Karnataka High Court
State Of Karnataka, vs Shri. Raju Ramachandra Khot on 13 July, 2021
Equivalent citations: AIRONLINE 2021 KAR 1349
Author: R.Devdas
Bench: R.Devdas
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100145/2017
Between:
State of Karnataka,
Rep. by the Police Inspector,
Chikkodi Police Station,
Dist. Belagavi, Through the Addl.
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka,
Dharwad Bench.
...Appellant
(By Sri.V.M.Banakar, Addl. S.P.P.)
And:
1. Shri. Raju Ramachandra Khot,
Age: 35 years, Occ: Agriculture and Driver,
R/o: Yadravi, Tal: Raibag, Dist: Belagavi.
2. Shri. Ramachandra Shiddappa Khot,
Age: 65 Years, Occ: Agriculture,
R/o: Yadravi, Puthani Thota,
Tal: Raibag, Dist: Belagavi.
3. Shri. Kallappa Ramachandra Khot,
Age: 44 years, Occ: Agriculture,
R/o: Yadravi, Puthani Thota,
Tal: Raibag, Dist: Belagavi.
CRL.A.NO.100145/2017
2
4. Shri. Mallappa Ramachandra Khot,
Age: 38 years, Occ: Agriculture,
R/o: Yadravi, Puthani Thota,
Tal: Raibag, Dist: Belagavi.
5. Shri. Siddappa @ Siddeshwara
S/o Ramachandra Khot,
Age: 44 Years, Occ: Agriculture,
R/o: Yadravi, Puthani Thota,
Tal: Raibag, Dist: Belagavi.
6. Shri. Suresh Ramachandra Khot,
Age: 25 years, Occ: Agriculture,
R/o: Yadravi, Puthani Thota,
Tal: Raibag, Dist: Belagavi.
...Respondents
(By Sri.M.B.Gundawade, Adv. for R2 to R6,
R1 - abated)
This criminal appeal is filed under Sections 378 (1) and
(3) of Cr.P.C., praying to grant leave to appeal and to set aside
the judgment and order of acquittal dated 27.07.2015 passed
by the VI Addl. District and Sessions Judge, Belagavi in Sessions
Case No.173 of 2012 and to convict the respondent / accused
for the offences punishable under Sections 143, 147, 498-A,
304-B read with Section 149 of IPC and under Sections 3 and 4
of the Dowry Prohibition Act.
This criminal appeal having been heard and reserved for
judgment on 02.07.2021, coming on for pronouncement of
judgment this day, J.M.Khazi J., delivered the following:
CRL.A.NO.100145/2017
3
JUDGMENT
This appeal is filed under Sections 378(1) and (3) of the Code of Criminal Procedure ("Cr.P.C." for short) by the State challenging the judgment and order of acquittal dated 27.07.2015 in S.C. No.173/2012 on the file of the VI Additional District and Sessions Judge, Belagavi. By the impugned judgment and order, the learned Sessions Judge has acquitted the accused Nos.1 to 6 of all the charges punishable under Sections 143, 147, 498A, 304B read with Section 149 of the Indian Penal Code, 1860 ("IPC" for short) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 ("DP Act" for short).
2. For the sake of convenience, the parties are referred to their rank before the Trial Court.
3. During the pendency of the appeal, the appellant No.1, who is accused No.1 before the Trial Court has died and as such, appeal is abated so far accused No.1 is concerned.
CRL.A.NO.100145/20174
4. Accused No.1 is the husband, accused No.2 is the father-in-law and accused Nos.3 to 6 are brothers-in- law of deceased Geetha (Rajashree). The marriage of the accused No.1 with Geetha (Rajashree) was performed on 27.02.2005 and she gave birth to three daughters and all the delivery were through cesarean sections. On the advice of the Doctors, deceased Geetha (Rajashree) underwent tubectomy operation, as it was opined that she may not be able to survive further deliveries. These facts are not in dispute. The allegations against the accused are that after the birth of third daughter, accused persons started harassing the deceased saying that she is not able to give them a male child and accused No.1 is not able to continue his lineage. It is further case of the prosecution that, at the time of the marriage, accused persons demanded and received dowry in the form of gold ornaments weighing 20 grams, consisting of a gold chain and finger ring for accused No.1 and after the birth of the third daughter, accused persons started harassing and ill-treating the deceased to get further dowry in the form of 4 tolas of gold, a motorbike and 50% of the property of her father's CRL.A.NO.100145/2017 5 family and all the accused persons were harassing and ill- treating the deceased saying that she should die alongwith her children and unable to bear the harassment, on 06.12.2011 at 02:15 p.m., deceased alongwith her three daughters jumped into the open well situated within the land of the accused persons situated near their farm house and the neighbours were able to rescue the eldest daughter, but Geetha (Rajashree) alongwith her two daughters died due to drowning and thereby accused persons have committed the above said offences.
