*HON’BLE SRI JUSTICE B.N.RAO NALLA +CRIMINAL REVISION CASE No.76 of 2005 % 15th December, 2009 # B.Krishna …Petitioner/A.1 And $ State of A.P. …Respondent ! Counsel for the petitioner : Mr.C.Praveen Kumar ^ Counsel for respondent : The Public Prosecutor < Gist: > Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.76 of 2005 ORDER: This criminal revision case is filed against the judgment in Criminal Appeal No.91 of 2004, dated 31.12.2004, on the file of the Court of the V Additional Metropolitan Sessions Judge – cum – Mahila Court, Hyderabad, whereby and whereunder the conviction and sentence passed by the XXII Metropolitan Magistrate – cum – Mahila Court, Hyderabad vide order dated 04.03.2004 in C.C.No.176 of 2000 was confirmed in respect of A.1, and set aside against A2 and A3. 2. `The brief facts of the case are that the deceased-de facto complainant was married to accused No.1 on 25.05.1989, that accused No.1 was given Rs.80,000/- towards dowry, that thereafter they lived happily for one year, that thereafter petitioner/accused No.1 started harassing her to bring additional dowry of Rs.50,000/- and on that ground he used to pick up quarrel with her at the instance of his parents every night and used to beat her mercilessly, and that his parents, brothers and sisters used to instigate him to demand additional dowry from her. It was also her case that though she displayed her inability to meet his demand, he did not spare her. That in the meanwhile she gave birth to three children. That at the instigation of accused Nos.3 and 4, accused No.1 poured kerosene on her person with an intention to do away with her life, however, she saved herself somehow. That in the year 1996 the petitioner-accused No.1 beat her mercilessly till she suffered multiple injuries including fracture of her backbone. Thus, on 07.01.1996 she was hospitalized and was discharged on the same day. That the X-ray taken on 09.02.1996 disclosed fracture of backbone. That being unable to bear with the brutal behaviour, assault, harassment and ill-treatment by him on account of not bringing additional dowry, she started living with her parents from January 1996 along with her children. That petitioner- accused No.1 never cared to visit them or to know their welfare. That on 01.11.1998 she along with her children with an intention of joining the company of her husband – accused No.1, went to her matrimonial home. However, she was subjected to abuses and beatings by accused Nos.1 to 4 proclaiming that she would not be allowed into their house unless she complies with their demand of additional dowry. That on the same day while she was returning to her parents place along with her children, neighbours informed that petitioner- accused No.1 contacted second marriage and that they also begot a son who is named, Pawan, aged about eight months, and that they were living at Kartikeyan Nagar, Nacharam. All these facts she has stated in her private complaint before the Court, which she preferred against the accused on 09.12.1998 while she was living with her parents. The said private complaint was preferred under Section 200 of Code of Criminal Procedure, before the Court of XXII Metropolitan Magistrate, Hyderabad, against accused Nos.1 to 4 for the offences under Sections 498-A IPC and Section 494 read with Section 34 of IPC, and also for the offences under Sections 4 and 6 of the Dowry Prohibition Act. The said complaint on being referred to the Police a case in Crime No.114 of 1998 was registered against accused Nos.1 to 9 for the said offences by W.P.S. North Zone, Begumpet. However, the Police laid charge sheet against accused Nos.1 to 4 only for the said offences. That the deceased Vijayalaxmi was under the treatment of Dr.G.Prasada Rao, Consultant and Psychiatrist attached to Sagarlal Memorial and other Hospitals, for major depression disorder between 08.02.1996 and 22.12.1998. 3. In support of its case the prosecution examined P.Ws.1 to 6 and got marked Exs.P.1 to P.14 on its behalf. However, no witnesses were examined and no documents were marked on behalf of the defence. 4. Taking into consideration the evidence of prosecution witnesses as well as the material brought on record, the trial Court found accused Nos.1 and 2 not guilty for the offences under Section 494 IPC, and A3 and A4 not guilty for the offence under Section 494 IPC read with Section 34 IPC and the trial Court also found accused Nos.3 and 4 not guilty for the offences under Sections 4 and 6 of the Dowry Prohibition Act and acquitted them. That the trial Court on finding accused No.1 guilty for the offence under Section 498-A IPC, convicted and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for four months. That again the trial Court finding accused No.1 guilty for the offences under Sections 4 and 6 of the Dowry Prohibition Act convicted and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for two months. That on finding accused Nos.3 and 4 guilty for the offence under Section 498-A IPC, the trial Court convicted and sentenced them to suffer simple imprisonment for six months and to pay a fine of Rs.1000/- each, in default, to suffer simple imprisonment for one month. 