Karnataka High Court
Sri Murali vs State By Channarayapatna Police on 2 May, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MAY, 2025
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.535/2012
BETWEEN:
SRI. MURALI,
S/O GOW THIMMAPPA,
AGED ABOUT 25 YEARS,
PERMANENT RESIDENT OF
BIDDALAPURA VILLAGE,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT,
BENGALURU. ... APPELLANT
(BY SRI. C.R.GOPALASWAMY, SENIOR COUNSEL FOR
SRI. BHARGAV G., ADVOCATE)
AND:
STATE BY CHANNARAYAPATNA POLICE,
DEVANAHALLI TALUK,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU. ... RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 19.04.2012 PASSED BY
THE PO, FTC, DEVANAHALLI IN S.C.NO.159/2011 CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 306 OF IPC.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.04.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned Additional SPP appearing for the respondent State.
2. The factual matrix of the case of the prosecution is
that the appellant was the native of Kolar District and a distant
relative of P.W.4 Narasimhappa. The appellant had gone to
P.W.4's place in search of employment and requested him to
accommodate him in his house. In this regard, he requested
P.W.6 Byrappa who happened to be the husband of P.W.5 and
daughter of P.W.4 to influence P.W.4 to accommodate him.
Accordingly, P.W.4 had accommodated the appellant in his house
for the last one and half years. It is alleged that during his stay
in his house, he developed intimacy with his daughter which
resulted in the pregnancy of six months. In order to avoid from
getting married, he abetted the daughter of P.W.4 to commit
suicide saying that he would also commit suicide and he has
given a tablet which was used as pesticide and accordingly the
victim consumed the tablet on 27.03.2010 at about 4.00 p.m.
When she was suffering by consuming the said tablet, the same
was noticed by P.W.5 Kumari Kavitha, who happened to be the
elder sister of the deceased and took her to the local hospital
with the help of others and thereafter she was shifted to Bowring
Hospital and while taking treatment, the victim re-gained
conscious and disclosed that the accused is the cause for her
pregnancy. The said statement was made in the presence of the
witnesses and got confirmed the same by securing another
tablet, which was kept in the house on the disclosure made by
the victim and hence the case was registered and investigation
was conducted and filed the charge-sheet against the
appellant/accused. The accused did not plead guilty and hence
the prosecution mainly relied upon the evidence of P.W.1 to
P.W.13 and got marked the documents at Exs.P.1 to 8(d) and
M.O.1 was marked and Exs.D.1 and 2 was confronted. The Trial
Court having assessed the material available on record, comes to
the conclusion that at the instance of the accused only the victim
took the extreme step of committing suicide and accepted the
evidence of the witnesses, medical evidence and expert evidence
and convicted the accused for the offence punishable under
Section 306 of IPC and imposed sentence of five years with fine
of Rs.3,000/- and in default, imposed two months simple
imprisonment.
3. Being aggrieved by the said judgment of conviction
and sentence, the present appeal is filed before this Court.
4. The main contention of the learned counsel for the
appellant is that the victim fell down after consuming the tablet.
Till then, none of the prosecution witnesses were aware of the
allegations made against the accused. It is contended that the
medical records are also clear that the victim was unconscious
when she was brought to the hospital and records are not
disclosing that she had re-gained conscious. But the evidence of
P.W.4 is that the victim re-gained conscious in the midnight and
stated that the accused had given poisonous tablet and abetted
her to commit suicide and that he assured that he will also
commit suicide. But these facts neither appear in the medical
records nor stated before the doctors. Only on the basis of the
statement of P.W.4, the Trial Court comes to the conclusion that
the accused had abetted her to commit suicide. It is contended
that she was pregnant of six months and there is no material
before the Court that as a result of illicit relationship, she
became pregnant. The entire prosecution story is related to the
instances subsequent to the death. It is very strange to hold
that though their daughter was pregnant of six months, P.W.4
and P.W.5 were keeping quiet without enquiring anything either
with the victim or with the accused person before the incident.
The medical records clearly stated that the death is due to
respiratory failure as a result of consumption of aluminium
phosphate.
