IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO CRIMINAL APPEAL No.493/2010 BETWEEN:
1. LOKRAJ S/O LATE PAYAPPA 47 YEARS.
2. M.P DANSHURA S/O LATE PAYAPPA 41 YEARS, BOTH ARE AGRICULTURIST R/O ATHIGODU MAJARE BRAHAMANA ILAKALALE VILLAGE BARANGI HOBLI SAGAR TALUK.
…APPELLANTS (BY SRI P P HEGDE, ADVOCATE) AND:
THE STATE BY KARGAL POLICE, SAGAR TQ. (SHIMOGA DISTRICT) REPTD. BY:LEARNED S.P.P HIGH COURT OF KARNATAKA BANGALORE.
...RESPONDENT (BY SRI K P YOGANNA, HCGP) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED:17.4.2010, PASSED BY PRESIDING OFFICER FAST TRACK COURT, FTC, SAGAR, IN S.C.No.110/2008- CONVICTING THE APPELLANTS/ ACCUSED FOR THE OFFENCE P/U/S 447, 307, 511 R/W 34 OF IPC THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF THREE YEARS FOR THE OFFENCE P/U/S 307 AND SECTION 511 R/W 34 OF IPC. THE APPELLANTS/ ACCUSED ARE SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF THREE MONTHS FOR THE OFFENCE P/U/S 447 R/W 34 OF IPC.
THIS CRL.A COMING ON FOR DICTATING OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated:17.4.2010, passed by the Presiding Officer, Fast Track Court, Sagar, in S.C.No.110/2008- convicting the appellants/ accused for the offences punishable under Sections 447, 307, 511 read with Section 34 of IPC and sentencing each of them to undergo simple imprisonment for a period of three years for the offence punishable under Sections 307 and Section 511 read with Section 34 of IPC and to undergo simple imprisonment for a period of three months for the offence punishable under Section 447 read with Section 34 of IPC.
2. To avoid confusion and overlapping the parties herein are referred to with their rankings as stood before the trial Court.
3. The criminal case came to be registered against the appellants/accused in Crime No.38/2007 for the offences punishable under Sections 447, 307, 511 read with Section 34 of IPC and that was charge sheeted in C.C.No.1/2008. for the said offences.
4. The substance of the complaint as could be seen is that, on 8.6.2007 at about 1.30 p.m. because of long standing enmity between accused/appellants and Aadappa, father-in-law of the complainant regarding pathway leading from the house of complainant Savitha and their family members running towards their garden, accused persons with intention to kill the entire family members of the complainant tress passed into the garden land of CW3 bearing Survey No.150 of Brahmana Ilakalale village, mixed insecticide powder into the small water pond situated towards external side of the said land from where the water is carried by the complainant’s family for drinking and also for cooking food. Thus, the complainant claims that the accused persons mixed poison to the water that was regularly to be consumed by the complainant’s family. Thus, it is the claim of the complainant that an attempt was made against life of the complainant and her family members.
5. The complaint was lodged by one Savitha, who is said to be the daughter-in-law of Aadappa on 9.6.2007 at about 9.00 a.m. It is stated that her father-in-law and others went to the court and she was along with her child and mother-in- law at Brahmana Ilakalale village. At about 1.30 p.m. she was near the water pond and saw the brothers of her father-in-law, namely Lokraj, S/o Payappa and Danashura, S/o Payappa were sitting and mixing something into water in the pond. The complainant entertained the suspicion and when she went near water pond, it was emitting smell of insecticide and she told about the matter to her father-in-law and husband Kantharaj and brother-in-law Ashoka, when they returned from the court and also showed them the place. Thus, it is claimed by the complainant that the accused persons committed the said offences against her family members.
6. Final report came to be filed against accused persons, viz., (a) Lokraj and (2) Danashura. Thereafter, the trial Judge framed charges, read over and explained to the accused, for which, they pleaded guilty and came to be tried.
7. In order to substantiate the case, the prosecution has accommodated the learned trial Judge with the oral evidence of PWs 1 to 18 and documentary evidence of Exs.P1 to P9 and MOS 1 to 5. On behalf of defence, documentary evidence of Ex.D1 and Ex.D2 are marked.
8. Among 18 witnesses examined on behalf of prosecution, PW1-Savitha is the complainant and daughter-in-law of Aadapa. PW2-Yogamma and PW3- Aadappa are the mother-in-law and father-in-law of complainant. PW8-Kantharaja is the husband and PW9- Ashoka is the brother-in-law of the complaint and they are related to each other.