5. Accused have pleaded not guilty and they have set up a defence that the deceased was happily married and was leading a happy life in the house of the accused persons. According to them, on the date of the incident, the second daughter Sapnali accidentally slipped into the open well and the deceased Geetha (Rajashree), who was carrying the youngest child Sanketha in a hurry attempted to rescue Sapnali and she also accidentally slipped and all the three drowned. The accused persons have denied that deceased jumped into the well alongwith three daughters including the eldest daughter Sneha and that she was CRL.A.NO.100145/2017 6 rescued by the neighbours. The accused persons have alleged that after the tragic incident, complainant tried to extract money from the accused persons and has chosen to file a false complaint.
6. In support of the prosecution case in all 30 witnesses are examined as PWs.1 to 30, Exs.P-1 to 37 and MOs.1 to 9 are marked.
7. The accused have denied the incriminating material put to them in their statement under Section 313 Cr.P.C. They have not led any oral or documentary evidence on their behalf.
8. After hearing arguments of both sides, the learned Sessions Judge has acquitted the accused persons holding that the allegations against them are not proved beyond reasonable doubt.
9. During the course of arguments, the learned Additional S.P.P. submitted that the judgment and order of acquittal passed by the Trial Court is contrary to law, facts of the case and evidence on record and as such, it is not CRL.A.NO.100145/2017 7 sustainable in law. He further submits that the prosecution witnesses namely PWs.2, 10 to 13, 21 have consistently deposed regarding the demand of dowry at the time of marriage and also additional dowry in the form of gold, motorcycle and also to get half share in the property of the parents of the deceased and this aspect of the evidence has not been properly appreciated by the Trial Court.
10. He further submitted that the Trial Court has not taken into consideration the seriousness of the case wherein three persons i.e., the wife and two daughters of accused No.1 have lost their life because of the ill- treatment meted out by the accused persons and they are the main cause for the death of these persons. Non- consideration of the same would result in miscarriage of justice.
11. The learned Addl. State Public Prosecutor further submits that, the Trial Court ought to have taken into consideration the presumption under Section 113-B of the Evidence Act, as the death of the deceased Geetha (Rajashree) has taken place within seven years of the CRL.A.NO.100145/2017 8 marriage. Failure to consider the provisions of Section 113-B of the Evidence Act and 304B of IPC would result in miscarriage of justice.
12. He further submits that, the Trial Court has erred in acquitting the accused persons relying upon the minor inconsistencies and contradictions found in the evidence of the prosecution witnesses. This is perverse and against the settled principles of law. The Trial Court has erred in relying upon the stray admission of PW.13 with regard to accidental fall of deceased Geetha (Rajashree) in the open well by slipping. The reasoning assigned by the Trial Court is not supported by any legal evidence and prays to allow the appeal.
13. We have heard the arguments of learned Additional State Public Prosecutor for the appellant - State and learned counsel for the respondents - accused.
14. The death of Geetha (Rajashree) and her two daughters Sapnali aged 3 years and Sanketha aged 9 months by drowning is not in dispute. While the prosecution case is that, unable to bear the harassment by CRL.A.NO.100145/2017 9 the accused persons, Geetha (Rajashree) choose to jump into the open well along with her three daughters and the eldest daughter Sneha was rescued, but the remaining three persons drowned. The accused persons have taken up the defence that, the second daughter Sapnali accidentally slipped into the open well and in order to rescue the child, Geetha (Rajashree), who was holding the nine month old Sanketha, also slipped into the open well and all the three drowned. The accused persons have taken up a specific defence that, the deceased never pushed Sneha into the well and she was not rescued by anyone. Admittedly there are no eyewitnesses to the incident and therefore, from the surrounding circumstances, the plausible explanation for the death of Geetha (Rajashree) and her two daughters is to be ascertained to examine whether the prosecution has proved the charges leveled against the accused persons beyond reasonable doubt.
