JUDGMENT : H.P. Sandesh, J. This appeal is filed challenging the judgment of acquittal passed in SC No.131/2010 dated 23.03.2013 on the file of Additional District and Sessions Judge, Chitradurga. 2. The brief facts of the case is that; the complainant married accused No.1 on 09.07.2003 at Devasamudra and led happy marital life for about four years. However, after begetting children, his wife developed illicit relationship with accused No.2. Thus, she was not looking after her husband properly. That on 11.03.2000, at about 8.00 p.m., his wife with an intention to commit the murder of her husband i.e., the complainant mixed mercury in the food and supplied the same to her husband as supper. The complainant felt panic and thus, he secured one Vemanna and thereafter, he went to hospital and took treatment. When the complainant was about to give complaint, the villagers advised him to settle the matter in the panchayath. During panchayath, in the presence of panchayathdars, held on 15.03.2010, his wife confessed to have administered poison. Later, he secured his in-laws and brother-in-laws on 21.03.2010 and panchayath was held, in which she neither responded properly, nor heeded to the advise and returned to her parental home along with her children and hence, he lodged the complaint. 3. The police based on the complaint registered the case in Crime No.63/2010 for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and the same was registered by P.W.11 and thereafter, investigation was conducted and filed the charge sheet. After filing the charge sheet, the matter was committed to Sessions Court and charges were framed. Both accused did not plead guilty and claims for trial. 4. The prosecution in order to prove the case, totally examined 11 witnesses as P.Ws.1 to 11 and got marked Ex.Ps.1 to 10(a) and got marked M.Os.1 and 2. The Court below after closure of the evidence, recorded 313 statement of the accused persons and the accused did not wish to lead any defence evidence, but, they have submitted their independent written statement and the same is totally denial. The Court below, after closure of the evidence, heard the arguments of both public prosecutor as well as the learned counsel for accused and thereafter, acquitted the accused persons for the offences charged against them. 5. Being aggrieved by judgment of acquittal, the complainant has filed present appeal. The Court below, after closure of the evidence, heard the arguments of both public prosecutor as well as the learned counsel for accused and thereafter, acquitted the accused persons for the offences charged against them. 5. Being aggrieved by judgment of acquittal, the complainant has filed present appeal. In the present appeal, the complainant has contended that the Court below has committed serious error in acquitting the accused despite Exs.P.1 to 10(a) and also evidence of P.Ws.1 to 11. The Court below has not given any valid reason to disbelieve the evidence of the prosecution witness. In spite of cogent material placed before the Court, the learned trial Judge has committed an error in acquitting the accused. The Court below is not right in considering that there is no evidence from the prosecution that the mercury was taken out by making P.W.1 vomit the entire food. In fact, P.W.10 in the report has stated that the food contained mercury. The Court below has also erred in not appreciating the case of prosecution. No doubt, complaint is filed belatedly and the same has been explained, but the Court below did not consider the same in right perspective. The Court below has erroneously held that after consuming mercury, which is fatal to the human body as per evidence of P.Ws.6 and 10, the appellant/P.W.1 did not die and the mercury remained in the stomach and the appellant's stomach was not washed. The Court below relying upon the judgment of the Apex Court erroneously acquitted accused Nos.1 and 2. The reasonings given by the trial Judge are erroneous and not based on the sound principles and hence, it requires interference. 6. Learned counsel for the appellant, in his arguments, vehemently contended that the Court below failed to consider the evidence of P.W.1 and the evidence of P.W.10. FSL report is positive that there was mercury in the bottle and also failed to take note of the fact that accused No.1 admitted in the panchayath that she only mixed the poison and in spite of sufficient material available on record, the Court below committed an error in acquitting accused Nos.1 and 2. 7. Per contra, the learned counsel appearing for respondent, in his argument, would contend that the very FSL Report and the evidence of P.W.10 cannot connect the accused with the crime. 