IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.854 OF 2009 Between: The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND 1. Chella Someswara Rao 2. Chella Naga Macharamma 3. Chella Lakshmi ..... Accused/Respondents The Court made the following: JUDGMENT: The criminal appeal under Section 378(1) & (3) of Cr.P.C. is directed by the State against the judgment, dated 29.10.2003, in C.C.No.123 of 1999, on the file of the learned Judicial I Class Magistrate, Palakol, whereunder and whereby, the Accused Nos.1 to 3 were found not guilty for the offences punishable under Sections 498(A) and 494 IPC. 2. The brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: The marriage of P.W.1 with A1 was performed on 25.04.1992, in Chakkavari Satram at Palakol, as per Hindu rites, castes and customs. At the time of marriage, an amount of Rs.75,000/- towards dowry was given to the accused besides household articles worth about Rs.30,000/-. P.W.1 joined her husband and gave birth to a male child. Since 1996, A1 and A2 subjected P.W.1 to cruelty. It is alleged that they were demanding P.W.1 to bring additional dowry of Rs.50,000/-. It is also alleged that A1 during the subsistence of the first marriage, married A3 and A1 and A3 are living as husband and wife in Weavers Colony, Palakol. It is further alleged that on 30.05.1999, all the accused tried to kill P.W.1 by pouring kerosene on her. When they tried to lit the matchstick, P.W.1 ran away. Then, P.W.1 lodged a complaint with the Sub-Inspector of Police, Achanta Police Station, who registered a case in Crime No.38 of 1999. He examined the witnesses and arrested the accused. Therefore, A1 to A3 are liable for punishment under Sections 498(A) and 494 IPC. 3. When charges under Sections 498A IPC against A1 and A2, 498A read with 114 IPC against A3, 494 IPC against A1 and 494 read with 114 IPC against A2 and A3 were framed, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 8 and got marked Exs.P1 to P15. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral evidence was adduced except marking Exs.D1 to D10. 6. The trial Court after considering the evidence on record came to the conclusion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and accordingly acquitted them. Challenging the same, the present criminal appeal is filed by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the charges under Sections 498(A) and 494 IPC and whether the judgment of the trial Court is correct, legal and proper? 8. Counsel representing the learned Public Prosecutor contended that the marriage between A1 and P.W.1 was performed on 25.04.1992, that P.W.1 was subjected to harassment with regard to demand of additional dowry by A1 to A3, that A1 and A3 were residing together as husband and wife, that therefore, the prosecution proved its case beyond all reasonable doubt against the accused and hence, she prays to set aside the order of acquittal. 9. For the offence under Section 498A IPC, cruelty means: “(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 10. Under Section 494, “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punishable.” 11. The evidence of P.W.1 would go to show that A1 used to demand her Rs.50,000/- towards additional dowry, failing which, he threatened her that he would marry A3. The second allegation is that on 30.05.1999, all the accused poured kerosene on her body and tried to lit a matchstick, but she ran away. The oral statement of P.W.1 would go to show that A1 married A3. 12. P.W.2 is no other than the father of P.W.1. He stated that A1 used to threaten P.W.1 that he would marry A3 unless P.W.1 brings the additional dowry amount of Rs.50,000/-. It is also in his evidence that on one occasion, the accused poured kerosene on P.W.1 and tried to lit a matchstick, but P.W.1 and her son escaped from the hands of the accused. 13. P.W.3 is the grand mother of P.W.1. She stated that the accused demanded Rs.32,000/- in order to send P.W.1 and her son. She stated that A1 and A2 threatened P.W.1 to bring additional dowry of Rs.50,000/-, failing which A1 would marry A3. She was not an eye witness to the incident. She was only informed by P.W.1 about the incident. 14. It is not in dispute that the marriage between P.W.1 and A1 was performed in Chakkavari Satram at Palakol, on 25.04.1992, as per the evidence of P.Ws.1 to 5. It is also not in dispute that P.W.1 filed a maintenance case in M.C.No.10 of 1999, on the file of the learned Judicial First Class Magistrate, Palakol, against her husband on her behalf and also on behalf of her son, Naveen Sai Kumar. 15. There is a serious discrepancy with regard to the venue of the marriage of P.W.1 with A1. According to the evidence of P.Ws.1 to 5, the marriage was taken place in Chakkavari Satram at Palakol. Whereas, according to the Investigating Officer, the marriage was taken place at Achanta Vemavaram village. A1 is seriously disputing about the performance of his marriage with P.W.1. The said plea has to be taken in M.C.No.10 of 1999. The evidence of P.Ws.1 to 5 would go to show that A1 married P.W.1. The nature of marriage and how the marriage was performed have not been stated by any one of the witnesses. P.W.1 has admitted that she does not know the customs that were followed at the time of her marriage as seen from Ex.D1. No doubt, the positive photographs and negatives would go to show that the marriage of A1 was performed with P.W.1. The Photographer has stated that he handed over the negatives eight months prior to his examination but those photographs have been marked during the trial. The Photographer also admitted that he can take the photographs from the positives. Those photographs have not been filed when P.W.1 filed M.C.No.10 of 1999 for maintenance before the same Court. Similarly, the photos and negatives were not handed over to the Investigating Officer in this case. There is a serious discrepancy with regard to the venue and the date of marriage of P.W.1 with A1. Therefore, the trial Court rightly disbelieved the evidence of P.W.7, who is the Photographer. Therefore, the prosecution failed to establish that the marriage of P.W.1 with A1 was performed. When she is not the wife, the question of punishing the accused under Sections 498(A) and 494 IPC does not arise. Even assuming for a moment that P.W.1 is the legally wedded wife of A1, there was no allegation in M.C.No.10 of 1999, filed by P.W.1 to the effect that she was subjected to harassment by her husband to bring Rs.50,000/- as additional dowry. The alleged demand of Rs.50,000/- by accused was made prior to filing of the maintenance case. 16. It is not in dispute that maintenance of Rs.500/- was granted to P.W.1 and her son. Challenging the said order in M.C.No.10 of 1999, A1 preferred a revision and the said revision was allowed with a finding that P.W.1 was not the legally wedded wife of A1 and her son Naveen Sai Kumar was not born to P.W.1 through A1. The certified copy of the order in C.R.P.No.22 of 2002 was filed when the accused was examined. Therefore, when P.W.1 was not the legally wedded wife of A1 as per the order in C.R.P.No.22 of 2002, the question of punishing the accused under Sections 498(A) and 494 IPC does not arise. Therefore, the judgment under challenge does not suffer from any infirmities so as to call for interference by this Court. Hence, the criminal appeal is devoid of merit and is liable to be dismissed. 17. Accordingly, the criminal appeal is dismissed at the stage of admission confirming the judgment, dated 29.10.2003, in C.C.No.123 of 1999, on the file of the learned Judicial I Class Magistrate, Palakol. _______________ (K.C. BHANU, J) Date: 10th August, 2009 KL