyutha, who is another inquest mahazar witness. PW4–Gopalagowda stated that three months prior to the incident he was working in the rubber plantation of Meera Balakrishna and that accused No.3 was also doing rubber tapping work in the said plantation. However, there is no

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incriminating evidence against the accused from their testimony.

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PW5–Jakeer Husane is a seizure mahazar witness.

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He deposed that in his presence the police did not seize anything and PW6–Umesh deposed that on 08.09.2011 he visited the Agriculture Co-operative Society, Ivarnadu, along with CID Officer Ramalingappa and one Lingappa. At that time, the CID Officer asked the Chief Executive Officer of the said society for the specimen signature of Meera Balakrishna. In their presence, the co-operative officer produced two fixed deposit cards amounting to Rs.2,00,000/- belonging to Meera Balakrishna. He spoke only with regard to mahazar Ex.P7.

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PW7–Madhava deposed that in the year 2011 the Sullia Circle Inspector called him to the office and the police seized certain documents under Ex. P6. His signature is marked as Ex. P6(b).

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PW8–Sheenappa was working as the CEO at the Primary Agricultural Co-operative Society, Ivarnadu and PW9–Dr.Sandeep Kumar is the Medical Officer who examined PW1-Vimala with regard to the alleged assault. He stated that

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she came to the hospital with a history of assault by unknown persons and that he issued the Wound Certificate, Ex.P12, and gave his opinion in terms of Ex.P13. He also collected the blood samples of Vimala and handed them over to the police. He further deposed with regard to conducting the post-mortem of Meera Balakrishna and issued the post-mortem report in terms of Ex.P14.

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PW10–Manmatha is also a mahazar witness, PW11–Dr.Geethalakshmi is the Scientific Officer and PW12–Mahammad Aseer is engaged in the business of buying and selling vehicles under the name “Auto Links.” He deposed that the police examined him and that the accused Shivaraju, had brought Bajaj Discover motorcycle to him, which he sold to another person.

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PW13-Dr.Manjunath was the Government Doctor at Sullia Hospital, who examined accused No.4. PW14-Shantharam and PW.15-Mayadevan are seizure mahazar witnesses. PW14 identified his signature on Exs.P19 and P23.

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PW16–Ravikumar and PW17–K.Ravi are spot mahazar witnesses to Ex.P25. PW18–Chikkappa Rai deposed

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that as per the orders of the Investigating Officer, he along with CW25 produced accused No.4 to the Primary Health Centre, Sullia, for medical examination. PW19–Vaidyanath, who served as Tahsildar, deposed that at the request of the Sullia Police, he conducted an identification parade in front of the witness Vimala at the District Prison, Mangaluru. Exs.P26 to P30 were marked through this witness.

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PW20–Ravi, who is working as D-group worker at Sullia Government Hospital, deposed that he does not know accused No.4. He further stated that he does not remember whether the Doctor examined accused No.4 in his presence.

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PW21–Jayanth, PW22–Bhavani Shankar, and PW23–Mithun Shetty were examined. PW21 and PW23 are employed as cleaners and cashier respectively, while PW22 works as the Manager at Hillside Bar and Restaurant, Sullia. PW24–Pavan Kumar is the ASI at Sullia Police Station. He deposed that while on duty, he received a phone call from police officer. As per the instructions of the police officer, he visited Sullia Government Hospital, obtained the MLC register, marked as Ex.P15, and recorded the statement of PW1.

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PW25–Dinakara is the photographer who took the photographs. PW26–Hoovappa deposed that he identified his signature in the seizure mahazar, which is marked as Ex.P38. PW27–Girish B.C., the ASI of Sullia Police Station, deposed that he received information that accused No.2 was in Jalsoor Village. He appointed CW26 to CW28 and sent them to Jalsoor, where they arrested accused No.2.

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PW28–Shivakumar deposed that during the years 2010–12 he was working in the C.I.D., U.H. & B (Homicide and Burglary) Department. He stated that the Investigating Officer of this case informed him that the jurisdictional Police had arrested accused No.2 and directed him to visit the spot and conduct the mahazar, which was done under Exs.P39 and P40. He identified his signature on the documents.

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PW29–N.M.Ramalingappa, who also worked as Deputy Superintendent of Police during the relevant period, conducted further investigation in the matter.

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PW30–Sudharshan, the then Circle Inspector of Sullia, deposed that PW29, the C.I.D. Investigating Officer, informed him about collecting information regarding the

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accused in this case. Accordingly, he appointed his staff to trace the accused, assigned CW25 to CW30 to monitor them, and received the reports of their actions.

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The trial Court, having considered the evidence available on record, particularly in paragraph No.62, noted that the complainant, who was the injured eyewitness to the incident, had turned hostile and nothing incriminating evidence is elicited from her cross-examination. Although she turned hostile, the Court concluded that there was no material available to prove the guilt of the accused persons. The trial Court also took note of the lapses on the part of the Investigating Officer, as accused Nos.3 to 6 were arrested almost after three and a half years of the incident, and the charge sheet was filed only after four years. In view of the lack of any incriminating evidence connecting the present accused persons to the case, they were acquitted.