7. Per contra, the learned counsel appearing for respondent, in his argument, would contend that the very FSL Report and the evidence of P.W.10 cannot connect the accused with the crime. The Doctor, who has examined P.W.1, when he was taken to hospital, did not subject him for vomiting and collect any substance of the food supplied and if really the same is collected and sent to analysis, there would have been substance in the argument of learned counsel for appellant and the same has not been done. The trial Judge also observed that if really P.W.1 was fed with poisonous food like mercury, it would have given immediate result and nothing has taken place. When such being the case, there are no materials to connect the accused with the crime. The trial Judge after considering both oral and documentary evidence, rightly acquitted the accused. 8. Having heard the arguments of learned counsel for appellant and also learned counsel appearing for respondent, the point that would arise for our consideration is; Whether the Court below has committed an error in acquitting the accused for the charges leveled against the accused persons? 9. Keeping in view the contentions urged by both counsel, this Court has to re-appreciate the material available on record. The prosecution relied upon the evidence of P.Ws.1 to 11. P.W.1 is the complainant. P.W.2 says about P.W.1 coming with food articles in a plate and expressed giddiness and observing the same, he sent him to P.W.3. P.W.3 is another witness, who went along with P.W.1 to the hospital. P.Ws.4 and 5 are the persons who attended the panchayath. P.W.6 is the doctor who gave treatment. P.W.7 turned hostile. P.W.8 is the Mahazar witness for having seized MOs.1 and 2. P.W.9 is Police Constable who was appointed to trace accused No.2. P.W.10 is the Assistant Director, RFSL, Davanagere who has spoken with regard to the Report. P.W.11 is the Police Sub-Inspector who registered the case and investigated the matter and filed the charge sheet. 10. In order to prove the case of the prosecution, let us examine the evidence of P.W.1 who is the complainant. P.W.1, in his evidence, says that accused Nos.1 and 2 have developed illicit relationship, in spite of his advice. He gave the complaint that his wife gave the food on 11.03.2010 at about 8.00 p.m. and the same was found glittering. P.W.1, in his evidence, says that accused Nos.1 and 2 have developed illicit relationship, in spite of his advice. He gave the complaint that his wife gave the food on 11.03.2010 at about 8.00 p.m. and the same was found glittering. He suspected and went to the house of the neighbour and asked him about the glitterness and thereafter, he went to the house of Vemanna on the advice of his neighbour and he told that it contains mercury. After having the food, he found giddiness and in the motorcycle of Vemanna, he went to Government Hospital and took the food particles in a plastic container. The Doctor after observing the food advised that it is very dangerous to health. He was subjected to treatment for one day. Thereafter, he returned to village and panchayathdars told him that they are going to conduct panchayath. Accordingly, panchayath was held and she admitted in the panchayath that she only mixed the poison. But, subsequently, she turned hostile when her relatives were called. Hence, there was delay in filing the complaint. In the cross-examination, he admits that there is a hospital in his village. He further admits that they were cordial prior to this incident and accused No.1 did not mix the poison while giving food earlier. He claims that he only gave a plate and mercury contained in the plastic box when the Police came. It is elicited that his wife and children have filed case against him for maintenance and he did not pay any maintenance to his wife. He claims that he is giving maintenance to his children. P.W.1 further admits that in the complaint he did not mention that Accused No.2 handed over mercury to Accused No.1. He further admits that he did not mention in his complaint that if he dies no one is there to prevent Accused Nos.1 and 2 to continue their illicit relationship. He further admits that in the hospital the doctor did not subject him for stomach wash and also for vomit. He further admits that he took the mercury in the plastic box and the doctor has observed the same and did not take the said container to his custody. He also admits that the doctor did not collect food particles which was in his stomach. He claims that he told the doctor that his wife mixed mercury to him. He further admits that he took the mercury in the plastic box and the doctor has observed the same and did not take the said container to his custody. He also admits that the doctor did not collect food particles which was in his stomach. He claims that he told the doctor that his wife mixed mercury to him. He admits that he has not given complaint about illicit relationship between Accused Nos.1 and 2 and no panchayat is held in respect of illicit relationship with Accused No.2 and Accused No.2 was not called to the panchayat. He further admits that when he found the Accused Nos. 1 and 2 together, he did not advise them and did not conduct any panchayat. After the said incident also, his wife continued with him and during the said period also his wife was giving and providing food and they were cordial. 