Dismissed

Sri.Subhas S/O Channabasappa Gajer v. State of Karnataka

Karnataka HC11 Mar 2020CRL.A/100226/2015

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court upheld the conviction of a husband for murder and cruelty under Sections 302 and 498-A of IPC. Despite his daughter turning hostile in court, her admissions during cross-examination regarding the incident were sufficient to convict the accused, who was not left with any reasonable doubt.

What did the court decide?

The appeal was dismissed and the judgment of conviction and sentence passed by the trial court was confirmed.

Sri.Subhas S/O Channabasappa Gajer Vs State… — Child Custody and Guardianship | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF MARCH 2020

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PRESENT

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THE HON’BLE MR.JUSTICE B.A.PATIL

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AND

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THE HON’BLE MR.JUSTICE M.I.ARUN

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Crl.A.No.100226 of 2015

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Between:

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Shri Subhas S/o.Channabasappa Gajer, Age 29 years, R/o.: Kyatanakeri, Tq.: Hirekerur, Dist.: Haveri.

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… Appellant

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(By Shri Srinand A.Pachhapure, Advocate)

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And: State of Karnataka, Rep. by Hirekerur Police Station, Now Represented by SPP, High Court of Karnataka, Bench at Dharwad.

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… Respondent

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(By Shri V.M. Banakar, Addl. SPP)

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This criminal appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment of conviction dated 02.07.2015 and the order of sentence dated 04.07.2015, passed by the II-Addl. District and Sessions Judge, Haveri, sitting at Ranebennur in Sessions Case No.54/2012 and acquit the appellant from the offences punishable under Sections 498-A, and 302 of IPC.

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This appeal coming on for final hearing, this day, M.I.Arun, J., delivered the following: JUDGMENT

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1. Aggrieved by the judgment and order of sentence passed in

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S.C.No.54/2012 by the II-Addl. District and Sessions

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Judge, Haveri, dated 02.07.2015, the appellant-accused

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therein has preferred this appeal.

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2. Heard the learned counsels shri. Srianadan A Pachhapure

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for the appellant-accused and Shri. V.M Banakar,

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additional SPP for respondent state.

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3. The case of the prosecution is that the accused is the

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husband of the complainant. Out of their wedlock, they had three daughters by name Supriya, Chandrika and

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Akshata and were aged about 5 years, 3 years, and one

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year respectively in the year 2012. The accused since the

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day of marriage was suspicious of the character of the

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complainant and when she spoke with any man, he used to accuse her of having affair with him and used to scold

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her in vulgar language and used to beat her without any

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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

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complainant and the children .

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4. In that light on 16.03.2012, the accused after coming home

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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

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the complainant and her children, that the children were

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not born to him and he would kill all of them. He went

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and took the bottle which contained poison, which was in

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the house, and in spite of the resistance from the complainant, pushed her aside and made three year old

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Chandrika and one and half year Akshata to drink the

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poison forcibly. After the incident, he threw the bottle and ran away. Thereafter, the children, who were made

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to drink poison by the accused were taken to hospital at Hirekerur and while they were being shifted from

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Hirekerur Hospital to Davanagere Hospital, Chandrika,

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died at about 9:00 p.m. on 16.03.2012 and Akshata, died

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on 19.03.2012 at about 5:30 p.m due to poisoning at

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Davanagere Bapuji Hospital.

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5. On the basis of the complaint a case was registered in crime

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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

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committed the case to the sessions court. The learned

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sessions judge secured the presence of the accused and after hearing regarding charge, charge was prepared and

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read over and explained to the accused. Accused pleaded

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not guilty, he claims to be tried and as such the trial was

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fixed.

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6. The prosecution in support of its case got examined 18

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witnesses and got marked Exs.P1 to P30 and two material objects i.e MO 1 and 2 . The accused did not examine any

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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

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302 and 498-A of IPC and convicted and sentenced the

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accused. Aggrieved by the said judgment of conviction

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and sentence the accused has preferred this appeal.

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7. The prosecution examined the complainant as PW1.

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According to the prosecution she is the eye witness.

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However, she has turned partly hostile. In her

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examination-in-chief, she has stated that she and her

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husband were living together and her husband was good

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with her. On 16.03.2012, when both had gone for work some one had made her children drink poison.

