Karnataka High Court
Shri. Venkatesh vs State Of Karnataka on 2 June, 2018
Author: K. Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR.JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.837 OF 2013
BETWEEN
SHRI. VENKATESH,
S/O SHIVAIAH, 24 YEARS,
R/O BHEERITHAMMANAHALLY
HANAGODU HOBLI,
HUNASUR TALUK,
MYSURU DISTRICT,
KARNATAKA STATE.
... APPELLANT
(BY SRI S. GURUPRASANNA, ADVOCATE)
AND
STATE OF KARNATAKA
BY HUNSUR RURAL POLICE
HUNSUR TALUK,
MYSURU DISTRICT,
KARNATAKA STATE.
REP. BY THE PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
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THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 29.02.2012 PASSED
BY THE II ADDITIONAL SESSIONS JUDGE, MYSURU IN
S.C. No.25/2011 CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC. THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO LIFE IMPRISONMENT AND
PAY A FINE OF RS. 5,000/- AND IN DEFAULT TO PAY
FINE, TO UNDERGO SIMPLE IMPRISONMENT FOR 6
MONTHS. THE APPELLANT/ACCUSED PRAYS THAT
HE BE ACQUITTED.
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, N.K. SUDHINDRARAO, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the judgment convicting the accused / appellant in S.C.No.25/2011 on 29.02.2012 for the offence punishable under Section 302 IPC and sentencing him to undergo life imprisonment and also to pay a fine of Rs.5,000/- and in default to pay fine, to undergo simple imprisonment for a period of six months by the II Additional Sessions Judge, Mysore.
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2. Earlier, the case was registered against Accused Nos.1 to 5 for the offences punishable under Section 498-A, 302 read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Accused Nos.2 to 5 were acquitted by the learned Sessions Judge. Whereas Accused No.1, the husband of the deceased who is the present appellant, was convicted only under Section 302 IPC and acquitted under Section 498-A read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
3. The substance of the complaint filed by Kariyaiah on 10.05.2010 which is registered in Crime No.210/2010 for the offence stated above is that, Chandramma who is the daughter of Kariyaiah was given in marriage to Accused No.1 Venkatesha of Beerithammanahalli village, Hunsur Taluk. Accused No.2 is said to be the mother of Accused No.1 and Accused Nos.3 to 5 are said to be the close relatives of 4 Accused Nos.1 and 2 who were very often visiting the house of the accused. Soon after the marriage of Chandramma with Accused No.1, both of them are said to have led a happy married life initially for a period of three to four months. Trouble started brewing when Accused Nos.1 and 2, at the instigation of Accused Nos.3 to 5 started demanding for additional dowry from Chandramma's father and started to give physical and mental torture to her.
4. A panchayath was also held in this regard, but it was in vain. At the time of their marriage on 11.06.2009, Chandramma's father had given Rs.25,000/- in cash, a gold chain weighing 15 grams and a gold ring weighing 12 grams to accused No.1 - Venkatesha and a pair of gold ear stud and hangings weighing 15 grams to his daughter Chandramma.
5. It is stated that on 6.5.2010, at about 4.00 p.m., Accused No.1, with an intention to kill 5 Chandramma since she did not bring the dowry demanded by him, had administered her poison mixed with cough syrup, forcibly. As a result of poison being administered, Chandramma became ill and was admitted to General Hospital, Hunsur. However, the Doctor there advised them to shift her to K.R. Hospital, Mysore and it was done accordingly. Though she was under treatment in the said hospital, she breathed her last in K.R. Hospital at 8.15 a.m. on 10.05.2010.
6. The complaint was lodged by her father and the case came to be registered for the offences stated above and a final report was submitted for the said offences.
7. The prosecution, in order to establish the case, examined PWs-1 to 21, got marked documents P- 1 to P-31 and material object MO-1.
8. Among the witnesses, PW-1 is the Executive Magistrate. PW-2 is Kariyaiah, the father of the 6 deceased Chandramma. PW-3 - Suresh is the witness for spot mahazar. PW-3, 4, 5, 19 are said to be the witnesses for the mahazar at Exhibit P-7.
