[Cites 22, Cited by 0]
Karnataka High Court
Smt Pavithra vs State Of Karnataka on 21 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2026
R
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1261/2022
BETWEEN:
SMT. PAVITHRA,
W/O SATHISH BABU,
AGED ABOUT 41 YEARS,
SAMANAHALLI VILLAGE,
SARJAPURA HOBLI, ANEKAL TALUK,
BENGALURU-562125.
PRESENT ADDRESS:
CTP NO.12327, DETAILED IN CENTRAL PRISON
BENGALURU HOSA ROAD, ELECTRONIC CITY
PARAPPANA AGRAHARA,
BENGALURU-560100. ... APPELLANT
(BY SRI. MAHESH M.R., ADVOCATE)
AND:
STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560001. ... RESPONDENT
(BY SMT. RASHMI PATEL, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 20.07.2021,
PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT SIT AT ANEKAL, IN
S.C.NO.5059/2014, CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.02.2026, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
This appeal is filed against the judgment of conviction and
sentence dated 20.07.2021 passed in S.C.No.5059/2014, on the
file of the III Additional District and Sessions Judge, Bengaluru
Rural District sitting at Anekal, for the offence punishable under
Section 302 of IPC and to acquit the accused.
2. The factual matrix of the case of the prosecution is
that accused No.1 is the wife of P.W.1 and accused No.2 is the
mother-in-law of P.W.1. Accused No.1 was admitted to
N.R.Hospital situated at Attibele for delivery and she gave birth
to a female child on 21.10.2013. P.W.1 had asked accused No.1
to come to the house after delivery and as accused No.1 did not
come to the house of P.W.1, he had registered a case before the
Sarjapura Police Station on 25.10.2013. The accused No.2 had
appeared before Sarjapura Police Station and requested for two
days time in order to settle the dispute. The accused No.2 was
residing in a rented house. That on 26.10.2013 at about 10.00
a.m., accused No.1 had attempted to strangulate the 6 days old
baby and as the child did not die, accused No.1 had smashed the
baby to the floor and killed it. Inspite of having knowledge of
the murder, accused No.2 did not disclose the said fact to
anyone and attempted to screen accused No.1. Based on the
complaint of P.W.1, case was registered and investigation was
conducted and charge-sheet was filed against accused Nos.1 and
2. Having received the charge-sheet, cognizance was taken and
charges were framed and the accused did not plead guilty and
claimed trial. The prosecution in order to prove the case
examined P.W.1 to P.W.16 and got marked the documents at
Exs.P.1 to 11. The accused were subjected to 313 statement
and denied the incriminating evidence. The accused did not
choose to lead any evidence.
3. The Trial Court having appreciated both oral and
documentary evidence available on record comes to the
conclusion that the child died due to homicide and convicted
accused No.1 for the offence punishable under Section 302 of
IPC and imposed life imprisonment and to pay fine of
Rs.10,000/-. In default to pay fine, accused No.1 shall undergo
further imprisonment for 6 months. The accused No.2 was
convicted for the offence punishable under Section 202 of IPC
and to undergo simple imprisonment for 40 days and to pay fine
of Rs.5,000/-. In default to pay fine, accused No.2 shall undergo
further simple imprisonment for 1 month. The accused Nos.1
and 2 were entitled for set off under Section 428 of Cr.P.C. The
accused No.2 shall be set at liberty if she deposits the fine
amount of Rs.5,000/-, since she was in judicial custody for 40
days as under trial prisoner.
4. Being aggrieved by the judgment of conviction and
sentence, the present appeal is filed before this Court.
5. The learned counsel for the appellant/accused would
vehemently contend that P.W.12 deposes before the Court that
accused Nos.1 and 2 had approached P.W.12 on 26.10.2013 at
around 11.45 p.m. with the child stating that the child has no
movements for the past 20 minutes and is not drinking milk, and
as there were no symptoms of life when he examined the baby,
he informed that the child is no more. The learned counsel
submits that P.W.12 who examined the child first has not noticed
any injury on the dead body of the child and has submitted the
report as per Ex.P.9. It is also contended that the inquest report
Ex.P.4 recorded by the Investigating Officer dated 27.10.2013
also does not disclose any injury caused to the dead child. In
the absence of any injury being found on the dead child by
P.W.12 and also the investigation agency, it cannot be said that
the appellant is responsible for the death of the child. The
learned counsel would also submit that in the absence of any
mention of head injuries in either the report Ex.P.9 of P.W.12 or
the inquest report Ex.P.4, the appellant has thereby discharged
her burden of proof under Section 106 as the only fact within her
special knowledge was that the baby was unresponsive and not
drinking milk, which she brought to the notice of the doctor
P.W.12 and she has no knowledge of any head injuries that have
occurred to the baby as the baby was not in her custody.
6. It is contended that the post mortem report Ex.P.5
issued by P.W.13 does not disclose the age of the injuries and
therefore, it cannot be relied upon to the extent that it is not
certain whether the head injuries caused the death of the child
or the child died due to any other reason, especially in the
context of there being no mention of head injuries in either the
report Ex.P.9 of P.W.12 or the inquest report Ex.P.4. The doctor
who conducted the post mortem i.e., P.W.13 admits in his chief
examination that he has not indicated as to when exactly the
head injuries might have occurred and therefore, in the absence
of that information, it cannot be stated with certainty that the
baby died due to the head injuries or that it was homicidal
death. P.W.13 also admits in his examination-in-chief that 0.5
cm. wound on the skull of the baby is visible to the naked eye
and therefore, the Trial Court wrongly glossed over the absence
of such injuries in the inquest report Ex.P.4. The prosecution has
not collected the bloodstained clothes and the same was not
subjected to examination to rule out the cause of death. The
learned counsel also vehemently contend that the Trial Court
committed an error in relying upon the prosecution evidence,
which is highly interested, contradictory, unreliable and artificial
and the evidence of P.W.1 not inspires the confidence of the
Court. The admission given by P.W.1 during the course of cross-
examination revolves upon the conduct of P.W.1 that he played
the role with the Investigating Officer in getting the report as
against his wife and mother-in-law, since he was having the ill-
will against both of them from the date of discharge of the child,
as discharge was made against his wish. The Trial Court fails to
take note of all these factors into consideration and committed
an error in not appreciating the prosecution interested witness
evidence and hence, prayed this Court to acquit the accused.
