Karnataka High Court
Smt.Deepa Ramanath Lotlikar vs Mr.Ramanath Lotlikar S/O. Anand ... on 2 June, 2025
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CRL.A No. 100349 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100349 OF 2017
BETWEEN:
SMT. DEEPA RAMANATH LOTLIKAR
AGED 42 YEARS,
R/O. H.NO.419, FOTORDA,
MARGOA-GOA.
...APPELLANT
(BY SRI ANANT HEGDE, ADVOCATE)
Digitally signed by
CHANDRASHEKAR AND:
LAXMAN KATTIMANI
Location: HIGH
COURT OF 1. MR. RAMANATH LOTLIKAR
KARNATAKA
S/O ANAND LOTLIKAR,
AGED MAJOR,
R/O H.NO.221/4, BHAILWAN,
MAPUSA, GOA.
2. STATE OF KARNATAKA,
THROUGH PSI YELLAPUR POLICE STATION,
REP. BY SPP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENTS
(BY SRI NEELENDRA D.GUNDE, ADVOCATE FOR R1;
SRI ABHISHEK MALIPATIL, HCGP FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF
CR.P.C., SEEKING TO SET ASIDE THE ORDER DATED 7.9.2017
PASSED BY THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS
JUDGE U.K. KARWAR SITTING AT SIRSI AND CONSEQUENTLY
RESTORE THE JUDGMENT DATED 21.07.2008 PASSED BY J.M.F.C. AT
YELLAPUR IN C.C.NO.59/2001 IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED
ON 19.09.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
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CRL.A No. 100349 of 2017
CAV JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
In this appeal filed under section 378(4) of the code
of criminal procedure, complainant has challenge the
judgment and order passed by the Sessions Court acquitting
the accused No.1 by allowing the appeal filed by him,
challenging his conviction and sentence for the offence
punishable under Section 494 of IPC.
2. For the sake of convenience, parties are referred
to by their ranks before the trial Court.
3. Complainant is the wife of accused No.1. She
filed a complaint under Section 200 of Cr.P.C against
accused Nos.1 to 4, alleging offence punishable under
sections 494, 496, 109 of IPC, contending that her marriage
with accused No.1 was performed on 05.05.1992, and it was
also registered before the registrar of marriage, Margoa, Goa
on 23.04.1992. Her maiden name was Jyoti Tukaram
Karekar. After her marriage, she was named as Deepa
Ramanath Lotlikar by accused No.1. After the marriage, they
stay together at Pedmen, Mapusa Taluku, Goa.
3.1 After few months, accused No.1 started harassing the
complainant for dowry and acted roughly and cruelly. He
subjected her to both mental and physical cruelty. He
prevented her from going to her parental home, with great
difficulty, she went to her parental home on 19.05.1993 for
her first delivery. However, after the delivery accused No.1
refused to take her back to the matrimonial home. During
late 1995 complainant came to know that accused No.1 has
married accused No.2 on 16.07.1994. Accused Nos.3 and 4
are the parents of accused No.2. They knew that accused
No.1 is already married.
3.2 After the marriage accused Nos.1 and 2 live
together as husband and wife at Bilwan, Mapuca, Goa.
accused No.2 has given birth to a son in May 1995. accused
Nos.1 and 2 are living together along with their son. Even
accused No.1 is masquerading accused No.2, as if she is
Deepa Ramanath Lotlekar i.e., complainant and got prepared
an election ID card and thereby all the accused have
committed the offences punishable under Sections 494, 496
and 109 IPC.
4. Vide order dated 17.01.2001, the trial Court has
taken cognizance and ordered for registration of the criminal
case.
5. On 17.01.2001, the trial Court has recorded the
sworn statement of complaint and one Krishna Revankar.
Based on their testimony, vide order dated 16.09.2004, the
trial Court has ordered for issue of summons to accused
persons.
6. The accused have appeared and secured bail.
7. The trial Court has recorded the evidence before
charge by examining the complainant and four witnesses as
PW-1 to 5. They are also cross examined by the accused at
the stage of evidence before charge, except PW4.
8. Based on the evidence before charge, the trial Court
held that there is sufficient material to frame charge.
Accordingly on 20.11.2007, the trial Court has framed
charge against accused Nos.1 to 4.