5. The learned counsel for the appellant would contend
that after having re-scrutinized the evidence, it is very clear that
the prosecution failed to bring the case within the purview of
offence punishable under Section 306 of IPC. The learned
counsel contend that Ex.P.1 complaint is given by the sister of
the deceased P.W.1 and P.W.3 is the brother of the deceased
and the prosecution relies upon the evidence of P.W.8 and his
evidence not connects the accused. The learned counsel
contend that Ex.P.2 also not supports the case of the prosecution
regarding recovery of the tablet. P.W.11 is the FSL Officer,
P.W.13 is the doctor and P.W.12 is the Investigating Officer who
conducted the investigation. The learned counsel contend that
no complaint was given till her pregnancy was reported. The
medical evidence also not supports the case of the prosecution.
There is no material to connect the accused that he made the
victim pregnant. The mahazar is clear that two pieces are found
and there is no report of DNA and discrepancy is found in the
evidence of the prosecution witnesses and hence the appellant is
entitled for acquittal.
6. The learned counsel for the appellant in support of
his arguments relied upon the judgment of the Apex Court in the
case of CHOTKAU v. STATE OF UTTAR PRADESH reported in
(2023) 6 SCC 742 and brought to the notice of this Court
paragraph No.80, wherein discussion was made that Section 53A
of Cr.P.C. is not mandatory and relied upon paragraph No.54 of
the judgment of the Apex Court in the case of RAJENDRA
PRALHADRAO WASNIK v. STATE OF MAHARASHTRA
reported in (2019) 12 SCC 460, wherein it is held that the
failure of the prosecution to produce DNA evidence, warranted
an adverse inference to be drawn and extracted paragraph
No.54 wherein it is held that where DNA profiling has not been
done or it is held back from the Trial Court, an adverse
consequence would follow for the prosecution.
7. The learned counsel also relied upon the judgment of
the Apex Court in the case of Rajendra Pralhadrao Wasnik
(supra) and brought to the notice of this Court paragraph No.79,
wherein discussion was made that indeed, no material or
evidence was placed before the Courts to arrive at any
conclusion in this regard one way or the other and for whatever
it is worth on the facts of this case. The prosecution was remiss
in not producing the available DNA evidence and the failure to
produce material evidence must lead to an adverse presumption
against the prosecution and in favour of the appellant for the
purposes of sentencing.
8. The learned counsel also relied upon the judgment of
the Apex Court in the case of KRISHAN KUMAR MALIK v.
STATE OF HARYANA reported in (2011) 7 SCC 130 and
brought to the notice of this Court paragraph Nos.44 and 46,
wherein discussion was made that it has become necessary for
the prosecution to go in for DNA test in such type of cases,
facilitating the prosecution to prove its case against the accused.
Prior to 2006, even without the aforesaid specific provision in
Cr.P.C., the prosecution could have still resorted to this
procedure of getting the DNA test or analysis and matching of
semen of the appellant with that found on the undergarments of
the prosecutrix to make it a foolproof case, but they did not do
so, thus they must face the consequences and held that
conviction of the appellant cannot be upheld.
9. The learned counsel also relied upon the judgment of
the Bombay High Court in the case of GANESH PRALHAD
SONTAKKE v. STATE OF MAHARASHTRA THROUGH PSO PS
MOUDA reported in 2018 SCC Online Bom 1795 and brought
to the notice of this Court paragraph No.12, wherein discussion
was made that in the statement made by the appellant under
Section 313 of Cr.P.C., it was specifically stated that the
prosecutrix P.W.1 had lived with the said maternal cousin for five
to six months and that she was pregnant from him. In this
situation, it was incumbent upon the Investigating Officer to
have conduced DNA test of the girl child born to the prosecutrix
P.W.1. It was stated in the evidence of the prosecutrix P.W.1
that after the girl child was born in Government Hospital at
Kamthi, she had gifted that child to a couple. Thus, it has come
on record that a girl child was born, who was available for
conducting DNA test to ascertain paternity of the child. When it
was the specific case of the appellant that he had not committed
sexual intercourse with the prosecutrix P.W.1 and when a
defence was raised that she was pregnant from Vishnu S/o
Ambadas her maternal cousin, it was necessary for the
Investigating Officer to have conducted DNA test to ascertain the
truth in the matter. But, he failed to do so. When specifically
asked in the cross-examination, the Investigating Officer P.W.7
simply stated that he did not find it necessary to conduct DNA
test.