9. Manjunathaswamy PW-1 is the Executive Magistrate who conducted the inquest mahazar at the request of the PSI on 10.05.2010 as per Exhibit P-1. His evidence is that. at 5.00 p.m., he visited K.R. Hospital and conducted the inquest mahazar and recorded the statement of the witnesses including the relatives of the deceased and also their statement regarding the ill-treatment and death of the victim and then dispatched the dead body for post-mortem.
10. Kariyaiah, PW-2 is the complainant and father of Chandramma. He has deposed that she was given in marriage to Venkatesh and has spoken the role of accused 1 to 5 in meeting out ill-treatment to Chandramma during her lifetime to bring additional dowry from her parental house. Prior to two months, 7 the accused sent her to her parental house to bring a dowry of Rs.50,000/-. Since, PW-2 could not give money to her, he pacified her and left her in her husband's house. Accused No.1 was very angry at it. Further two months later their ill-treatment increased to the extent, that on 6.5.2010, his daughter was administered tea mixed with poison forcibly by her husband Venkatesh and her mother-in-law.
11. Since the treatment at Hunsur did not appear to be sufficient, Chandramma was taken to K.R. Hospital, Mysore and was treated in the Intensive Care Unit for a period of three days, and on the fourth day she breathed her last.
12. He further states that the accused had taken care of his daughter properly for a period of about six to seven months and thereafter started quarelling with her and had even drove her out of the house directing her to bring Rs.50,000/- dowry from her father. 8
13. As the demand was not met, Accused No.1 was angered and administered poison to her. The other accused persons except Accused Nos.1 and 2 were habituated to stay in marital house. The requests made to them to take care of his daughter properly, had not yielded any result.
14. The further aspects of all formalities that happened post-death period that includes Inquest Mahazar, post-mortem and so on. In his cross- examination, no significant impact is seen and suggestions are made to the version spoken by PW-2 regarding dowry demand, torture, ill-treatment and death due to the ill-treatment.
15. PW-3 Ravi, PW-4 Suresh and PW-5 Chandru were the spot mahazar witnesses as per Exhibit P-7. These witnesses did not support the case of the prosecution insofar as Exhibit P-7 mahazar. 9
16. PW-9 - Shrimathi, D/o. Appajigowda is the WPC official having guarded the dead body at K.R. Hospital.
17. PW-10 - Sannaiah is a friend of Kariyaiah, the complainant. His evidence is based on the information given by Chandramma. His further evidence is that he enquired Chandramma as to what happened and she informed him that her husband had forcibly administered poison to her by mixing the same in coffee. He has also spoken regarding the marriage of Chandramma with Accused No.1 one year back and his participation in the matrimonial negotiation which took place in the house of Kariyaiah, wherein Venkatesh, Kalamma, Ramesh, Devaraju and Susheela were present and some of the villagers were also present. Further regarding the demand of 50 grams of gold and Rs.50,000/- as dowry by the accused which was not agreed. However, the complainant agreed to give cash 10 of Rs.25,000/-, gold weighing 45 grams and marriage was performed at Anakannambady village and that the couple were happy for about four to five months and it is thereafter that the accused started taunting her to bring additional dowry of Rs.50,000/- and there was a panchayath. All the accused were present and it was brought to the notice of the accused that the complainant side were poor people and it was not possible for them to arrange Rs.50,000/-, because of which physical and mental torture continued to pour on the victim for two to three months and a panchayath was also convened. At the time of marriage, a gold chain of 15 grams, ring of 15 grams, cash of Rs.25,000/- were given to the bridegroom and 15 grams gold was given to Chandramma. All the accused persons were responsible for her death. In the cross- examination, it was suggested against his participation in the matrimonial negotiations. It is elicited to a suggestion that both Accused Nos.1 and 2 were residing 11 along with Chandramma and the other accused persons were residing in their respective houses. Further, no significant version has come out from this witness.
