Back
2020 Supreme(Kar) 56
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
B.A. Patil, M.I. Arun, JJ.
Shri Subhas S/o.Channabasappa Gajer - Appellant
Versus
State of Karnataka - Respondent
Crl.A.No.100226 of 2015
Decided On : 11-03-2020
For the Appellant :Shri. Srinand A. Pachhapure, Advocate
For the Respondent: Shri. V.M. Banakar, Addl. SPP.
Headnote:
Evidence Act - Section 154 – Indian Penal Code - Section 302 and 498-A – Criminal Procedure Code - Section 313 – Offence of murder – Appeal against conviction - Case of prosecution is that accused is husband of complainant - Out of their wedlock they had three daughters - Accused since day of marriage was suspicious of character of complainant and when she spoke with any man he used to accuse her of having affair with him and used to scold her in vulgar language and used to beat her without any reason - He used to suspect fidelity and used to give physical torture to complainant - He used to further tell complainant that he would murder complainant and children - In that light accused after coming home in afternoon quarreled with complainant for reason mentioned above and accused alleged that he was put into problem because of complainant and her children that children were not born to him and he would kill all of them - He went and took bottle which contained poison which was in house and in spite of resistance from complainant pushed her aside and made three year old and one and half year to drink poison forcibly - After incident he threw bottle and ran away – Thereafter children who were made to drink poison by accused were taken to hospital and while they were being shifted from Hospital to Hospital – Held, Keeping in view ratio laid down by apex court in above decision on perusal of evidence of PW 1 and 5 with exibit P 1 complaint there is corroboration to extent of fact that accused has administered poison to deceased two children - Though PW 1 complainant in her evidence has tried to depose before court that somebody administered poison but nothing has been brought on record to show that somebody was grinding an axe against them so as to administer poison and because of that said act has been committed in absence of any such evidence and unchallenged evidence of PW 1 and 5 clearly establishes fact that it is accused by suspecting the fidelity and because of earlier ill treatment and quarrel has administered poison to deceased two children - Further as per Section 106 of Indian Evidence Act, when any fact is especially within knowledge of any person burden of proving that fact is upon him - In instant case accused and PW1 along with deceased children alone lived in their house and nobody else - They have not stated anything as to how children were poisoned - It is well settled trait of law that it is quality not quantity of evidence that matters - If evidence produced convinced manner in which incident has taken place and if there is some truth in same on basis of material same can be relied upon court to convict accused that too when said evidence has not been challenged to factual narration - When testimony of witnesses otherwise inspiring confidence of court same cannot be discarded - There is no reason as to why husband of PW 1 and son in law of PW 5 has been implicated by screening real culprit to escape - Records produced indicates that immediately after alleged incident complaint came to be filed as per exhibit P1 narrating entire incident including name of accused - If really some other person has administered poison he will not be left free and falsely husband will not be included - Alleged incident has taken place and evidence of witnesses recorded - There is a gap of more than one year eight months - Even during course of proceedings accused has made more attempts to compromise in that light all witnesses which are said to be material to alleged incident have not supported case of prosecution - But however when said witnesses have been cross examined by prosecution they have admitted some fact and in that light truth has been brought before court and same has not been challenged by accused in that light though witnesses have turned hostile their evidence can be relied upon to that extent - It is duty of court to ascertain truth - It is well settled law that let hundred convicts be let free but one innocent should not be wrongly punished - But evidence corroborates to case of prosecution to prove guilt of accused beyond all reasonable doubt - No other suspicion has been raised by accused so to give him benefit - In that light contentions raised by learned counsel is not acceptable - Appeal is dismissed
JUDGMENT :
1. Aggrieved by the judgment and order of sentence passed in S.C.No.54/2012 by the II-Addl. District and Sessions Judge, Haveri, dated 02.07.2015, the appellant-accused therein has preferred this appeal.
2. Heard the learned counsels shri. Srianadan A Pachhapure
3. Thecase of the prosecution is that the accused is the husband of the complainant. Out of their wedlock, they had three daughters by name Supriya, Chandrika and Akshata and were aged about 5 years, 3 years, and one year respectively in the year 2012. The accused since the day of marriage was suspicious of the character of the complainant and when she spoke with any man, he used to accuse her of having affair with him and used to scold her in vulgar language and used to beat her without any reason. He used to suspect the fidelity and used to give physical torture to the complainant. He used to further tell the complainant that he would murder the complainant and the children.
4. In that light on 16.03.2012, the accused after coming home in the afternoon quarreled with the complainant for the reason mentioned above and at about 3:00 p.m, the accused alleged that he was put into problem because of the complainant and her children, that the children were not born to him and he would kill all of them. He went and took the bottle which contained poison, which was in the house, and in spite of the resistance from the complainant, pushed her aside and made three year old Chandrika and one and half year Akshata to drink the poison forcibly. After the incident, he threw the bottle and ran away. Thereafter, the children, who were made to drink poison by the accused were taken to hospital at Hirekerur and while they were being shifted from Hirekerur Hospital to Davanagere Hospital, Chandrika, died at about 9:00 p.m. on 16.03.2012 and Akshata, died on 19.03.2012 at about 5:30 p.m due to poisoning at Davanagere Bapuji Hospital.
5. On the basis of the complaint a case was registered in crime no. 42/2012. Thereafter after investigation charge sheet came to be filed. The learned J M F C Hirekerur took cognizance and after compliance of sec. 207 of CRPC committed the case to the sessions court. The learned sessions judge secured the presence of the accused and after hearing regarding charge, charge was prepared and read over and explained to the accused. Accused pleaded not guilty, he claims to be tried and as such the trial was fixed.
6. The prosecution in support of its case got examined 18 witnesses and got marked Exs.P1 to P30 and two material objects i.e MO 1 and 2. The accused did not examine any witnesses nor marked any documents. The trial Court recorded the statement under Section 313 of Cr.P.C. and after hearing the prosecution and the accused, found the accused guilty for the offences punishable under Section 302 and 498-A of IPC and convicted and sentenced the accused. Aggrieved by the said judgment of conviction and sentence the accused has preferred this appeal.
7. The prosecution examined the complainant as PW1. According to the prosecution she is the eye witness. However, she has turned partly hostile. In her examination-in-chief, she has stated that she and her for the appellant-accused and Shri. V.M Banakar, additional SPP for respondent state. husband were living together and her husband was good with her. On 16.03.2012, when both had gone for work some one had made her children drink poison. Thereafter, someone took them to the hospital. On the way to the hospital at about 1:00 p.m. Chandrika died. Akshata died after two days. On 17.03.2012, the Police came and asked her to sign on a document and she signed it. She has identified the document as Ex.P1 and her signature on it as Ex.P1(a). She has also identified the photo of the dead body of Chandrika as Ex.P2 and has stated that in the said photo the Police, her younger brother and her uncle and aunt are there. She has identified the photo of dead body of Akshata as Ex.P3. She further deposed that in the said p