5. So far as the factum of death of the deceased/de facto complainant is concerned, the prosecution has not brought on record any material to show the date, time, place and the circumstances in which she died. It is to be found in the evidence of P.W.3, who is one of the locality elders and who was also elder to the marriage of de facto complainant with the petitioner-accused No.1, that Vijayalaxmi died about two years back (his evidence was recorded on 30.04.2003). The learned trial Judge in his judgment has recorded in paragraph 9 that “beating the victim severely and neglecting for a long period even without providing her medical treatment which ultimately ended with the death of the victim is nothing but cruelty on the part of accused No.1”. However, the learned Judge has not mentioned the fact as to when, where and how the de facto complainant died, may be for want of the relevant material being brought on record by the prosecution. 6. Learned Counsel for the petitioner-A1 submitted that Ex.P.1 – complaint, is not a substantive piece of evidence as the maker of it is no more now, and neither it can be treated as dying declaration. More so, the contents of it do not, in any way, disclose that it was given by the deceased disclosing the circumstances leading to her death. Learned Counsel further submitted that as per Ex.P.1-complaint, the deceased was subjected to beating and ill-treatment at the hands of accused No.1 at the instigation of other accused in the year 1996, and that the said private complaint was filed before the Court of the XXII Metropolitan Magistrate – cum – Mahila Court, Hyderabad, in the year 1998. And that meanwhile, the relationship between the accused and the deceased continued to remain strained. Therefore, it is contended that Ex.P.1 – complaint, lost its sanctity in view of abnormal delay of about two years. It is further contended that both the Courts below had lost sight of the fact that during such gap of two years the de facto complainant was staying with her parents, and that herself and the revision petitioner – accused No.1, were not on visiting terms during the said period. As such, it cannot be said that the deceased was subjected to continuous harassment for additional dowry. Learned Counsel also contends that P.Ws.1 and 2 are none other than the parents of the deceased and whereas P.W.3 is the locality elder and was also the elder at the time of marriage of the de facto complainant with the petitioner – accused No.1 and as such they are interested witnesses, and both the Courts below ought to have taken the said fact into consideration while appreciating their evidence. Learned Counsel further submitted that so far as the injuries on the person of the de facto complainant are concerned, no material is brought on record by the prosecution, much less, the evidence of medical witnesses. Therefore, that the deceased suffered physical injuries at the hands of accused No.1 is doubtful. It is also contended that the prosecution has, in fact, failed to prove both physical and mental harassment meted out to the deceased de facto complainant. That the evidence of P.Ws.1 to 3 in this regard ought not to have been considered by both the Courts below as P.Ws.1 and 2 are related witnesses and P.W.3 is an interested one. At the most, according to the learned Counsel the evidence of P.Ws.1 to 3 could be said to be only hearsay. It is further contended that the revision petitioner contacting second marriage was disbelieved by the trial court and he was acquitted therefor, and as such, that part of the matter is not relevant for this case. Lastly, learned Counsel submits that there is no material brought on record by the prosecution sufficient to warrant the conviction of accused No.1 for the offences under Section 498-A of IPC and for the offences under Sections 4 and 6 of the Dowry Prohibition Act. It is further submitted that so far as accused Nos.3 and 4 are concerned they are acquitted by the appellate Court for the offences under Section 498-A of IPC. In the circumstances learned Counsel prayed that this revision case may be allowed by setting aside the impugned judgment of the appellate Court. 7. On the other hand, learned Public Prosecutor supported the impugned judgment of the appellate Court stating that the said Court after considering the entire material on record and hearing both sides confirmed the order of conviction and sentence passed by the trial Court against accused No.1 by acquitting accused Nos.3 and 4 for the offences under Section 498-A of IPC and as such the impugned judgment of the appellate Court does not in any way warrant interference. 