10. The learned counsel referring these judgments would
contend that in the absence of any DNA test, there cannot be
any conviction of the appellant and hence it requires interference
of this Court.
11. Per contra, the learned Additional SPP appearing for
the respondent State would contend that the material available
before the Court is clear that P.W.1 and P.W.3 admitted the
victim to the hospital. It is their case that at around 6.00 p.m.
the victim way lying unconscious. It is the evidence of P.W.1
and P.W.3 that the accused failed to marry the victim when she
became pregnant. The learned counsel brought to the notice of
this Court that P.W.8 had seen that the accused went with tablet
to the house of the victim and he was there in the house of the
victim till 4.30 p.m. and also victim stated before her relatives
and doctor that she took one tablet and kept one tablet in a
particular place and the same was seized by drawing mahazar in
terms or Ex.P.2. The disclosure statement of the victim is also
corroborated by the evidence of the witnesses. The learned
counsel contend that the evidence of P.W.1 to P.W.4 and P.W.8
supports the case of the prosecution and corroborates with each
other. The victim made the statement in the hospital when she
re-gained conscious and the evidence of P.W.4 is clear with
regard to the making of statement. The learned counsel contend
that in order to bring the accused within the ambit of Section
306 of IPC, there was no animosity and nothing is elicited in the
cross-examination of all these witnesses that they were having
any animosity against the accused. The learned counsel contend
that the post mortem report shows that she was pregnant and
the lapses on the part of the Investigating Officer in not
conducting the DNA test will not come in the way of coming to
the conclusion that the accused was responsible for her
pregnancy and he abetted her to commit suicide. P.W.8 is the
neighbourer who witnessed the visit made by the accused to the
house of the victim before consuming the tablet and the same is
connecting the role of the accused in abetting the victim to take
the extreme step.
12. In reply to the arguments of the learned Additional
SPP, the learned counsel for the appellant would contend that
P.W.8 is the relative and the same is admitted in the cross-
examination. The evidence of P.W.3 is clear that the accused
was not in the vicinity from last three days. When such being
the case, there cannot be any conviction against the appellant
and hence it requires interference of this Court.
13. Having hearing the learned counsel for the appellant
and the learned Additional SPP appearing for the respondent
State and having taken note of the principles laid down in the
judgments referred supra by the learned counsel for the
appellant, the points that arise for the consideration of this Court
are:
(i) Whether the Trial Court committed an error in
convicting the accused for the offence
punishable under Section 306 of IPC and
whether this Court can exercises the appellate
jurisdiction and set aside the judgment of
conviction and sentence?
(ii) What order?
Point No.(i):
14. Having heard the respective learned counsel for the
parties, this Court has to take note of the material available on
record, analyse and re-appreciate both oral and documentary
evidence available on record.
15. The factual matrix of the case of the prosecution is
that the accused was staying in the house of the victim since the
father of the victim i.e., P.W.4 had accommodated him when he
was in search of employment and he developed intimacy with
the victim. As a result, the victim became pregnant of six
months and he abetted the victim to take the extreme step of
committing suicide by providing tablet to consume the same,
which has resulted in the death of the victim. The accused did
not plead guilty and hence trial was conducted. The prosecution
mainly relied upon the evidence of P.W.1, who is none other
than the sister of the victim. P.W.1 reiterates with regard to the
accused came and stayed in the house of P.W.4. It is her
evidence that her sister became pregnant of six months and the
same was disclosed on enquiry with the sister and she disclosed
that the accused was responsible for the same. It is her
evidence that two poisonous tablets were given to the victim by
the accused and he assured that he is also going to commit
suicide by consuming the tablet after going to his room and that
statement was made before her death. It is also her evidence
that the victim was taken to Budigere PHC and thereafter taken
to Bengaluru Bowring hospital in an ambulance and she re-
gained conscious at around 12.30 a.m. in the midnight and when
she was asked why she took the extreme step she revealed the
same. The next day at around 9.30 a.m. the victim passed away
and she has given the complaint in terms of Ex.P.1 and the
police conducted inquest and also conducted mahazar in terms
of Ex.P.2 and seized the tablet. She was subjected to cross-
examination.
