Beere Gowda vs State Of Karnataka

O R D E R

This appeal at the instance of the accused arises

out of the following facts:

Pallavi, aged two and half years, was the daughter

of the appellant Beere Gowda and his first wife Jayanthi

Gowda. The marriage between the appellant and Jayanthi had

taken place about five or six years earlier. It appears

that at the time of the marriage Jayanthi was pregnant but after some time the two fell out and the appellant left

her in her parents' home promising to take her back after

performing the marriage of his sister. A few days later

however he performed a marriage with Indramma co-accused,

since acquitted. After the marriage of the appellant and

Indramma the relations between the appellant and Jayanthi

became unpleasant and Jayanthi was often assaulted and was

made to do all the household chores and was also compelled

to undergo a Family Planning Operation at

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Kalsapura P.H.C., as the appellant apparently did not want

to have any child from her. It is the case of the

prosecution that as Pallavi was an unwanted child, the two accused, thought it fit to get rid of her so that she

could not claim any share in her father's property. The

appellant accordingly obtained nitric & sulphuric acid from

PW.16 Ranganatha-Chari, a goldsmith, and it is further the

prosecution case that this was administered to Pallavi on

22nd September 1996 which ultimately led to her death. An

FIR was accordingly lodged by Jayanthi PW.1 in which the

above facts were given in detail. The appellant who had in

the meanwhile, absconded was arrested on 26th September 1996

and on his statement under Section 27 of the Evidence Act a

bottle containing a mixture of the two acids was found from

the kitchen of his home. On the completion of the

investigation the appellant and Indramma were charged for

offences punishable under Sections 498A and 302 read with

Section 34 of the IPC and as they denied all allegations

they were brought to trial.

The Sessions Judge vide his judgment dated 28th April

1999 held that the greater possibility on the evidence was

that Pallavi had taken the acid by accident and that there

was no evidence to suggest that it had been administered to

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her forcibly. The Court further held that there was no

evidence to show that the two accused had in any way

misbehaved with Jayanthi prior to the murder. The Trial

Court also observed that the discrepancies inter se the

statements of the witnesses went to the root of the matter

and as such there was a doubt as to the truthfulness of the

prosecution story.

An appeal was thereafter taken to the High Court.

The High Court has, by the impugned judgment, set aside the acquittal of appellant No.1 while maintaining that of the

second accused and convicted and sentenced him under

Section 302 of the IPC, with a sentence of imprisonment for

life and fine of Rs.2000/- and in default six months R.I.

It is in this situation the present appeal is before

us.

Mr. Ajit Kumar Panda, the learned amicus curiae for

the appellant, has raised three arguments before us in the

course of the hearing of this appeal. He has first pointed

out that it was by now well settled that if two views were

possible on the evidence and the Trial Court had chosen to

take one view in favour of an accused it was not open to

the High Court to take a different view, unless the

judgment of the Trial Court could be said to be perverse

although the High Court was entitled to reappraise the

evidence in its entirety. It has also been submitted that -4-

the finding of the High Court that the acid had been

forcibly administered to Pallavi was based on mere

conjectures and did not emanate from the evidence. It has

finally been urged that Indramma, the co-accused, having

been given the benefit of doubt, the appellant ought to

have been given the same benefit as well.

The learned State counsel has however pointed out

that the Trial Court had completely ignored the fact that

it was on the statement of the appellant under Section 27

of the Evidence Act that a bottle containing a mixture of

nitric acid and sulphuric acid had been recovered from his

house and the fact that it was not possible for the child

to have consumed the acid accidentally was the only possible view on the evidence, was erroneous.

We have heard the arguments advanced by the learned

counsel for the parties very carefully. It is undoubtedly

true that if two views are possible and the Trial Court has

recorded an acquittal interference by the High Court

should be restricted. However, in case the High Court finds

that the view taken by the Trial Court was not based on the

evidence, it would defeat the ends of justice if the order

was not set aside. We are of the opinion that the present

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case falls under the category where the High Court was

fully justified in interfering in the matter. The view taken by the Trial Court to our mind was not justified to

say the least. There is one strong circumstance which has

not been noticed by the either of the courts below but has

been pointed out by the learned State Counsel, that nitric

and sulphuric acid would not be of any domestic use and

would not be available as a household article. It has come

in evidence that the acid had been obtained from PW.17 and

after the two acids had been mixed the concoction had been

put into the mouth of child. The High Court's observation

that acid had been forcibly put into the mouth is based on

the medical evidence as injuries had been found all over

the body including the mouth, arms and the chest which

clearly showed that the child had tried to save herself and

had fought back when the acid was being administered. It

has rightly been pointed out by the High Court that if the

acid had been taken accidentally by the child there would have been no burn injuries on other parts of the body as

they would have been confined only to the mouth and the

lips.

We also find no merit in Mr. Panda's arguments with

regard to the parity claimed vis-a-vis Indramma. This

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matter has been dealt with by the High Court and it has

been observed that though there appeared to be some

suspicion, but no concrete evidence of abetment of the

murder by her as she had come to the house after the incident. We therefore find no merit in this appeal.

Dismissed.

.................J. (HARJIT SINGH BEDI)

.................J. (C.K. PRASAD) New Delhi, July 28, 2010.