Karnataka High Court
Shreekanth S/O. Parasappa Jangali vs The State Of Karnataka on 13 June, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.100431/2017
BETWEEN:
SHREEKANT
S/O PARASAPPA JANGALI
AGE: 24 YEARS, OCC: AGRICULTURE
R/O. HATTIMATTUR, TQ: SAVANUR
DIST: HAVERI
...PETITIONER
(BY SRI. S.S.YADRAMI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY SAVANUR POLICE
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH
2. IRAPPA S/O KASANAPPA LAMANI
AGE: 49 YEARS, OCC: AGRICULTURE LABOUR
R/O HATTIMATTUR TANDA TQ. SAVANUR
DT: HAVERI
...RESPONDENTS
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP FOR R1;
SRI P.G.MOGALI, ADVOCATE FOR R2)
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THIS PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO ADMIT THE PETITION, CALL
FOR THE RECORDS AND QUASH THE IMPUGNED FIR
AND COMPLAINT AND THE CHARGE SHEET AT
ANNEXURE C, D AND E RESPECTIVELY IN SAVANUR
POLICE STATION CRIME NO.227 OF 2015 AND ALL
FURTHER PROCEEDINGS, NOW NUMBERED AS
SPECIAL CASE (SC/ST) NO.27 OF 2016 FOR THE
ALLEGED OFFENCES UNDER SECTION 417, 328, 306
AND 376 OF IPC AND SECTION 4 OF POCSO ACT AND
SECTION 3(2)(V) OF THE SC/ST (PREVENTION OF THE
ATROCITIES) ACT, 1989, NOW PENDING ON THE FILE
OF THE LEARNED DISTRICT AND SESSIONS JUDGE,
HAVERI.
THIS PETITION COMING ON FOR ADMISSION,
HAVING BEEN HEARD AND RESERVED FOR ORDERS
ON 26.04.2017, THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. praying the Court to quash the impugned FIR, complaint and the charge sheet produced as at Annexure-C, D, E and F, respectively, in Crime No.227/2015 and all further proceedings now numbered as Spl.Case (SC/ST) No.27/2016 for the alleged offence under Sections 417, 328, 306 and 376 of :3: IPC and Section 4 of Protection of Children from Sexual Offences Act and Section 3(2)(v) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Brief facts of the prosecution case as averred in the petition are that one Sharada D/o Irappa Lamani @ Pujar, aged: 17 years, R/o. Hattimattur Tanda, had consumed poison by mistake to be medicine for her ailment, and hence she was admitted to Government Hospital, Savnur, wherein her statement is recorded by the Police Officer of Savanur Police Station in the presence of the duty medical officer Government Hospital, Savanur, in which she has clearly stated that on the said day i.e. on 11.12.2015 around 8 O' Clock in the night, her father, mother and uncle's children, were there in her house. It is stated by her that, since long she was suffering from illness and weakness etc., and her parents got treatment to her at Ashwini Hospital :4: Haveri and she was given tablets and syrups. Around 8.00 p.m. she felt giddiness and assuming that if she take the syrup she will feel comfortable and as such went and by mistake accidentally picked up a bottle wrongly which was a poisonous liquid meant for killing pesticides on the cattle. Her parents saw the same and called 108 Ambulance and got her admitted in Government Hospital, Savanur. While being treated she felt comfortable and stated that she doesn't have any kind of complaint against anyone which is recorded by Savanur Police in the presence of the medical officer at 21.20 hours. In the MLC Register and case sheet maintained in the Government Hospital Savanur, it is mentioned that said Sharada D/o Irappa Lamani had been admitted to Government Hospital with alleged history of poison liquid pesticides taken at 8.00 p.m. in her house, taken for medical illness on her father saying and started the treatment. The further allegation that this being so, one Irappa Lamani, the father of said :5: Sharada, lodged a complaint with Savanur Police from District Hospital, Haveri, the next day around 5.00 p.m. alleging that he is resident of Hattimattur Tanda and two of his daughters are given in marriage and his younger daughter Sharada is aged about 17 years and this petitioner was in close terms with his said daughter since she was going to his land to work and also alleges that petitioner had been visiting their house frequently, which was seriously objected by the complainant, and the petitioner had been warned, so also, his daughter. The petitioner inducing her of getting married, had physical contact with his daughter and his said daughter had determined to marry the petitioner. It is further stated in complaint that about 5-6 days prior to the incident, petitioner's father had told the complainant that they have seen a bride for his son and asked him not to permit the petitioner to visit their house and stated that he has asked petitioner not to :6: come to their house and alleges that the petitioner has said that he going to marry the complaint's daughter.