9. Accused Nos.1 to 4 have pleaded not guilty and
claimed trial.
10. After framing of charge, the accused have cross
examine PW1, 2, 3 and 5.
11. During the course of their statements under
Section 313 of Cr.P.C, the accused have denied the
incriminating evidence by the complainant.
12. Accused have not led any defensive evidence
13. Vide judgment and order dated 21.07.2008,
though the trial Court acquitted accused Nos.2 to 4, it
convicted accused No.1 for the offence punishable under
Section 494 of IPC and sentenced him to undergo simple
imprisonment for a period of one year and pay fine ₹5,000/-
with the default sentence of imprisonment.
14. Accused No.1 challenged his conviction and
sentence before the Sessions Court in criminal appeal
No.173/2008, which came to be allowed and he is acquitted
by setting aside the judgment and order of conviction
imposed by the trial Court.
15. Aggrieved by the same, complainant is before this
Court contending that the impugned judgment and order is
erroneous, considering the fact and evidence placed on
record and as such liable to be set aside. The Sessions Court
is in error in ignoring the evidence, particularly the
document evidence pointing to the guilt of accused No.1. The
Sessions Court has failed to analyze the reasons given by
the trial Court for convicting accused No.1. The testimony of
PWs-2 and 3 is supported and corroborated by the evidence
of PW1. The documentary evidence placed on record prove
that accused Nos.1 and 2 are having children by name
Nahush and Swamini. The presumption arising out of the
public records is not at all controverter by the accused. The
Sessions Court without referring to these documents has
reversed well reasoned judgment of the trial Court and
therefore, it is liable to be set aside and the judgment and
order of the trial Court be restored and hence the appeal.
16. On the other hand, learned counsel for Accused
No.1 supported the judgment and order of the Sessions
Court. He would submit that the complainant has failed to
prove the marriage between accused Nos.1 and 2 including
the holding of essential ceremonies. There is no evidence to
establish the performance of marriage between accused
Nos.1 and 2. In the absence of the same, the other evidence
lead by the complainant is not sufficient to prove the
marriage between them. He further submitted that after
framing of charge, PWs-1 to 3 are further examined and it
has viciated the trial. Appreciating the oral and documentary
evidence placed on record, rightly the Sessions Court has
reverse the judgment and order of the trial Court and pray
to dismiss this appeal also.
17. In support of arguments, learned counsel for
accused No.1 has relied upon the following decisions;
(i) State of Karnataka vs S Dhandapani Modaliar
(Dhandapani)1
(ii) Bhaurao Lokhande vs State of Maharastra
(Bhaurao Lokhande)2
(iii) Smt Priya Bala Ghosh vs Suresh Chandra
Ghosh (Priya Bala)3
(iv) Santi Deb Berma vs Kanchan Pravadevi
(Santi Deb) 4
(v) Dolly Rani vs Manish Kumar Chanchal (Dolly
Rani)5
1992 Cri.L.J.24
1965 AIR (SC) 1564
1971 (1) SCC 864
1991 AIR (SC) 816
(2024) 5 SCR 510
(vi) Deepa Ramanath Loltekar vs Sri Ramnath
Ananda Lotlekar and others (Deepa Loltekar)6
18. Heard arguments and perused the record.
19. Before proceeding to the merits of the case, it is
necessary to examine the procedure to be adopted in a case
filed on the basis of complaint i.e a case instituted otherwise
then on a police report.
20. As evident from Section 200 of Cr.P.C, a
magistrate taking cognizance of an offence on complaint
shall examine upon oath the complainant and the witnesses
present, if any. Section 203 of Cr.P.C requires that if after
considering the statements on oath, (if any) of the
complainant and of the witnesses, the magistrate is of the
opinion that there is no sufficient ground for proceeding he
shall dismiss the complaint, by recording briefly reasons for
so doing. Section 204 of Cr.P.C deals with issue of process to
the accused, when the complaint is not dismissed under
Section 203 of Cr.P.C. It provides that if in the opinion of
magistrate taking cognizance of an offence, there is
Crl.A.No.2566/2008 dated 29.08.2013.
sufficient ground for proceeding, it may issue summons or
warrant as the case maybe.