9. PW4-Swaminayaka is the circumstantial witness. PW5-Badiyanayaka is the panch witness for Ex.P2 and he turned hostile to the prosecution case. PW6- Abdul Sattar is the Village Accountant who has issued pahani extract of Survey No.150 of Brahmanailakalale village as per Ex.P3 to PW3. PW7- Onkar is the panch witness to Ex.P2 and he turns hostile to the prosecution case. PW10-Sridhar and PW11-Diwakar are the circumstantial witnesses.
10. PW12-Mohankumar is the police constable who carried articles to FSL, Davanagere. PW14- Choodamani K. is the Police constable who carried FIR to the court. PW13-Mahabala is the Head Constable, PW15-G.R.Eshwarappa and PW17-Kumar were deputed to search accused persons. PW17-Basavaraj is the Assistant Director FSL who gave report as per Ex.P9. PW18-P.B.Hanumanthappa is the Police Sub-Inspector who conducted the investigation and filed charge sheet against the accused after completion of investigation.
11. With the above materials, the learned trial Judge came to a conclusion that accused persons before him are guilty, convicted them as stated above and after hearing them, sentenced them as stated above. The same is challenged by the accused in this appeal.
12. Learned counsel Sri.P.P.Hegde, for appellants would submit that, none of the witnesses have spoken reliably regarding the overtacts of the accused. He would further submits, there is no provocative force in the claim of the complainant. He submit that previous enmity regarding dispute in respect of pathway between the complainant’s family led by PW3 is admitted by the complainant and even the theory of the prosecution without cross examination does not make out a case for prosecution. He seeks for setting aside the conviction and sentence passed by the learned trial Judge and consequently to acquit both the appellants.
13. Insofar as evidence of PW1-Savitha is concerned, she tells about the relationship and seeing the accused persons mixing insecticide into the water of the pond to make it poisonous knowing fully well that the water from the said pond flows towards complainant’s house at Brahmana ilakalale village and she came back and informed her mother-in-law. Thereafter, her father-in-law, husband and brother-in- law came home and all of them went near pond and saw it was emitting poison smell. The accused persons thus attempted on their lives. In her cross examination, she denies the suggestion passed by the learned counsel for the accused regarding the attribution made about previous enmity and false complaint being lodged against the accused persons. Further, first accused mixed the powder by holding the packet in one hand and pouring the same from the other. It is further elicited from her that, except the pond water they don’t get other water.
14. Insofar as evidence of PW2-Yogamma, mother-in-law of the complainant is concerned, her evidence is that, her daughter-in-law (complainant) came running on the date of incident at about 1.30 p.m. and told that accused have mixed powder in the pond water and ran away. She does not know whether the accused persons are having jeep and she does not know about the tamid powder as to its nature. She denies further suggestions. Thus, the evidence of this lady is on the basis what she heard from the complainant.
15. PW3-Aadappa is the father-in-law of the complainant and according to the complainant, this witness along with sons which included the husband of the complainant had gone to attend the court and when he went near the pond, he has got foul smell and empty container was found by the side of water pond and he took other persons of the village and told them. His evidence is based on the version what he received from his daughter-in-law and also going to the spot and finding a empty container of insecticide.
16. PW8-Kantharaju is the husband of the complainant and he also gone to attend the court. When they returned from the Court at about 5.30 to 6.00 p.m., they heard the matter from the complainant and also from his mother and went to the spot. He was told that at about 1.30 p.m. when his wife had gone along with cattle, she saw the accused persons throwing something in the water.
17. PW9-Ashoka is the brother-in-law of the complainant and he had gone along with his father and brother to the court and rest of his evidence is the reiteration of the versions of the complainant and PW4.
18. PW5 is the circumstantial and mahazar witnesses to Ex.P2. PW6 is the village accountant he speaks about issuing the documents regarding location and topography of the land. PW7 is a spot mahazar witness. PW10 is stated as circumstantial witness who came to know about the incident. PW11 is the constable who carried seized articles to FSL. PWs-12 to 16 and PW18 are the police officials they speak regarding the arresting the accused, producing them before the inspector and registering FIR and conducting investigation.
19. Ex.P9 is the chemical examination report and according to Ex.P2, the measurement of the pond is stated as 3 x 2 ½ x ½ and the photographs are filed as Ex.P5 and the water level is visible from them.
20. Thus, from the case of the prosecution, the points that could be segregated are: there is a dispute between the family of the complainant and the accused persons; on a particular date and time, PW3 and his sons had gone to attend the court. The incident happened in the village of Brahmanailakalale and the eye witness is claimed to be the complainant Savitha. She states that she found the accused persons near the pond and contaminating the pond water into the poison one aiming to take away the lives of complainant’s family members.