18. PW-11 - Lakshmamma is the mother of the deceased and the wife of PW-2 Kariyaiah. Her evidence is regarding the marriage of Chandramma with Accused No.1, the matrimonial negotiation, demand of cash of Rs.50,000/- and gold of 70 grams by the accused and giving of dowry of Rs.25,000/-. Totally, gold items of 30 grams were given at the time of marriage. According to her, they had given 27 grams gold to the bridegroom Venkatesha and ear ring to her daughter and cash of Rs.25,000/- was given to the accused as agreed earlier. The marital life according to this witness, was cordial for an initial period of six months. Thereafter, torture for demand of additional dowry had started. It is her statement that Accused No.1 started harassing her daughter Chandramma and there was a demand for 12 additional dowry. Then suddenly the neighbours of Chandramma had telephoned her husband saying that Chandramma was not well and was admitted to Hunsur Hospital. Later she came to know that her daughter was administered poison. This witness, her husband Kariyaiah, one Javaraiah and another Kendappa rushed to Hunsur Hospital to see Chandramma. On seeing them, the deceased Chandramma had told them that her husband Venkatesha administered her poison mixed coffee. Rest of the versions are spoken to by the other witnesses regarding admitting her to Mysore Hospital and in the cross-examination her poverty is elicited. Further, she has also stated the say of the accused at the time of marriage negotiations that they were ready to accept Chandramma to the marital house even if she was sent only with the dress worn by her. She denies the ailment of cough to Chandramma.
19. The Subbaiah PW-12 speaks about the marriage of Channamma which he did not attend. 13
20. Similarly, Yejaman Sannagangaiah - PW-13's evidence is that he attended the marriage negotiations and that the accused had made a demand for Rs.50,000/- cash and 50 grams of gold. But however, on behalf of the complainant it was said that nobody in their village had given so much gold and cash during marriage and that they were people suffering from acute poverty who could not afford to pay that much. But the accused did not accept and insisted for cash of Rs.25,000/- and 27 grams of gold ornaments. But this PW-13 did not know as to what happened in the marital house. His evidence was also treated as hostile.
21. Javaraiah is PW-14. His version is similar to that of Sannagangaiah PW-13. He has deposed that at the time of engagement, Rs.25,000/- was paid in cash and 42 grams gold agreed would be paid at the time of marriage. He denies the suggestion made to him during cross-examination.
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22. The evidence of PW-15 - Dr. Dattatreya Babu, the person who treated Chandramma in the ICU was that it was the case of consumption of poison. From the history, it is stated that on 6.5.2010 at 5.00 p.m., she consumed poison and it was revealed by her father Kariyappa. She was conscious. It is elicited from him that the stomach was cleaned, but however there was no poison in the stomach of Chandramma.
23. PW-16 - Dr. Chandramanidevi is the Doctor who treated Chandramma in General Hospital, Hunsur on 6.5.2010. According to her, Subbaiah who brought the victim, informed that on 6.5.2010 at about 7.00 p.m., Chandramma had consumed roger or metacid pesticide and she was conscious at that time. Her B.P. was normal. Pesticide smell was emanating from her mouth. She was made to vomit and the vomited substance contained poison smell. She was administered antibiotics. Thereafter memo was issued 15 to police. She identified MLC and certified copy of the extract of the same at Exhibit P-18 and her signature at P-18(a). Copy of the MLC extract is identified at Ex. P-19 with relevant entry at P-19(a) and signature of the witness at Exhibit P-19(b). She has been cross- examined at length. The evidence is confined to admission with the history of consumption of poison and treatment and subsequently the death of Chandramma, being unable to recover from the effects. She denies the suggestions made against her version in the chief examination.
24. PW-17 Thammaiah Gowda is the Head Constable. His evidence is official act of receiving the memo from the hospital. Bhora Shetty PW-18 is the ASI, H.D. Kote. His evidence is that he received the message on 10.05.2010 at 12.00 noon from the hospital. He has been cross-examined by the learned counsel for the accused.
