IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.739 OF 2018 BETWEEN:
THE STATE OF KARNATAKA BY DEVANAHALLI POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR BENGALURU-560 001. ... APPELLANT (BY SRI. H.S. CHANDRAMOULI, STATE PUBLIC PROSECUTOR-1) AND:
1. C. NARAYANASWAMY SON OF LATE GANACHARIU CHINNAPPA AGED ABOUT 62 YEARS RESIDING AT AKKUPETE, 23RD WARD DEVANAHALLI TOWN-562 110.
2. SMT. LAKSHMI WIFE OF NARAYANASWAMY AGED ABOUT 38 YEARS RESIDING AT AKKUPETE, 23RD WARD DEVANAHALLI TOWN-562 110. ... RESPONDENTS (BY SRI. V. ANAND, ADVOCATE FOR RESPONDENTS NO.1 AND 2) THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378 (1) AND (3) CODE OF CRIMINAL PROCEEDURE PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED 21.12.2017 PASSED IN S.C.NO.15001 OF 2015 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI ACQUITTING THE ACCUSED OR RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 323 AND 302 READ WITH SECTION 34 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, H.P.SANDESH J., DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.
2. The present appeal is filed by the State challenging the judgment of acquittal passed in Sessions Case No.15001/2015 on the file of V Additional District and Sessions Judge, Devanahalli.
3. Learned State Public Prosecutor in his argument would contend that the Court below failed to appreciate particularly the evidence of PW.1, who is the son of accused No.1 born through the first wife of accused No.1. Even though his evidence clearly discloses that on 04.04.2014, there was a quarrel with regard to property and in this connection, accused No.2 assaulted the deceased as well as the complainant. At that point in time, at the instance of accused No.1, accused No.2 brought the bottle containing pesticide and accused No.1 held the deceased tightly and accused No.2 administered poison to the deceased. The deceased was shifted to Manasa hospital and thereafter to Mahaveer Jain hospital for better treatment and ultimately, the deceased passed away on 08.04.2014 in the hospital.
4. Learned State Public Prosecutor further submits that PW-2 is also the daughter of accused No.1 born through his first wife. She has narrated the incident and also spoke about the ill-treatment given by accused Nos.1 and 2 and the alleged incident was informed to PW2 by her brother PW.1. The prosecution also relied on the evidence of PW.3 who is also the brother of accused No.1. He has corroborated the evidence of PW.1 stating that both the accused forcibly administered poison to her. In spite of the evidence of PWs.1 to 3 and also the evidence of PWs.4 and 6 who also supported the case of prosecution, the learned trial Judge has failed to appreciate the evidence in proper perspective.
5. The doctor, who has been examined as PW-17 treated the victim on 04.04.2014 at about 11.50 pm and also the evidence of PW-16 clearly establishes that though the victim was brought to the hospital and treatment was given, she died in the hospital. The doctor who conducted autopsy has been examined as PW-20. He has noticed hemorrhages which are anti-mortem in nature. He has clearly deposed that said injuries are caused when poison is administered forcibly and post mortem report is marked as Ex.P.31. In spite of all these material on record, the learned Sessions Judge was not justified in disbelieving the evidence of particularly PW-1 on the ground that there is no wound certificate produced.
6. Insofar as PW-1, though there is delay in lodging the complaint, the Court below ignored the evidence of prosecution by pointing out minor discrepancies which are insignificant and hence, it is a fit case for admission and reappreciate the evidence available on record.
7. Having heard the arguments of learned State Public Prosecutor and considering the material on record which have been evaluated by the learned Sessions Judge and on examining the original record, the question that arises for consideration before us is as to whether the Court below has committed an error in acquitting the accused persons for the offences punishable under Sections 323 and 302 read with Section 34 of Indian Penal Code?
