Karnataka High Court
The State Of Karnataka vs Ishwar S/O Shankar Koteganoor And Ors on 8 June, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8th DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.3568/2013
Between:
The State of Karnataka
Through Chitguppa Police Station
Reptd. by its Addl. State Public Prosecutor
...Appellant
(By Sri. Prakash Yeli, Addl. SPP)
And:
1. Ishwar S/o Shankar Koteganoor
Age: 47 Years, Caste Kabbaliga
Occ: Tractor Driver, R/o Walkhindi
Tq. Humnabad, Dist. Bidar
2. Parmeshwar S/o Eshwar Koteganoor
Age: 26 Years, Caste Kabbaliga
Occ: Tractor Driver, R/o Walkhindi
Tq. Humnabad, Dist. Bidar
3. Sakubai W/o Eshwar Koteganoor
Age: 42 Years, Caste Kabbaliga
Occ: Household, R/o Walkhindi
Tq. Humnabad, Dist. Bidar
4. Eramma S/o Shankar Koteganoor
Age: 87 Years, Caste Kabbaliga
2
Occ: Tractor Driver, R/o Walkhindi
Tq. Humnabad, Dist. Bidar
...Respondents
(By Sri Avinash A. Uplaonkar, Advocate)
This Criminal Appeal is filed under Section 378(1) & (3) of
Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order dated 22.11.2012 passed by
the Addl. District and Sessions Judge, Bidar, in Sessions Case
No.109/2011, thereby acquitting the respondents for the
offences punishable under Sections 498A, 302, 304B and 109
r/w Section 34 of IPC etc.
This criminal appeal having been heard & reserved on
26.05.2022, coming on for pronouncement this day,
SREENIVAS HARISH KUMAR J., delivered the following:
JUDGMENT
The highlight of argument of learned Additional State Public Prosecutor, Sri Prakash Yeli was that the Additional Sessions Judge, Bidar should not have acquitted the accused for the offences punishable under sections 498A, 302, 304-B, 201,109 r/w section 34 of IPC having convicted and sentenced accused 1 and 2 for the offence punishable under section 4 of 3 Dowry Prohibition Act. Actually this is the point to be answered. Before taking up the discussion, the prosecution case may be briefly noted here.
2. P.W.5 - Ausabai lodged first information with the police as per Ex.P.7 on 06.01.2011. The contents of FIR are that Geetabai, aged about 20 years, one of the daughters of P.W.5 and the second accused Parmeshwar loved each other and got married on 15.12.2010 in the office of Marriage Officer, Basavakalyan. After the marriage, accused Nos.1 and 3 namely, Ishwar and Sakubai, the father and mother of second accused respectively as also accused No.4-Eramma, the grandmother of accused No.2 started harassing Geeta physically and mentally as she did not bring dowry at the time of marriage. Coming to know about harassment on Geeta, when P.W.5 and her husband met the accused and questioned them about harassment, the accused were 4 said to have demanded dowry of Rs.50,000/- cash and two tolas of gold and further told them that they would kill Geeta if dowry was not given. Then P.W.5 and her husband convened a panchayat in the presence of elderly members of their community for sorting out the issue. Even in the panchayat, the accused were said to have made it clear that they would allow Geeta reside in their house if dowry was given or else not. On 03.01.2011, all the accused told P.W.10 Baburao that unless dowry as demanded by them was given, they would finish off Geeta.
3. On 05.01.2011, P.W.11 Hawshetty brought to the notice of P.W.5 that whereabouts of Geeta was not found since the night of 04.01.2011. Very soon they started searching for Geeta. They all came to know that a pair of slippers, a torch and a small steel pitcher (thambige) were found on the bank of open well belonging to Revanayya Swamy Jamadar. 5 Suspecting that Geeta might have fallen into well, search was made inside the well using a grappling hook (patalasuji) and consequently dead body of Geeta was lifted up from the well water. After registration of FIR in regard to this incident, investigation was held and accused were chargesheeted. The trial court charged the accused for the offences punishable under sections 498A, 304B, 302, 201, 109 of IPC and section 4 of Dowry Prohibition Act r/w section 34 of IPC.