8. Ex.P1, complaint filed by the deceased-defacto complainant before the learned XXII Metropolitan Magistrate, Hyderabad under Section 200 Cr.P.C. does not loose its sanctity by the death of its maker since the contents thereof spoken to are corroborated by the evidence of PWs 1, 2 and 3 which is to the effect that the deceased-defacto complainant was harassed, assaulted and ill-treated for the sake of additional dowry by the petitioner-A1. Therefore, the contention raised by the learned counsel in this regard is not acceptable to this court. 9. The abnormal delay of two years period in filing the private complaint by the deceased-defacto complainant is not fatal to the case of the prosecution as she was subjected to harassment on account of additional dowry for quite a longtime though she was blessed with three children, aged 9 years, 6 years, and 4 years and that due to physical injuries including backbone fracture suffered by her at the hands of the petitioner-A1 allegedly at the instigation of A3 and A4, she became, as per the medical and other evidence, mental wreck for which she was compelled to take psychiatric treatment from PW.5, Doctor attached to Sagarlal memorial hospital. From these circumstances, it can be inferred that she was made to suffer mentally till the time of her filing the private complaint. Therefore, the said contention canvassed by the learned counsel has got to be turned down. 10. Coming to the evidence of PWs 1, 2 and 3, it is contended that since they are related and interested witnesses, their evidence not sufficient and the same is not safe to base the conviction. 11. To put it in a single sentence, it is contended that the evidence of PWs 1 to 3 is nothing but hearsay. However, it is well settled that the relationship or interestedness is not a ground to brush aside the evidence of the prosecution witness provided their evidence is reliable, truthful and trustworthy. The only requirement is that the court should be cautious in appreciating such evidence. Both the courts below appear to have exercised such precaution while appreciating the evidence of PWs 1 to 3 in coming to the conclusion that the petitioner-A1 was guilty of the offences under sections 498-A IPC and 4 and 6 of the Dowry Prohibition Act. So far as the appellate is concerned, it went ahead even in finding A3 and A4 not guilty of the offence under Section 498-A IPC and as such, acquitted them of the charge for the said offence. Therefore, the evidence of PWs 1, 2 and 3 is trustworthy in material particulars in proving the prosecution case. That being so, no additional material is brought on record by way of raising legal pleas or otherwise that the appellate court has committed any error or irregularity in confirming the order of conviction and sentence passed by the trial court against A1. However, the learned counsel for the petitioner submitted that since the case pertains to the year 1998 and since this petitioner-A1 is facing the ordeal of the legal proceedings against him at the trial court as well as the appellate court and also at the level of this court, a lenient view may be taken with regard to quantum of sentence and the same may be reasonably be reduced. 12. However, the learned Public Prosecutor supported the impugned judgment and order of the appellate Court. He posed a question to himself in this context that how could a man having committed acts of harassment, cruelty and assault against his helpless wife though blessed with three children be shown any leniency. 13. Having regard to the facts and circumstances of the case and also having regard to the submissions made by either side for and against and also having regard to the fact that the petitioner-A1 was acquitted by the trial court for the offence under Section 494 IPC for Bigamy, this court is in agreement with the statement made by the learned counsel to some extent. As such, this court is of the view and doth hereby order as under: That while maintaining the conviction of the petitioner-A1, the sentence imposed on him of rigorous imprisonment for three yeas for the offence under Section 498-A IPC is modified and is reduced to rigorous imprisonment for one year, while maintaining the fine of Rs.1,000/- and in default, simple imprisonment for four months, and also while maintaining his conviction and sentence of rigorous imprisonment for one year and fine of Rs.500/-, in default, simple imprisonment for two months for the offence under Sections 4 and 6 of the Dowry Prohibition Act. Both the sentence shall run concurrently. 14. With this modification, this Criminal Revision Petition is disposed of. The petitioner-A1 is entitled to set off as per Section 428 Cr.P.C. __________________ B.N.RAO NALLA, J Dated:15.12.2009 Note: L.R.copy to be marked. vs/stp