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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 photo she, her

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younger brother and her uncle are there. She has

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identified another photo, which is marked as Ex.P4 and states that it is the photo of her husband’s house and she is showing the spot. She has further deposed that she is living with her parents since the death of her children. She states that her husband is in jail as he murdered the

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children. After treating her as a hostile witness the prosecution has cross examined her. In the crossexamination, she denies giving complaint against her husband. She denies the allegation about her husband torturing her, suspecting her character, poisoning her children stating that they are not his children. However, she admits the suggestion by the prosecution as to the death of her children due to poisoning. Further she admits that the Police came to the hospital and she

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informed them as to the incident in the hospital and that

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they wrote the same and read it over to her. She admits signing the same. She admits that the Police wrote down what she stated. She admits that she showed the Police where the children were poisoned and the place where

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the bottle was thrown and even on searching the bottle was not found. She admits that due to poisoning the children vomited and it fell on their clothes. She has identified one cloth of Akshata as MO1 and Frock of Chandrika as MO2. She admits the panchanama done in her presence and panchanama was marked as Ex.P5 and her signature on panchanama as Ex.P5(a). She has further stated that she and her husband have decided to live happily with each other henceforth. She has further stated that her parents are not willing to keep her with

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them and she has no other go except to live with her

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husband.

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8. PW2 is a known person to the accused and the complainant

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PW1 and is a panch witness. He admits his signature on

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the panchanama EX P5. He denies the knowledge as to the contents of the panchanama. He has been considered as hostile by the prosecution. In the cross-examination he admits PW1 showing the place where the children were

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poisoned to the Police. He further states in-spite of the Police searching the bottle which contained the poison,

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they could not find it.

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9. PW3 is also a panch witness. He identifies the spot panchanama at Ex.P5 . He states that he signed on the material objects. He denies the knowledge as to contents

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of Ex.P5. He admits the seizure on the mahazar, which is

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marked as Ex.P9. He is treated as a hostile by the prosecution. In the cross-examination he states that he

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has not signed on any concocted documents.

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10. PW.4 is a person known to the family of the complainant

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and the accused. She has turned hostile and her evidence

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is of no use to the prosecution.

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11. PW.5 is the mother of the complainant she has turned

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hostile. However, in the cross-examination by the prosecution she admits that her husband called her by about 3.30 p.m on the fateful day from the house of their daughter and said that the accused has poisoned the children and that they are going to the hospital and

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asked PW.5 to come over there. She further admits that

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when she enquired with her daughter about the incident

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she stated that her husband came home after work and

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he poisoned the children and ran away from the

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backdoor of the house. She further admits that her son-

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in-law was suspecting the character of her daughter. That

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he used to assault her. She further states that the

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accused used to state that the children were not born to

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him. She further states that regarding the same her daughter told her for that reason the accused poisoned

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the children. She admits that for that reason the children

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have died.

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12. PW.6 is a person known to the accused and the complainant. He has also turned hostile. He admits that the accused and complainant along with their children

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were living separately. That the accused was driving a

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tractor and the complainant used to live in the house

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with small children. He admits that there was nobody

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else to take care of the children other than the

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complainant. He further states that the accused is in jail since the complainant gave a complaint against the

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accused. He admits he has asked for compromising the

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case.

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13. PW.7 is another person known to the accused. He has

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stated that only the accused along with his wife and

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children were living in the house. He has turned hostile.

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14. PW.8 is uncle of the complainant. He has also turned

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hostile.

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15. PW.9 is father of the complainant. He has turned hostile.

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16. PW.10 is a person known to both complainant and the

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accused. He has also turned hostile.

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17. PW.11 is the younger brother of the complainant. He has

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stated that he has written the complaint and given to police upon the instructions of the complainant who is his sister. He admits his signature on the complaint.

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Thereafter he has turned hostile. He further states in the cross-examination that as per the advise of elders his

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sister (complainant) has deposed before the Court.

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18. PW.12 is the constable and he has stated that on

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17.03.2012 he went to C.J.Hospital, Davanagere took the complainant from the Sub-Inspector and delivered to

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Station House Officer.

