Decided on October 03,2016

B.A. UMESH Appellant


Prafulla C. Pant, J. - (1.) Review Petition (Criminal) Nos. 135-136 of 2011 are heard in open court, as prayed in Criminal Miscellaneous Petition Nos. 4213-4214 of 2016, in the light of decision of this Court in Mohd. Arif and others v. The Registrar, Supreme Court of India and others 2014(4) R.C.R.(Criminal) 103 : 2014(5) Recent Apex Judgments (R.A.J.) 149 : (2014) 9 SCC 737. The Review Petitions were earlier dismissed by circulation vide order dated 07.09.2011 affirming the dismissal of Criminal Appeal Nos. 285-286 of 2011, whereby death sentence awarded to the review petitioner, stood affirmed.
(2.) Brief facts of the case are that Jayashri (deceased), after death of her husband, used to live with her son PW-2 Suresh, aged seven years, in Bhuvaneshwarinagar, Bangalore, as a tenant of PW-8 Lalitha Jaya. On 28.02.1998 as usual the deceased brought back her son at 1.00 p.m. from the school. After lunch at home, the son went out to play with his friends. When PW-2 Suresh returned home at about 5.00 p.m., he noticed that petitioner B.A. Umesh going out through hall and told him that he was "uncle Venkatesh". He (petitioner) further told him that his mother (deceased) was possessed with some evil spirits, as such, he had tied her hands and was going to bring a doctor. Thereafter, the petitioner left the house with a bag. PW-10 Basvaraju and PW-11 Natesh also saw the petitioner going out of the house with the bag. When Suresh went into the room, he saw his mother lying flat on the ground with blood on the floor. She was tied with a saree at one end, and the other end was tied with the window. As the deceased did not respond to call of her son Suresh, he went to the neighbour CW-7 Kusuma Shetty, and told her as to what he had seen. Kusuma Shetty called CW-6 Geetha Hegde and PW-8 Lalitha Jaya and all the three saw through window that Jayashri was lying on the ground. Thereafter PW-8 Lalitha Jaya called PW-7 Bylappa, a police constable, who used to live in the locality. In turn, PW-7 Bylappa rang PW-9 Inspector Papanna, who came to the spot with PW-6 Constable Garudappa. The police personnel saw Jayashri lying dead on the floor with genitals exposed and blood oozing from her vagina. Articles in the house were lying scattered. The dog squad, a photographer and a finger print expert were called at the place of incident. Crime No. 108 of 1998 was registered at the police station Peenya Circle, Yashvanthpur Sub Division Taluk Bangalore District, Bangalore City and PW-29 Inspector B.N. Nyamagowda took up the investigation. PW-14 A. Kumar, police constable from dog squad, PW-16 Jaganath, photographer, and PW-13 R. Narayanappa, finger print expert of the police department prepared their reports. The dead body was sealed and inquest report was prepared in the presence of PW-2 Suresh, PW-3 Lakshmamma, and PW-4 Maare Gowda, and the same was sent for post mortem examination. PW-26 Dr. Somashekar conducted autopsy on the dead body and opined that the deceased was smothered after commission of sexual assault. On 02.03.1998 at about 2.30 p.m., petitioner B.A. Umesh was arrested while committing another robbery in the house of Smt. Seeba. On interrogation, he disclosed having committed several crimes at various places. He also made disclosure about the robbed articles. The police took him to the house, where he used to live as tenant, to verify the disclosures made by him about the robbed articles kept by him. As many as 191 articles, including 23 items stolen from the house of the deceased, were recovered by the police from said house, and a mahazar (Ext. P-11) was prepared. PW-22 Manjula, sister of the deceased identified the articles seized. The Test Identification Parade was held on 30.03.1998 by PW-24 K.S. Ramanjanappa, Taluka Executive Magistrate, where after the seized items were sent for examination to Forensic Science Laboratory. On completion of investigation, a charge-sheet was filed against the petitioner for his trial in respect of offences punishable under Sections 376, 302 and 392 of Indian Penal Code (IPC). On committal of case to the Court of Sessions, the charge with three heads was framed against the petitioner/accused who pleaded not guilty and claimed to be tried.
(3.) Prosecution produced twenty nine witnesses and their evidence was recorded by the trial court where after the same was put to the petitioner B.A. Umesh under Section 313 of Criminal Procedure Code (Cr.P.C.) and opportunity was given to him to adduce the evidence in defence. After hearing the parties the trial court (Sessions Judge, Fast Trek Court-VII, Bangalore) vide its judgment and order dated 26.10.2006, convicted the accused/petitioner under Sections 302, 376 and 392 IPC. (We are not discussing the prosecution evidence in detail as the Review Petition is pressed only on the point of sentence.);

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