Karnataka High Court
The State Of Karnataka vs Ambareesha on 22 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 Crl.A.No.1309/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.1309 OF 2018 (A)
BETWEEN:
The State of Karnataka
by K. M. Doddi police,
Represented by State Public Prosecutor,
High Court building,
Bengaluru - 560 001. ...Appellant
(By Shri Vinay Mahadevaiah, HCGP)
AND:
Ambareesha
S/o. Late Javarayigowda,
Aged about 28 years,
R/o. Lakshmisagara village,
Pandavapura taluk,
Mandya district - 571 434. ...Respondent
(By Shri K Abhinav Anand, Advocate)
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.
This Criminal Appeal coming on for Further Arguments
having been heard through Physical Hearing/Video Conference
2 Crl.A.No.1309/2018
and reserved for judgment on 28.11.2023, coming on for
pronouncement, this day, Umesh M Adiga J., delivered the
following:
JUDGMENT
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').
2. 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.
3. 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.
4. 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
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
they were going to Bengaluru.
5. 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
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.
6. 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.
7. 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.
8. 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
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.
9. 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.
10. 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
not lead defence evidence and got marked Ex.D1.
11. The learned Sessions Judge heard the
arguments of the learned public prosecutor and the
defence counsel. The learned Sessions Judge formulated
following points for determination.
1) Whether prosecution proves beyond
reasonable doubt that Smt. Jayamma died
homicidal death?
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.?
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?
4) What order?
12. The learned Sessions judge appreciating
evidence on record answered Point 1 in the affirmative,
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.
13. We have heard the arguments of learned
HCGP and learned advocate for respondent.
14. 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
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.
15. 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.
16. 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
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.
17. The learned advocate for respondent/ accused
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-
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.
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.
18. The learned advocate for the respondent /
accused has further submitted that the prosecution has
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.
19. Following points emerges for our
determination:-
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?
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?
iii. Whether finding of Sessions Court is
perverse, absurd and arbitrary and
interference is required?
iv. What order ?
20. 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.
(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.
(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.
(iii) Gold ornaments were seized on the basis
of confession of accused, belonging to
deceased.
(iv) On the confession of the accused, seizure
of the weapon of offence was made.
(v) Death of Smt. Jayamma was homicidal
death.
21. Prosecution examined PW-1 , who is
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
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.
22. 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.
23. PW-1 has also stated that PW-3 and 4 i.e.,
Annayya and Arun Kumar have told him that both of
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.
24. In his cross-examination by the accused, PW-
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.
25. 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
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.
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
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.
26. 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.
The said fact indicate that false case was foisted against
accused.
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.
27. 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.
PW-2 in her further evidence has stated that on the
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.
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.
28. 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
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.
29. 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.
30. 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
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.
31. 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
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.
32. 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.
33. 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
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 20th
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.
34. 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.
35. 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
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.
36. 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.
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.
37. In his cross examination, PW4 has elaborately
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
to discard or disbelieve evidence of PW-4 and his
evidence is reliable and believable. PWs-3 and 4 are
probable witnesses to see that deceased was going in the
vehicle of accused along with him on 20.02.2016.
38. From the evidence of PWs-1 to 4, prosecution
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, PWs-
1 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
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.
39. 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.
40. PW-7 Raju is witness to inquest mahazar. In
his evidence he has stated that on 22.02.2016 at
Chikkarasinakere village, near Kalabhairaveshwara
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.
41. PWs-1, 3 and 4 have identified the said dead
body of Smt. Jayamma and the said evidence is not
denied by the accused.
42. PW-14 - Dr. Puttaswamy conducted post-
mortem 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.
43. 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
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.
44. 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.
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.
45. 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.
46 In his cross examination, he has reiterated the
said facts and it was suggested to him that "accused was
not arrested as stated by him, on the contrary, he was
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.
47. 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.
48. 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
shown as accused. Hence question of his arrest by
Byatarayanapura Police is not probable.
49. PW-1 and 2 have not at all stated that
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.
50. PW-19 in his evidence stated that on
25.02.2016, he has taken file from CW-25 and continued
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.
51. PW-19 in his evidence has stated that, he
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
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.
52. PWs-9 and 10 are witnesses to the said
Mahazar in their examination have stated about recovery
of gold ornaments.
53. 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
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.
54. 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
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.
55. 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
and showed spot. PW-13 searched in the river at the said
spot and found hammer as well as the rice bag.
56. PW-19 during his evidence has stated above
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.
PW-12 in his evidence has stated that about a year
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.
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.
57. 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
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.
58. 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 post-
mortem 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
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.
59. 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.
60. 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
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.
61. PW-6 is mother of accused and owner of the
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
by the police or arrest of her son / accused in this case.
Her evidence is not helpful to the case of prosecution.
62. Prosecution has secured copy of registration
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
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.
63. 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.
64. 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
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
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.
65. 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
motion and they were not eyewitness to the incident. The
evidence of relative witness should not be discarded but
should be appreciated carefully.
66. The learned Trial Judge disbelieved the
evidence of PW-3, on the ground that, in his cross-
examination, 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.
67. 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
have not stated presence of each other cannot be ground
to disbelieve or discard their evidence.
68. The trial judge disbelieved the evidence of
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.
69. 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
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.
ORDER
i. Appeal is dismissed.
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.
iii. Office shall send back the Sessions
Court records forthwith along with the copy
of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
AG