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25. PW-19 Shashidhar is the Investigating Officer. His evidence is regarding the investigating procedure including arresting the accused, conducting the spot mahazar, recording the statement of witnesses, sending the seized articles to chemical examination, collecting information and issuing relevant documents. He has been cross-examined at length by the learned Defence counsel.
26. Learned counsel for the appellant Shri S. Guruprasanna would submit that Ex.P-20 is the statement said to have been given by the deceased Chandramma on 6.5.2010. He would submit that contradicting version of the prosecution is established from the statement Ex.P-20 Chandramma. Insofar as this document is concerned, it is relied upon as the dying declaration by the prosecution by virtue of the death of Chandramma because of the effects of poison due to the fact that she had spoken regarding the 17 cause. Subsequent to recording her statement at Ex.P- 20, C.Misc.362/2010 has also been annexed to her statement. The further crux of her statement is that the statement was recorded on 6.5.2010 in the hospital. Her very first version relied upon by the prosecution is that for 4 to 5 days she was suffering from cough and it did not subside. Herself and her mother-in-law went to Panchavalli and sought treatment in the hospital. The Doctor administered an injection and also gave tablets. She came and slept and on 6.5.2010, the cough aggravated. Her brother-in-law gave some medicine that was bought for cough for his children and mixed it in the coffee and gave her. Soon after she drank it, she started feeling more tired and fell on the ground and her husband took her to the hospital. In this connection, it is to be observed that the victim Chandramma had ample opportunity to complain against the accused. While she fell down out of giddiness, her husband and her mother-in-law took her to the hospital for providing 18 treatment and Chandramma took treatment in the hospital. Otherwise, she did not take medicine for any other ailment. Thus, the tone and tenor of the statement of Chandramma is that as on the date of the incident, there was no ill-will, quarrel or harassment by any of the accused, more particularly she says just previously she had gone along with her mother-in-law to the hospital at Panchavalli and there she was treated and administered injection and given tablets and further, she says that she consumed the syrup offered by her brother-in-law mixed in coffee. In this connection, she does not say that it was poison. Subsequently, she says it was syrup. More particularly, she was taken to hospital by her husband Accused No.1 and mother-in-law. Chandramma's statement bringing her to hospital and her further statement to the effect that she was brought by her husband and mother-in- law, is diluted by inconsistency to some extent. 19
27. In this connection, if PW-2 Kariyaiah and his wife PW-11's complaint that the accused made demand for additional dowry and in this respect had ill-treated Chandramma and administered poison were to be accepted, the accused would not have taken her to hospital when she was very much conscious since there would be every chances of exposing their foul play.
28. Further, the post-mortem examination that was conducted revealed that the death was due to consumption of phosphide compound (Rodenticide poison). Thus, it is the case that she consumed coffee mixed with poison.
29. The case of the prosecution is as reflected in Column No.17 of the final report relating to the case in C.C.No.217/2010, wherein charge-sheet was laid by the Investigating Officer which revealed that poison was administered to Chandramma by mixing it in coffee saying her that it was cough syrup. Thereafter since 20 she fell down due to dizziness, she was admitted to the hospital for treatment.
30. In the background of the case, it also has to be analysed that the post-mortem was conducted vide Ex. P-24. Insofar as the post mortem report Ex. P-25 dated 10.05.2010 is concerned, it states that the dead body of Chandramma aged 19 years was subjected to autopsy and insofar as the column regarding the external injuries it is mentioned under the caption 'external examination' stating that there were no external injuries seen on the dead body. When poison is forcibly administered, there are every chances of causing defence wounds. However, no injury over the lips or jaws or gums or any area nearby the mouth are observed in the post-mortem report. The reason for the cause of death in the beginning was reserved for chemical analysis of blood and viscera. However, after receiving the FSL report dated 29.07.2010, opinion of 21 the Doctor regarding the cause of death revealed that the death was due to consumption of phosphide compound (Rodenticide poison).