7. Per contra, the learned High Court Government
Pleader appearing for the respondent/State would vehemently
contend that it is not in dispute that the child was in the hospital
for a period of 5 days and thereafter, the child was got
discharged from the hospital and on the very next day, the child
died. The learned counsel would submit that there is no dispute
that the child was in the custody of the mother. The material
discloses that there are injuries on the child and no explanation
was given by accused No.1 with regard to the incriminating
evidence is concerned and hence, the Trial Court rightly taken
note of both oral and documentary evidence and appreciated the
medical evidence and the mother ought to have explained how
the child had sustained the injuries on the head. In the absence
of explanation, the Trial Court not committed any error.
8. Having heard the learned counsel for the
appellant/accused and the learned High Court Government
Pleader appearing for the respondent/State and on re-
appreciation of evidence available before the Court, the points
that would arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in
convicting the accused based on the evidence
of the prosecution witnesses and whether it
requires interference of this Court?
(ii) What order?
Point No.(i):
9. We have perused both oral and documentary
evidence available on record. The law was set in motion at the
instance of P.W.1, who is the husband of accused No.1 and also
the son-in-law of accused No.2. Having perused the material
available on record, it is not in dispute that the child was aged
about 6 days as on the date of death. It is also to be noted that
delivery was taken place on 21.10.2013 in the hospital and the
child was healthy and in the hospital for 5 days and discharged
on 25.10.2013, but the child died on the next day. It has to be
noted that the child was taken to Balaji Nursing Home on
26.10.2013 at 11.45 a.m. with the complaint that the child is not
responsive from last 20 minutes and not making any reaction
and requested to examine the child. The doctor examined the
child and found that the child is not alive. Having received the
information from the doctor, she went away. The doctor says
that the lady who brought the child made the statement that she
is residing in the street, which is located backside of Balaji
Nursing Home. This is evident from the document Ex.P.9.
When the child was taken to Balaji Nursing Home and examined
the child, the doctor not found any injuries on the child. The
document of Ex.P.10 issued by N.R. Hospital is also clear that
immediately that lady rushed to N.R.Hospital, where the delivery
was made. On examination, the doctor says that the child was
brought dead to the hospital at 1.30 p.m. on 26.10.2013 and
document is also marked and this doctor also not noticed any
injury on the child on examination. Hence, it is very clear that
when the child was taken to both the hospitals i.e., Balaji
Nursing Home and the N.R. Hospital, not noticed any injuries.
10. It is also important to note that due of unhappiness
of P.W.1 when the child was got discharged and went to the
house of accused No.2 on 25.10.2013, Ex.P.3 came into
existence. No doubt, in Ex.P.3 it is mentioned that the said
complaint was given on 25.10.2013 by P.W.1. But in an
ingenious method not mentioned the timings at what time the
complaint was given. In the complaint an allegation is made
against the mother-in-law of P.W.1 that she got discharged the
child and took the mother and child to her house. If really the
said complaint was given on 25.10.2013 itself, the police officer
who received this complaint would have mentioned the date, but
not mentioned the date. However, based on Ex.P.3, no steps
were taken. But on the death of the child, a complaint was given
in terms of Ex.P.2 and the same was given on 26.10.2013 at 19
hours and UDR No.28/2013 was registered under Section 174(c)
of Cr.P.C. and also Ex.P.11 FIR came into existence. It is also
important to note that subsequently on 31.10.2013, case was
registered and Ex.P.1 spot mahazar was conducted and there
was no sign of any incident in the house. It is the case of the
prosecution that accused No.1 made an attempt to take away
the life by strangulating the child. But when she could not
succeed in the same, the head of the child was pushed on the
wall and other circumstances is that she pushed the child on the
floor. Having taken note of the inquest, no such injuries were
noticed in Ex.P.4 as contended by the learned counsel appearing
for the appellant and the same is marked through P.W.5. Only
P.W.1 suspected the role of wife and mother-in-law.
11. It is also important to note that as per Ex.P.5 post
mortem report, the opinion as to the cause of death is
mentioned as "the opinion as to the cause of death of a viable
female neonate of gestational age above 7 months and below 9
months is due to head injury sustained". This Court has to take
note of the evidence of the doctor, who conducted the post
mortem i.e., P.W.13. P.W.13 mentions the nature of injuries
and particularly, injury No.5 is mentioned as there was 0.5 cm.
long crack on the head and blood clot was found in the brain i.e.,
sub dural and subarachnoid cavity. There was 30 ml. of milk in
the stomach. No doubt, P.W.13 says that he mentioned the
injuries in Ex.P.5. He says that when strangulated to commit the
murder, injury Nos.1 to 3 could be caused and if the child is
smashed on the ground, remaining injuries could be caused. In
the cross-examination, he categorically admits that the injuries
found are visible to bare eyes. But the doctors who examined
the child at Balaji Nursing Home and N.R. Hospital not noticed
those injuries. It has to be noted that the age of the injury is
not mentioned and the same is admitted. Further admission was
given by P.W.13 that when he went to conduct post mortem, not
found any police officers in the mortuary and categorically
admitted that the injury found on the head could be visible by
bare eyes. These answers elicited from the mouth of this witness
also creates a doubt in the mind of the Court. It is also
important to note that prior to death of the child, the child was
fed milk and the same is mentioned in Ex.P.5. P.W.13 admits
that before conducting the post mortem, he has not collected the
death certificate. It is elicited that he has collected the
documents regarding what time the child was brought to the
hospital, at what time the body was kept in the cold storage and
at what time the body was taken for post mortem. It is
important to note that whether the injuries are ante-mortem or
post-mortem, nothing is mentioned in the post mortem report as
well as not spoken by the doctor P.W.13 and hence, whether it is
a case of homicidal or natural death, no material is available on
record. No doubt, there are injuries. But those injuries are not
found when the Investigating Officer conducted the inquest as
per Ex.P.4 and if he really had noticed those injuries, he would
have mentioned the same in Ex.P.4. Hence, there is a force in
the contention of the learned counsel for the appellant that
death is not homicidal and when the child was not responsive,
taken the child to Balaji Nursing Home as well as N.R. Hospital
and those two doctors, who have examined the child have not
noticed any such injuries and hence, the case of the prosecution
is doubtful with regard to the homicidal is concerned and the
Trial Court fails to take note of the document of Exs.P.9 and 10,
which were issued by the treated doctors. If such injuries were
found and the same are visible as admitted by P.W.13, both the
doctors would have noticed the same when the child was
brought to the hospital with a complaint of no response from the
child.
