Karnataka High Court

Smt Dhanamani J C vs The State Of Karnataka on 15 June, 2022

Bench: M.Nagaprasanna

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 15TH DAY OF JUNE, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.3466 OF 2022

BETWEEN:

1.     SMT. DHANAMANI J.C.,
       W/O DR.L.SHIVALINGAIH
       AGED 68 YEARS
       OCC: HOME MAKER
       R/O NO.94/P, 8TH CROSS
       11TH MAIN, RMV EXTENSION
       SADASHIVA NAGAR
       BENGALURU - 560 080.

2.     S.H.VENKATESH MURTHY
       S/O LATE C.B.HANUMANTHARAYAPPA
       AGED ABOUT 68 YEARS
       OCC: RETIRED FROM SERVICE
       PRESENTLY AT
       NO.6, 1ST MAIN, 3RD CROSS
       NEAR PRAKRUTHI KRISHNA APARTMENT
       VAISHNAVI LAYOUT
       VIDYARANYAPURAM
       BENGALURU - 560 096.
                                              ... PETITIONERS

(BY SRI VENKATESH P.DALWAI, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY
       SADASHUVA NAGAR POLICE STATION
                               2



     REPRESENTED BY OFFICE OF
     STATE PUBLIC PROSECUTOR
     HIGH COURT BUILDING
     BENGALURU - 560 001.

2.   SRI DR.RAVIPRAKASH
     S/O SRI L.SHIVALINGAIAH
     AGED 62 YEARS
     OCC: DOCTOR
     RESIDING AT FEDERATION OF
     HISTORIC VEHICLES OF INDIA
     KALOFARAM, RAJARAJESHWARI NAGAR,
     BENGALURU - 560 098.
                                                ... RESPONDENTS

(BY SRI V.S.HEGDE, SPP - II, A/W
    SMT.K.P.YASHODHA, HCGP FOR R1;
    SRI MAHESH S., ADVOCATE FOR R2)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR REGISTERED BY THE
RESPONDENT NO.1 HEREIN AGAINST THE PETITIONERS IN
CR.NO.46/2022 FOR THE OFFENCE P/U/S 307, 328 R/W 34 OF IPC
ON THE FILE OF XXXIX ADDL.C.M.M., BENGALURU PRODUCED AT
ANNEXURE-A.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioners are before this Court calling in question the

proceedings in Crime No.46/2022 registered for offences

punishable under Sections 307, 328 r/w Section 34 of the IPC.

2. Heard Sri.Venkatesh.P.Dalwai, learned counsel for

petitioners, Sri.V.S.Hegde, learned SPP-II representing the State

and Sri.Mahesh.S, learned counsel for respondent No.2.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:

The second respondent is the complainant and son of one

Dr.L.Shivalingaiah. The 1st petitioner is said to be the wife of

Dr.L.Shivalingaiah and 2nd petitioner his care taker. What

drives the petitioners to this Court in the subject petition is

registration of a crime in Crime No.46/2022 alleging that

Dr.L.Shivalingaiah has been administered aluminum more than

necessary to the body which has become toxic and likely to be

fatal and is in the hospital for that reason and the tests that

were conducted in the hospital did reveal presence of excess of

the aluminum in the body more than what is needed. This is

attributed to the petitioners in the complaint. The complaint is

registered on 05.04.2022, pursuant to which, the aforesaid

crime comes about. On registration of the crime, the petitioners

have knocked the doors of this Court in the subject petition.

4. Learned counsel appearing for the petitioners would

contend with vehemence that a matter which is purely civil in

nature is given a color of crime by making the allegations in the

complaint which are imaginary. He would take this Court to the

order passed by the civil Court that the first petitioner is the wife

of Dr.L.Shivalingaiah and that finding has attained finality and

would further submit that the petitioners are the ones who are

with Dr.L.Shivalingaiah throughout and all the allegations made

in the complaint are only for the purpose of taking the property

that belongs to Dr.L.Shivalingaiah, more so, in the light of the

fact that the finding of the civil Court being that first petitioner

is the wife of Dr.L.Shivalingaiah and would seek quashment of

the entire proceedings.

