The conviction under IPC Sections 302 and 201 was overturned due to insufficient evidence and material discrepancies in witness testimonies.

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

The appeal is preferred by the accused against the judgment and order dated 19.04.2018 passed by the Court of the I Additional District and Sessions Judge, Ramanagara, in Special Case No.119 of 2009, thereby convicting him for the offences punishable under Sections 302 and 201 of IPC .

2. The trial Court has sentenced the accused to undergo rigorous life imprisonment for the offence punishable under Section 302 of IPC and to undergo rigorous imprisonment for three years for the offence punishable under Section 201 of .

3. Brief facts of the prosecution case:

The first informant PW4-Somachari and PW5-Jyothi are husband and wife. Deceased Prathvik is their two year old son. They were residing in Mysuru along with the parents of the first informant. For Deepavali Festival, the first informant had left his wife Jyothi in the house of her parents in Kalkunike. She started working in one Morris Spinner Mill. She developed illicit intimacy with the accused, who was also working in the said Mill. Both of them along with deceased Prathvik were residing in the rented house belonging to PW1-Venkatesh at Hejjala, SVT Colony Village, Bidadi.

4. It is the case of prosecution that on 28.11.2008, at about 9.30 a.m., the accused thinking that deceased Prathvik may obstruct him having intimacy with Jyothi, assaulted him with hands, blow pipe on his stomach, thigh, hips and head and committed his murder. Thereafter, in order to screen himself from legal punishment, he claimed that the child died due to balagraha and thereby, committed the charged offences punishable under Sections 302 and 201 of IPC .

5. The learned Sessions Judge, based on the evidence adduced by the prosecution, particularly, relying on the evidence of PWs.1, 5, 9 and 17 held that there is consistency in the evidence of the prosecution witnesses, whereas their testimonies with regard to the accused and PW5 living together along with the child is established and further holding that the prosecution has also established that the child died on account of the injury sustained to the brain, came to the conclusion that the prosecution has established the charges levelled against the accused.

6. Assailing the impugned judgment, the learned counsel for the appellant-accused vehemently contended that the reasons assigned by the learned Sessions Judge to base conviction are not in accordance with law. There are material discrepancies in the evidence of the prosecution witnesses. The only evidence available is that of PW5, which the prosecution relies to say that the accused has assaulted the child with a plastic pipe, but the said PW5 is not an eyewitness to the incident. He contended that the evidence of PW5 cannot be believed, because she has given different versions and her evidence clearly goes to show that she was at her workplace and according to her, she along with the accused took the child to the hospital, however, the prosecution has not placed any material to show that, to which hospital, they took the child and what were the injuries sustained at that time. He further contended that, according to PW4, it was the accused who telephoned from his mobile phone, but the prosecution has not placed any material to show that, on the date of incident, the accused had called PW4 and informed him about the incident. He contended that there are no other material or evidence adduced by the prosecution to show that it was the accused, who caused injuries to the child and on account of the said injuries, the child died. It is his further contention that the recovery of plastic pipe-MO8 is also not believable, since none of the panch witnesses have stated that