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Being aggrieved by the acquittal of the accused persons, the counsel appearing for the appellant would vehemently contend that the appreciation made by the trial Court is erroneous and fails to take note of case of prosecution

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and counsel would submit that it is nothing but an injustice caused in the case on hand not only by the Investigating Officer and also the trial Court fails to appreciate the evidence in accepting the case of the prosecution. The counsel also would submit that prosecution has examined PW29, who speaks about Ex.P11, Settlement Deed dated 09.11.1957, executed by Sri N.M.Balakrishna, the appellant's father, wherein the ancestral properties were settled in favour of the appellant and any other children born to his wife, the victim in this case. It is also contended that the Sessions Court failed to consider the importance and relevance of this document, as well as the evidence of PW7 regarding Ex.P11 and other documents, namely Exs.P42, P43, P44, P45, P46, P47, and P48.

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The counsel further submitted that, even though the prosecution examined 30 witnesses, the evidence of PW9, the Doctor, is very clear regarding the cause of death of Meera Balakrishna. PW28, who deposed about the arrest of accused No.2, i.e., respondent No.1, provided evidence that is useful in connecting various acts committed by the accused prior to the

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commission of the offence. Therefore, the counsel contended that this appeal deserves to be admitted.

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Per contra , the counsel appearing for the respondents submitted that the trial Court had considered the star witness of the prosecution, i.e., PW1, who had turned hostile. In paragraph Nos.12 and 13, the trial Court has even narrated the evidence of PW1. The respondents’ counsel further contended that, while acquitting the accused persons, the trial Court rightly took note of the fact that there was no incriminating evidence against any of the accused and that they had been falsely implicated in the case.

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The counsel also submitted that the accused were falsely implicated, as the investigation did not find any material evidence regarding the commission of the crime. Regarding any documents concerning the property, the counsel submitted that such documents do not advance the prosecution’s case. The counsel therefore argued that the grounds urged in the appeal do not inspire the confidence of this Court to admit the appeal.

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Having heard the counsel for the appellant as well as the counsel appearing for the respondents, and after perusing the material available on record, it is not in dispute that, in view of the evidence of the doctor, PW9, this is a case of homicide, and the post-mortem report was issued. However, while considering the material on record, the Court must carefully examine the evidence available.

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It is the case of the prosecution that PW1, who was working in the house of the deceased, is an eyewitness and had identified the accused persons. She was also taken for a Test Identification Parade. Nevertheless, the Court must scrutinize the evidence of PW1, and her testimony clearly shows that she has turned hostile.

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It is also important to note that when the injured PW1 was taken to the hospital, she gave a history of assault by unknown persons. In such circumstances, when the same is recorded by PW9, the doctor who examined the injured, there must be material before the Court connecting the accused persons to the incident.

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None of the witnesses have supported the case of the prosecution. Since even the official police witnesses do not provide any incriminating material, there is no evidence before the Court, and no recovery has been made at the instance of the accused persons. PW1, the eyewitness to the incident, who was cited as the key eyewitness, has turned hostile. Therefore, the Court must look to circumstantial evidence to connect the accused to the offence.

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However, in the case on hand, there is no circumstantial evidence linking the accused to the crime. The only motive attributed is the alleged intent to rob the deceased’s wealth, but there is nothing on record to substantiate this allegation. No material exists regarding the motive, and there was no robbery of any articles belonging to the deceased. It is noted that the counsel appearing for the appellant submits that before completing their act, PW1 regained consciousness and no robbery of the deceased’s property had taken place. Even, in cases based on circumstantial evidence, there must be a complete chain of evidence, and each link must be established. Motive is also

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significant in committing the crime in a case of circumstantial evidence and the same is also relevant for the circumstantial evidence. If there are any eyewitnesses or direct evidence, then motive is irrelevant. In the present case, the eyewitness having turned hostile and no other evidence before the Court connecting the accused even circumstantially, there is no sound evidence to implicate them. Therefore, the trial Court rightly arrived at its conclusion.

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The trial Court, having reassessed both the oral and documentary evidence on record, as well as the principles laid down in the trial Court's judgment discussed in paragraph No.62, concluded that there is no incriminating evidence to connect the present accused persons to the case. The Court further observed that there is no material linking the accused to the commission of this crime. The Court also took note of the significant delay in arresting the accused persons and filing the charge sheet, as the accused were arrested only after three and a half years, and the charge sheet was filed after four years.

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During the course of arguments, the counsel also sought to convince this Court that there were lapses on the part of the Investigating Officer. However, this Court has already dismissed the writ petition as well as the writ appeal, and the counsel does not dispute that the findings regarding the lapses in investigation have attained finality. In such circumstances, an appeal cannot be admitted solely on the ground of lapses on the part of the Investigating Officer. Accordingly, we do not find any ground to admit the appeal.

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