31. It is necessary to note that the preliminary treatment in case of poison entering to stomach will be cleaning of the stomach making the victim to vomit. From 6.5.2010 she was under constant medical treatment for four days till when she breathed last. In the meanwhile, she was not in subconscious status or not in coma. She spoke before the Doctor in her conscious did not complained. The articles examined in the FSL examination as per Ex.P26-FSL report are:
"1. One sealed glass bottle containing stomach and its contents; portion of small intestine and contents;
2. One sealed glass bottle containing portion of liver and kidney;
3. One sealed glass bottle containing blood.;
4. One sealed glass bottle containing saturated solution of sodium chloride as preservative."
Opinion of the Doctor is:
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"Colour tests and UV spectrophotometric methods have responded for the presence of phosphide ions in exhibit Nos. 1,2 and 3. The above tests responded negative in exhibit No.4."
32. When she underwent constant treatment under the observation of the Doctors and she is in consciousness and cause of death being mentioned as consumption of poison, ought to have been explained with relevant materials.
33. More particularly, first, she had taken treatment in Panchavalli hospital, subsequently, she took treatment in General Hospital, Hunsur and thereafter was taken to K.R. Hospital Mysore, where she breathed her last. The details or discharge summary containing admission, ailment, treatment, response are not placed before the court of any of the hospital be at Panchavalli, Hunsur or Mysore. In this connection, no endeavour were made by the prosecution to place 23 these crucial records before the court in support of their case.
34. Ex.P17 is dated 7.5.2010 which is sent by the Medical officer, ICU K.R. Hospital, Mysore, wherein it is stated as under:
"Chandramma, aged 19 years patient admitted to medical ward on 7.5.2010 at 3.45 p.m. with the history of consumption of unknown poison."
Thus, it is very much essential to focus that there was no allegation against husband or any other accused persons. This document came into existence prior to the death of Chandramma.
35. Similarly, Ex.P19 is Medico Legal Register Extract and the relevant entry is Ex.P19(a). At columns 12,11 and 12, which pertain to history of the accident or injuries, description of wound or injuries, treatment given, it is mentioned as under:
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" said to have been consumed OP poison at 7.00 p.m. on dated 6.5.2010 in her residence."
36. This document produced by the prosecution does not whisper regarding administration or forcible induction of poison to Chandramma. Thus, there is no whisper either regarding the history except stating that it was the case of consumption of poison. There is vast difference between the consumption and administration, wherein former one is 'voluntary' and later one is 'not voluntary'. On the other hand it comes from external source.
37. Further, Ex.P20 which is the statement as stated above further fortifies the fact against the assertion of the prosecution regarding forcible administration of poison. There was no force or constraints against Chandramma or any of the other witnesses between 6.5.2010 upto 10.5.2010 regarding the allegation of administration of poison. In this 25 connection, the knowledge of being admitted to the hospital was very much came to the notice of the complainant and his wife on 6.5.2010 itself. Thus, death of daughter may also cause agony frustration and anguish. The evidence of Doctor before whom the victim stated or given statement as Ex.P20 has not mentioned any doubtful circumstances or the body language. Besides, it cannot be over ruled that she was subjected to medical treatment for ailments. Thus, Exs.P17, 18, 19, 20 postmortem report, statement of witness are against the prosecution. Regard being had to the fact that they are all the documents by the prosecution.
38. Insofar as the question of death due to poison after 4 days under constant treatment is concerned, the treatment that are offered to Chandramma during the period from the date of admission till her death are not before the Court. The 26 Doctor who attended Chandramma at Panchavalli hospital is not examined.
39. There is vast difference between 'consumption of poison' and 'administering poison'. Former one is voluntary and the latter is involuntary. There lacks a single circumstance to believe that the accused and the prime document Ex.P20 relied upon by prosecution, said to be the statements of the victim goes against the prosecution.
40. Another point that come before us is, her statement regarding Ex.P20. Ex.P20 is clear that some mixture was given to her that was at home, being brought for the children of her brother-in-law. Her brother-in-law gave it to her mixing it in coffee and after consuming that she started tiresomeness, giddiness and fell down. The crucial aspect is that, she was taken to hospital by her husband.