16. In the cross-examination, it is elicited that the
accused in relation would be the brother. It is elicited that her
father's house and uncle's house are situated by the side of each
other. It is suggested that she was having animosity against the
accused and was intending to send him out from the house and
hence conspired and lodged the complaint and the said
suggestion was denied. It is elicited that the victim lost
conscious at around 6.30 p.m. and when she was taken to the
hospital it was around 7.30 p.m. It is elicited that when the
victim re-gained conscious at around 12.00 a.m. in the midnight,
at that time, herself, her brother Murthy, her uncle Ramappa
and another uncle Jayanth were there and no other persons
were there. She admits that the complaint was written by
Jayanth, her uncle. She admits that at the time of drawing
mahazar, there were six persons and she herself,
Muninarayanappa, Subramanya and Anjanappa had signed the
same. The mahazar was drawn in between 11.00 a.m. to 12.30
p.m. and she does not know the contents of the mahazar.
Herself and her brother Murthy brought and produced M.O.1
tablet before the police and the tablet was in two pieces. It is
suggested that she has not narrated in the complaint about
giving of tablet by the accused and the same was denied. It is
suggested that someone else was responsible for the victim's
pregnancy and a false case was registered and the said
suggestion was denied. It is elicited that the doctor has noted
the disclosure statement of the victim.
17. P.W.2 Ramappa is the uncle of the victim and he
reiterated that the accused was staying in the house of the
victim and came to know that she became pregnant and she was
taken to the hospital and she re-gained conscious and she
disclosed about the accused. The accused was there in the
house on the day of consuming of the tablet and thereafter he
left the house. The victim informed that the accused brought
four tablets and he gave two tablets to her and other two tablets
he kept in the house. This witness was subjected to cross-
examination.
18. In the cross-examination, he admits the relationship
between the accused and the victim. He admits that he is having
a daughter by name Sumithramma and she was given in
marriage to one Manjunath and one Diwakar is brother of
Manjunath and he does carpentry work. It is suggested that
Diwakar was staying in his house and the same was denied. He
says that he came to know that the victim had consumed the
tablet and was taken to the hospital. He says that when she re-
gained conscious at around 12.00 in the midnight, he himself,
P.W.1, Murthy, Jayanth and Narasimhappa were there and she
disclosed that she consumed one tablet and another was kept
inside the vessel.
19. P.W.3 is the brother of the deceased. He says that
the accused was staying in the house of P.W.4. The victim is her
uncle's daughter and when he came near the house of the
deceased at around 6.00 p.m., she was lying unconscious and
both himself and P.W.1 tried to lift her, but she was not having
conscious and immediately they took her to the PHC Nalluru and
the doctor having examined her directed to take her to the
Bowring Hospital and accordingly they took her to Bowring
Hospital. He reiterated that at around 12.00 in the midnight she
re-gained conscious and disclosed that the accused was
responsible for her pregnancy. She disclosed that she consumed
one tablet and another tablet was kept in the slab of the kitchen
and the same was covered with vessel. Immediately he called
one Shivu and asked him to search for the tablet and he found
the tablet and confirmed the same and she died on the next day.
He was subjected to cross-examination.
20. In the cross-examination, he admits that the
accused was his sister's husband's sister's son and also admits
that his uncle Ramappa is having a daughter by name Sumithra.
He says that he came to know about the incident at around 7.00
p.m. and when she re-gained conscious in Bowring Hospital at
12.00 in the midnight, he himself, Munirathnamma, Jayanth,
Ramappa, Kavitha, Byrappa and Anjanappa were there. He
reiterated that the victim disclosed that the accused gave two
tablets to her and told that he would consume other two tablets.