15. PW.2 Appasab Ramachandra Kethriba is the father, PW.10 Sheela is the mother (step mother) and PW.13 Siddappa Ramchandra Kethriba is the paternal CRL.A.NO.100145/2017 10 uncle of the deceased Geetha (Rajashree). During the course of his examination-in-chief, PW.2 has not deposed that, at the time of marriage there was demand of dowry by accused persons and by way of dowry, 20 grams of gold was given to accused No.1. However, PW.10 Sheela has deposed that, at the time of marriage there was demand for dowry by way of gold ornaments by accused No.1 and therefore, 20 grams of gold was given to accused No.1. PW.11 has also deposed that 20 grams of gold was given to accused No.1 as demanded by the accused persons by way of dowry.
16. However, during the cross-examination of some of the prosecution witnesses including these witnesses, it is elicited by the defence that, at the time of marriage, by way of custom, the parents of the girl i.e., deceased Geetha (Rajashree), gave 20 grams of gold to accused No.1 and in return, the accused persons have given 25 grams of gold ornaments to the bride i.e., the deceased and the marriage expenses were equally divided between them and the marriage was performed in the farm house of accused persons. They have also admitted CRL.A.NO.100145/2017 11 that, in this regard the Yadi i.e., the memorandum was written between the parties as per Ex.P5. During the cross-examination, all these three witnesses have consistently admitted that, after the marriage, for a period of six years till her death, deceased led a very happy married life in the house of accused persons. It is elicited through the cross-examination of these witnesses that, the complainant i.e., PW.2 is owning only 4 acres of land, whereas the accused persons are owning 30 to 35 acres of land, they are growing sugar cane, they are owning two tractors, three motorbikes and also they have reared several cattle. These witnesses have also admitted that, at any particular point of time, around 20 coolies work in the lands of accused persons and it was the deceased Geetha (Rajashree) who was managing the entire affairs of the household and taking care of her family members as well as supervising the workers in the field. PW.2 and PW.10 have specifically admitted that, in order to go to the sugar factory, accused No.1 was passing through their village and in a year, around 4 to 5 times he used to visit their house, have food, tea etc. They have also admitted CRL.A.NO.100145/2017 12 that, in fact PW.2 used to send his sugar cane yield through accused No.1 to the factory in his tractor. PW.2 has also admitted that, on number of occasions, they have visited several places with accused persons in their tractors.
17. The admissions given by PWs.2 and 10 create a doubt as to the veracity of the prosecution case. These witnesses have deposed as if for a period of six years there was no problem and accused persons were treating the deceased in a very good manner and suddenly after the expiry of six years they started harassing and troubling the deceased demanding dowry and also on account of she being not able to give birth to a male child. The evidence of PWs.2 and 10 establish the fact that, though PWs.2 and 10 took care of the deceased during the first and second deliveries, during her third delivery, she was with the accused persons and it is accused No.1, who bore the expenses of the third delivery and he was present and with his consent, the doctor performed the tubectomy operation on the deceased, as it was dangerous for her to again conceive.