12. Now, this Court has to take note of the evidence of
P.W.12, who is an important witness i.e., Balaji Nursing Home
doctor, who first examined the child at 11.45 a.m. He says that
on examination he found that the child was not alive. He says
that both mother and grandmother brought the child to the
hospital and they are the residents near the hospital and he gave
the report in terms of Ex.P.9. His evidence supports the defence
that there were no injuries when the child was brought to the
hospital.
13. Now this Court has to examine the evidence of
doctor P.W.14, N.R. Hospital, wherein the child was delivered
and treated for 5 days and discharged. In the cross-
examination, she admits that for having examined the child in
the hospital, no documents are available. She categorically
admits that there are no documents with regard to whether the
child died on account of natural death or homicide. She admits
that cannot say whether it is natural death or homicide. She
categorically admits that if oxygen is not supplied, it will cause
damage to the brain and other organs will fail. Nothing is
elicited from the mouth of this witness also by the prosecution
that when the child was brought to the hospital, whether she
found the injuries and hence, Ex.P.10 also supports the case of
the defence and not the prosecution, as no injuries were noticed.
Hence, the very case of the prosecution that it is a homicidal
cannot be accepted.
14. Now this Court has to examine the evidence of police
witnesses before appreciating the evidence of P.W.1 i.e., P.W.15
PSI, who received the complaint by P.W.1 and registered UDR
No.28/2013 and he identified the signature in Ex.P.2. In the
cross-examination of this witness, he admits that if he entrusts
the work to other police, they must report with regard to their
work. He says that P.C. Nagaraj went to N.R.Hospital on
26.10.2013, but he has not given any report. If any report is
received regarding cognizable offence, it should be mentioned in
telephone directory maintained in the station and if it is a
cognizable offence, SHO has to register FIR. When a suggestion
was made that on 26.10.2013, P.W.1 has given complaint of
cognizable offence, he says that he is not aware of the same.
But according to P.W.1, he gave the complaint on that day itself
and relies upon the document and this Court has already pointed
out that no timings is mentioned in respect of the complaint of
discharge without his consent. For having given the child to the
mortuary, no report was given. But he says on 27.10.2013, he
went to hospital at 8.00 p.m. and he is not aware of what had
happened before conducting of post mortem in Vaidehi Hospital.
This cross-examination also supports the case of the defence
that no injuries were found when the child was taken to the
hospital. But there are subsequent injuries when the child was
taken to the hospital and this Court has to examine the evidence
of P.W.1 to corroborate the case of the prosecution having
considered the other evidence of police witnesses i.e., P.W.11
and P.W.16.
15. P.W.11 is another police witness. In his evidence, he
says that he continued the investigation from 27.10.2023
onwards and secured panch witnesses to Vaidehi Hospital and
conducted inquest as per Ex.P4 and so also on the same day,
went to spot and secured panch witnesses and drawn
panchanamma in terms of Ex.P1. He also obtained opinion from
the Doctor of Balaji Nursing Home and collected PM report in
terms of Ex.P5 and invoked Section 302 of IPC and registered
FIR in terms of Ex.P6. It is also his evidence that accused was
arrested and produced on 01.11.2013 and recorded voluntary
statement and so also statement of accused No.1 was collected
on 02.11.2013 and through Tahsildar conducted spot mahazar in
terms of Ex.P7 and obtained the sketch in terms of Ex.P8. This
witness was subjected to cross-examination. In the cross-
examination, he admits that in Exs.P1 and P2 suspected the role
of the accused. He also admits that in Exs.P4 and P5 also
mentioned suspecting the role of accused and at the time of
drawing mahazar in terms of Ex.P1, both accused Nos.1 and 2
were there in the house. It is also elicited that he has not
recorded the statement of C.W.17, but obtained the report on
27.10.2013 and he categorically admits that the said record is
created on 26.10.2013. He also admits that he cannot state, who
handed over the dead body of the child to the hospital and no
document to that effect. But, two police staffs, P.W.1 and
accused No.2 brought the child to the police station. Having
considered his evidence, it is very clear that only there was
suspicion about committing the murder and also admission was
given that report dated 27.10.2013 appears to be created on
26.10.2013 and no document to the effect that dead body of the
child was handed over to the hospital.
16. Now this Court has to consider the evidence of
P.W.16, who is the Police Inspector. In his evidence, he says
that he conducted further investigation from 03.11.2023 and
sought opinion about the cause of death of the child and also got
prepared the sketch from the PWD Department. He also says
that he recorded the statement of C.Ws.1, 3, 5, 21 and 23 and
after completion of investigation, filed the charge sheet. In the
cross-examination of this witness, it is suggested that nothing is
mentioned in Ex.P4, except the black mark near the neck and no
injuries were mentioned and same was denied. He categorically
admits that he did not obtain the opinion whether the injuries
are ante-mortem or post-mortem which are mentioned in Ex.P5.
