HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.113 OF 2008 Dt.28.12.2010 Between: The State of A.P., rep. by the Public Prosecutor ..Appellant And Kuruva Giddamma ..Respondent/ Accused HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.113 OF 2008 JUDGMENT: (Per Sri Justice P.Swaroop Reddy) This appeal is preferred by the State against the judgment of acquittal in S.C.No.428 of 2004 on the file of the I Additional District and Sessions Judge, Kurnool, dated 14.7.2006. The sole accused is a lady prosecuted for the offence under Section 302 and 307 IPC. The case of the prosecution is that the accused is the wife of Kuruva Venkatesh, who was suspected to be having illegal intimacy with P.W.6 mother of P.W.16, who was suspected to be born out of that relationship, as suspected by the accused. As such, the accused bore grudge against P.W.16 and she wanted to eliminate him. She hatched a plan to kill P.W.16 by poison and in pursuance of the same on 6.11.2003 she gave a sweet (karjakaya) mixed with poison and gave it to P.W.2 to be given to P.W.16. P.W.16 had a bite of it and threw it away as it was bitter and both the deceased who have allegedly collected it from the place it was lying ate it, and they fell unconscious and died on account of poisoning. The accused pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 19 were examined and Exs.P-1 to P-20 were marked apart from M.O.1. Considering the oral and documentary evidence, the learned Additional Sessions Judge found the accused not guilty and accordingly acquitted her. Aggrieved by the same, the prosecution filed this appeal. The point for consideration is whether there is any ground to interfere with the judgment under appeal. Ex.P-1 is the report given by P.W.1 grandfather of both the deceased. As per Ex.P-1 both the deceased were his relatives. On 6.11.2003 at about 12.30 p.m. the children came from the school and he and his daughter-in-law Munemma P.W.8 were in the house. They had meals in the school and came later. Both of them slept on the pial of the house. At about 12.40 p.m., both of them became unconscious. On suspicion, he sent both of them to a doctor at Belagal Village on a moped through his son and the doctor pronounced them dead. On enquiry, he came to know that the accused gave a sweet to P.W.2 asking it to be given to P.W.16, who gave it to P.W.16 and P.W.16 ate part of it and found it to be bitter and another boy B.Ramanaiah (P.W.3) also tasted part of it and found it bitter and they threw it away. He suspected that having eaten that sweet which fell on the road while returning home the two deceased might have died. P.W.16, who ate part of the sweet, developed complications. Thus, according to Ex.P-1 it was only a suspicion. No body has seen the deceased eating the Karjakaya. P.W.1 suspected that the sweet given by the accused allegedly thrown away by P.W.16 being bitter in taste might have been eaten by the deceased. The evidence of P.W.1 is that both the deceased returned home after taking midday meals. Narasihulu brought the meals home and he left the plate inside the house and went out. Both the children have laid on the pial in front of the house. There was froth coming from their respective mouths and they were coughing. They suspected that the children were poisoned by the food served in the school. He raised hue and cry and the neighbours gathered there and the children were taken to the hospital at Belagal Village where they were pronounced dead. The police arrived and made enquiry in the school and brought Ramanjaneyulu (P.W.2) to him, who stated that the accused has given karjakaya asking it to be given to P.W.16. P.W.1 was insisted that the food served at the school contained poison. The police argued and threatened him stating that the accused poisoned the children. But, he was insisting that children were poisoned in the school. Thus, there is nothing in the evidence of P.W.1 as he was insisting that the food in the school contained poison. The evidence of P.W.2 is that on the date of incident while he was at the school, the accused gave karjakaya and half rupee to him asking him to give the sweet to P.W.16 and he gave it to P.W.16 and P.W.16 was taken to hospital and both the deceased died on the date. His evidence shows about the accused giving karjakaya to him for handing over the same to P.W.16. P.Ws.2, 3, 7 and 16 are children of elementary school. The evidence of P.Ws.2, 3, 7 and 16 discloses that the sweet was given by the accused and after the sweet was eaten by P.W.16, he developed complications and that the deceased who consumed part of the sweet also developed complications and later died because of it. The evidence of P.W.3 is that P.W.2 has given a sweet to P.W.16 who put it in his pocket and went into the class. The classes closed for serving midday meal. During school recess, P.W.16 ate part of the sweet and he also ate part of it and it was bitter in taste and they threw it away. The evidence of P.W.4 is that he knows the accused that gave karjakaya to P.W.2 asking him to be given to P.W.16 and that P.W.16 has thrown it away and the deceased while returning home after taking midday meals at school picked up the sweet and ate it and died. P.Ws.4 and 5 spoke about their suspecting the deceased children eating the sweet thrown away by P.W.16. The evidence of P.W.16, who is a seven years boy, is that accused poisoned him through P.W.7 who gave karjakaya while he was near firewood stack at his house. He has thrown away as it was bitter. Four days later while he was at school one Kaddigadu came to him and gave another karjakaya, which he kept in his pocket, and while he was eating Thirumalagadu came to him and asked him to give it and he gave part of it to him. Then Ramana, brother of Thirumalagadu i.e., P.W.3 came and took the sweet from his hand and thrown it away as it was bitter. Thereafter, he became sick. He suspected that the deceased died due to eating of the sweet, which was thrown near the school. This evidence cannot be relied on at all as nothing is positive about the accused poisoning him and the deceased eating away the sweet thrown by him. P.W.17, the investigating officer stated that he seized the poisoned karjakaya sweet piece when they were handed over to him by P.W.6. He referred the same to the chemical analysis through the court. It is not clear as to from where the investigating officer could find karjakaya piece. According to him, P.W.6 handed over the piece and the evidence of P.W.6 is that she found some karjakaya piece and preserved the same, which looks highly artificial. Thus, though there is some evidence to show that perhaps the accused handed over the sweet to P.W.2 etc., to be handed over to P.W.16, there is no material to show that it contained poison. Further more there is absolutely no material to show that the deceased have eaten the sweet allegedly thrown away by P.W.16 and only on account of consuming the same they died. In fact, P.W.1 was insisting that the deceased died on account of eating midday meal served at the school. Whether it is correct or not, there is no conclusive material to show that the deceased died on account of eating the sweet mixed with poison and the said sweet was the one that was allegedly given to P.W.16 who threw it away as it was bitter. Further more, when P.W.16 and another boy P.W.3 threw away the sweet as they felt the taste was bitter, it is difficult to believe that the deceased could eat the same in spite of being bitter. There is no material to show that the deceased died on account of sweet given by the accused to P.W.16, which was allegedly thrown away, and therefore the accused cannot be held responsible for causing death of the deceased. Similarly, for an attempt on the life of P.W.16 also, the evidence cannot be said to be conclusive as the sweet that was allegedly eaten by him was not directly handed over to him by the accused, nor there is positive material to show that on account of eating the material given by the accused alone P.W.16 developed complications of vomiting etc. As already referred to above, the case of P.W.1 is that the poison was on account of food served at the school and whether it is right or not, there is no positive material to show that the accused was responsible for the offence. Considering the circumstances, we do not see any material to interfere with the judgment of the court below. The criminal appeal fails and is accordingly dismissed. _________________ V.ESWARAIAH, J. _____________________ P.SWAROOP REDDY, J. 28.12.2010 kpr