When a suggestion was made that no such statement was made,
the same was denied. It is suggested that he has not made any
statement before the police that when she re-gained conscious,
he himself, Munirathna, Jayanth, Anjanappa and doctor were
there and the same was denied.
21. P.W.4 is the father of the victim and he reiterates
that the accused was accommodated in his house. He says that
he came to know about the victim was vomiting and lying in
front of the house and she was unconscious and she was
pregnant and taken to the hospital. She disclosed about
consuming one tablet and keeping another tablet underneath the
vessel in the kitchen and the accused is responsible for her
death. In the cross-examination, he says that on the date of
shifting her to the hospital, he did not accompany her, but he
went to the hospital on the next day. It is suggested that his
son Murthy did not disclose anything about the disclosure
statement made by the deceased and the said suggestion was
denied. It is suggested that he used to consume alcohol and the
same was questioned by the accused and hence there was a
quarrel between him and the accused and the same was denied.
22. P.W.5 Kavitha is the sister of the victim and she says
that she requested P.W.4 to accommodate the accused in the
house of P.W.4. She says that she went and spoke to the victim
at around 7.30 a.m. in the next morning and she disclosed that
the accused was responsible for her pregnancy. In the cross-
examination, she admits that the accused is the sister's son of
her husband. She admits that she came to know about
consuming of tablet in the previous day through her sister
Munirathna. She admits that the victim did not disclose before
her, but she came to know about the same through P.W.1.
23. The other witness is P.W.6 and he speaks about
requesting P.W.4 to accommodate the accused in the house of
P.W.4. It is suggested that he did not request P.W.4 for
accommodation and the same was denied.
24. P.W.7 is the witness to Ex.P.2 drawing of mahazar
and he says that he does not know the contents of Ex.P.2. He
admits that four to five persons were present at the time of
drawing mahazar. He says that at the time of conducting
mahazar, tablet was seized and admits that M.O.1 tablet was
having more pieces. A suggestion was made that the same was
not seized and the same was denied. He says that M.O.1 was
found near the kitchen underneath the vessel.
25. P.W.8 is the witness who speaks about taking the
victim to the hospital. He says that the victim re-gained
conscious in the midnight and gave the statement that the
accused did not agree to marry her and he advised the victim to
consume tablet and also he is also going to consume the tablet.
He says that he called and confirmed that the tablet was kept
underneath the vessel. This witness was subjected to cross-
examination.
26. In the cross-examination, he says that he saw the
accused in the house of the victim and the distance between his
house and the victim house is about 30 feet. He says that he
was not aware of the contents of the box. It is suggested that
he was not in the house and no such box was given to the victim
and the same was denied. He says that at the same day at
around 8.30 p.m. he went to Budigere.
27. The other witness is P.W.9 Police Constable who
apprehended and produced the accused. P.W.10 is the woman
Police Constable and she gave the report in terms of Ex.P.5.
28. P.W.11 is the FSL official, who examined the seized
articles and gave the report. He found that article Nos.1, 2, 3
and 5 contained phosphate iodine, but not found in article No.4
and he gave the report in terms of Ex.P.6. In the cross-
examination, he admits that he cannot tell the percentage of
aluminium phosphate found in his report.
29. The other witness is P.W.12 PSI, who conducted the
investigation and instructed H.C.525 to go and record the
statement of the victim and he informed that the victim passed
away and could not record the statement. He says that P.W.1
came and lodged the complaint in terms of Ex.P.1. Ex.P.7 was
drawn and Ex.P.3 inquest panchanama was also drawn. He
speaks about the seizure of tablet in terms of Ex.P.2 and the
accused was apprehended and produced before him and also
obtained FSL report, post mortem report and charge sheet is
filed. He was subjected to cross-examination. In the cross-
examination, he admits that he received the information at 6.30
a.m. from the hospital and could not record the statement of the
victim. He says that when the mahazar was conducted, he had
seized two cut pieces of the tablet. The witness spoke about the
victim re-gained conscious at around 12.30 in the midnight and
recorded the statement of P.W.4 and he disclosed re-gaining of
conscious and also recorded the statement of the witness.
