State of Karnataka vs Shashidhara

A.S. Pachhapure, J.

The State has challenged the judgment and order acquitting the respondent for the charge under Section 328 IPC on a trial held by the Sessions Judge, Puttur.

The prosecution case reveals that the respondent-accused before the Trial Court returned to his native place on 16.11.2010 and went to the house of P.W. 1 - Hemavathi with a cake and after administering the poison in the said cake gave the cake stating that it is delicious and brought from Bangalore. The portion of it was eaten by the victim and he entered into a conversation with her, she became semi-unconscious, her gold ornaments were removed by the respondent and ultimately, he left the house. PW2 came to the house of victim and as P.W. 1 was vomiting at that time, she was taken to the hospital. Before she was taken to the hospital, a piece of cake was given to the pet dog and cat of P.W. 1 and they found that the cat died near the premises of victim P.W. 1.

A complaint was filed and investigation was taken up by P.W. 17. The viscera of the cat and Mos. 1 to 3 were seized during the course of investigation and sent for the opinion and the report reveals that the death of cat was due to the poison and the contents of poison was found on the langa which contained the vomitus of the cat. The statement were recorded. The mahazar was held and ultimately, chargesheet was laid against the respondent for the charge under Sections 394 and 328 IPC.

In the trial, the prosecution examined PWs. 1 to 17, got marked the documents Exs. P1 to P12 and MOs. 1 to 3. After recording the statement of respondent under Section 313 Cr.P.C., no defence evidence was led. The Trial Court heard the counsel and under the impugned judgment and order, convicted him for the charge under Section 394 IPC and acquitted him for the charge under Section 328 IPC. He was ordered to undergo imprisonment for one year two months for the offence under Section 394 IPC. Aggrieved by the order of acquittal, the present appeal is filed.

Heard the learned High Court Government Pleader for the State and learned Counsel for the respondent.

It is the contention of learned High Court Government Pleader that the evidence reveals that the cat which had eaten the cake had died. The viscera contained the poison and therefore, it is his submission that the Trial Court over looked this aspect and committed an error in granting an order of acquittal for the offence under Section 328 IPC. He submits that the overall material placed on record is sufficient to convict the respondent for the said charge.

Learned Counsel for the respondent supports the judgment and order.

The prosecution has proved the fact that the accused had purchased the insecticide called ''fordan'', but there is no material to establish that it was mixed with the cake which was given to P.W. 1. Though the victim P.W. 1 became semi-unconscious and felt too weak at the time when she had conversation with the respondent-accused, in the absence of any evidence to show that the cake was mixed with ''fordan'' insecticide, it cannot be said that the cake was mixed with the poison.

The only circumstance, which has been brought on record is that P.W. 1 had given the piece of cake offered by the accused to her pet dog and cat and the cat had died immediately, thereafter. It is the viscera of cat which was sent for the opinion of expert and the viscera revealed the contents of carbonate pesticide and on the basis of which, though some inference could have been drawn by the Trial Court, it is important to note that though the victim vomited, the vomitous was not taken for the examination though it was available.

If the contents of the stomach vomited by the victim were taken and examined by the expert, that could have been revealed the fact of administering the poison by the accused through the cake which was given to her. Though the evidence of P.W. 1 reveals that she had given the piece of cake to the pet cat which died later and the viscera was examined, there is every possibility that the cat might have consumed the poisonous food elsewhere in the premises and that probability cannot be over looked.

Furthermore, langa (MO3) which was seized, it was not of the victim - P.W. 1 as admitted by her in the cross examination and therefore, the vomitus which was found on the langa (MO3) and which was sent for the opinion, though contained the poison as the langa did not belong to P.W. 1, the opinion of the expert cannot be accepted to hold that the vomitus which was found on langa (MO3) was that of P.W. 1 the victim. It is in the aforesaid circumstances that the Trial Court granted an order of acquittal. It is observed by the Trial Court that though the vomitus of the victim was readily available was not collected and examined by the experts which could have been the best evidence to connect the accused with the crime alleged under Section 328 IPC.

Though a view as contended by the learned Government Pleader could be accepted, as a second view that can be drawn from the material placed on record, it is well established principle of law that in a case of acquittal, the appellate Court will be slow in interfering with such orders and even if the second view is possible, the one accepted by the Trial Court cannot be disturbed. Though the contention of learned High Court Government Pleader probabalises the possibility of administering poison for snatching the gold ornaments, the view accepted by the Trial Court also appears to be just and reasonable. I do not think it proper to interfere with the impugned judgment and order.

Consequently, the appeal fails and it is accordingly dismissed.