11. P.W.2 deposed with regard to the complainant bringing the plate to his house along with food and he told to go to P.W.3. He says there was illicit relationship between Accused Nos. 1 and 2. Accused No.1 mixed the poison to the complainant to kill him. He identified M.O.1. In the cross-examination, he admits there is a Government Hospital in his village and the doctor will be there from morning 10 a.m. to 4 p.m. The distance between his village and Challakere is 30 kms whereas the distance between his village and Molakalmuru is 15 kms. In the cross-examination, he denies the suggestion that in order to help the complainant he is deposing falsely and the said suggestion was denied. He admits that he did not send his children to help P.W.1 and simply he told to show the same to P.W.3. However, he says that when the complainant came with food plate, he found the food was glittering. In the further cross-examination, he admits that mercury is poisonous and if mercury is mixed, it would be separated from the food. He further admits that he did not go to the house of P.W.1 and questioned Accused No.1. He further admits that he neither called Accused Nos.1 and 2 nor met in panchayat about the illicit relationship. P.W.1 did not vomit in his presence and also he does not know how P.W.1 went to the house of P.W.3. He further admits that he did not go to the house of P.W.1 and questioned Accused No.1. He further admits that he neither called Accused Nos.1 and 2 nor met in panchayat about the illicit relationship. P.W.1 did not vomit in his presence and also he does not know how P.W.1 went to the house of P.W.3. He came alone to his house and nobody accompanied from his house along with P.W.1. In order to go to the house of P.W.3, it takes 5 minutes from his house. He also admits that it did not occur to his mind to send him to hospital. P.W.3 gave the evidence in the line of evidence of P.W.2. He also says that P.W.1 expressed that he is afraid of having the food. He instructed to take the said food in the box and to go to hospital. Accordingly, he carried the same in the box to the hospital and explained the same to the doctor and sought for treatment. He also advised P.W.1, Accused No.1 and also the mother of the complainant when they quarreled. In the cross-examination, when P.W.3 did not support the case of the prosecution, a suggestion was made that Accused No.2 gave the mercury to Accused No.1. Since both of them have conspired and when P.W.1 took the food, he became unwell and the said suggestion was denied. He claims that P.W.1 told that his wife gave the food mixing the mercury. 12. P.W.4 is the person who claims that he attended the panchayat. P.W.1 told that his wife mixed the poison and Accused No.1 and her brothers also attended the panchayat. He claims that he asked why he mixed the poison and she denied the same and did not give the proper answer, hence he returned. He also did not support the case of the prosecution. He was also subjected to cross-examination by the Public Prosecutor. In the cross-examination, it is elicited that panchayat was held near the house of P.W.1. In the cross-examination, it is elicited that they were cordial. He does not know any incident and it is not known what happened subsequently. 13. P.W.5 is the other witness, who claims that the panchayat was held in the house of P.W.2. Accused No.2 told Accused No.1 to mix the poison and provide food to him. In the cross-examination, it is elicited that they were cordial. He does not know any incident and it is not known what happened subsequently. 13. P.W.5 is the other witness, who claims that the panchayat was held in the house of P.W.2. Accused No.2 told Accused No.1 to mix the poison and provide food to him. In the panchayat, it was asked whether the allegation is true and Accused No.1 admitted that the same is true. She claims that she mixed the same with an intention to kill P.W.1. When the question was put to her how she got mercury, she told Accused No.2 gave the same and at that time advised Accused No.1. In the cross-examination, it is elicited that there were 4 persons in the panchayat. It is further elicited that after the panchayat, Accused No.1 did not go to the house of P.W.1. He claims that the second panchayat was held on 21.03.2010 and advised both P.W.1 and Accused No.1 to be cordial. 