IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY THE FOURTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1363 of 2005 Between: Ghanta Gokul .. Appellant AND State of Andhra Pradesh, represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Respondents JUDGMENT: The conviction of the 1st accused in S.C.No.573 of 2003 on the file of the Court of Additional Metropolitan Sessions Judge for trial of Communal Offence Cases-cum-VII Additional Metropolitan Sessions Judge, Hyderabad, for an offence punishable under Section 498 A of the Indian Penal Code by the judgment dated 29-08-2005 and the consequential sentence imposed on him is the subject matter of this appeal presented by the aggrieved 1st accused. The appellant and his first cousins, 2nd and 3rd accused and his parents, 4th and 5th accused, and his sister, 6th accused, were prosecuted together for the offences allegedly committed by them and punishable under Sections 498 A, 406, 354 and 506 of the Indian Penal Code and Sections 4 and 6 of the Dowry Prohibition Act, alleging that Ghanta Padmaja and the 1st accused were married on 11-08-1992 at Chirala and after one month after their love marriage, the 1st accused got a job since when there was a change in his attitude. It was alleged that the 1st accused was beating and abusing Padmaja since then complaining that he would have got dowry if he married a girl of his caste. It was also alleged that the 2nd and 3rd accused attempted to force Padmaja into sexual relationship with them and that since the beginning of 2002, the 1st accused started neglecting Padmaja and her son born out of the wedlock, who was aged 6 years by then. The 1st accused was alleged to have withdrawn the entire bank balance of Padmaja and to have taken away her entire jewellery. She was alleged to have been beaten by her parents-in-law and sister-in- law also, who demanded that she should bring a dowry of Rs.5,00,000/- to allow her to remain with the 1st accused. A-1 to A-3 were alleged to have even attempted to kill Padmaja and also to have pressurized her to give divorce to the 1st accused. Ghanta Padmaja, therefore, complained to the police and requested for protection, which complaint was registered as Cr.No.409 of 2002. After investigation, the accused were prosecuted for the alleged offences. After the accused entered appearance and were furnished with copies of documents, the Magistrate committed the case to the Court of Session and the Court of Session framed appropriate charges against each accused, who pleaded not guilty. During the course of trial, after the conclusion of the evidence of PW.1, the parents and sister of the 1st accused were directed to be impleaded as accused 4 to 6, though the prosecuting agency had chosen to proceed against accused 1 to 3 only originally. The accused 4 to 6 also denied the charges framed against them after their appearance after receiving copies of documents and the trial went ahead with the examination of PWs.1 to 7 and marking Exs.P.1 and P.2. The accused denied the incriminating circumstances appearing against them in the evidence when they were examined under Section 313 of the Code of Criminal Procedure and DW.1 was examined and Exs.D.1 to D.6-A were marked on behalf of the accused. The trial Court rendered the impugned judgment referring extensively to the offences for which the accused were charged and the oral and documentary evidence placed before it by the prosecution in support thereof. The trial Court dealt with each charge in detail and concerning the charge under Section 406 of the Indian Penal Code against the 1st accused, the trial Court observed that the bank passbooks of the wife, PW.1, were not produced, any cheques used by the 1st accused for drawing any amount belonging to the wife were also not produced and the wife as PW.1 did not state specifically in her earliest version in Ex.P.1 or her 161 Cr.P.C. statement about the incident in April, 2002, during which the husband allegedly beat her and took away her gold. The trial Court also referred to the admissions of PW.1 about the 1st accused sending the total sum of Rs.41,500/- and the trial Court felt that there was substance in the contention of the 1st accused that in fact he got prepared gold ornaments with his own monies for the benefit of his wife. The absence of any information from PW.1 in this regard to PWs.2 and 3 was also taken adverse notice of and consequently, the prosecution was concluded to have failed to prove the charge against the 1st accused. Concerning the charge under Section 354 of the Indian Penal Code against 2nd and 3rd accused, the trial Court felt that the evidence of PW.1 is not inspiring confidence in its mind regarding the alleged incidents in view of the absence of any circumstantial evidence of such misbehaviour by 2nd and 3rd accused and in the absence of specification of the date or month or year of the alleged incidents. The trial Court also noted that PWs.2 and 3, sister-in-law and brother-in-law of PW.1, did not refer to any incidents involving the 2nd and 3rd accused and referring to the