30. The other witness is P.W.13 doctor. He says that he
subjected the body of the victim for post mortem from 3.30 p.m.
to 4.30 p.m. and found 60 ml. yellow colour liquid in the
stomach and it was smelling and he found a baby of 6½ months
and collected the viscera and sent the same for examination and
given the post mortem report in terms of Ex.P.8 and identified
his signature as Ex.P.8(d). The cause of death is on account of
saving of the poisonous substance of aluminium phosphate. This
witness was subjected to cross-examination.
31. In the cross-examination, it is stated that by mistake
it is mentioned as UDR, but the same was CR and the seized
tablet was not produced before him. He says that he cannot tell
for long a person will be alive if aluminium phosphate is
consumed and the same depends upon the quantum taken. In
the FSL report, the percentage is also not mentioned.
32. Having heard the respective counsel and also on
perusal of the material available on record, the charges levelled
against the accused is that he abetted the offence of Section 306
of IPC and that he made the victim pregnant and he declined to
marry her and gave her poisonous two tablets to commit suicide
and he also assured that he is also going to die by consuming
the remaining two tablets, which led the victim to take the
extreme step of committing suicide. P.W.1 sister of the victim
and P.W.3 brother of the victim shifted the victim to the hospital
when they found that she was lying in front of the house after
consuming the tablet and she was unconscious at that time. But
she re-gained conscious in the midnight. The evidence of P.W.2,
uncle of the victim, is also similar and he was very much present
at the time when the victim re-gained conscious and so also
P.W.4 father of the victim. P.W.5 and P.W.6 deposed before the
Court about requesting P.W.4 to accommodate the accused in
the house of P.W.4. It is the evidence of P.W.7 that the
remaining tablet was seized from the house of the victim on the
information given by the victim. The consistent evidence of
P.Ws.1, 2 and 3 is that the deceased herself revealed that the
accused was responsible for her pregnancy. It is important to
note that it is the case of the defence that the victim did not re-
gain conscious and manipulation was made with regard to
disclosing of the same.
33. In the cross-examination of P.W.1 regarding
disclosure that the victim made the statement, nothing is elicited
and she categorically deposed before the Court who were all
present at the time of disclosure of the same. A suggestion was
made in the cross-examination that P.W.1 was having grudge
against the accused and with an intention to drive out the
accused, a false complaint is registered and the same was
denied. It is the evidence of P.W.1 that the complaint was
written by her uncle Jayanth and at the time of conducting
mahazar i.e., recovery of another tablet, there were six persons
at the spot and she herself, her brother Muninarayanappa,
Subramanya and Anjanappa have signed the same and mahazar
was drawn from 11.00 a.m. to 12.30 p.m., but does not know
the contents of the mahazar. The evidence of P.W.2 is also
consistent with regard to the presence of the witnesses when the
victim disclosed the name of the accused, who is responsible for
her pregnancy and categorically deposed that P.W.1, himself,
Murthy, Jayanth and Narasimhappa were there at the time of
disclosure of the same.
34. P.W.3 also says regarding disclosure stating that the
victim revealed that she had kept the remaining tablet in the
slab underneath the vessel in the kitchen. The evidence of
P.W.7 is very clear with regard to recovery of remaining tablet in
the house of the victim and spot mahazar was conducted in
terms of Ex.P.2 and recovery was made. In the cross-
examination, P.W.7 categorically says that at the time of
drawing mahazar, four to five persons were there and mahazar
was drawn in between 11.00 a.m. to 11.45 a.m. and found the
tablet M.O.1 and the tablet was having more pieces and full
tablet was not seized and the same was found in the kitchen
underneath the vessel. Hence, the evidence of P.Ws.1 to 3 and
7 is clear that the tablet was recovered in the presence of the
witnesses. It is important to note that P.W.8 says that he came
to know about the incident at 8.30 p.m. through the brother of
the victim i.e., P.W.3 and he called and informed about going to
take her to Bengaluru Bowring Hospital and he accompanied
them. P.W.8 also says that disclosure of providing of two tablets
to the victim and consuming of the tablet and got it confirmed
the same by making the phone call through Muninarayana and
the same was found in the place in which the victim revealed the
same was kept. He also says that he had witnessed the visit of
the accused to the house of the victim on the same day at
around 4.00 p.m. on 27.03.2010 and he left the house at around
4.30 p.m. and in the cross-examination, nothing is elicited with
regard to the said evidence.
