Karnataka High Court
The State Through B.Bagewadi Police ... vs Laxmi W/O Jagadish Mathapati on 11 March, 2020
Bench: P.S.Dinesh Kumar, Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
CRIMINAL APPEAL NO.3642/2012
BETWEEN:
The State through B.Bagewadi
Police Station, Dist. Bijapur
Represented by
Additional State Public Prosecutor,
Gulbarga.
... Appellant
(By Shri Prakash Yeli, SPP)
AND:
Laxmi W/o Jagadish Mathapati,
Age 26 years, Occ. Household work,
R/o B.Bagewadi, Dist. Bijapur.
... Respondent
(By Shri Mahantesh Patil, Advocate for
Shri Shivanand Pattanashetty, Advocate)
2
This Criminal Appeal is filed under
Section 378(1)(b) and (3) of the Code of Criminal
Procedure praying to grant leave to appeal against the
judgment and order of acquittal dated 12.04.2012
passed by the Principal Sessions Judge at Bijapur in
Sessions Case No.117/2009 thereby acquitting the
accused - respondent for the offence punishable under
Section 302 of Indian Penal Code and etc.
This appeal coming on for final hearing, this day,
P.S.Dinesh Kumar J., delivered the following:
JUDGMENT
This appeal by State is directed against judgment and order of acquittal dated 12.04.2012 in Sessions Case No.117/2009 on the file of Principal Sessions Judge, Vijayapur.
2. Case of the prosecution is, accused caused death of her child, aged 11 months by smothering. Jagadish, PW.1 and husband of accused, registered FIR No.48/2009 in Basavana Bagewadi police station alleging that he had received a message on phone from his mother Gowramma that his daughter Shrusti, 3 aged 11 months was abducted by some unknown person.
3. It is the further case of prosecution that accused has made extra judicial confession before PWs.9 to 13 that she had committed the offence. Police after investigation, filed charge sheet for the offence punishable under Section 302 of Indian Penal Code.
4. On behalf of prosecution, PWs.1 to 19 were examined and Exhibits P.1 to P24 marked. On behalf of defence, two witnesses DWs.1 and 2 were examined and Exhibits D1 to D18 were marked. Eight material objects were produced before the trial Court. After trial, on consideration of material on record, learned Sessions Judge has acquitted the accused. Hence, this appeal by prosecution.
5. Sri Prakash Yeli, learned State Pubic Prosecutor submitted that accused was frustrated by 4 the effect of black magic which caused immense pain while feeding the child. She developed hatred towards the child, which she has confided in PWs.9 to 13 in her extra judicial confession.
6. Shri Prkash Yeli, further submitted that statements of PWs.5 and 6 shows that accused was at home along with her mother-in-law and sister-in-law. The child was aged about 11 months and it was under
care and custody of the accused. Only accused had access to the child. In view of evidence of PWs.5 and 6 coupled with the extra judicial confession, the reasons recorded by the learned Trial Judge resulting in acquittal of accused are unsustainable and accused is liable to be convicted.
7. Shri Mahantesh Patil, learned counsel for the accused argued opposing the appeal. 5
8. We have carefully considered the rival contentions and perused the records.
9. In the complaint (Ex.P.1) PW.1 has stated that he received a message from his mother that child was abducted by some unknown person. Prosecution is mainly relying on the versions of PWs.5 and 6 and extra judicial confession allegedly made by the accused.
10. PW.5 is mother-in-law of accused. She has stated that while she was in the bedroom, accused came and enquired if she had carried the child and she answered in the negative. The family members searched for the child in vain. On the following day, police personnel visited the house and accused confessed before the police that she had killed the child and thrown out in the lavatory. She has further stated that accused was suffering from ill effect of black magic and getting pain while she had to feed the child. Therefore she had developed a hostile attitude towards the child. 6 Nothing significant is elicited during the cross- examination.
11. PW.6 is sister of Jagadish (husband of accused). She has stated in her evidence that she and accused were having lunch in the kitchen. Accused took the child to the water closet to clean the child. She returned alone to have food. When enquired, the accused informed that child was sleeping. PW.6 has also stated that accused was suffering from ill effect of black magic and skin irritation all over her body. She has also stated that accused did confess before the police that she had committed the offence and thrown the child in the septic tank.