14. P.W.6 is the doctor who gave the treatment and says that when she examined P.W.1, he was stable and she has given the treatment. Mercury is poisonous, in order to recede it, she has given the medicine. P.W.3 was holding a small bottle containing mercury and showed the bottle to the doctor. P.W.6 gave information to Challakere Police Station. She further says that taking the mercury can be fatal to that person. She identifies M.O.2 which was in the hands of P.W.3. P.W.1 was an inpatient in the hospital till 9.30 a.m. on the next date. She admits in the cross examination that mercury is highly poisonous substance. If the mercury is consumed, it will be absorbed in the stomach within half an hour. First it goes to the blood and then to the skin. Once it goes to the blood, it spreads in the entire body especially the soft tissues. Then it starts damaging of cells in the body. P.W.6 further says that after 6 hours of consumption, the said person starts blood vomiting and blood motion. There will be burning pain in his mouth and stomach. If he starts vomiting blood and purging blood, he may die. She admits that she has neither washed his stomach and nor sent the contents of stomach wash for the FSL. P.W.6 further says that after 6 hours of consumption, the said person starts blood vomiting and blood motion. There will be burning pain in his mouth and stomach. If he starts vomiting blood and purging blood, he may die. She admits that she has neither washed his stomach and nor sent the contents of stomach wash for the FSL. Again she says that after 6 hours it spreads to the vital organs of the body namely heart, kidney liver etc. P.W.1 told that he had taken mercury earlier to her examination. Though P.W.1 was inpatient in her hospital till 9.30 a.m. on the next day, such symptoms did not occur to him. She has further deposed that 1 to 4 gms of mercury is fatal. There are 11 types of mercury. Except mercury chloride the other types of mercury are fatal and highly poisonous. I do not know which type of mercury is there in M.O.2. Previously mercury chloride was used in the hospitals for leprosy treatment and for uterus cancer. The other types of mercury if it is touched to the mouth or to the other soft tissues, skin ulcer and rashes will be formed. She did not notice any ulcer of rashes on the body of P.W.1. She did not notice any cooked rice in M.O.2. She did not send M.O.2 for FSL. 15. P.W.7 did not support the case of the prosecution. He was cross-examined with regard to the illicit relationship between Accused Nos.1 and 2 and he denied the same. P.W.8 is the mahazar witness. He is the witness for seizure of M.O.Nos.1 and 2. He was also treated as hostile and cross examined. The other witness P.W.9 is Police Constable who was appointed to trace accused No.2. He says that he did not find accused No.2. P.W.10 is the Assistant Director of RFSL. He says that he received the plastic bottle said to have contained mercury. He gave the opinion that mercury was detected in M.O.2. In the cross examination, he admits that on M.O.2 sample it was written as mercury. Further he admits that it may cause vomiting and head ache and it acts on central nervous system, lungs, liver kidney etc. Wherever the mercury enters the body, it starts irritating and causes rashness. On the entry of mercury, blood cells and tissues may die. He did not notice any food particles in M.O.2. Further he admits that it may cause vomiting and head ache and it acts on central nervous system, lungs, liver kidney etc. Wherever the mercury enters the body, it starts irritating and causes rashness. On the entry of mercury, blood cells and tissues may die. He did not notice any food particles in M.O.2. P.W.11-PSI who conducted the investigation narrated about the registering of the case and conducting of the mahazar recording the statement of witnesses. 