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41. Further, she recollects that what she drank was a syrup. She is one of the inmates of the house she is expected to know more particularly the medicine that was kept in the house and the previous use of the medicine. It is stated from 6.5.2010 to 10.5.2010 and even in the postmortem report Ex.P25, it is the consumption of poison as the cause of death and the other parts i.e., thorax, abdomen and genitor urinary system are normal.
42. Dr.Y. Udayashankar in his evidence has not whispered regarding the forcible administration of poison. The very statement of Ex.P20 does not induct the accused. It is positive evidence by the Doctors who treated her stated that she was conscious and was able to peak.
43. PW2 has asserted that his daughter has not complained anything against the accused 3 to 5 and it was only against husband and mother in law. 28
44. The Trial Judge, out of 5 accused persons including the accused No.1/appellant herein, has acquitted accused 2 to 5 and there is no appeal against the said judgment by the prosecution is preferred.
45. Learned High Court Government Pleader on query would submit that no appeal is preferred against the acquittal of accused 2 to 5.
46. The entry of poison in to stomach is said to be on 06.05.2010 admitted to K.R.Hospital Mysore on 07.05.2010. She was conscious did not complain against the accused and wherever the term poison is present there appears consumption of poison. Thus, perusal of the oral evidence of PWs 1 to 21 and documentary evidence of Exs.P1 to P31, the stand of the prosecution is, PW2 has asserted that daughter has not complained anything against the accused 3 to 5 and 29 it was only husband and mother in law. Though panchayats are stated to have been conducted no reliable materials or documents are placed before the court to know that panchayat are convened and the participants therein. Further, though it is stated by the PW2 and PW11 that the accused were demanding dowry and she was harassed. Insofar as the allegations are concerned, it is stated in the evidence that there is no material against the mother-in-law in the versions of the complainant and his wife who are the parents of the victim and the very statement of the victim. Thus the complaint lodged against the accused suffers from material lapses.
47. It is also necessary to mention that the very accused are also the opposite party for the offences punishable under Section 498-A and Section 3 and 4 of the Dowry Prohibition Act and were not found guilty and acquitted for the said offences and the said 30 acquittal is not challenged by the prosecution. In the circumstances, the learned trial Judge finds that regarding the source of money PW2 has given the explanation and relied upon the versions of PW11 and failed to notice the deviation and material contradictions between the complaint and the Ex.P20- statement of Chandramma on the one side and further deviation among Exs.P17, 18 and 19 statements of Doctors PWs 15 and 16 and the finding of learned judge regarding the offences under Section 498-A and under Sections 3 and 4 of Dowry Prohibition Act. Hence, we are of the firm view that, we do not find substance in the judgment convicting the accused and sentencing him to under go imprisonment for life and fine of Rs.5,000/- in default to under go SI for 6 months for the offence punishable under Section 302 of IPC. Learned Judge committed serious error in convicting the accused No.1, appellant herein for the offence punishable under Section 302 of IPC. There are infirmities and 31 irregularities and lack of correlation and proper appreciation of evidence. Hence, the judgment convicting the accused and sentencing him to undergo imprisonment for life with fine of Rs.5,000/- in default to pay fine to undergo SI for 6 months is liable to be set aside.
48. In the result, the appeal is allowed. The judgment convicting the Accused-appellant for the offence punishable under Section 302 of IPC thereby sentencing him to undergo life imprisonment and pay a fine of Rs.5,000/- and in default to pay fine, to undergo Simple Imprisonment for 6 months passed by the learned II Additional Sessions Judge, Mysore, in SC No.25/2011 dated 29.2.2012 is hereby set aside.
The accused is set at liberty forthwith, if he is not required in any other case.
The fine if any deposited by the accused shall be refunded to him.
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As the accused is reported to be in custody as a convict, it is ordered that he shall be released forthwith.
Send the copy of this judgment to the trial court. Registry is directed to forward copy of this order to the concerned Superintendent of the Jail where the appellant is lodged at present.
Sd/-
JUDGE Sd/-
JUDGE Ks/tsn*