Karnataka High Court
State Of Karnataka vs C. Ramesh S/O Kenchappa on 2 July, 2021
Author: R.Devdas
Bench: R.Devdas
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2nd DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100264/2017
BETWEEN:
STATE OF KARNATAKA,
THROUGH DEPUTY SUPERINTENDENT OF POLICE,
KUDLIGI,
THROUGH ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH. .. APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
AND:
1. C. RAMESH S/O KENCHAPPA
AGE: 28 YEARS,
OCC: AGRICULTURIST,
2. C.KENCHAPPA S/O LATE BHARAMAPPA
AGE: 66 YEARS,
OCC: AGRICULTURIST,
3. SMT.GOWRAMMA W/O C. KENCHAPPA
AGE: 50 YEARS,
OCC: HOUSEWIFE and AGRICULTURIST,
ALL ARE RESIDENTS OF
HANUMANAHALLI VILLAGE,
KUDLIGI TQ. BALLARI DIST. ...RESPONDENTS
(BY SRI S.P.KULKARNI AND
SRI T.BASAVANAGOUDA, ADVS. FOR R-1 AND R-3,
APPEAL AGAINST R-2 IS ABATED)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
16.01.2017 PASSED IN SESSIONS CASE NO. 5029 OF 2014 BY THE
III ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI (SITTING AT
HOSAPETE) AND TO CONVICT AND SENTENCE THE RESPONDENTS /
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
498-A, 302, 304-B, 201, 114 READ WITH SECTION 34 OF IPC AND
SECTION 3 AND 4 OF DOWRY PROHIBITION ACT.
THIS APPEAL COMING ON FOR HEARING AND THE SAME
HAVING BEEN HEARD AND RESERVED ON 08.06.2021, THIS DAY,
R.DEVDAS J., DELIVERED THE FOLLOWING:
JUDGMENT
R.DEVDAS J:
This criminal appeal is filed under Section 378 (1) and (3) of the Code of Criminal Procedure assailing the judgment and order dated 16.01.2017 passed by the III Addl. District and Sessions Judge, Ballari, in S.C.No.5029/2014.
2. The State of Karnataka has filed this appeal challenging the order of acquittal passed by the trial Court.
3. The case of the prosecution is that the deceased Kusuma was married to the respondent/accused No.1 on 30.06.2007. Respondents 2 and 3 are accused Nos.2 and 3 and the parents of accused No.1. It is contended that at the time of marriage, the respondents had demanded 2 acres of 3 land and 8 tholas of gold as dowry. It is contended that the parents of Kusuma had orally agreed to transfer 4 acres of agricultural land in favour of accused No.1 and they had given 4 tholas of gold while agreeing to give remaining 4 tholas subsequently. It is contended that accused No.1 was permitted to cultivate the 4 acres of land which was identified for being given as dowry, although the actual transfer was not done. The marriage was registered on 06.09.2007 in the office of the Sub-Registrar, Kudligi. It is contended that the accused persons were ill-treating Kusuma and she was subjected to cruelty and harassment, both physically as well as mentally. The parents of Kusuma had advised accused No.1 several times not to harass their daughter. Nevertheless, the accused persons did not heed to the advise of Kusuma's parents. Unable to bear the torture at the hands of the accused persons, Kusuma's parents transferred two acres of land in Sy.No.515 of Thoolahalli village, Kottur hobli, Kudligi taluk, in favour of Kusuma, by executing a gift deed and registering the same in accordance with law. In spite of the said transfer of land, the accused persons were not happy and accused No.1 was pestering Kusuma to transfer the two 4 acres of land in his name. Two children were born out of their wedlock. Unable to bear the torture, Kusuma went to her parent's house on 06.02.2014. However, the elder brother and sisters of Kusuma pacified her and sent her back at about 6 p.m. on 07.02.2014, by putting her and the children on bus. On the night of 07.02.2014, the accused No.1 picked up quarrel with Kusuma at the instigation of accused 2 and 3 and sent her out of the house. It is contended that since the house of the accused persons was small, Kusuma and accused No.1, her husband used to sleep in the gin (flour mill) belonging to PW-15 (Veeranagouda). Accused No.1 again went to the gin and with an intention to kill Kusuma, gagged Kusuma's mouth with a bed sheet. Kusuma died of suffocation. Later, the accused persons threw the body of the deceased in the pit meant for dumping cow dung, at the premises belonging to PW-15. Further, in order to destroy the evidence, the accused persons sprinkled pesticide on the dead body and threw the pesticide bottle in the cow dung pit.