5. On the other hand, the learned counsel for respondent

No.2 would refute the submissions to contend that the issue is

not with regard to partition of the property, as the complainant

has not called the order passed by the civil Court in

O.S.No.7900/2008 in question. The issue is with regard to the

deteriorating health condition of his father due to the alleged

administration of aluminum which results in poisoning the

person who is administered to and would submit that it is a

matter of further investigation as to whether the petitioners are

responsible for presence of aluminum in the body in excess or

otherwise.

6. Learned State Public Prosecutor-II would submit that

the evidence of Dr.L.Shivalingaiah has to be recorded and it is

imperative, as the entire case revolves around his statement as

to how the petitioners have behaved with him and would submit

that the interim order granted by this Court has stalled all

further investigation.

7. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and perused the material on record.

8. The afore-narrated facts are not in dispute. The

complaint comes about on 05.04.2012. Since the entire issue

now springs from the complaint, it is germane to notice the

complaint itself and it runs as follows:

            "To,                                Date:04.04.2022

           The Commissioner of Police
           Bangalore City
           Bangalore.

Subject: Complaint regarding suspected poisoning of my Father Dr.L.Shivalingaiah.

Respected Sir,

1. I am Dr.Ravi Prakash, Son of Dr.L.Shivalingaiah, retired Engineer in Chief and Secretary to the Government. My father is also the founder of Ananada Social Education Trust, which runs Dr.Ambedkar Medical College, M.R.Ambedkar Dental College and Nursing College. He is also the founder of Ambedkar Institute of Technology and several other institutions.

2. My father is now aged about 92 years. He has been living at Our House No.94/P, 8th Cross, 11th Main, RMV Extension, Sadashivanagar, Bangalore since 1996. He has been taken care of by his caretaker Ms.Dhanamani for the past 15 years, and a personal assistant Mr.Venkatesh Murthy who has been working with him for the past 26 years. Ms.Dhanamani is staying with my father in the said house.

3. My father was admitted to Manipal Hospital, Millers Road, on my advise on the 18th of February, 2022, due to loss of appetite. Within days his health started deteriorating, till the point where he was required to be put on all means of life support to sustain, as he was losing his sensorium and his organs started failing.

4. On administering all the tests that were required for his investigation, no conclusive finding were made, hence his sickness remains an unknown etiology. On 4th March, 2022. I further requested the doctors to do a toxicology report for any traces of heavy metals in his body. My father till this day was/is not at all taking any medicines which contains Aluminium. However, the Test Reports show the level of Aluminum as of 10th March, 2022 is 26.4 micg/L, in my father, whereas the normal level of Aluminium in a human being is below 10 micg/L.

For ascertaining the level of Aluminium, once again on 20th March, 2022 another Toxicology Test was done and as per the said report, on 22nd March 2022, the level of Aluminium is shown as 33.72 micg/L. This is a typical sign of the slow poison properties of Aluminium. Aluminium phosphide is absorbed and metabolised in the liver with slow release of phosphine causing delayed onset of toxicity. (Hong Kong j.emerg.med.2008;15:152-155) Nausea, vomiting and abdominal pain are the earliest symptoms that appear after ingestion. Nervous system manifestations include headache, dizziness, altered mental status, convulsion, acute hypoxic encephalopathy and come. ((Hong Kong j.emerg.med.2008;15:152-

155). Other symptoms of prologned exposure as mentioned in the attached report include chronic renal failure, aetiopathogenesis of

neurodegenerative disease, most of which have been observed in my father.

5. As per the reports attached, excess aluminium exposure can occur from - antacids abuse and specific occupational related exposure. It is known to be present in alum, dental amalgams and tobacco smoke, none of which are applicable to my father.