16. Now, let us consider both oral and documentary evidence placed by the prosecution. The evidence of P.W.1 is specific that his wife mixed mercury in the food which was provided to him in order to eliminate him as she was having illicit relationship with accused No.2. He ate portion of the food provided to him and as a result, he felt giddiness. Hence, he went with food to P.W.2. P.W.2 expressed his inability to find out the same and therefore, he recommended to go to P.W.3. P.W.3 found the mercury in the food and hence, both of them went to Hospital. In the cross-examination of P.W.1, it is elicited that they were cordial. Earlier to the said incident also, he admits that there was a case for maintenance by his wife and children and he was paying maintenance to children. It is important to note that in the cross-examination, he categorically admits that he did not mention in the complaint that accused No.2 gave mercury to accused No.1 and further, he admits that he did not mention anything in the complaint that if he dies, nobody will be there to prevent accused Nos.1 and 2 to continue their illicit relationship. It is further important to note that in the complaint - Ex.P.1, the complainant did not mention the name of accused No.2 and that accused No.2 is having relationship with his wife, except an omnibus statement, that she is having illicit relationship with some one else. 17. It is pertinent to note that he was not subjected to stomach wash and also not subjected to vomiting and no food particle was seized at the instance of P.W.1. It is further important to note that in the cross-examination, he categorically admits that when he went to hospital, he only took the mercury box and showed the same to the doctor. The food particles of his stomach was not collected by the Doctor. It is further important to note that in the cross-examination, he categorically admits that when he went to hospital, he only took the mercury box and showed the same to the doctor. The food particles of his stomach was not collected by the Doctor. It is further important to note that the food particles were not seized and sent to Laboratory. M.O.2 was seized in the house of P.W.1. Mahazar discloses that P.W.1 only brought the same from his bedroom and produced the same before police and the same was sent to Laboratory and the result is positive that it contains the mercury. The prosecution did not recover the same from the custody of accused No.1 and P.W.1 also did not say anything as to how he got the box containing mercury. The Investigating Officer did not investigate from which place the same was purchased, who has purchased the same and the same is not seized at the instance of the accused. It is further important to note that P.W.1 claims that he ate the partial food containing mercury. The evidence of the Doctor who has been examined as P.W.6 is clear that mercury is highly poisonous substance. It is liquid metal. If the mercury is consumed, it will be absorbed in the stomach within half an hour. The said mercury firstly goes to the blood and then to the skin. Once it goes to the blood, it spreads to the entire body especially to the soft tissues. Then it starts damaging the cells in the body. It is pertinent to note that P.W.6 says that after 6 hours of consumption, the said person starts blood vomiting and blood motion. There will be burning pain in his mouth and stomach. The Doctor did not wash the stomach, collect the contents of stomach and sent the same for FSL. If he starts vomiting the blood, he may die. It is further important to note that P.W.1 told that he had taken mercury one hour earlier to his examination and during investigation of P.W.1 in the hospital till 9.30 a.m. on the next day, no such symptom had happened to him. The Doctor also confirms that he did not notice any consequence in the health of the P.W.1 and he was discharged on the next day. 18. The Doctor also confirms that he did not notice any consequence in the health of the P.W.1 and he was discharged on the next day. 18. Having taken note of the evidence of P.W.6 that she did not notice any rashness on the body of P.W.1, she did not notice any cooked rice, it is clear that though P.Ws.1 and 3 says that they went with partial food in a bottle, which was taken to the hospital, the same was not shown to the Doctor and they only showed M.O.2 which contained mercury. Hence, it is clear that P.W.1 did not have any food. If he had taken the food containing the mercury, the result which has been mentioned by P.W.6 would have been noticed on examination of P.W.1. 