Further, he admits that there is no document evidencing the fact
that from whom, when, where and at what time C.W.23 i.e.,
P.W.15 received the dead body. But, he says that he obtained
the dead body from Attibele N.R. Hospital and admits that
having taken the dead body, no mahazar was drawn and also did
not record the statement of C.W.18, but says that he has
obtained the report. He also categorically admits that in Ex.P10,
P.W.14 has not stated that dead body was given to P.W.15 and
also during his investigation, he did not find which officer has
received the dead body and no document to that effect. P.W.15
also not furnished any details where the body was kept for PM
and also no receipt is obtained for having handed over the dead
body and to that effect, a report should be given to the
Investigating Officer. However, he categorically submits that
after the inquest, body was kept in Vaidehi Hospital till PM was
conducted. He also categorically admitted that when he found
injuries on the child, he did not enquire the staff of the hospital.
It is suggested that in between inquest and PM, the injuries were
found on the child and the same was denied and further
suggestion was made that he is giving evidence in order to save
P.W.15 and the same was denied. He also admits that P.W.15 at
the first instance registered the case as UDR based on the
complaint of P.W.1.
17. Having considered the evidence of P.W.16, it is very
clear that he did not obtain opinion from the Doctor whether the
injuries are ante-mortem or post-mortem. Hence, it is clear that
whether the injuries are ante-mortem or post-mortem, no
evidence at all. Even with regard to handing over the body to the
hospital, there is no material and no mahazar was drawn and no
document for having handed over the body to the hospital. Even
no document with regard to request made to the hospital to
keep the body in the hospital and also he did not record the
statement of hospital staff regarding nature of injuries are
concerned which he found. Hence, the evidence of prosecution to
prove the case against the accused is a very weak piece of
evidence available on record.
18. Having considered the evidence of police witnesses,
this Court has to examine other than the evidence of P.W.1, if
any evidence is available before the Court to point out the role of
the accused. P.W.2 has turned hostile in respect of Ex.P1 and
P.W.3 is the spot mahazar witness and he says that he had
signed the mahazar when he was taken to draw the panchanama
and his evidence is only with regard to spot panchanama. But, in
the cross-examination, he says that he cannot state, who wrote
the mahazar and also do not know the contents of the mahazar.
The evidence of this witness is also not helpful to the case of the
prosecution.
19. P.W.4 in his evidence says that mahazar was drawn
on 27.10.2013 in terms of Ex.P1 and he identified his signature
as Ex.P1(c). He also says that he did not know the contents of
the mahazar and police have also not given notice to him before
calling him, but he says that he had signed the same in the
police station and he is also having acquaintance with P.W.1,
since he is the resident of same village i.e., P.W.1 and also
Grama Panchayath member. The evidence of this witness also
will not come to the aid of prosecution, since he had signed the
same in the police station and it was known to P.W.1.
20. P.W.5, who is the inquest mahazar witness in his
evidence says that there was black mark near the neck when the
police conducted mahazar. In the cross-examination, answer is
elicited that he was taken to Vaidehi Hospital in between 11.30
to 12.30 p.m. and police wrote Ex.P4. But, he do not know the
contents of the mahazar and police wrote the same as the
Doctor said and the police even not seized any cloth.
21. The main witness is P.W.6. According to the
prosecution, this witness witnessed accused No.1 bringing the
child to hospital along with a aged lady and accused No.2
requested the Doctor that child is in serious condition and after
examination, the Doctor informed that child is no more.
Thereafter, accused No.2 left the hospital and he do not know to
which place she went and thereafter, he met P.W.1 and he
informed about the death of the child. This witness was
subjected to cross-examination. In the cross-examination, he
categorically admits that P.W.1 is his brother's son and he is
residing separately and P.W.1 and his wife i.e., accused No.1
were residing together. But, he do not know how was the
relationship between accused Nos.1 and 2 and P.W.1. He admits
that earlier also, she gave birth to a child this child is second
child and also admits that in usual course, the parents of the
daughter would take care of the delivery expenses of the first
child and in respect of second child is concerned, husband family
to meet the expenses. It is suggested that accused No.2 only got
admitted accused No.1 for delivery and witness denies the same.
However, it is elicited that he went to hospital at 2.00 p.m., but
Doctor came at around 2.45 p.m. and he was examined by the
Doctor between 2.45 to 3.00 p.m. and Doctor has not given any
OPD slip. He also categorically admits that for having visited the
hospital, he is not having any slip.
22. Having taken note of evidence of P.W.6, it is very
clear that this witness is a planted witness by the prosecution.
But, he says that accused No.2 brought the child to the hospital
and Doctor examined the child. But, not stated at what time he
went to hospital in chief evidence. But, in the cross-
examination, it is elicited that he went to hospital at 2.00 p.m.
but, Doctor came at around 2.45 p.m. and he was examined at
3.00 p.m. but, no documentary evidence before the Court that
he went and took treatment. But, his evidence is that Doctor
came at 2.45 p.m. and he went to hospital at 2.00 p.m.
However, the fact is that the child was taken to Balaji Nursing
Home at 11.45 a.m. itself on 26.10.2013 in terms of Ex.P9-
report given by the Doctor, who treated and examined the child.
Hence, it is clear that this witness is a planted witness and
according to him, he went to hospital at 2.00 p.m. and Doctor
came at 2.45 p.m. But, in terms of the report at Ex.P9, Doctor at
Balaji Nursing Home examined the child at 11.45 a.m. and there
are material contradictions in his evidence and the same cannot
be believed.
23. P.W.7 is an inquest witness and when the inquest
was conducted, found injuries on the head and the same was
grievous injury and he identified his signature in Ex.P4-inquest.
This witness was subjected to cross-examination and in the
cross-examination, he categorically admits that he is a friend of
P.W.1 and P.W.1 came to Court and he came along with him. It
is also his evidence that C.W.5 and P.W.1 only requested him to
come and give evidence. Hence, it is clear that he is also an
interested witness of P.W.1 and his evidence is very clear that
when he saw the injury on the head of the child, no blood was
found and he cannot state what the Doctor had mentioned in
Ex.P4 and also do not know the contents of Ex.P1. Hence, the
evidence of this witness also cannot be accepted, since he is an
interested witness and close friend of P.W.1.