35. The other witness P.W.11 is the one who conducted
the FSL examination and gave the report in terms of Ex.P.6 and
found the phosphate iodine in article Nos.1, 2, 3 and 5 and not
found in article No.4. In the cross-examination, except eliciting
that percentage of aluminium phosphate found was not
mentioned in the certificate, nothing is elicited. P.W.12 is the
one who conducted the investigation and received the complaint
and also drawn the mahazar in Exs.P.2 and 3. In the cross-
examination, he says that he received the information at around
6.30 a.m. and investigated the matter and found two tablets
when the mahazar was conducted and witnesses were also
present and took the signature and pasted the signature on the
seized article. Except eliciting that the statement Ex.D1 was not
made, nothing is elicited in the cross-examination of P.W.12.
Having considered the evidence of P.W.13 doctor, who
conducted the post mortem, he categorically deposed before the
Court that he found smell in the stomach and given the post
mortem report in terms of Ex.P.8 and viscera was also collected
and he cannot tell the exact timings for bleeding of death when
the aluminum phosphate was consumed.
36. The main contention of the learned counsel for the
appellant is that there is no medical evidence that the victim was
pregnant and the same cannot be accepted for the reason that
the evidence of the doctor who conducted the post mortem is
clear that he found 6½ months baby. Hence, it is clear that she
was pregnant and medical evidence also spoken by P.W.13 and
nothing is disputed in the cross-examination that she was not
pregnant. No doubt, there was no any DNA report, but the
evidence of the witnesses is consistent i.e., P.Ws.1, 2, 3 and 8
that the deceased disclosed the name of the accused and apart
from that, the evidence of the recovery witness P.W.7 is also
very clear that on the disclosure of the victim only, the tablet
was recovered and the same was subjected to FSL. The FSL
report is also clear that M.O.1 tablet, which was seized contains
aluminium phosphate and the same was also found in the dead
body of the victim. Hence, the very contention of the learned
counsel for the appellant that he has been falsely implicated in
the case and she was having affair with another person cannot
be accepted. The very recovery of tablet corroborates with the
evidence of the prosecution witnesses and only on the disclosure
of the same that she had kept the same in the kitchen,
remaining tablet was recovered. The evidence of P.W.7 is
consistent about the recovery and medical evidence clearly
disclose that she was pregnant. The fact that P.W.5 and P.W.6
deposed that on their request only P.W.4 accommodated the
accused and the fact that the accused was residing in the house
of the victim on the ground of employment was not disputed
throughout in the cross-examination of the witnesses. When
such being the case, even in the absence of DNA evidence, the
learned counsel for the appellant cannot find fault with the
findings of the Trial Court.
37. The learned counsel for the appellant relied upon the
judgment of the Apex Court in the case of Chotkau (supra) and
brought to the notice of this Court paragraph No.80 wherein,
paragraph No.54 of the judgment of the Apex Court in the case
of Rajendra Pralhadrao Wasnik (supra) was extracted,
wherein it is held that we are not going to the extent of
suggesting that if there is no DNA profiling, the prosecution case
cannot be proved, but we are certainly of the view that where
DNA profiling has not been done or it is held back from the Trial
Court, an adverse consequence would follow for the prosecution.
In the case on hand, not held back the DNA test, but no DNA
test was conducted.
38. The learned counsel for the appellant also relied
upon the judgment of the Apex Court in the case of Rajendra
Pralhadrao Wasnik (supra), wherein in paragraph No.79 it is
held that the prosecution was remiss in not producing the
available DNA evidence and the failure to produce material
evidence must lead to an adverse presumption against the
prosecution and in favour of the appellant for the purposes of
sentencing. But in the case on hand, the question of non-
production of DNA evidence does not arise since no DNA was
conducted. Hence, both the judgments will not come to the aid
of the appellant.