4. The next morning PW-6/Naragaj saw the dead body and informed PW-1, the elder brother of Kusuma that he 5 saw the dead body of Kusuma lying in the cowdung pit. Immediately, PW-1 along with his relatives rushed to the house of the accused persons and saw the dead body lying in the pit. PW-1 went to the police station and gave a complaint alleging that the accused persons were responsible for the death of his sister Kusuma and the motive behind the death was demand of dowry.
5. On behalf of the prosecution, 29 witnesses were examined. Ex.P.1 to Ex.P.26 were marked as documentary evidence along with material objects M.O.1 to M.O.7, on behalf of the prosecution. No witnesses were examined or any documents marked on behalf of the accused. The accused persons denied the incriminating material while recording the 313 statements. Since the accused persons pleaded innocence, a full fledged trial was held.
6. It is the case of the prosecution that the house which was given to Kusuma was dilapidated and therefore, the family members of accused were staying in the empty cow shed of D.Kenchanagouda, but during night, the deceased Kusuma and her husband were sleeping in the gin. It is 6 definite case of the prosecution that on the night of the incident the accused persons quarrelled with the deceased Kusuma and when she was going towards the dilapidated house to sleep, PW-10/Narappa and PW-11/Ramjanbi saw the deceased and they advised her not to sleep there and to go back and infact they took her to the house of accused and advised the accused persons and thereafter, both deceased Kusuma and her husband i.e., accused No.1/Ramesh went towards the gin. On the contrary, accused No.1 had stated while recording the 313 statement that Kusuma who had gone to her parents house on 06.02.2014, did not return to the house and therefore, it was impossible for the accused persons to commit the offence. A contention was also taken and suggestions were put to the prosecution witnesses stating that there was a dispute amongst the brothers and sisters of the deceased Kusuma as to why four acres of agricultural land was registered in the name of Kusuma and why she was given a better deal when compared to the other sisters. The trial Court noticed that other than the complainant/PW-1 and PW-2/Thejaswini, the sister of Kusuma, all other independent witnesses other than the official witnesses have turned hostile. 7 Even, PW-10/Narappa and PW-11/Ramjanbi had turned hostile and denied the statements made before the police. The panch witnesses to the seizure panchanama of blanket/bed sheet, M.O.-7 which is said to have been used to smother Kusuma, had also turned hostile to the case of the prosecution. During the cross-examination, PW-2/Thejaswini also stated that she came to know that her sister Kusuma was killed by accused No.1 by gagging her mouth with pillow, through her brother/complainant/PW-1. The only persons i.e., PW- 10/Narappa and PW-11/Ramjanbi who had stated before the police that they had seen Kusuma in the gin in the night of 07.02.2014, have also turned hostile.
7. Although the medical evidence would prove that the death of the deceased was homicidal due to hypoxia and asphyxia by respiratory failure which should have been caused by gagging the mouth of the deceased with a material like bed sheet/M.O.7, nevertheless, the trial Court came to a conclusion that the prosecution had failed to prove by presenting cogent evidence that the accused persons, especially accused No.1 had committed the crime. The trial 8 Court held that the prosecution failed to establish the case against the accused persons beyond all reasonable doubt.