21. Section 204(2) of Cr.P.C mandates that the
summons or warrant shall not be issued to the accused until
a list of prosecution witnesses has been filed and wherein
the proceedings instituted upon a complaint made in writing,
every summons or warrant shall be accompanied by a copy
of such complaint.
22. Section 203 of Cr.P.C empowers the magistrate to
dismiss the complaint for reasons to be recorded in writing,
if, after considering the statements on oath, if any, of the
complainant and of the witnesses, the magistrate is of the
opinion that there is no sufficient ground for proceeding
against the accused.
23. The simple meaning of these Sections makes it
clear that for the purpose of proceeding against an accused
based on complaint, it is not necessary that the complaint be
in writing. After taking cognizance, the magistrate shall
examine the complainant and his witnesses, (if any) on oath,
which is popularly called as recording sworn statement and
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reduce their statements in writing and get their signatures.
Therefore, examining the complainant and witnesses on oath
is not mandatory. Only when the complainant wishes to
examine himself and also his witnesses, they shall be
examined. In a given case, the Court may proceeded against
the accused only on the basis of complaint.
24. Section 204(2) of Cr.P.C also makes it clear that
there is no need for giving the names of witnesses in the
complaint itself and it may be filed subsequently before
summons issued to the accused. Only to avoid any
technicality, normally, it is found that in the complaint itself,
the complainant lists the name of witnesses, which he is
intending to examine.
25. Section 244 of Cr.P.C, deals with recording of
evidence in any warrant case instituted on a complaint i.e
instituted otherwise, than on a police report. Section 244(1)
of Cr.P.C require the magistrate to take all such evidence as
produced in support of the prosecution i.e complainant.
Section 244(2) of Cr.P.C, enable the magistrate to issue
summons to witness, directing him to attend or to produce
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any documents or other things. It means the complainant is
required to examine all his witnesses, including those
witnesses whose statements were recorded under section
204 of Cr.P.C. If the complainant has not examined any
witness, under Section 200 of Cr.P.C, then also he is at
liberty to examine any such witnesses he wants to examine.
At this stage also the accused is at liberty to cross examine
the complainant and also his witnesses.
26. Section 245 of Cr.P.C, deals with discharge of the
accused, if upon considering the evidence referred to in
Section 244 of Cr.P.C, the magistrate considers for reasons
to be recorded, that no case is made out, which if
unrebutted would warrant his conviction. Section 245(2) of
Cr.P.C, makes it clear that the magistrate is at liberty to
discharge the accused at any previous stage of the case if,
for reasons to be recorded, he considers the charge to be
groundless.
27. Section 246 of Cr.P.C, deals with the procedure
when accused is not discharged and provides that if the
accused is not discharged under Section 245 of Cr.P.C or at
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any previous stage and the magistrate is of the opinion that
there is ground presuming that accused has committed a
warrant triable offence, he shall frame charge in writing.
When accused refuses to plead or does not plead or claims
to be tried, or if the accused is not convicted on his plea of
guilt, the magistrate shall require him to state whether he
wishes to cross examine any, and if so, which of the
witnesses for the prosecution, whose evidence has been
taken. Those witnesses named by the accused shall be
recalled and after cross examination and re-examination (if
any) they shall be discharged.
28. Section 246(6) of Cr.P.C makes it clear that the
evidence of any remaining witnesses for the prosecution
shall be next taken and after cross examination and re-
examination, if any, they shall also be discharged.
29. The cumulative reading of these provisions makes
it clear that after taking cognizance, the trial Court may
examine the complainant and his witnesses, (if any) in order
to ascertain whether there is any material to proceed against
the accused. In a case where the magistrate proceeded
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against the accused without recording the sworn statement
of the complainant and its witnesses or of the complainant
alone, the complainant may give his evidence before charge
and may also examine some of his witnesses on the basis of
which the magistrate may proceed to frame charge against
the accused. In case the complainant has not lead evidence
before charge of any of the witnesses, he may examine them
after the charge is framed. If the complainant has examined
himself and any of the witnesses before framing of charge,
after the charge is framed, at the instance of accused, the
magistrate may permit accused to cross examine the
complainant as well as any of such witnesses at his instance.