admissions by PW.6, the investigating officer, contradicting the version of PWs.1 to 3, the trial Court also placed reliance on the subsequent conduct of PW.1 in visiting the house of the 2nd accused even in 2002 and in view of the suspicions raised in the mind of the trial Court against the credibility of PW.1 in this regard, the benefit of doubt was given to 2nd and 3rd accused. Concerning the charge under Section 498 A of the Indian Penal Code against accused 2 to 6 and the further charge against them under Sections 4 and 6 of the Dowry Prohibition Act, the trial Court held that PW.1 stated earlier only about accused 4 to 6 demanding her to get Rs.5,00,000/- from her sisters, while in her evidence she claimed that accused 2 to 6 made such a demand. The trial Court referred to the evidence of the investigating officer, PW.6, about PW.1 not stating any such details to PW.6 and the claim of PW.2 about the parents of the 1st accused telephoning to her, demanding Rs.5,00,000/- was also noted to be an improvement, which was not stated to the police, according to PW.6. The trial Court further observed that PW.3 was not definite about the alleged telephone call from any accused and the evidence of PW.7 about the alleged demand was discarded, as PW.1 herself did not state about the alleged visit by PW.7 to the house of 4th and 5th accused. The conclusion of the prosecuting agency originally that there was no evidence against accused 4 to 6 in this regard was also noted and it was further observed that the 2nd accused was working in Indian Railways at various places during the relevant periods and the 6th accused married to Vijaya Raju in 1997 was living with her husband and children elsewhere. Therefore, the trial Court gave the benefit of doubt in this regard to accused 2 to 6. Concerning the charge under Section 506 of the Indian Penal Code against all the accused, in the absence of any corroborating material to the self-serving testimony of PW.1 and in the absence of any reference to such threats of dire consequences in Ex.P.1, the trial Court gave the benefit of doubt to the accused further observing that even the evidence of DW.1 for the accused is superfluous as the claims of PW.1 about the incident dated 17-08-2002 was doubtful. Coming to the last charge left under Section 498 A of the Indian Penal Code and Sections 4 and 6 of the Dowry Prohibition Act against the 1st accused, the trial Court observed that at the time of love marriage between PW.1 and the first accused, there was no agreement to give any property or valuable security and there was no scope to demand or agree upon any dowry. The trial Court, extensively referring to the evidence of the witnesses in this regard, was not inclined to place reliance on the improved versions of the witnesses in this regard, but concluded that there was sufficient material placed on record to establish that 1st accused used to ill-treat PW.1 by making unlawful demand for payment of money from her sisters, who are employed, and by not providing maintenance to PW.1 and to her son and due to physically assaulting PW.1 thus subjecting her to cruelty. The trial Court considered it probable in this regard that the evidence of PWs.1 to 3 and 7 amply established the demand of the 1st accused to PW.1 to get Rs.5,00,000/- from her sisters. The trial Court also felt that the evidence on record probablises that the 1st accused used to beat and physically assault PW.1 and also disregarded to provide elementary means of maintenance to PW.1 and her son. While concluding that such acts of cruelty on the part of the 1st accused amount to matrimonial cruelty, the trial Court refused to rely on the dismissal of M.C.No.47 of 2002 filed for maintenance in respect of PW.1, the wife, while such maintenance was granted only to the son, on the ground that the maintenance amount was not paid, though such dismissal was admitted by PW.1 in her evidence. The trial Court refused to place any reliance on some monies sent by the 1st accused to PW.1 between April and October 2002 or the parents of PW.1 being shown as dependents of 1st accused prior to 1999 for the purpose of medical assistance or the admission of PW.1 about the 1st accused paying the school fee for the son prior to 2002. The trial Court considered the maintenance of parents of PW.1 prior to 2002 to be irrelevant judging the conduct of the 1st accused in 2002 and the contentions of the 1st accused in his divorce petition in O.P.No.24 of 2002/Ex.D.1 were also not relied upon as PW.1 was noted to have failed to mention any dates or months or years for the alleged demands of the 1st accused to get the money. The trial Court, therefore, considered PW.1 to be trustworthy witness with regard to these aspects even if she was uncorroborated by any other evidence or circumstance and it also placed reliance on the claims of PWs.2 and 3 as it considered it natural that PW.1 would have informed to her kith and kin about the matrimonial disputes. PW.7, the alleged mediator, was also relied upon and consequently, while acquitting the 1st accused even in respect of the