39. The learned counsel for the appellant also relied
upon the judgment of the Apex Court in the case of Krishan
Kumar Malik (supra) wherein in paragraph Nos.44 and 46 it is
held that it has become necessary for the prosecution to go in
for DNA test in such type of cases, facilitating the prosecution to
prove its case against the accused. In the case on hand, only for
the lapses on the part of the Investigating Officer not conducting
the DNA, will not come to the aid of the appellant, since the
evidence of P.Ws.1, 2, 3 and 7 is consistent regarding disclosure
of the name of the accused as well as recovery of the tablet on
the disclosure statement of the victim. P.W.8 deposed before
the Court about the visit made by the accused to the house of
the victim on the date of incident and hence the very contention
of the learned counsel for the appellant cannot be accepted.
40. The learned counsel also relied upon judgment of the
Bombay High Court in the case of Ganesh Pralhad Sontakke
(supra) wherein in paragraph No.12 discussion was made that in
the statement made by the appellant under Section 313 of
Cr.P.C., it was specifically stated that the prosecutrix P.W.1 had
lived with the said maternal cousin for five to six months and
that she was pregnant from him. In this situation, it was
incumbent upon the Investigating Officer to have conduced DNA
test of the girl child born to the prosecutrix P.W.1. It was stated
in the evidence of the prosecutrix P.W.1 that after the girl child
was born in Government Hospital at Kamthi, she had gifted that
child to a couple. But in the case on hand, the child was no
more and not conducted the DNA to ascertain the truth in the
matter.
41. I have already pointed out that the evidence of the
prosecution witnesses is consistent that the accused only was
responsible for the pregnancy of the victim and that the accused
was staying in the house of the victim, which led to her
pregnancy and also handing over of the tablet to the victim,
recovery and disclosure statement of the victim that the accused
only gave the tablet and she kept the remaining tablet in the
kitchen and the same was recovered after confirming the same
by making a phone call to one Shivu and he also got confirmed
that the same is available and the mahazar was conducted in the
presence of the witnesses. P.W.7 deposed that the tablet was
recovered and he was present at that time and all these material
discloses the very act of the accused in making her pregnant and
he only supplied the tablet and she has consumed the same.
The tablet, which was recovered and the material found in the
stomach of the victim is one and the same. When such linking
evidence is available before the Court, it is very clear that there
is a proximity to the cause of the death of the victim and also
the role played by the accused and hence I do not find any error
committed by the Trial Court in convicting the accused for the
offence punishable under Section 306 of IPC.
42. This Court would like to rely upon the judgment of
the Apex Court in the case of VEERENDRA v. STATE OF M.P.
reported in (2022) 8 SCC 668, wherein it is held that, lapse or
omission (purposeful or otherwise) to carry out DNA profiling, by
itself, cannot be permitted to decide the fate of a trial for the
offence of rape especially, when it is combined with the
commission of the offence of murder as in case of acquittal only
on account of such a flaw or defect in the investigation the cause
of criminal justice would become the victim. The Apex Court in
its judgment in the case of SAMBHUBHAI RAISANGHBHAI
PADHIYAR v. STATE OF GUJARAT reported in (2025) 2 SCC
399 also reiterated the same by relying upon the judgment of
the Apex Court in the case of Veerendra (supra).
43. This Court would also like to rely upon the judgment
of the Apex Court in the case of STATE OF H.P. v. ASHA RAM
reported in (2005) 13 SCC 766, wherein it is held that, it is
now a well-settled principle of law that conviction can be
founded on the testimony of the prosecutrix alone unless there
are compelling reasons for seeking corroboration. The evidence
of a prosecutrix is more reliable that than of an injured witness.
The Kerala High Court in its judgment in the case of ROYSON v.
STATE OF KERALA reported in 2017 SCC ONLINE KER 22694
also reiterated the same by relying upon the judgment of the
Apex Court in the case of Asha Ram (supra). Hence, I answer
the point in the negative.
Point No.(ii):
44. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
MD