CRL.A.NO.100145/201713
18. The prosecution has set up a case that, after the accused persons started harassing and ill-treating the deceased by demanding additional dowry, the mother of PW.2 i.e., the grand mother of the deceased gave her two gold ornaments, which are called as Tikki and Bormala, to the deceased, to satisfy the demand of the accused persons. PW.10 Sheela and PW.11 Appasab Sadashiv Walke, have deposed to this effect and stated that, after the accused persons, more particularly, accused No.1 started quarreling with the deceased demanding additional dowry, these two ornaments were given by Smt. Tangewwa, the grand mother of the deceased, who is cited as CW.15. However, the evidence of PW.2, the father of the deceased, is contrary on the aspect of the grand mother giving two gold ornaments to the deceased, after the accused starting harassing and ill-treating the deceased for begetting only the girl children i.e., daughters. At page 5 para 2 of his evidence, this witness has specifically stated that, at the time of marriage, a gold chain and finger ring was given to accused No.1 and after six months of their marriage, when accused No.1 and CRL.A.NO.100145/2017 14 deceased Geetha (Rajashree) visited their house, he gave a gold chain and ring to accused No.1 and his mother gave a Tikki and Bormala to accused No.1. But the other witnesses have stated that, these two gold ornaments, i.e., Tikki and Boramala were given to the deceased. Admittedly, these two ornaments were worn by a woman and it appears, by mistake PW.2 has stated that they were given to accused No.1. Anyhow, the presentation of these gold ornaments by the grand mother of the deceased is about six months after the marriage and it belies the evidence of the other prosecution witnesses that these two ornaments were given to satisfy the demand of accused persons for additional dowry.
19. PW.11 Appasab Sadashiv Walke is cited as a witness to depose that, subsequently the accused persons demanded dowry and the grand mother of the deceased gave two gold ornaments to the deceased. He has deposed as if he was present when the said incident took place. However, it is not his case of the prosecution that, when CW.15 Tangewwa gave her two gold ornaments to CRL.A.NO.100145/2017 15 the deceased, any outsider was present. His evidence to that effect appears to be hearsay.
20. Now coming to the case of the prosecution that, unable to bear the harassment meted out by the accused persons, deceased Geetha (Rajashree) choose to jump into the open well along with her three daughters and her eldest daughter was rescued while the remaining three drowned. According to the prosecution, it is PW.15 Sadashiv, who rescued the eldest daughter from the well and at that time PW.16 Basappa was also present. However, both these witnesses have turned hostile and during their cross-examination, they have denied that, after deceased along with her daughters jumped into the well, on hearing the cries, both of them went to the spot and saw the eldest daughter dangling (eÉÆÃvÁqÀÄ) inside the well by holding the pipe of the pump set and PW.15 Sadashiv rescued her and on enquiry about her mother and two sisters, she told that their mother along with them jumped into the well and the remaining persons drowned. PW.16 has also denied that, after hearing the cries, when CRL.A.NO.100145/2017 16 he went to the spot, he found the eldest daughter dangling holding the pipe of the pump set inside the well and she was rescued by PW.15 Sadashiv. In spite of their cross- examination the prosecution was unable to elicit any admissions through PWs.15 and 16 to support the case of the prosecution that the deceased Geetha (Rajashree) jumped into the well along with her three daughters and her eldest daughter was rescued by these two witnesses.
21. At this stage, it is relevant to refer to the nature of the well in which Geetha (Rajashree) and her two daughters drowned. Ex.P8 is the photograph of the open well. Ex.P9, which is the spot mahazer, also state that the residential house where the deceased along with her children and accused persons was living, is situated at a distance of 200 meters from the well in question. As evident from the photograph at Ex.P8, this is an open well and its edges are not covered by any wall to secure it from the ground level. From Ex.P8 it is evident that this well consists of three levels i.e., from ground level up to a distance of about 7 to 10 feet downwards, there is a stone construction, which are loosely arranged, after which there CRL.A.NO.100145/2017 17 is a plain surface (platform) about 5-6 feet in width inside the well and after covering this plain platform, one can reach the water. From Ex.P8, it is evident that a pipe is run through the well to fetch water to the lands. The situation of the well in question is such that, it is not possible to jump into the water directly from the upper surface of the well as one would first fall on the plain surface inside the well(platform) and thereafter again to jump into the water, which would certainly cause some sort of injury. Having regard to the fact that, the deceased did not have any external injuries on her person indicates that, she might not have jumped from the upper surface of the well, as she would have landed on the plain surface (platform) and would have suffered injuries.