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19. PW.13 is the sub-inspector. He has stated that he

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received the complaint from the complainant he identified the signature on the same. He states that he gave the complaint to PW.12 to have it registered in the

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police station. That he has drawn inquest panchamama

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of the deceased Chandrika, did panchanama of the

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clothes of the deceased Chandrika and seized the same.

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He further deposed that on 20.03.2012 he did draw the inquest panchanama of the deceased Akshata and also

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requested the concerned doctors to do the postmortem

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of the body of the deceased.

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20. PW.14 was working as a police sub-inspector in Hirekerur

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police station. He states that he received the complaint

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from PW.12 and registered the case. Thereafter he

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submitted the complaint and FIR to the jurisdictional Court.

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21. PW.15 is an engineer working in PWD who has prepared

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the sketch of place of the incident.

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22. PW.16 is the PDO of Tavaragi Grama Panchayath in

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whose jurisdiction the place of incident is located and he

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has stated as to it.

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23. PW.17 is an officer in FSL laboratory at Belagavi. He

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states that he has examined the clothes of the deceased,

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parts of liver, kidney and blood of Akshata and Chandrika

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and states that he has found organo phosphorus pesticide poison in the said samples. He has further

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stated death has happened due to it.

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24. PW.18 is the another witness. He has turned hostile.

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25. It is the contention of the learned counsel for the accused

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/ appellant that the trial court committed grave error in

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holding that the accused is guilty of the offences and wrongly convicted him. The accused / appellant has

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contended that there are discrepancies in the evidence of

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the witnesses. All material witnesses including the complainant have turned hostile and have not supported

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the case of the prosecution. The complaint at Ex.P1 is not corroborated by oral evidence and hence the allegations

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therein are not at all proved. The trial court has relied on

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the evidence of PW5, who is the mother of the complainant and she has only stated that her husband told her about poisoning of the children by the accused and hence she is a heresay witness and the trial court

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committed an error on relying on her statement to

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convict the accused. Similarly the trial court erred in

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relying on the heresay evidence of PW5, who has stated

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that her daughter told her that the accused used to treat

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her cruelly and assault her, to convict the accused. This

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evidence is not sufficient. That there is a delay of about

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20 hours in lodging the complaint and it is fatal to the

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case of the prosecution. On these grounds he prayed to

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allow the appeal.

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26. Before taking the contentions raised by the learned counsel for the accused it is necessary to discuss the fact that the deceased Chandrika and Akshata died a

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homicidal death. In order to prove the same prosecution

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got marked post mortem reports of deceased Chandrika

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and Akshata at EXP 12 and 13 repectively. Doctor who

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conducted the post mortem has opined that death is due

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to cardiorepiratory failure as a result of consumption of

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organophosphorus [compound] insecticide. This

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corroborates with FSL report which is marked at exibit

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EXP 28. Even the evidence PW 1 complainant PW 5

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mother of the complainant and other witnesses have

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clearly stated that both the deceased died due to

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administering poison.

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27. Be that as it may even during the course of arguments

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the learned councel for the appellant admitted the fact

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that both the children died a homicidal death due to

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poisoning, the same has not been disputed. In that light it

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can be safely held that deceased Chandrika and Akshata

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died a homicidal death.

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28. It is true that as contended by the accused, there have

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been discrepancies in the evidence given by the material

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witnesses. PW1 to PW11 have turned hostile. All of them

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have been cross examined by the prosecution after considering them as hostile witnesses. However in the cross examination of PW 1 she has admitted that when

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she was there in the Chigtatgere Hospital, police came

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and made inquires with her. She has further admitted that she has explained about the incident, same has been recorded, read over and thereafter she has signed the

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same. She has further admitted that as per her say police

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recorded her statement. She has further admitted that

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she has shown the place where poison was administered

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and poison bottle has been thrown and same was not

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traced. She has further deposed that her parents were not ready to keep her in their house. She has further

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admitted that except the option of going with accused

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husband no other option was there with her. This

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evidence of prosecution has not been challenged by the

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accused during the course of trial.