Thus, the levels of Aluminium in the body of my father are unnaturally high as per the finding attached.

6. We also noticed his teeth were stained brown in the hospital ward and as per research (paper attached), aluminium phosphide tablets are dark brown in colour.

7. My father was hale and healthy. He was not taking any medicines which contains Aluminium. Nowadays, it has become a common thing amongst the rivalries/family members to administer Aluminium contents directly or indirectly to slowly eliminate persons, to escape from the clutches of the criminal prosecution.

8. Following are few strong reasons for suspecting the potential poisoning of my father Dr.L.Shivalingaiah:-

a. The individuals who feed him, give him the medicines, and are always around him are in position to administer such items leading to aluminum poisoning.

b.   On January 1st    2022, myself and my family
     members had      met him for lunch in the

Sadashivanagar house where his health was in extremely good condition. On that day, he

walked down a long flight of stairs, sat with us, ate extremely well and narrated stories of his days as a chief engineer indicating his exceptional memory (images attached).

c. Few weeks later when we tried to contact my father through the landline (080 23611990), said landline was disconnected. Even the mobile connection in his room is constantly jammed. Hence, only way to contact my father was through my father's caretaker Ms.Dhanamani and personal assistant Mr.Venkatesh Murthy. Thus, we had called Ms.Dhanamani, and stated that we wanted to visit my father. For that she said that she has a severe cold and cough and as a result she requested not to come, hence we had to wait to meet him.

d. Thereafter, on 7th February, 2022, Ms.Dhanamani called me and stated that my father is not eating. Myself and my family members immediately went to visit my father and noticed a great difference in his appearance, memory, and communication. His mouth was covered in ulcers, he was constantly holding the right side of his head due to a severe headache and his memory was disturbed, and he was extremely uncomfortable (Images attached). At that time we were informed that treatment is being given to my father as per the Doctor's advice.

e. Thereafter, the following week Ms.Dhanamani called us and stated that he has stopped eating and asked what to do? I told her to move him to Manipal Hospital, Millers Road.

f. My father got admitted to Manipal Hospital, Millers Road. In spite of all the tests conducted, the doctors were not able to identify the cause for the sickness of my father.

g. Inspite of me being a cardiothoracic surgeon, previously having worked at St.John's Medical Hospital, attempts have been made to isolate me from his necessary treatment, critical to his survival:-

• On the admission summary, it was stated by Ms.Dhanamani that there is "very little emotional support" from his two sons.

(Proof attached). As a result the Doctors at Manipal Hospital did not contact me. Also, she kept avoiding me to connect with doctors as she was giving wrong names and mobile numbers were not available. However, I am the one who has paid the initial advance of Rs.1,00,000/- towards his treatment charges and thereafter myself, my wife and daughter were visiting my father at the Hospital constantly.

• I noticed from the form that was signed by Dhanamani J.C., stating my father "will not be shifted to the ICU. Come what may.

Whatever is to be done, must be done in the ward". This was done after the Doctors had made it very clear that he is in a critical condition and will need ICU support for his survival.

• On learning about this the following evening, I spoke to the lead doctor, and requested him to immediately shift my father into the ICU, and I signed a consent form for the same.

• Further, there was resistance from Ms.Dhanamani and her close associates, with respect to putting my father on the ventilator and going ahead with a tracheostomy as well as dialysis, extremely crucial for his survival.

Both of he consent forms for which are signed by me.

9. I came to know that said Ms.Dhanamani and Mr.Venkatesh Murthy, have misused the ill- health of my father and taken signatures of my father on certain blank papers to create certain documents, to knock off the valuable properties of my father. My father owns and possesses valuable immovable and movable assets/properties. Our family jewels belonging to my late mother, my wife and children are also in my father's house in Sadashivanagar, where he currently lives.