4. Upon appreciation of evidence, the trial court came to conclusion that the prosecution failed to establish the charges for the offences under sections 498A, 302, 304B, 201, 109 r/w 34 IPC, but however held that the offence punishable under section 4 of the Dowry Prohibition Act stood proved against accused 1 and 2 and therefore the trial court convicted them 6 only for the offence under section 4 of the Dowry Prohibition Act.
5. The trial court has held that the prosecution has failed to prove the harassment meted out to Geeta as she failed to bring dowry from her parents' house. When it is clear case of the prosecution that death of Geeta occurred due to strangulation, the investigating officer should have collected finger prints of the culprits. In order to prove the offence under section 304B IPC, it is very essential to establish that soon before death, the deceased was subjected to harassment by her husband and his nearest relatives and further the cruelty or the harassment must be in connection with demand for dowry. In the case on hand the prosecution has not been able to prove the chain of circumstances. As to who saw the deceased being with accused for the last time, there is no evidence. 7 The only witness examined to prove that accused used to harass Geeta and that she was in the house of the accused just before her whereabouts were not known is PW.11 Hawshetty, but he has turned hostile. Hence last seen theory is not proved. Moreover almost all the witnesses have admitted that M.Os.1 to 3 viz., Chappel, steel pitcher (Thambige) and a torch belonged to the family of the complainant i.e., PW.5. Also there is no evidence that Geeta was residing in the house of the accused. There is no conclusive evidence as to the place where she was residing on 4.1.2011.
6. Referring to the evidence of DW.1 i.e., the first accused, it is held by the trial court that his evidence clearly discloses the fact that on 3.1.2011, Baburao (PW.10), Ausabai (PW.5), Rajkumar Kulkarni and Vijaykumar Kulkarni went to the house of the accused, assaulted them and as a result accused 3 8 and 4 sustained injuries. They went to police station and lodged a complaint against the said persons. They also went to hospital at Chitaguppa and from there they were referred to Bidar hospital. Exs. D.1 to D.4 are the proofs in this regard. Therefore the presence of accused 3 and 4 on 4.1.2011 in their house was doubtful. With these observations the trial court expressed doubt in the case of prosecution for recording acquittal of the accused for the offences under sections 498A, 302, 304B, 201, 109 of IPC.
7. Sri. Prakash Yeli, learned Addl. State Public Prosecutor argued that the trial court totally ignored the evidence of PW.5 and PW.10. PW.5 is the mother of the deceased and PW.10 was the person who met the accused and advised them to look after the deceased properly. With regard to the allegation of harassment on a woman in connection with dowry demand, the natural witnesses are the mother, the 9 father and the close relatives of the deceased. Their evidence cannot be discarded unless there are material discrepancies. It was his argument that given a scrutiny to their evidence, it becomes very clear that the defence has failed to discredit them and therefore their evidence should have been acted upon. He further argued that accused no.2 and Geeta returned to their village 15 days after their marriage. She was living in the house of the accused. The opinion of the doctor who conducted post-mortem is that death occurred due to strangulation. That means after strangulating Geeta, the dead body was thrown into a well. It has come in the evidence of panch witnesses that Geeta was killed in the house of the accused. If the accused were not responsible for the death, the burden was on the accused to explain as to what happened inside their house or otherwise according to section 106 of the Evidence Act it should 10 be presumed that accused were responsible for the death. The trial court has failed to apply section 106 of the Evidence Act in the facts and circumstances.
8. He further argued that it is quite strange that the trial court, having found the accused guilty of the offence under section 4 of the Dowry Prohibition Act, would acquit them of other offences. Therefore the reasons given by the trial court for acquitting are contrary to the reasons recorded for convicting the accused for the offence under section 4 of the Dowry Prohibition Act. Thus looked, the judgment of the trial court requires to be set aside and the accused are to be convicted for the other offences.