It is further alleged in the complaint that the previous day to the complaint, on 11.12.2015 around 6p.m. himself and his wife came from their work and found his daughter Sharada was not speaking correctly, himself and his wife enquired, wherein his daughter is said to have told them that around 5p.m. in the evening the said petitioner had met her and told her that he has seen a girl for marriage and asked her to forget him and telling her to die, handed over a poison bottle and accordingly, she has consumed the poison, and alleged that the complainant immediately called 108 ambulance and has taken her to Government Hospital Savanur and from there referred to higher treatment to Haveri and while being treated she died at 00:35 hours on 12.12.2015 and alleged that the petitioner is the cause for the consumption of poison and death of his daughter Sharada, is the sum and substance of the complaint. :7:
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned HCGP appearing for the respondent-State, so also, the learned counsel for respondent No.2/complainant.
4. Learned counsel for the petitioner has submitted that the statement of the victim girl, recorded in the hospital in the presence of the Police, clearly shows that the victim picked the bottle assuming that it is syrup bottle, which is meant for her ailment, but it was the bottle containing poison, which was meant for killing the pesticides on the cattle. He also submitted that even she has clearly mentioned in her statement that she is not having any grievance against anybody, hence, after the death of said Sharada, her statement given before the Police in the presence of the Doctor, amounts to her dying declaration and it is relevant piece of evidence under Section 32(1) of Evidence Act. He has :8: also submitted that even while admitting the deceased to the hospital immediately after consuming the poison, the history furnished to the Doctor shows that it is not the act committed by the petitioner as alleged in the complaint. He has further submitted that filing of the complaint against the petitioner is with malafide intention and it is nothing but abuse of the process of the Court. Even if there is no cross-examination of the prosecution witnesses and the entire charge sheet material is accepted, still the petitioner has to be acquitted in the said case. All these aspects are to be taken into consideration and submitted to allow the petition and to quash the proceedings initiated against the petitioner.
In support of his contentions he has relied upon the following decisions filed along with the memo of citation dated 26.04.2017:
i. (2013) 3 SCC 330 in the case of Rajiv Thapar & Ors. vs. Madan Lal Kapoor;:9:
ii. (2000) 2 SCC 636 in the case of G.Sagar Suri & Another vs. State of U.P. & Others;
iii. (1998) 5 SCC 749 in the case of Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and others;
iv. (1972) 1 SCC 450 in the case of Rajindra
Nath Mahato vs. T.Ganguly,
Dy.Superintendent and another.
5. Per contra, learned counsel for respondent No.2/complainant during the course of his arguments has submitted that the materials collected during investigation requires full fledged trial of the case to ascertain the truth in the matter. Only on the ground that there is a statement of victim girl, the other charge sheet material cannot be brushed aside by the Court without holding a trial. He has also submitted that while exercising jurisdiction under Section 482 of Cr.P.C. this Court cannot assume the role of the trial Court, it is only before the trial Court the entire matter can be considered to come to a right conclusion. He : 10 : has also submitted that in view of the complaint made by the father of the victim girl making specific averment in the complaint that the victim told before him and his wife that at 5.00p.m. the petitioner came to the house and told that he has seen the bride and asked her to forget him and also told her to die and because of that reason she consumed poison, therefore, it requires holding of the trial in respect of the material collected during the course of investigation. Hence, he has submitted to reject the petition filed by the petitioner.
6. Learned HCGP has submitted that he will adopt the arguments advanced by the learned counsel for respondent No.2/complainant. He too submitted that matter requires conducting of full-fledged trial before the trial Court. He has also submitted that serious allegations are made against the petitioner and the offence alleged is serious in nature and hence, proceedings cannot be quashed by exercising : 11 : jurisdiction under Section 482 of Cr.P.C. and accordingly, submitted to reject the petition.