24. P.W.8 is the Secretary of Grama Panchayath, who
has issued Tax Assessment Confirmation Letter of the house. He
admits that there is no entry with regard to it relates to which
village.
25. The other witnesses are P.W.9 and P.W.10 and both
of them have turned hostile and not supported the case of the
prosecution.
26. The star witness available before the Court is P.W.1,
who is the husband of accused No.1 and son-in-law of accused
No.2. This Court has to examine the evidence meticulously as
the case is registered at the instance of P.W.1. No dispute
having considered the evidence of this witness that accused No.1
and this witness married in the year 2009 and also no dispute
that they were having a 4 year child in the said wedlock and this
child is second child. It is also his evidence that accused No.2
was residing in a tenanted premises. But, his evidence is that he
got admitted his wife to the hospital and on 5th day, without his
consent, accused No.2 got discharged accused No.1 from the
hospital and taken the child inspite of telling his wife that he
would come and discharge and take her to his house. But, he
says that bill was not cleared in the hospital and when he was
going towards the house of accused No.2, at that time, accused
No.2 was going to make the payment leaving accused No.1 in
the house in a car. Hence, he gave complaint to the police that
his wife and child was got discharged without his consent and
when the police called both accused Nos.1 and 2, they took two
days' time. This witness in his further chief evidence says that
he gave complaint in terms of Ex.P2 and police also came to N.R.
Hospital and found injury on the neck of the child and also say
that his uncle witnessed accused Nos.1 and 2 bringing the child
to Balaji Nursing Home, wherein the Doctor declared that child is
no more. But, he do not know the reason for death of the child.
Hence, he gave the complaint suspecting the role of the accused.
But, after conducting inquest, came to know that child has died
on account of smashing head of the child on the wall and as a
result, there was fracture on the head and child has died.
27. In the cross-examination of P.W.1, he admits that all
of them are residing together and also categorically admits that
till the birth of second child, they were very cordial. Hence, it is
very clear that there was no dispute between the husband and
wife till the delivery of second child and even accused No.2 was
also visiting their house. He also admits that delivery expenses
of first child was met by accused No.2 only and there is a clear
admission that he sent his wife-accused No.1 to the house of
accused No.2 ten days prior to the delivery and both accused
Nos.1 and 2 were residing at Dommasandra and distance
between his house and the house of accused No.2 is 6 kms. and
distance from N.R. Hospital to his house is 8 kms. and so also,
distance from Attibele to the house of accused Nos.1 and 2 is 8
kms. He categorically admits that accused No.1 was admitted to
hospital and it was a cesarean delivery and he gave consent for
the same. He also says that expenses of delivery is Rs.65,000/-,
but claims that he only gave the same and he has no receipt for
having made the payment. When suggestion was made that
accused No.2 only met the expenses and the same was denied.
However, he admits that accused No.1 was having delivery pain
and also pain in view of cesarean delivery. It is elicited that on
25.10.2013, accused No.2 took accused No.1 and child in Indica
car and accused No.2 was coming in the very same car to pay
the balance amount and this admission takes away the case of
P.W.1 that he made the payment. He also categorically admits
that accused No.2 was coming to pay the balance amount and
categorically says that he himself gave the complaint that child
was taken without his consent and the same is admitted. But
after discharge, he did not go to see the child and also did not
enquire the health of his wife-accused No.1 and he was there in
the house on 26th. He also says that he received a call from the
hospital i.e., from Dr. Vijayamma, who informed that his child is
no more and immediately, he went to the hospital between
11.30 to 12.00 p.m. But, the fact is that child was taken and
examined at Balaji Nursing Home at 11.30 to 11.45 a.m. as per
Ex.P10. But, he says that when he went to hospital, accused
No.2 was there and doctor was also there, but though he
requested the Doctor to examine the child to know the cause of
death, but Doctor did not examine the child and also he
categorically admits that there was no difficulty for him to take
the child and get the opinion from other hospital. He also
categorically says that accused Nos.1 and 2 were there in
hospital itself. But, his evidence cannot be accepted for the
reason that child was taken to N.R. Hospital as per Ex.P10 and
Doctor at N.R. Hospital issued the letter Ex.P10 stating that child
was brought dead to hospital at 1.30 p.m. and answer given by
P.W.1 also cannot be accepted to that effect.
28. It is important to note that P.W.1 categorically says
that accused persons were there in hospital and police also came
in a jeep and enquired and so also, enquired the Doctor and says
that he himself and police were there for about half an hour. But,
he categorically says that in his car, child was taken along with
two police to Vaidehi Hospital and the accused persons went
back to their house. In the meanwhile, while taking the child to
hospital, they went to police station and it was between 3.00 to
4.00 p.m and he was in the car, but police went inside the
station and at that time, child was in the car itself and
thereafter, Sub-Inspector came near the car and saw the child
and spoke to him and thereafter, continued along with police and
took the child in his car itself to Vaidehi Hospital at around 6.00
p.m. and hospital people kept the dead body of the child in a box
and hospital staff took the same and it was around 6.30 p.m.
and they had issued the receipt. But, no such receipt is produced
before the Court. He also says that again he came to hospital at
7.30 p.m. but the police, who came along with him left to the
police station and thereafter, on the next day also, he went to
police station and then went to hospital and the very same police
accompanied him and he was there in the hospital till 2.30 p.m.
Thereafter, he took the child to his house and police went to
station and he cremated the child. He also categorically admits
that he also visited police station on 27th and at that time,
accused persons were there in the police station. He also says
that he also visited on 28th and on that day also, accused
persons were there in the police station, but police have not
recorded the statement. He also admits that he continuously
visited the police station for 15 days. But, he cannot tell whether
the accused persons were there on 29th or not, but it is clear that
accused Nos.1 and 2 were kept in the police station at the
instance of P.W.1.