9. Sri. Avinash A. Uplaonkar, learned counsel for the respondents argued that actually convicting accused 1 and 2 for the offence under section 4 of the Dowry Prohibition Act is also not correct; they did not 11 challenge their conviction and they served the sentence also. However the evidence clearly discloses that the prosecution has utterly failed to prove all the circumstances to bring home the guilt against the accused. Though marriage between accused no.2 and Geeta is not disputed, there is no evidence that after they returned to their village, Geeta was residing in the house of the accused. PW.5 is the mother and PW.10 is the maternal uncle of Geeta and therefore they were interested witnesses. The manner in which they deposed before the court suppressing the fact of accused being assaulted by them clearly indicates their interestedness to see that the accused are falsely implicated. Though other witnesses have stated that there was love affair between accused no.2 and Geeta and that they got married at Basavakalyan, they do not speak that Geeta was subjected to harassment by the accused. Some of the witnesses have pleaded 12 ignorance about the torture on Geeta by the accused. The evidence of DW.1 clearly shows that as a result of assault on them by PW.5 and others, they were admitted in the hospital and on 4.1.2011, they were not present in the village. Evidence of PW.10 itself shows that he was not aware of any quarrel in connection with dowry demand. If M.O.1 to 3 belonged to accused, obviously a doubt arises whether Geeta was residing in the house of the accused before her death. If presumption under section 106 of the Evidence Act is to be drawn, the prosecution should prove the presence of the deceased in the house of the accused. To this effect there is no evidence and therefore rightly the trial court came to conclusion to acquit the accused of the offences under section 498A, 302, 304B, 201, 109 of IPC. He argued for dismissing the appeal.
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10. We have considered the points of arguments. There is no dispute with regard to marriage between the second accused and the deceased viz., Geeta. They loved each other and got married before the Registrar of Marriages on 15.12.2010 at Basavakalyan. The death of Geeta occurred in the intervening night of 4/5.1.2011. PW.13 was the doctor who conducted post-mortem examination and his evidence shows that he found presence of a ligature mark over the neck above thyroid cartilage extending from centre of the neck on the left side till mastoid process about 12 cms. extending upto back of the neck. This was an ante mortem injury. When he dissected the body, he did not find presence of water in both the lungs. He sent the hyoid bone for FSL examination. It was PW.12 who examined the hyoid bone. According to PW.12 there was no ante mortem fracture. Ex.P.10 is the report given by PW.12. 14 Based on the opinion of PW.12, PW.13 gave his final opinion as per Ex.P.13 that death of Geeta was due to mechanical obstruction of air passage due to strangulation and cardio respiratory arrest. PW.13 has stated that it was a homicidal death.
11. Since the opinion of PW.13 is conclusive with regard to homicidal death, it is to be examined now whether accused caused death of Geeta. The case is based on circumstantial evidence. The learned Addl. State Public Prosecutor while arguing mainly referred to the evidence of PW.5 and PW.10.
12. On reassessment of evidence, we find that the investigating agency drew up several panchanamas as per Ex.P.2 to P.5. Ex.P.2 was in connection with seizing M.Os.1 to 3 and Ex.P.3 was with regard to seizing the clothes of the deceased. Ex.P.4 was the panchanama drawn in the house of the 15 accused, which was the place of incident according to prosecution. Ex.P.5 was drawn at the well where the dead body was found. It is not necessary to refer to the evidence given by witnesses to panchanama as conducting panchanama is not disputed, however in our opinion there is no convincing evidence with regard to the place where actually Geeta was done to death.
13. As according to the Addl. State Public Prosecutor, PW.5 and PW.10 are the prominent witnesses, if we give a re-look to the evidence of these two witnesses, we find that PW.5 quite naturally implicates the accused being the mother of the deceased. PW.10 is the maternal uncle of the Geeta. The evidence of these two witnesses is not free of inconsistencies. If in the examination-in-chief, she has stated that when she, her husband, Baburao, Machindra and Jagannath went to the house of the 16 accused, the latter demanded dowry of Rs.50,000/- and two tolas of gold and told at that time that they would kill Geeta if dowry was not given, in the cross- examination she has answered that she and others never went to the house of the accused before receiving the dead body of her daughter. Because of this answer in the cross examination, it is difficult to believe what she has stated about the threat given by the accused to the life of Geeta and therefore her evidence that the accused were responsible for the death of Geeta is difficult to be believed.