12. PWs.9 to 13 have turned hostile, before whom accused has allegedly made extra judicial confession. DW.1 is father of accused. He has stated that his daughter was not happy in her matrimonial home. The husband of accused and his family members 7 were not happy because accused had given birth to a female child.
13. DW.2 is the accused. She has stated in examination-in-chief that she was being ill-treated by her husband and his family members. She has further stated that on the date of incident, she served food to her mother-in-law in her bedroom. She along with her sister-in-law went to the kitchen to have food. The child was sleeping in the hall. Her sister-in-law finished her lunch quickly and went out of the kitchen. Accused cleaned the utensils and came out of the kitchen after about 15 minutes. She did not find the child. When she went to the kitchen to have food, she had locked the main door. When she came back, she saw the main door unlatched. She saw her sister-in-law Anita and mother-in-law in a terrified condition. They did not answer to her queries about her child. Accordingly, she informed about disappearance of her child to her 8 husband and he came home. They searched for the child but could not trace. She also informed her father and he arrived at about 8-30 in evening. She suspected her mother-in-law and sister-in-law as the door was open and they did not give any satisfactory reply. When she threatened to file police complaint, they admitted to have killed the child and thrown in the lavatory. They also threatened her of dire consequences, if she took the matter any further. She was in a state of shock the whole night. On the following day, her relatives assembled in the house and upon hearing the incident, they found fault with her mother-in-law, sister-in-law and husband. Her husband left home and came back with the police. Police returned to the police station at about 8-30 in the morning.
14. DW1 has further stated that though she was suffering with pain in her breast once and she had got treated in the hospital she was relieved. She has been 9 cross-examined and suggested that she was not able to feed the child and about other health issues. She has sustained the cross-examination particularly with regard to latch of the main door having been opened when she came out after food. She has also sustained her statement made in her examination-in-chief with regard to state of her sister-in-law Anita and terrified state of mother-in-law Gouramma and her suspicion over those two persons.
15. Prosecution has also based its case on extra judicial confession of accused before PWs.9 to 13. As we recorded hereinabove, those witnesses have turned hostile. Admittedly, there is no eyewitness in the case. Accused is mother of the victim. She is aged about 23 years, she has alleged harassment by her husband and his family members. The same is also supported by her father. So far as the sequence of events on the date of incident are concerned, PWs.5 and 6 have only stated 10 that the child was in the custody of accused. Accused has pointed finger at PWs.5 and 6 namely, her sister-in- law and mother-in-law. She has been consistent in cross-examination that she had locked the main door and she went to the kitchen and the door was opened when she came out from the kitchen. She has specifically alleged that her sister-in-law Anita finished her lunch quickly and went out of the kitchen. Accused followed her after about 15 minutes. Evidence also discloses that accused had served food to her mother- in-law in her bedroom. According to the accused, both Anita and Gouramma were standing outside the house in a terrified condition. Accused has well sustained the cross-examination on this aspect. She has sustained her statement that she had no difficulty in feeding the child. No other material is forthcoming on record to show that accused had developed any aversion towards the child. Thus, in our view, the learned Trial Judge has rightly recorded in paragraph No.34 that death of child 11 is attributable otherwise than to one theory of prosecution alleging murder by the accused.
16. There is one more aspect which we cannot lose sight, is it has been suggested in the cross- examination of PW.5 Gouramma that she had known Shri M.M. Agadi, Police Circle Inspector. Although, she has denied that she knew him well, she had admitted in the cross-examination that after demise of her husband, she was teaching the children of police personnel in Basavan Bagewadi in a room provided by the Circle Inspector of Police. She had also volunteers to state that Shri M.M.Agadi was giving her the salary. This aspect also gains significance because, there were only three women when the incident has occurred. Accused is mother of victim child aged 11 months. Prosecution's theory of accused having hostile attitude towards the child is not proved. On the other hand accused has pointed finger at her mother in law and sister in law. 12
17. In view of above discussion, in our considered view, prosecution has failed to prove the case beyond reasonable doubt by linking circumstantial evidence without any break. Resultantly, this appeal must fail and it is accordingly, dismissed.
SD/-
JUDGE SD/-
JUDGE sn/RSP