30. After framing of charge, the Court may permit
examination of any of the remaining witnesses and after
their cross examination and re-examination, if any discharge
them. Therefore, the argument of the learned counsel for
accused that the complainant was required to examine all his
witnesses at the stage of Section 200 of Cr.P.C itself and the
trial Court ought not have permitted complainant to examine
any of the witnesses before framing of charge and after
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framing of charge is not correct. The same is permissible
under law.
31. In fact, the complainant has recorded sworn
statement of himself and one witness i.e Krishna Revankar,
who is subsequently examined as PW2. The rest of the
witnesses are examined before framing of charge. Neither
complainant nor his witnesses are examined in chief
subsequent to the framing of charge. Since the accused has
crossed- examined PWs1 to 5, at the stage of evidence
before charge itself, he has not cross examined any of those
witnesses subsequent to the framing of charge.
32. Now coming to the merits of the case, it is not in
dispute that complainant is the legally wedded wife of
accused No.1 and their marriage is subsisting. Therefore, in
order to prove the allegation for the offence punishable
under Section 494 of IPC, the complainant is required to
establish that accused No.1 has married accused No.2. In
the light of the ratio in the decisions relied upon by the
accused, burden is on the complainant not only to prove the
marriage between accused Nos.1 and 2, but also to establish
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that all the essential ceremonies, including Homa and
Saptapadi were held.
33. Admittedly, complainant is not an eye witness to
the marriage between accused Nos.1 and 2. According to the
complainant, PW4 Suresh Bhat is the Purohit who performed
the marriage between accused No.1 and 2. However, during
the examination in chief itself he has a stated that he did not
know whether he has performed their marriage. However, he
is not treated as hostile by the complainant and he is not
subjected to cross examination suggesting that he has
performed the marriage in question. Consequently, his
evidence is not at all any help to prove the allegations
against the accused.
34. PW3 Krishna Revankar is examined to prove the
marriage between accused Nos.1 and 2. However, his
evidence indicate that he was invited to cook the food for the
marriage. Though he has deposed that the marriage was
performed in accordance with the Hindu rituals, his evidence
does not state that he saw the marriage and he hasn't
spoken to about the essential rituals held in the marriage.
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35. The evidence of PW2 Ramakant is to the effect
that accused No.3 invited him to the marriage of accused
Nos.1 and 2, but he could not attend the said marriage.
36. It is pertinent to know that at the first instance,
complainant filed a police complaint and the concerned police
conducted investigation regarding the second marriage of
accused No1. However, later the complainant was directed to
file a private complaint. The evidence of PW5 Nayak is to the
effect that during investigation along with the police and
brother of complainant, he had been to the house of accused
Nos.3 and 4 and they disclose that they have married their
daughter i.e accused No.2 to a person by name Ramnath of
Goa and accused No.2 is residing in Mapusa. Thereafter, he
along with the police went to the house of Krishna and from
the house of Krishna, they went to a temple and met a
Purohit who informed them that he has performed the
marriage.
37. Thus, The oral evidence led by the complainant is
not of any useful to establish that accused Nos.1 and 2 have
entered into a valid marriage. The requirement of essential
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such as Homa and Saptapadi are not proved. None of these
independent witnesses have deposed regarding having
participated in and witnessed the marriage.
38. The complainant has relied upon Ex.P3 and 4, the
birth certificates of a son and daughter of accused Nos.1 and
2. However, these documents may only establish the fact
that accused Nos.1 and 2 are the parents of these children,
but they are not proof of a valid marriage between them.
39. Consequently, the Sessions Court on re-
appreciation of the entire evidence placed on record has
come to a conclusion that the allegations against accused
No.1 is also not proved and acquitted him. The conclusions
arrived by the said Court is in accordance with the evidence
on record and is no pity calling for interference by this Court.
The result this petition also fails and accordingly the
following:
ORDER
(i) Appeal filed by the complainant under
Section 378(4) of Cr.P.C is rejected
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(ii) The Impugned order dated 07.09.2017 in
Crl.A.No.173/2008 on the file of I
Addl.District and Sessions Judge,
Karwar.U.K, sitting at Sirsi is here by
confirmed.
(iii) Send back the trial court records along with
copy of this judgment forth with
Sd/-
(J.M.KHAZI)
JUDGE
ASN