In support of their contention, learned counsel for respondent No.2, so also, learned HCGP relied upon the following decisions:
i. AIR 2017 SC 724 in the case of Alka Bapu Gund vs. Prakash Kanhaiyalal Kankaria and Ors.;
ii. Crl.A.No.1407/2012 dated 13.09.2012 in the case of Amit Kapoor vs. Ramesh Chander & Anr.
7. I have perused the grounds urged in the petition, charge sheet material produced by the petitioner along with the petition, so also, considered the submissions made by both sides at the bar and the decisions relied upon by both the sides, which are referred above.
8. The petitioner/accused herein by filing the petition under Section 482 of Cr.P.C. sought quashing : 12 : of the criminal proceedings initiated against him. It is no doubt true, in the statement of the deceased Sharada D/o Irappa Lamani dated 11.12.2015, which is produced at Annexure-A, she has mentioned that since beginning she was getting giddiness and she was suffering from weakness and she got treatment in the Ashwini Hospital, Haveri and hence, she was cured to some extent. Ashwini Hospital authorities at Haveri gave her some tablets and medicines. It is further averred that she was under the belief that if the medicines given by Ashiwini Hospital were taken, she will become alright. Accordingly, she went to the place where it was kept and because of the confusion, she took the bottle containing poison, which was meant for killing of pesticides and consumed the same.
Thereafter, her father, mother and her brother-in-law shifted her to Savnur hospital in an ambulance and she was getting treatment in the said hospital. She was not having any suspicion against anybody.
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So basing upon this document i.e., the statement of the deceased, learned counsel for the petitioner contended that it amounts to dying declaration and when deceased herself has stated the cause of death, the other contentions are not permissible and absolutely there is no case against the petitioner and hence, the proceedings are to be quashed. But perusing the materials, subsequently the father of the deceased also lodged the complaint on 12.12.2015, wherein he has stated that his daughter was aged 17 years and since two years, the petitioner herein was having contact with the deceased, he used to come to the house of the complainant. As the daughter of the complainant was going to do coolie work to the land of the petitioner, there was close acquaintance between the two. The complaint averments also shows that the complainant and other family members told the petitioner not to come to their house often, even then, the petitioner continued to come to the house of the complainant and : 14 : under the guise that he will marry the deceased, he had bodily contact with the deceased. The further averments show that the father of the petitioner told that they have seen a bride for his son Shreekanth and not to allow his son if he come to their house. It is also stated that on 11.12.2015 at about 6.00p.m. when the complainant and his wife came back to the house after attending coolie work, Sharada was not in a position to speak properly and when they enquired her, she told that at about 5.00p.m. petitioner/Shreekanth came to the house and told her that he had seen the bride and asked her to forget him and also gave the poison bottle to her stating that she can consume and die. Then immediately, they have shifted the deceased to the Hospital at Savnur and thereafter to the District Hospital at Haveri for further treatment, wherein she expired in the early morning at 00.35 hours on 12.12.2015. So, this complaint was lodged on the very same day of the death of the deceased. The contents of : 15 : this complaint show that deceased made oral statement before the parents that the petitioner/accused visited their house on 11.12.2015 at about 5.00p.m. and gave poison bottle to her asking her to die. At this stage, this statement made by the deceased before her parents also amounts to oral dying declaration of the deceased.
9. Therefore, perusing the prosecution material, as of now there are two dying declarations, one is of the statement said to have been given by the deceased as per Annexure-A and another one is the oral dying declaration i.e., oral statement of the deceased made before her parents.
10. Apart from that, sofar as the allegations in the complaint that the deceased used to do coolie work in the land of the petitioner herein and there was close acquaintance between them and the petitioner used to go to the house of the complainant often and he was talking closely with the deceased are concerned, the : 16 : statement of the parents, other family members and the neighbours viz., one Hanumanthappa Lamani and Chikkappa Lamani, prima-facie supports the contention of the complainant that the deceased used to go to the land of the petitioner for coolie work and there was close acquaintance between the deceased and the petitioner and the petitioner used to come to the house of the complainant often; there is consistency in respect of these factual aspects are concerned.