29. It is also important to note that till sending the
accused persons to jail, he was regularly going to the police
station and was also regularly speaking to Sub-Inspector. He
also says that he cannot say on what date, the accused persons
were sent to jail. It is important to note that there is an
admission on the part of P.W.1 that he was suspecting his wife
character with one Ramesh, who was a neighbourer and he also
quarreled with him, but he denies the said suggestion and says
that he warned and the said warning was 10 days prior to
sending accused No.1 to her house. He categorically admits that
in Exs.P2 and P3, he has not stated that he only got admitted his
wife to N.R. Hospital and the said suggestion was denied and
also with regard to discharging accused No.1 and child without
making the payment and the said suggestion was also denied.
But, not found the said contents in Exs.P2 and P3-complaints
which were given by him. He also categorically admits that he
has stated the same before the Court and also says that he is
not having any rivalry with his uncle P.W.6. and a suggestion
was made that P.W.6 has not stated that he went to Hospital.
30. It is important to note that he had filed
M.C.No.55/2014 and the same is subsequent to this incident and
he had also obtained ex-parte divorce. He also admits that he
had given the address of accused No.1 i.e., No.24, Bikkanahalli
Village, Sarjapura Hobli, Anekal Taluk and hence, Ex.D1 is
confronted and he admitted the same. But, he claims that even
to show that accused No.1 is residing in that address, he has
given the identity card and admits that said ex-parte order was
challenged and he has received notice and also categorically
admits that he contracted second marriage and in the second
marriage, he is was having 4 months old child. He admits that in
the application, they have given the address of accused No.1. It
is suggested that accused No.2 only made the payment in the
hospital and the same was denied. It is the specific defence that
with the help of police, he took the child and kept the child in the
box in Vaidehi Hospital and the same is admitted. It is also the
specific defence that he himself caused the injuries to the child
and the same was denied.
31. Having considered the admission on the part of
P.W.1, it is very clear that in his chief evidence, though he says
that difference has arisen only subsequent to the death of
second child, but his admission is very clear that he was very
cordial till then. It is also very clear that Ex.P3-complaint was
given at the first instance for having got discharged the child and
this Court has already noticed that no timing in Ex.P3 and Ex.P2
is subsequent to the death of the child. It has to be noted that in
the evidence of Doctor, who conducted PM opined that cause of
death of the child is due to smashing the child on the floor. But,
in the evidence of P.W.1, he says that head of the child was
smashed on the wall. Hence, it is clear that the very prosecution
itself is not sure about how the injuries were sustained by the
child and whether it is ante-mortem or post mortem and there is
no evidence to that effect. Apart from that the admission of
P.W.1 is very clear that he says that his uncle informed about
the death of the child. But, this Court has pointed out that in
terms of Ex.P10, child was taken to hospital at 11.45 a.m., but
his uncle went to hospital at 2.00 p.m. and the evidence of
P.W.1 in the further chief cannot be believed and only suspected
the role of the accused. But, the answer elicited from the mouth
of P.W.1 takes away the case of the prosecution.
32. Having considered the material available on record,
there is no medical evidence to the effect that whether it is a
homicidal or natural death and none of the witnesses, who have
examined the child stated that they found the injuries i.e.,
treated Doctor at Balaji Hospital as well as N.R. Hospital. It is
also very clear that P.W.1 claims that he only got admitted
accused No.1 to hospital and categorically admits that he only
sent his wife-accused No.1 ten days prior to the admission to the
hospital to the house of accused No.2 and also it is very clear
that accused No.2 only went and admitted accused No.1 in the
hospital and also his admission is very clear that accused No.2
was going to hospital in a car and in the very same car taken the
accused No.1 and went to the house and thereafter to hospital to
clear the balance amount. Hence, it is very clear that he made
false claim that he only made the payment. Apart from that, it is
very clear that he was having the child after death and in his car
only taken the child and while going to Vaidehi Hospital, they
visited the police station. But, the child was in his car, but police
along with him went inside the police station. When such being
the case, there are chances of causing injury on the child when
the child was in his custody in the car. It has to be noted that he
gave the child to Vaidehi Hospital along with police in between
6.00 to 6.30 p.m. But, again he says that he went to hospital at
7.30 p.m. and what made him to again go to hospital, there is
no explanation. The Investigating Officer also categorically says
that he did not enquire the hospital staff with regard to the
injuries when he found the same. The Doctor also categorically
admits that when he went to hospital, police was not there in the
hospital and apart from that, his admission is very clear that
from day one, he was visiting the police station till the accused
persons were sent to the jail for more than 15 days and he was
in touch with Sub-Inspector everyday. Hence, it is very clear
that P.W.1 involved in registering the case against his wife and
the Court has to take note of the conduct of P.W.1 as well as
P.W.15-Police Inspector.
33. Having considered the admission on the part of
P.W.1, it is very clear that P.W.1 had filed M.C.No.55/2014 and
obtained ex-parte judgment of decree of divorce by showing
different address and he also got married and having a child
through second wife. Though, he claims that he spent money for
admitting his wife i.e., accused No.1 to the hospital and on
overall perusal of evidence of P.W.1, it is very clear with regard
to modus operandi of P.W.1 that taking advantage of the fact
that child lost its life and making use of the said circumstance,
circumvented accused No.1-wife must be in jail. The police, who
have investigated the matter was hand-in-glove with P.W.1 and
even Ex.P7-spot mahazar is very clear that not found any sign of
either child was smashed to the floor as contended by the
prosecution and so also no blood stains were found on the wall,
since P.W.1 deposes that child's head was smashed by accused
No.1, but the Trial Court failed to take note that 30 ml. of milk
was found in the stomach of the child and it is clear that even
accused No.1 has fed milk to the child. On overall perusal of
evidence of P.W.1 and the cross examination elicited from the
mouth of P.W.1, it is clear that Trial Court committed an error in
appreciating the evidence and lost sight of the admissions and
each admissions were not taken note by the Trial Court while
coming to the conclusion that accused No.1 had committed the
murder of her own child.