8. Having considered the grounds of appeal urged in the appeal memorandum, giving anxious consideration to the material on record and also the rival contentions urged by the learned counsels, this Court has to evaluate the finding given by the Court below insofar as the case of the prosecution. The main contention of the prosecution is that on 04.04.2014 at about 5.30 pm, both the accused in their house picked up quarrel with the deceased, with an intention to take away her life and both the accused persons have administered pesticide and as a result, the victim passed away on 08.04.2014. It is also the case of the prosecution that both the accused with common intention assaulted PW-1 and caused simple injuries. Even they kicked him and committed the offence punishable under Sections 323 read with Section 34 Indian Penal Code.
9. In order to prove the guilt of the accused persons, prosecution mainly relied on the evidence of PWs.1 to 20 and got marked documents as Exs.P1 to P40(a) and also produced material object Nos.1 to 4. The defence examined one witness as DW1 and also produced Exs.D1 to D6.
10. The Court below after evaluating the oral and documentary evidence has come to the conclusion that the prosecution has utterly failed to prove the guilt of accused persons. According to the prosecution, PW-1 is the eye witness who tried to prevent the forcible administration of poison to the deceased and he was assaulted by accused No.2. Thereafter, the victim was taken to the hospital. The alleged incident has taken place on 04.04.2014 at 5.30 pm in the house of accused. PW-1 has lodged the complaint in terms of Ex.P1 on 06.04.2014 at about 5.30 pm and the same is exactly after 48 hours of the alleged incident. It is pertinent to note that the prosecution would contend that PW-1 is an eye witness. In respect of the delay in lodging the complaint is concerned, there is no explanation on behalf of the prosecution. According to the prosecution, PW.1 has witnessed the incident and also tried to prevent the forcible administration of poison to the deceased. At that juncture, accused No.2 assaulted PW-1. Regarding the injuries inflicted on the person of PW-1, there is no evidence before the Court, either the wound certificate or any documentary proof for having taken treatment and the learned trial Judge recording this aspect in para-14 of the judgment discussed that there should have been some evidence by the prosecution and no single scrap of paper is placed before the Court. It is pertinent to note that the victim was taken to the hospital and complaint was given after two days. It is also observed by the learned trial Judge that the distance between the scene of occurrence and police station is hardly one and half kilo meter and no attempt has been made to inform the police. The prosecution made an attempt to submit that no son will come forward to lodge complaint against his own father- accused No.1. At the same time, it is to be noted that the victim is also none other than the sister of PW.1 and it is to be further noted that accused No.1 got married thrice and he was staying along with the third wife i.e., accused No.2. When such being the circumstance, the contention of the prosecution that no son would come forward to file the complaint against his own father, cannot be accepted. If really, PW.1 is the eye witness, he should have immediately lodged the complaint. The same has not been done.
11. Further, the prosecution has also examined other witnesses viz., PWs.2 to 6. PW.2 is none other than the sister of the deceased and PW-3 is the uncle of the deceased. PWs.4 to 6 are the neighbouring witnesses. None of them have spoken with regard to the forcible administration of poison to the deceased, but they stated that they came to know about the same. Though PW-5 is an independent witness, he has turned hostile with regard to consumption of poison. The contention of the prosecution is that the doctor who has treated the victim has also deposed with regard to poisoning. The trial Court considering the evidence of the doctor has also categorically stated that PW-16 who treated the victim stated that the victim has stated before her that it was a case of poisoning, but she was not informed as to whether it is forcible administration of poison or she herself has consumed poison. The other witnesses who have been examined also deposed that it is a case of consumption of poison and except the evidence of PW-1 that accused No.1 has forcibly administered poison on the deceased, there is no material before the Court that the victim has sustained any outer injury and according to PW-1, he was subjected to assault by accused No.2. No scrap of paper is produced to prove the same and also for having taken treatment. Apart from that, there is a delay of two days in filing the complaint. If really, there was forcible administration of poison, he would have given complaint immediately.
12. Though the prosecution would contend that the doctors PWs.17 and 20 who gave the treatment and conducted autopsy have deposed in their evidence, the same does not come to the aid of the prosecution to contend that it is a clear case of forcible administration of poison. Hence, we do not find any ground to interfere with the well considered judgment passed by the learned Sessions Judge. Accordingly, the appeal is liable to be dismissed.
In the result, appeal is dismissed.
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JUDGE JUDGE akc/-