offences punishable under Sections 4 and 6 of the Dowry Prohibition Act, the trial Court found him guilty under Section 498 A of the Indian Penal Code. After examining the 1st accused regarding the question of sentence, the trial Court imposed rigorous imprisonment for a period of two years and a fine of Rs.1,000/- with a default sentence of simple imprisonment for six (6) months on the 1st accused, while giving the benefit of set off under Section 428 of the Code of Criminal Procedure. The 1st accused challenges the said judgment placing reliance on the interested and discrepant testimony of PWs.1 to 3, more so, when the accused were acquitted of the other offences disbelieving the prosecution evidence. Alleging that the claims of PW.1 to PW.3 were totally an improvement, the 1st accused claimed that the trial Court, which entertained doubts about the correctness of the incidents involving the accused 1 to 3 should have thrown out the entire case as false. When the 1st accused maintained the parents of PW.1, any insistence by him for money is unnatural and the allegations after a decade of the love marriage could not have been considered reliable. The 1st accused, therefore, desired that his conviction and sentence be reversed. Sri C. Praveen Kumar, learned counsel for the 1st accused- appellant and Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor are heard at length and the learned counsel for the appellant also drew the attention of this Court to the orders passed in M.C.No.47 of 2002 and Crl.R.C.No.2 of 2004 whereby the claims of PW.1 for maintenance were negatived on the ground of the 1st accused never neglecting his wife and never refusing to maintain her. The point for consideration is whether the prosecution proved the guilt of the 1st accused for an offence punishable under Section 498 A of the Indian Penal Code beyond reasonable doubt? The aggrieved wife, while repeating her allegations against all the accused as PW.1, had to admit that their marriage was an inter caste love marriage performed on 11-03-1992 and admittedly there was never any complaint till Ex.P.1 about any harassment by the 1st accused since after one month after the marriage since he got employment as alleged by PW.1. The alleged beating of PW.1 by the 1st accused since then had no corroborating physical or medical evidence at any point of time and the couple were blessed with a son, who was aged about six years by the time the differences became irreconcilable in 2002, which may not be a pointer towards the alleged harassment since one month after the marriage. Similarly, the alleged offending behaviour of the 2nd and 3rd accused was also undisclosed till Ex.P.1 and PW.1 positively stated even in her chief-examination about the demand for Rs.5,00,000/- to allow her to continue to live with the 1st accused was made by the accused 4 to 6. She never stated about the 1st accused making any such demand and the alleged beating of PW.1 after PW.1 left the house of 1st accused, threatening to kill her was not the subject of any complaint to the police or otherwise prior to Ex.P.1. PW.1 admitted that she stayed in the house of 1st accused till October 2002 including after Ex.P.1 complaint also, while she again claimed that the 1st accused left her company in April or May 2002. She further admitted about the dismissal of maintenance case filed by her to the extent of her claim and she claimed conveniently ignorance as to whether the 1st accused applied for divorce even by 14-06-2002 much prior to her Ex.P.1 complaint. Her various admissions improbablising the credibility of her version in respect of other charges extracted by the trial Court in the impugned judgment need not be replicated. But it is suffice to note that any mental or physical harassment as presumed by the trial Court by the 1st accused either demanding Rs.5,00,000/- from PW.1 for continuance of the marital tie or due to any physical violence on the person of PW.1 or due to the failure or refusal of the 1st accused to maintain PW.1 and her son do not appear probablised solely by the self-serving statements and claims of PW.1 which were not found reliable on any other aspects by the trial Court itself. While it should be noted that the acquittal of accused 1 to 6 concerning all other charges was not the subject matter of challenge either by the State or by PW.1, the conclusions on which such acquittal was based had, therefore, become final. Though the principle that false in one thing is not false in everything may be true, when the version of PW.1 is not trustworthy and was disbelieved in material particulars by the trial Court, the same creates a situation where her allegations against the 1st accused regarding the charge under Section 498 A of the Indian Penal Code also have to be very closely and carefully scrutinized before acceptance and as a rule of prudence, the Court has to look for satisfactory corroboration from the other circumstances apart from her own evidence, which cannot be construed to be present. PW.2, the sister of PW.1, also stated the demand for dowry of Rs.5,00,000/- to