34. The judgment which has been relied upon by the
Trial Court in the case of BIPIN KUMAR MONDAL vs. STATE
OF WEST BENGAL reported in (2010) 12 SCC 91 is not
applicable to the facts of the case on hand in view of the
admission on the part of P.W.1 with regard to motive is
concerned in paragraph Nos.22 to 26 and actual motive of P.W.1
is to fix accused No.1, in order to separate his relationship with
accused No.1. In this judgment also, it is held that accused can
be convicted, if evidence is reliable and trustworthy and absence
of motive is insignificant, that too in a case of direct evidence
and circumstantial evidence and the admissions of P.W.1 takes
away the case of the prosecution. There is no material to show
that accused No.1 had committed the offence and the evidence
of the police witnesses and P.W.1 is very clear that accused No.1
has been falsely implicated in the case and there is no sufficient
material to believe the case of the prosecution.
35. The Trial Court also relied upon the judgment of the
Apex Court in PRITHIPAL SINGH AND OTHERS vs. STATE OF
PUNJAB AND ANOTHER reported in (2012) 1 SCC 10 and the
Trial Court relied upon paragraph No.53 with regard to burden of
proof under Section 106 and this judgment also will not come to
the aid of the prosecution, since it is clear that child was within
the possession of accused immediately after the child lost its life
and there is no evidence of the Doctor that injuries are ante-
mortem or post-mortem. When such being the case, question of
invoking Section 106 to explain the same by the accused does
not arise. Section 106 arises only if the prosecution makes out a
case against the accused and then the Court can expect
explanation under Section 106 as held by the Apex Court in the
judgment relied upon by the Trial Court referred (supra).
36. The other judgment relied upon by the Trial Court is
the judgment of the Apex Court in RAJKUMAR vs. STATE OF
MADHYA PRADESH reported in (2014) 5 SCC 353. In this
judgment also, the Apex Court discussed with regard to non-
explanation in 313 statement by the accused. No doubt, the
accused has a duty to furnish an explanation in a statement
under Section 313 Cr.P.C. regarding any incriminating material
that has been produced against him and if the accused has been
given freedom to remain silent during investigation as well as
before Court, then accused may choose to maintain silence or
even remain in complete denial when his statement under
Section 313 Cr.P.C. is being recorded. But, having considered
the admission on the part of P.W.1, this judgment also will not
come to the aid of prosecution. The Trial Court committed an
error in relying upon this judgment in coming to the conclusion
that there was no explanation on the part of the accused and the
said judgment it will come to the aid of the prosecution only
when the incriminating evidence is found against the accused.
This Court having considered the evidence of P.W.6 comes to the
conclusion that he is a planted witness and so also evidence of
P.W.7 and P.W.1 not inspires the confidence of the Court. When
such being the case, question of explanation under Section 313
Cr.P.C. also does not arise.
37. No doubt, the Trial Court also relied upon the
judgment of the Apex Court in JAVED ABDUL RAJJAQ SHAIKH
vs. STATE OF MAHARASHTRA reported in (2019) 10 SCC
778, the Apex Court discussed with regard to circumstantial
evidence and medical evidence of homicide by throttling by
appellant clearly ruling out suicide and comes to the conclusion
that there is a medical evidence. In the case on hand, medical
evidence is also not clear whether the death is ante-mortem or
post mortem and there is no positive evidence before the Court
whether it is homicidal or natural death. Hence, question of
giving any explanation under Section 313 Cr.P.C. does not arise
when the prosecution has not made out any case, particularly
incriminating evidence against the accused and it is a clear case
of circumventing accused Nos.1 and 2 to make them as accused
and particularly, the document of Exs.P9 and P10 are very clear
that child was taken to the hospital and both of them have not
noticed the injuries and those witnesses have also been
examined before the Court and none of these witnesses speak
about the fact that they found the injuries. But, in the case on
hand, it is very clear that injuries were caused subsequent to
death of the child and no blood was found in the place of injury
as deposed by P.W.7 and also when the Doctor deposes before
the Court that there was a mark on the head, the same was
visible by any person, however, it was not noticed by the
Doctors, who treated the child at N.R. Hospital as well as Balaji
Nursing Home and the injuries are also found subsequent to
conducting inquest and those injuries were not found in Ex.P4.
38. The Court has to take note of enmity between the
complainant witnesses and the accused and Ex.P2 is the
document of complaint given immediately after the wife and
child was discharged. Hence, it is clear that they were having
enmity. The Apex Court in the judgment reported in DILAWAR
SINGH vs. STATE OF HARYANA reported in (2015) 1 SCC
737 held that enmity of the witnesses with the accused is not a
ground to reject their testimony and if on proper scrutiny, the
testimony of such witnesses is found reliable, the accused can be
convicted. However, the possibility of falsely involving some
persons in the crime or exaggerating the role of some of the
accused by such witnesses should be kept in mind and
ascertained on the facts of each case. Having considered this
principle and also the evidence elicited from the mouth of P.W.1,
it is very clear that the accused has been implicated at the
instance of P.W.1, who was having enmity against his wife and
mother-in-law, who have been arraigned as accused and he
persuaded the police in registering the case and made them to
arrest both of them.
39. This Court also would like to rely upon the judgment
of the Apex Court in SHEILA SEBASTIAN vs. R. JAWAHAR
RAJ reported in 2018 (7) SCC 581 regarding benefit of doubt
and meaning of reasonable doubt and to constitute reasonable
doubt, it must be free from an over-emotional response. Doubts
must be actual and substantial doubts as to the guilt of the
accused persons arising from the evidence, or from the lack of it,
as opposed to mere vague apprehensions. The Apex Court also
further held that while the protection given by the criminal
process to the accused persons is not to be eroded, at the same
time, uninformed legitimization of trivialities would make a
mockery of administration of criminal justice. Exaggeration of
the rule of benefit of doubt can result in miscarriage of justice.
Letting the guilty escape is not doing justice. A Judge presides
over the trial not only to ensure that no innocent is punished but
also to see that guilty does not escape. But having reassessed
the evidence of P.W.1, the Trial Court lost sight of the criminal
jurisprudence while appreciating the evidence.