10. We have also found out through his assistants visiting him in his house, that Ms.Dhanamani, in front of them has ill-treated my father in his fragile condition by throwing his walking stick in anger and referring to him with terms such as 'Bloody Bugger' on regular basis.

11. Though my father is recovering well, he still has severe undetected drowsiness and is still in the ICU. The Doctors have said that they will be moving him to the ward soon. In the ward, Ms.Dhanamani will have complete access to him and we apprehend mischievous acts by her. It is our fear that an attempt may be made once again by Ms.Dhanamani and Mr.Venkatesh Murthy and their henchmen, to put the life of my father at risk.

12. Above stated mischievous acts and conduct of Ms.Dhanamani and Mr.Venkatesh Murthy, clearly establishes that they and their associates have the motive and intention to take away or murder the life of my father Dr.L.Shivalingaiah, and by taking undue

advantage of their stay with him, with that malafide motive and intention we suspect they have poisoned my father by administering poison (Aluminium), thereby suspect they have made attempts to murder my father."

(Emphasis added)

The complaint narrates various circumstances as to how

the son discovers, albeit, prima facie, with regard to the presence

of properties of aluminum and aluminum phosphide being

observed and metabolised in the liver with slow release of

phosphine which would cause delayed onset of toxicity. These

matters will have to be investigated and reports to be obtained

by experts as the allegation is for the offence punishable under

Section 307 of the IPC.

9. Section 307 of the IPC recognizes a circumstance of

killing by poisoning and it is germane to notice the said section

itself, which reads as under:

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any

person by such act, the offender shall be liable either to 342[imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.--343[When any person offending under this section is under sentence of 344[imprisonment for life], he may, if hurt is caused, be punished with death.]

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of 345[the first paragraph of] this section.

(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section."

(Emphasis supplied)

The contents of the complaint are in graphic detail to

certain extent as to what has transpired throughout from 1996

till the date of registration of the complaint. The issue is not

whether the first petitioner is the wife or otherwise. The issue is

whether there has been an attempt by the first petitioner or the

second petitioner as the case would be, for committing an

offence which would become punishable under Section 307 of

the IPC or otherwise.

10. The contention of the learned counsel appearing for

petitioners with regard to the civil suit that is filed and the

evidence of D.W.1 L.Shivalingaiah where he narrates that the

first petitioner is his wife would not be an enough circumstance

to shroud the present complaint to be civil in nature and

interject these proceedings on the ground that they are purely

civil in nature and instituted for the purpose of protecting the

property or taking away the property, as the case would be.

Since the complaint is in graphic detail about the manifold

aspects of medical toxicology, this Court would not telescope its

imagination, at this stage, to verify as to whether the

administration of the aluminum has been rightly done or

otherwise, as it is the job of experts. This Court would not sit in

the arm chair of experts and opine at this stage without there

being any opinion to say that there is no administration of the

aluminum more than what is necessary to the body. These

cases would requires investigation and further proceedings to be

conducted in accordance with law.

11. The Apex Court has clearly held that if the issue

involves serious disputed questions of fact, the Court, under

Section 482 of the Cr.P.C., would not interfere in such cases.

Reference being made to the judgment in the case of KAPTAN

SINGH v. STATE OF UTTAR PRADESH1 wherein the Apex

Court holds as follows:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned

(2021) 9 SCC 35

judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 :

(2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10- 2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there

is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit

for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

... ... ... ...

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

(Emphasis supplied)

In the light of the judgment of the Apex Court and the

complaint narrating in graphic detail, there is no warrant to

interfere or interject the entire investigation on the petition being

entertained under Section 482 of the Cr.P.C., as there are

seriously disputed questions of fact, triable issues, opinion of

medical experts to be sought, resultantly, the Criminal Petition

is to meets its dismissal.

12. For the aforesaid reasons, finding no merit in the

petition, the petition stands dismissed.

The observations made in the course of this order is only

for the purpose of consideration of the case of the petitioners