19. The contention of the learned counsel for appellant that the report of C.W.10 is clear that it contains mercury does not mean that mercury was mixed with food by accused No.1 at the instance of accused No.2. In order to show that food was mixed with mercury, there is no any evidence before the Court. M.O.2 which was sent only contains the mercury and not food particles. The same was produced by P.W.1 bringing the same from his bed room. When such being the case, the very contention of learned counsel for appellant that in spite of positive report of P.W.10, the learned trial Judge has committed an error in acquitting the accused cannot be accepted. There is no positive evidence before the Court that accused No.1 mixed mercury in the food which was provided to P.W.1 and also there is no material before the Court that accused No.2 only supplied mercury to accused No.1. In order to connect accused No.2, nothing is collected by Investigating Officer except stating that there was illicit relationship with accused Nos.1 and 2. Though P.W.2 claims that there was illicit relationship with accused Nos.1 and 2, no material is placed before the Court. In order to substantiate the same, no panchayath was held. P.W.1 also categorically admits that the panchayath was held. But, accused No.2 was not called to the panchayath. Further, the evidence of P.W.1 and other witnesses that accused No.1 admitted in the panchayath that she gave poisonous food to accused No.1 and in order to substantiate the same, there is no material before the Court. P.W.1 also categorically admits that the panchayath was held. But, accused No.2 was not called to the panchayath. Further, the evidence of P.W.1 and other witnesses that accused No.1 admitted in the panchayath that she gave poisonous food to accused No.1 and in order to substantiate the same, there is no material before the Court. It appears that P.W.2 gave the evidence at the instance of P.W.1 and so also P.W.3. P.W.3 did not support the case of the prosecution to its fullest extent and half heartedly, he gave the evidence before the Court. 20. P.W.2 also categorically admits in the cross-examination that when he came to know that accused No.1 mixed mercury in the food, he did not question accused No.1. Further, he admits that if mercury is mixed with food, it separates from the food. Further, he categorically admits that no panchayath was held in respect of illicit relationship and also no complaint was given against accused No.2 and accused No.2 was also not called in connection with illicit relationship. It is pertinent to note that P.W.2 says that in his presence, P.W.1 did not vomit and he cannot tell, how he went to the house of P.W.3 as he had come alone to his house and none of his family members, accompanied P.W.1. Having considered the evidence of P.W.6, nothing suggest to connect the accused persons. It is important to note that P.W.6 gave the treatment based on the statement of P.W.1. 21. Having considered the oral and documentary evidence and considering the evidence particularly P.Ws.1 to 3 and also evidence of P.W.6 and the evidence of Investigating Officer, P.Ws.10 and 11, it is evident that the Investigating Officers did not investigate into the matter as to how P.W.1 got the mercury bottle and produced the same by bringing from his bedroom. It is the case of the prosecution that mercury was recovered at the instance of P.W.1 but, there is no material as to where it was purchased, who has purchased and how the same comes to the possession of P.W.1. It appears that P.W.1 himself pretended that accused No.1 mixed mercury with the food. The records also reveal that there was a pending proceedings between P.W.1 and accused No.1 and he was also paying maintenance in favour of children which fact is admitted by P.W.1 himself. 22. It appears that P.W.1 himself pretended that accused No.1 mixed mercury with the food. The records also reveal that there was a pending proceedings between P.W.1 and accused No.1 and he was also paying maintenance in favour of children which fact is admitted by P.W.1 himself. 22. Having considered the evidence available on record, suspicion arises against P.W.1 only. If really accused No.1 intended to take away the life of P.W.1 and P.W.1 consumed the same, the result would have been different as deposed by P.W.6. Hence, in the absence of any evidence to connect the accused Nos.1 and 2 that they were having illicit relationship, except the say of P.Ws.1 and 2, there is nothing on record and no panchayath was held regarding illicit relationship and no incriminating material is recovered at the instance of accused Nos.1 and 2. Hence, we are of the opinion that there is no material on record to show accused Nos.1 and 2 had an intention to take away the life of P.W.1 and attempt to murder is made by mixing mercury in the food provided to P.W.1. 23. The Court below having considered both oral and documentary evidence, did not find any incriminating evidence against accused Nos.1 and 2 and has rightly come to the conclusion that the prosecution failed to prove the case against accused Nos.1 and 2. We do not find any error committed by the Court below in coming to the conclusion that the prosecution has failed to fit in accused Nos.1 and 2 against the crime. In view of discussions made above, appeal is dismissed.