21. The evidence of PW17-Basavaraju, Assistant Director, FSL, Davanagere, is to the effect that he has examined the articles and reported the presence of organic phosphorus in the material objects. He tells that the substance found are used as insecticide i.e. to kill insects. He tells, on spraying the said chemical insects die. He does not know proportion of the chemical in the water and its fatal effect on the human life. He said Porate chemical was meant to be used as insecticide and he identifies the objects examined by him as per MOs 1 to 5.
22. No doubt, under Ex.P9, PW17 found the presence of phosphorous. He does not know whether the proportion of powder found in the container mixed to the pond water kills insects. The complaint is that accused persons wanted to eliminate the members of the complainant’s family.
23. The provisions of law invoked against accused are Sections 307 and 511 of IPC which are as under:
SECTION 307.
307 - “Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
and if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is herein before mentioned.”
SECTION 511 511 –“Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.- Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.”
24. The learned trial Judge has convicted the accused persons on both sections, along with Section 34 of IPC.
25. It is necessary to mention, Section 511 of IPC relates to ‘attempt to commit offences’ and Section 307 IPC relates to ‘attempt to murder’. In the circumstances of the case, two sections are invoked against the accused persons. Learned counsel has given more emphasis on the evidence of PW1.
26. Insofar as the other witnesses are concerned, they deposes on the basis of the version of the complainant - Pw1. The learned trial Judge comes to a conclusion that invariably that was poison known to accused that was mixed in pond water. In this connection, it is necessary to make a mention that the incident is alleged to have been committed by the accused at about 1.30 p.m. in the day light by contaminating the water by mixing insecticide.
27. Further, when PW1 sighted Accused Nos.1 and 2 there is no evidence whether accused also sighted her. There is no mention regarding the presence or absence of other persons. More particularly, there is no evidence to state that water was poison and fatal. Further, there is no material to believe whether the water was subsequently evacuated as this becomes essential, because, the water if contaminated by poison would be dangers to leave as it is. Previous enmity or vengeance is a double edged weapon which may pave way for convicting or lodging a complaint. Again, it is a question of fact. The learned Judge, comes to the conclusion that the evidence of PW1 is corroborated by other witnesses though are hearse. It is necessary to mention that, basically, if the evidence of PW1 inspires confidence of the court and then corroboration would be considered. In the circumstances, the tone and terror of PW1 in her evidence or the complaint, proceeds as if she saw the accused persons near the pond and putting powder into pond water in order to make it poisonous. The degree of concentrated poison that converts entire water into poison are not established in a reliable manner. Contaminating or making the water or other article poisonous are fatal to the human lives, except in broader atmosphere and the cooked and reliable materials to be believed.
28. The learned trial Judge further observes that the accused persons mixed poison into the water knowing fully about the result of their act clearly establishes the case and there is no room for doubting when do not have basis. In the over all context and circumstances of the case, it is also to be analyzed Section 307 IPC is an independent section that provides for ‘attempt to murder’ and Section 511 IPC is a provision that provides for ‘attempt to commit offence’. The prosecution itself is not precisely clear as to what the offence was committed which was attempt to what let alone the failure to establish the case. Hence, I find learned trial Judge erred in concluding that the accused persons are guilty for the offences punishable under Sections 307, 511 read with Section 34 of IPC and sentencing them for the said offences.
It is seen that the evidence of the complainant as Pw1 carries bias and anger on the appellants and is in a punitive mood though there is no substance in her evidence.
29. In the circumstances, the prosecution has failed to prove beyond all reasonable doubt that accused have committed offences punishable under Section 447, 511 read with Section 34 of IPC. Hence, accused are entitled for an acquittal. The learned trial judge erred in convicting and sentencing the accused for the aforesaid offences.
30. For the foregoing reasons, the appeal filed by the appellants is allowed.
Judgment of conviction and order of sentence dated:17.4.2010, passed by the Presiding Officer, Fast Track Court, Sagar, in S.C.No.110/2008- convicting the appellants/ accused for the offences punishable under Sections 447, 307, 511 read with Section 34 of IPC and sentencing each of them to undergo simple imprisonment for a period of three years for the offence punishable under Sections 307 and Section 511 read with Section 34 of IPC and to undergo simple imprisonment for a period of three months for the offence punishable under Section 447 read with Section 34 of IPC is hereby set aside.
The accused/appellants are acquitted for the said offences. They are set at liberty forthwith in this case. Their bail bonds stand cancelled.
tsn* Sd/- JUDGE