11. The other important circumstance is the independent witness i.e., said Hanumanthappa Lamani and Chikkappa Lamani, who are the neighbours to the house of the complainant, have stated in their statements that on 11.12.2015 in the evening at 5.00p.m. they have seen the petitioner entering into the house of the complainant and he was there for sometime, thereafter, he went back and as he was visiting the house often, they kept mum and it is only : 17 : after some galata in the house at about 6.00pm, they went and seen. This evidence also prima-facie supports the case of the prosecution.
12. Apart from that, though in the statement of the deceased said to have been given on 11.12.2015 in the Government Hospital at Savnur as per Annexure-A, it is mentioned that since beginning she was getting giddiness and suffering from weakness and she was taken to Haveri Ashwini Hospital, wherein the hospital authorities gave some tables and medicines to her, but perusing the documents issued by Dr.Gautam R.Lodaya, Ashwini Nagar, Haveri, dated 19.02.2016, wherein it is stated that "We have not treated any person called Ms.Sharada Erappa Lamani from Hattimattur as out patient or inpatient anytime during last year as per your enquiry." There is one more letter dated 19.02.2016 from Tejashwini Hospital, Ashwini Nagar, Haveri, issued by Dr.V.S.Hiremath, wherein also : 18 : it is stated that "We checked our OPD registration Book. There is no entry in the name of Kumari Sharada Erappa (father) Lamani of Shiggav from June month of 2015".
At this stage, these documents prima-facie show that deceased was not taken any treatment in Ashwini Hospital at Haveri prior to her death. Therefore considering all these materials placed on record, this Court cannot evaluate the truthfulness or falsity of the contention of the parties while exercising its jurisdiction under Section 482 of Cr.P.C. This Court has to see whether the entire prosecution material makes out a prima-facie case as against the petitioner or it is totally a groundless case and it is the abuse of the process of the Court.
13. I have also perused the decisions relied upon by the learned counsel for the petitioner, which are referred above. The factual matrix involved in those : 19 : reported decisions are not exactly one and the same with the factual story in the case on hand.
14. Apart from that, in the recent Division Bench decision of the Hon'ble Apex Court dated 03.01.2017 in the case of Alka Bapu Gund vs. Prakash Kanhaiyalal Kankaria and Ors. paragraph Nos.4 and 5 are relevant for the purpose of our discussion, which reads as under:
4. The High Court in the impugned judgment seems to have embarked on a virtual trial of the case though it was entertaining an application Under Section 482 Code of Criminal Procedure/Article 227 of the Constitution of India for quashing of the order taking cognizance and the complaint as a whole. The probity of the evidence tendered by the complainant's witnesses prior to issuance of process was even gone into by the High Court.
5. Having regard to the settled principles of law, we do not consider the approach of : 20 : the High Court to be correct in law. At the stage at which the case was poised for consideration, it was beyond the jurisdiction of the High court to have embarked upon the exercise that was undertaken. As the same appears to be in clear excess of jurisdiction, we set aside the order of the High Court and direct that the complaint proceedings against the accused Respondents be continued from the stage where the same was interdicted.
Consequently and for the reasons aforesaid we allow the appeal and set aside the order of the High Court.
15. Therefore, looking to paragraph Nos.4 and 5 of the said decision, it is clear that the Court while exercising the jurisdiction under Section 482 of Cr.P.C. cannot embark virtually to conduct the trial but it has to see only whether there is a prima-facie case made out by the prosecution to proceed against the petitioner/accused and also to see whether initiation of the proceedings is with malafide intention and it is clear : 21 : abuse of the process of law. But, in the case on hand, appreciating the entire materials on record, I am of the opinion that prosecution has made out prima-facie case as against the petitioner herein and the trial has to be proceeded with against the petitioner. Hence, petition is hereby rejected.
However, it is made clear that whatever the observations made by this Court in the body of this order are only for the purpose of disposal of this petition and the trial Court should not be influenced by the said observation while conducting the trial and disposing of the matter.
Sd/-
JUDGE BSR