8. The learned Addl. State Public Prosecutor submits that although PWs-10 and 11 who are independent witnesses had given statement before the police stating that they had seen the deceased Kusuma late in the evening on the date of the incident in Hanumanahalli village, (where the respondents/accused reside) but later turned hostile, the fact that the deceased Kusuma left by bus at about 6 p.m. from her parental home at Thoolahalli and the dead body being found in the premises of PW-15, is sufficient evidence to come to a conclusion that the deceased Kusuma had come back from her parental house to the marital home. The learned Addl. SPP would rely upon two decisions of the Hon'ble Supreme Court in the case of TRIMUKH MAROTI KIRKAN VS. STATE OF MAHARASHTRA reported in [(2006) 10 SCC 681 and STATE OF JAMMU AND KASHMIR VS. VIJAY KUMAR AND OTHERS reported in AIR 2017 SC 1507, to contend that in terms of Section 106 of the Evidence Act, the burden is on the respondents/accused to explain the 9 circumstances in which the deceased died and her body was found in the pit in the vicinity of house of the respondents/accused. The learned Addl. SPP would submit that where offences under Sections 498(A), 304-B and 302 of IPC are alleged, it has been held by the Hon'ble Supreme Court that bride killing are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he/she is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. Therefore, the Hon'ble Supreme Court further held that it does not mean that a crime committed in secrecy or inside the house should go unpunished. In both these cases, since they were based on circumstantial evidence 10 where no eye-witness account is available, it was held that there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
9. Per contra, learned counsel for the respondents/accused would submit that PW-1, the complainant, brother of the deceased has admitted that the marriage of Kusuma and respondents/accused No.1 was conducted in a mass marriage at Taralabalu Mutt, which shows that the accused persons were happy with a simple marriage to ensure that no huge money is spent for the marriage. Secondly, it is admitted that the deceased Kusuma and accused No.1 were happy in the married life till they had begotten two children. The learned counsel points out to several contradictions in the evidence of the prosecution. PW-6/Nagaraj, who is said to have informed PW-1 about the death of the deceased, has deposed that he did not inform 11 PW-1 about the incident. PW-2/Thejaswini, the sister of the deceased has also turned hostile. Though, a suggestion is put to PW-2 that they had raised a quarrel with the deceased stating that she could not have been given additional lands ignoring the claim of the other sisters, PW-2 has denied the suggestion. PW-8/Raghuveer, who had given statement before the police that he had seen the deceased and accused No.1 quarreling on the date of the incident, has turned hostile and denied having seen the deceased in the village on the date of the incident.
10. Insofar as the contention of the learned Addl. SPP that there is sufficient evidence on record to come to a conclusion that the deceased had come back from her parental home on 07.02.2014, the learned counsel for the respondents would submit that even as per the evidence on record, it is admitted that since the house of the accused persons was small, the deceased and accused No.1 were sleeping in the gin (flour mill). Therefore, even if the Court were to come to a conclusion that the deceased had returned from her parental home to the village and that some of the witnesses had seen 12 her in the gin, there is not even an iota of evidence to say that accused No.1 also was seen in the gin along with the deceased on the night of 07.02.2014. The learned counsel would further add that a suggestion has been put by the learned counsel for the defence that there was some dispute raised in the family of Kusuma and some of the sisters were angry with an additional piece of land that was gifted to Kusuma, thereby granting an unequal share to Kusuma and therefore, in this regard, some other person might have committed the crime.
11. Heard the learned Addl. SPP for the appellant/State, learned counsel Shri S.P.Kulkarni, for the respondents/accused and perused the trial Court records.
12. On going through the evidence on record, the findings of the trial Court and on hearing the submissions of the learned counsels, we find that this being a case standing on circumstantial evidence, the chain of events is required to be complete without there being any missing link. What is required to be noticed is that accused No.1, the husband of the deceased has stated in the 313 statement that the deceased who had been to the parental home on 06.02.2014 13 had not come back to the marital home and therefore, he pleaded that he and his parents are innocent and a false case has been registered against them. The two decisions relied by the learned Addl. SPP where Section 106 of the Indian Evidence Act has been considered, will not be of much assistance to the case of the prosecution, since it is an admitted fact that the deceased Kusuma had left to the parental home along with the two children on 06.02.2014. The body of the deceased was found in the premises belonging to PW-15 and not in the house of the respondents. The prosecution has not examined the children. The prosecution witnesses, PWs-8, 10 and 11 who had stated before the police that they had seen the deceased in the gin on the date of the incident, have turned hostile. Therefore, the evidence on record to complete the chain of circumstances is lacking in so far as proof of the deceased returning back to her house and that the deceased was last seen with her husband (Accused No.1) at the gin. Therefore, we cannot rule out the possibility that someone else might have committed the crime. 14
13. It is by now well settled law that if two views are possible, the Courts should take that view which is favourable to the accused. Heavy burden is on the prosecution to prove the chain of events and the circumstances must be established without any break in the chain of events. Having this settled position of law in mind, this Court finds that the trial Court has appreciated the evidence on record as per the established norms governing appreciation of evidence. There is no perversity in the finding given by the trial Court. Consequently, we do not find any merit in the appeal.
Accordingly, the appeal stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE Jm/-