22. In this case, the post-mortem examination of the children were not performed and therefore it is not clear whether they have suffered any injuries on their person. It is the case of the prosecution that, deceased also took her eldest daughter while jumping into the well and she miraculously survived by holding the pipe. The medical examination of the said child is not carried out to CRL.A.NO.100145/2017 18 ascertain whether she suffered any injuries in the process. It could have lent some support to the case of the prosecution. It is the definite case of the prosecution that, while deceased Geetha (Rajashree) jumped into the well along with her three daughters, the eldest daughter Sneha catch hold of the pipe of the pump set and she was saved. This could happen only if deceased had jumped from the upper surface of the well and in that case, she and her children would have certainly sustained some sort of external injury. In the absence of any external injury sustained by the deceased Geetha as well as her eldest daughter Sneha, the prosecution is unable to reconcile with this aspect. On the other hand, it supports the case of the defence that, the eldest daughter Sneha did not fell into the well and consequently, there was no occasion for rescuing her.
23. It is pertinent to note that, before the dead bodies were removed from the well, a single slipper of the deceased was found on the upper portion of the well and it has come in the evidence that the police searched for the second slipper. However, after the dead body was CRL.A.NO.100145/2017 19 removed from the well, it was seen that the deceased was still wearing the other chappal in her leg. The accused persons have contended that, when the second daughter accidentally fell into the well, deceased while still carrying the youngest child, tried to rescue her and in the process, she slipped and one of her chappal remained outside and she along with the youngest child fell into the well and drowned. The fact that the deceased was still wearing the single chappal and other pair was found on the ground surface lent support to the defence put forth by the accused persons.
24. As already discussed, PW.13 Siddappa Ramachandra Kethriba, is the junior uncle of the deceased, i.e., the brother of the complainant and during his cross- examination by the defence, at page 5 of his evidence, he has admitted that, on the next day, when they along with the police went to the spot, they came to know that, deceased Geetha (Rajashree) accidentally fell into the well in order to save her second daughter. This witness is no other than the very close relative of the deceased. Admittedly, he is not having any ill-will against the CRL.A.NO.100145/2017 20 complainant or his family members to give evidence supporting the accused persons. With regard to this important admission given by PW.13, the prosecution has not cross-examined him by treating him as hostile.
25. It is pertinent to note that, at the time of the incident, the eldest daughter of the deceased i.e., Sneha was aged five years. She is cited as CW.12 and she is examined before the Court as PW.19. At the time of her evidence, she was aged six years. However the deposition of this witness makes it evident that, in spite of asking repeated questions and giving sufficient time, she did not open her mouth and she did not choose to depose either in favour of the accused or against them. However, as a last resort, when a question was asked as to whether the accused persons used to harass and ill-treat and assault her mother, she has answered in the negative by shaking her head. It is true that, at the time of the alleged incident, she was a small child and it was not clear whether the prosecution or the investigating officer or the officials of the Child Development Authorities have made any efforts to get her psychologically counseled for the CRL.A.NO.100145/2017 21 tragedy, which has occurred either in her presence or at least she having undergone the shock of losing her mother and two sisters at such an young age. It is also not clear whether before putting her into the witness box, any such psychological counseling was conducted. Anyhow, the evidence or at the most, the conduct of this witness is not helpful to improve the case of the prosecution and on the other hand, it could be said that her evidence is helpful to the accused persons.
26. From the above discussion we hold that the prosecution has failed to establish that, at the time of marriage, accused persons demanded and received dowry and immediately prior to the death of Geetha and her two daughters, there was demand for additional dowry and the deceased was also harassed and ill-treated for not betting male children and that unable to bear the harassment, she choose to commit suicide along her three children and fortunately the eldest daughter was saved.
27. Taking into consideration the fact that, after considering the oral and documentary evidence placed on CRL.A.NO.100145/2017 22 record, the trial court has come to a correct conclusion that the charges leveled against the accused are not proved beyond reasonable doubt and acquitted all of them, we find no perversity in the findings given by the trial Court.
28. Consequently the appeal filed by the state is liable to be dismissed. As already discussed, during the pendancy of the appeal, accused No.1 who is none other than the husband of the deceased Geetha (Rajashree) has died and as such the appeal against him is abated.
Consequently, we dismiss the appeal against accused Nos. 2 to 6.
Sd/-
JUDGE Sd/-
JUDGE Rsh/gab