14. PW.10 has given evidence in examination-in- chief that love affair between Geeta and accused no.2 was known to everybody, that he himself asked the accused for arranging the marriage, that a demand for dowry was made by the accused and at that time he insisted the accused on performance of the marriage first. He paid Rs.10,000/- for buying clothes for 17 accused no.2 and Geeta. He has further stated that after the marriage accused no.1, 3 and 4 scolded him for arranging the marriage. On 31.12.2010, accused no.2 and Geeta returned to the village and at that time, the other accused started abusing them and demanded for giving money and gold. Then he, Vaijinath, Machindra, Vidyavathi went to the house of the accused and advised them and at that time the accused told them that Geeta could stay in their house only if dowry was given. But in the cross- examination, he has given some contrary answers. He has stated that he did not know the love affair and did not ask the accused to perform the marriage in the village. He has also answered that he never went to the house of accused no.1 and did not meet accused no.2 after the marriage. PW.10 has also been questioned with regard to admission of the accused to a hospital; and though he has answered 18 that he does not know about it, from the evidence of PW.8 it becomes evident that accused 2 to 4 had been admitted to hospital due to assault by Baburao i.e., PW.10 and others. Therefore it appears that PW.10 has suppressed some material facts and in this view he too becomes untrustworthy witness.
15. The evidence discloses that accused 2 and Geeta returned to their village after staying for a few days in the house of PW.7. As argued by Addl. State Public Prosecutor, the accused are liable to give explanation as to what happened inside their house in the intervening night of 4/5.1.2011 only if Geeta happened to stay in their house and that the accused were also present in the house. If some witnesses including PW.5 and PW.10 have stated that Geeta was residing in the house of accused, evidence of PW.8 shows that he just heard that Geeta was residing there, but he had not seen her being there. PW.10 19 has also given evidence that on the date of the incident, he saw only Geeta inside the house and did not see the accused. If Geeta only was present and that the accused were not present, again they need not offer any explanation. In this context evidence of DW.1 i.e., the first accused becomes relevant.
16. DW.1 has stated in the examination in chief that on 3.1.2011 Baburao, Ausabai, Rajkumar Kulkarni and Vijaykumar Kulkarni came to his house, and assaulted him, his wife and mother-in-law. Therefore they went to police station at Chitaguppa and also took treatment at Chitaguppa Government Hospital. Thereafter they were referred to Bidar Hospital. The police came and took them. He has stated that Geeta never stayed in his house. He has produced Ex.D.1 to D.4 in proof of hospitalization. His cross-examination shows that he is more questioned on his first and second marriages, and no question is 20 put to impeach his answers in the examination-in- chief. Ex.D.3 shows that Eramma - accused no.4 was admitted to Bidar hospital on 4.1.2011 and discharged on 14.1.2011. The testimony of DW.1 finds corroboration from the evidence of the investigating officer examined as PW.22, who has admitted in the cross-examination that accused no.1 had filed a complaint against PW.5 and PW.10 for the assault on him and other accused, and accused 3 and 4 were admitted in the hospital. Even PW.8 has also admitted in the cross-examination that accused 2 to 4 were in the hospital because of assault on them by Baburao (PW.10) and others.
17. Further allegation is that all the four accused caused the death of Geeta. If Eramma was in the hospital for about 10 days, her involvement in the incident becomes doubtful and consequently the involvement of the other accused also becomes 21 doubtful. The entire testimony of DW.1 in the examination-in-chief has remained un-controverted. Therefore it is doubtful that accused were present in their house on 4.1.2011 and thereafter. For these reasons even if it is assumed that Geeta stayed in the house of the accused, no inference against the accused can be drawn for their failure to give explanation in accordance with section 106 of Evidence Act. Added to this there are two more answers which make the prosecution case improbable. PW.9 has stated that Ausabai i.e., PW.5 told him that the pitcher and the chappal found near the well belonged to her family. PW.10 has also answered in the cross-examination that they created M.O.1 to 3 near the well when the accused were in the hospital to escape from the liability. In this view it is not safe to rely upon the evidence that the prosecution has produced to hold the accused guilty of the offences 22 under section 304B, 302, 498A, 201 and 109 IPC. In our considered opinion, the evidence placed before the court by the prosecution is full of inconsistencies, discrepancies and contradictions. In fact, even with regard to demand for dowry, evidence is insufficient, we can observe so here. There was no ground for convicting the accused 1 and 2 for the offences under section 4 of Dowry Prohibition Act. Conviction recorded against the two accused does not lead to obvious inference that the other offences would stand proved. Probity in investigation appears to be doubtful. We are unable to accept the argument of Additional State Public Prosecutor. Appeal is therefore dismissed.
Sd/-
JUDGE Sd/-
JUDGE BL/sd