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29. PW 5 is the mother of PW 1 though she has turned

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hostile but during the course of cross examination by the prosecution she has admitted that when she enquired

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with PW 1 she told that accused husband after attending

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driving work came back to the house. She has further

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admitted that she told he administered the poison and

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having been taken the children to the hospital. She

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further admits that she further told that accused

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administering the poison ran away from the back side of the door. She has further admitted that accused used to

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suspect fidelity and often used to utter that those

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children have not been born to him and he wants to kill

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them. She has further admitted that he administered poison and in that context both children died. This evidence of prosecution has not been challenged by the

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accused.

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30. It is well settled preposition of law that the evidence of

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hostile witness can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. This proposition of

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law has been laid down by the Honble Apex Court in the

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case of BHAJJU V/S STATE OF MP REPORTED IN 2012(4)

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SCC 327. At paragraph 36 it has been observed as under .

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“It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be

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treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act

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enables the court, in its discretion, to permit the person,

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who calls a witness, to put any question to him which

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might be put in cross-examination by the adverse party.”

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31. Keeping in view the ratio laid down by the apex court in

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the above decision on perusal of the evidence of PW 1 and 5 with exibit P 1 complaint there is corroboration to

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the extent of the fact that the accused has administered the poison to deceased two children. Though PW 1 complainant in her evidence has tried to depose before the court that somebody administered the poison but

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nothing has been brought on record to show that

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somebody was grinding an axe against them so as to administer the poison and because of that the said act

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has been committed in the absence of any such evidence and unchallenged evidence of PW 1 and 5 clearly establishes the fact that it is the accused by suspecting

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the fidelity and because of the earlier ill treatment and

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quarrel has administered the poison to deceased two

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children. Further as per Section 106 of the Indian

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Evidence Act, when any fact is especially within the

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knowledge of any person the burden of proving that fact is upon him. In the instant case, the accused and PW1

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along with the deceased children alone lived in their

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house and nobody else. They have not stated anything as to how the children were poisoned.

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32. It is well settled trait of law that it is the quality not the

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quantity of the evidence that matters. If the evidence produced convinced the manner in which the incident has taken place and if there is some truth in the same on the

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basis of the material the same can be relied upon the court to convict the accused that too when the said evidence has

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not been challenged to the factual narration. When the

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testimony of the witnesses otherwise inspiring the

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confidence of the court the same cannot be discarded.

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There is no reason as to why the husband of PW 1 and son in law of PW 5 has been implicated by screening the real culprit to escape. Records produced indicates that immediately after the alleged incident complaint came to be filed as per exhibit P1 narrating the entire incident including the name of the accused. If really some other person has administered the poison he will not be left free and falsely husband will not be included. Alleged incident has taken place 16/3/2012 and evidence of the witnesses recorded on 27/11/2013. There is a gap of more than one year eight months. Even during the course of proceedings accused has made more attempts to compromise in that

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light all the witnesses which are said to be material to the

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alleged incident have not supported the case of the

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prosecution. But however when the said witnesses have been cross examined by the prosecution they have

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admitted some fact and in that light truth has been brought

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before the court and the same has not been challenged by the accused, in that light though the witnesses have turned

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hostile their evidence can be relied upon to that extent. It is the duty of the court to ascertain the truth. It is well settled law that let hundred convicts be let free but one innocent

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should not be wrongly punished. But the evidence corroborates to the case of the prosecution to prove the guilt of the accused beyond all reasonable doubt. No other suspicion has been raised by the accused so to give him

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benefit. In that light the contentions raised by the learned

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counsel is not acceptable.

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33. We have perused the judgment of the trial court. The

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trial court based on the evidence has rightly concluded that the accused is guilty of the offences under Section 300 and

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498A of Indian Penal Code and has sentenced the accused

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accordingly. There are no good grounds to interfere with the judgment of the trial court. The same is liable to be

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confirmed.

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34. We do not find any merit in the appeal. For the reasons

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mentioned above the appeal is hereby dismissed. The

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judgment and the order of conviction and sentence passed

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by II Addl.district & Sessions Judge, Haveri (sitting at Ranebennur), dated: 02.07.2015 in S.C.No.54/2012 is

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hereby confirmed.

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The trail court is directed to secure the presence of accused

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and issue the conviction warrant so as to serve the

sentence .

SD/JUDGE

SD/ JUDGE

Vnp*

Sri.Subhas S/O Channabasappa Gajer v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri.Subhas S/O Channabasappa Gajer v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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