40. This Court also would like to rely upon the judgment
of the Apex Court in BRAHMA SWAROOP vs. STATE OF U.P.
reported in AIR 2011 SC 280 with regard to inquest report
under Section 174 of Cr.P.C. is not a substantive evidence. In
the case on hand, the prosecution also relies upon inquest
report. But, on perusal of the inquest report, no such injuries
were found on the child when the inquest was conducted and
basic purpose of conducting inquest is to ascertain regarding
apparent cause of death whether accidental, suicidal or
homicidal or by some machinery etc. It is therefore not
necessary to enter all the details of the overt acts in the inquest
report. In the case on hand, no injuries were found when the
inquest was conducted.
41. The Court also has to take note while appreciating
circumstantial evidence whether circumstances point out the role
of the accused in committing the offence which is discussed in
VIDHYALAKSHMI vs. STATE OF KERALA reported in AIR
2019 SC 1397 and also in SHARAD BRIDHICHAND SARDA
vs. STATE OF MAHARASHTRA reported in (1984) 4 SCC 116,
wherein it is categorically held with regard to five steps i.e.,
pancha sheela to be satisfied in a case of circumstantial evidence
that each chain link must be established and if it is not found,
the same cannot be relied upon and the present case is also
based on the circumstantial evidence.
42. The other observation made by the Trial Court is
with regard to circumstantial evidence, particularly Section 106
of the Evidence Act and the burden would be comparative of a
lighter character and there would be a corresponding burden on
the inmates of the house to give cogent explanation as to how
the crime was committed. But, this Court has already taken note
of the fact that child was in exclusive custody of P.W.1 after the
death and carried the dead body of the child in his car along with
police. But, when the police went to the police station, the child
was in his custody in his car itself. This Court in detail discussed
that when the child is in custody of P.W.1 and it is not in the
exclusive possession of accused No.1 and also when there is no
material with regard to nature of injuries are ante-mortem or
post-mortem, the Trial Court erroneously invoked Section 106 of
the Evidence Act that there was no explanation on the part of
the accused and question of explanation invoking Section 106 of
the Evidence Act does not arise in the case on hand.
43. The Apex Court also in a three-Judges Bench
judgment in RAJESH PRASAD vs. STATE OF BIHAR AND
ANOTHER reported in (2022) 3 SCC 471 in paragraph No.30
has considered various earlier judgments on the scope of
interference in a case of acquittal, wherein it is held that there is
double presumption in favour of the accused. Firstly, the
presumption of innocence that is available to him under the
fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved
guilty by a competent Court of law. Secondly, the accused
having secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the Court.
44. This Court also would like to rely upon the judgment
of the Apex Court in KANNAIYA vs. STATE OF MADHYA
PRADESH reported in 2025 SCC ONLINE SC 2270, wherein
the Apex Court in paragraph No.58 referred the decision in
PANKAJ vs. STATE OF RAJASTHAN reported in (2016) 16
SCC 192, wherein it was emphasized that when the genesis and
manner of the incident itself are doubtful, conviction cannot be
sustained. The Apex Court also held that it is a well-settled
principle of law that when the genesis and the manner of the
incident is doubtful, the accused cannot be convicted. When the
evidence produced has neither quality nor credibility, it would be
unsafe to rest conviction upon such evidence. Similarly, in
BHAGWAN SAHAI vs. STATE OF RAJASTHAN, the Apex Court
reiterated that once the prosecution is found to have suppressed
the original and genesis of the occurrence, the only proper
course is to grant the accused the benefit of doubt.
45. This Court also would like to rely upon the judgment
of the Apex Court in SHAIL KUMARI vs. STATE OF
CHHATTISGARH reported in 2025 SCC ONLINE SC 1640,
wherein the Apex Court in paragraph No.6 referring the
judgment in SHARAD BIRDHICHAND SARDA vs. STATE OF
MAHARASHTRA reported in (1984) 4 SCC 116 in paragraph
No.151 observed that it is well settled that the prosecution must
stand or fall on its own legs and it cannot derive any strength
from the weakness of the defence. It is not the law that where
there is any infirmity or lacuna in the prosecution case, the same
could be cured or supplied by a false defence or a plea which is
not accepted by a Court. The Apex Court also in paragraph
No.152 referring number of citations of the Apex Court observed
that there must be a chain of evidence so far complete as not to
lease any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the
accused.
46. This Court also would like to rely upon the judgment
of the Apex Court in BABU SAHEBAGOUDA RUDRAGOUDAR
AND OTHERS vs. STATE OF KARNATAKA reported in (2024)
8 SCC 149, wherein the Apex Court has held that legally,
reversal of acquittal, is permissible only when the impugned
acquittal suffers from patent perversity and based on a
misreading/omission to consider material available on record,
reversal of acquittal, held, also permissible when no two
reasonable views are possible and only the view consistent with
the guilt of the accused is possible from the evidence available
on record.
47. When such being the case, the Trial Court ought to
have considered both oral and documentary evidence available
before the Court meticulously and the very admission given by
P.W.1 takes away the case of prosecution that he had indulged
in bringing home the guilt of the accused, even though they
have not committed any offence and clear admission was given
that till the accused were arrested, he was in constant touch
with Police Sub-Inspector for more than 15 days and in
connivance with the police, falsely implicated the accused Nos.1
and 2. In the case on hand, every day he was visiting the police
station i.e., from the date of death of the child and the said
admission takes away the case of the prosecution and all these
materials were not considered by the Trial Court in a proper
perspective. Hence, the Trial Court committed an error in
appreciating both oral and documentary evidence and not made
out the case against the accused Nos.1 and 2. Hence, we answer
point No.(i) accordingly.
Point No.(ii)
48. In view of the discussion made above, we pass the
following:
ORDER
(i) The criminal appeal is allowed.
(ii) The impugned judgment of conviction and
sentence passed against the accused in
S.C.No.5059/2014 dated 20.07.2021, on the file
of the III Additional District and Sessions Judge,
Bengaluru Rural District sitting at Anekal, for the
offence punishable under Section 302 of IPC is
hereby set aside.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MD/ST