be through a telephone call from the parents of the 1st accused and PW.2 did not claim the request by them to the 1st accused not to harass PW.1 to be witnessed by any independent person at any time. PW.3, who is the husband of PW.2, only stated about some change in attitude of the 1st accused towards PW.1 after he got a job, but not about any physical violence by the 1st accused against PW.1 as claimed by PWs.1 and 2. PW.3 admitted that he had no personal knowledge about the family affairs of PW.1 and the 1st accused after the birth of male child and the claims of PWs.1 to 3 about the alleged incident on 17-08-2002 were not accepted by the trial Court. PW.3 was not confined to his version in the statement to the police and the trial Court positively concluded that his version was one of improvement, which does not deserve reliance. The evidence of PW.5 about his assisting PW.1 with Rs.500/- to enable her to go to Hyderabad was about such an incident in July 2002, while PW.1 herself never alleged about any specific incident, which forced her to leave the house in April 2002. What were the compelling circumstances that instilled such a sense of insecurity in the mind of PW.1 were not intelligible from the evidence of PW.1 herself and to presume the 1st accused to be guilty of cruelty from such evidence of PW.5 does not appear appropriate. Even the investigating officer as PW.6 had admitted that PW.1 did not specify about any demand by the sister of the 1st accused for Rs.5,00,000/-, while claiming such a demand from her parents-in-law and his evidence did not disclose the investigating agency to have detected any corroborating circumstances for the claims of physical violence by A-1 against PW.1 or his neglect or refusal to maintain PW.1 and her son. PW.7, who claimed to have mediated in the disputes, admittedly claimed to have gone to the house of the accused without any prior intimation and he did not even remember whether it was a holiday or working day when he visited. While he admittedly mediated on behalf of PW.1, such a mediation could not have been made without any mediators on behalf of the accused as admitted by PW.7. PW.7 admitted that the 6th accused was residing in Uttar Pradesh at that time improbablising any harassment by the 6th accused at the relevant time. The demand by the 1st accused also for a sum of Rs.5,00,000/- as claimed by PW.7 was not even the claim of PW.1 and in the light of various circumstances elicited by the trial Court to disbelieve all the witnesses in respect of other charges, it is difficult to rely on such evidence as proof beyond reasonable doubt against the 1st accused. Ex.D.1 certified copy of the divorce petition filed by the 1st accused shows that the 1st accused approached the Court for divorce alleging PW.1 to be the cause for the failure of the marriage much prior to Ex.P.1 and PW.1, who never complained against her husband before, came up with the allegations of harassment since one month after the marriage only after the filing of divorce case and service of notice of the same on her. It may be incidentally noted that the copies of orders in M.C.No.47 of 2002 and Crl.R.C.No.2 of 2004 dealing with the claim of PW.1 for maintenance against the 1st accused positively concluded that the 1st accused never neglected or refused to maintain his wife. The conclusions were stated to have become final in the absence of any further challenge and irrespective of the proceedings in the maintenance case, the allegedly sufficient material, referred to by the trial Court to establish any demand for Rs.5,00,000/- by the 1st accused or concerning any physical cruelty to PW.1 by the 1st accused or any refusal or neglect to maintain PW.1 by the accused, said to have been discernible to the trial Court does not appear so on any close perusal and examination of the evidence on record and the same benefit of reasonable doubt given to all the accused in respect of other offences should have been given to the 1st accused in respect of this charge also. Therefore, it has to be concluded that the prosecution had failed to prove the guilt of the 1st accused for an offence punishable under Section 498 A of the Indian Penal Code and he has to be accordingly acquitted of the same under Section 235(1) of the Code of Criminal Procedure. Accordingly, the conviction of the 1st accused for an offence punishable under Section 498 A of the Indian Penal Code and the consequential sentence imposed on him by the judgment dated 29-08-2005 in S.C.No.573 of 2003 on the file of the Additional Metropolitan Sessions Judge for trial of Communal Offence Cases-cum-VII Additional Metropolitan Sessions Judge, Hyderabad, are set aside and the 1st accused-appellant is not found guilty of the said offence and he is acquitted of the said charge under Section 235(1) of the Code of Criminal Procedure. The fine amount, if any, paid by him shall be refunded to him and the bail bonds of the 1st accused-appellant shall stand discharged. The Criminal Appeal is allowed accordingly. _____________________ G. BHAVANI PRASAD, J Date: 14-12-2009 Ksn