THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1096 OF 2004 ORDER: This is an appeal filed at the instance of the State against the acquittal of the respondents herein in S.C.No.608 of 2002 by the Principal Assistant Sessions Judge, Tenali on 29.09.2003. The respondents herein are the son and mother and they were prosecuted for the offences under Sections 498-A, 324 and 307 IPC. According to prosecution Galla Audi Lakshmi was married to the 1st respondent herein on 30.06.1994 in Garuvupalem village according to Hindu rites and customs. Accused No.1 addicted to bad vices and started insisting P.W.1 to get more cash from her parents’ house. It is the case of the prosecution that P.W.1 did not beget any children out of the wedlock and due to that also the accused No.2 used to harass her and wanted to perform second marriage to accused No.1 in order to get more dowry. On 21.05.2002 P.W.1 and A.1 came to Gavurupalem to the house of her in-laws for summer holidays and during that time accused No.1 used to beat her at the instigation of accused No.2 and accused No.2 used to utter that she will kill her to enable accused No.1 to marry another lady to get more dowry. While so on 15.06.2002 at the instance of accused No.2, accused No.1 beat her with a stick on her hands and legs, as a result of which she sustained bleeding injuries and fell down on the ground. Accused No.1 poured kerosene on her body and about to lit matchstick, she escaped from the hands of the accused and gone out of the house by weeping, and upon hearing the cries, P.W.3 Bandaru Srinivasa Rao, Byragi and Srimannarayana came there and they saw the accused No.1 leaving the house and after arrival of the parents of P.W.1, they have gone to the Police Station and lodged a complaint and P.W.6 registered a case in Crime No.25 of 2002 and sent P.W.1 to the hospital for treatment and he visited the scene of offence and seized the black plastic tin with small quantity of kerosene and thereafter seized the clothes of P.W.1 in the presence of P.W.4 and Gade Venkatarao under the cover of mahazar. On 17.06.2002 P.W.6 arrested accused No.1 and accused No.2 obtained anticipatory bail and after completion of investigation P.W.6 filed the charge sheet against the accused for the above said offences. The learned Principal Assistant Sessions Judge has framed the charges under Sections 498-A, 324 and 307 IPC against accused Nos.1 and 2 and both of them pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined 6 witnesses i.e. P.Ws.1 to 6 and got marked Exs.P.1 to P.6 and M.Os.1 to 3. The learned Principal Assistant Sessions Judge by taking into consideration of the said oral and documentary evidence found that the prosecution has failed to establish the charges under Sections 498-A, 324 and 307 IPC and thereby acquitted both the accused. Aggrieved by the said acquittal, the State has preferred the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 498-A, 324 and 307 IPC against the accused beyond reasonable doubt? P O I N T: On behalf of the public prosecutor, it is argued that the evidence of P.Ws.1 to 3 establishes the harassment caused by accused No.1 at the instigation of accused No.2 for bringing additional dowry by P.W.1 from her parents and as she could not bring the same, accused No.1 beat her and poured kerosene and tried to kill her and therefore the charge under Section 498-A IPC is established against the accused. On behalf of the public prosecutor, it is also argued that the evidence of P.W.5 and wound certificate Ex.P.4 clearly establishes that P.W.1 has received 4 injuries and the evidence of P.Ws.1 to 5 clearly establishes that the accused No.1 at the instance of accused No.2 poured kerosene on P.W.1 and accused No.2 instigated accused No.1 to kill P.W.1 and thereupon accused No.1 tried to lit matchstick, but P.W.1 escaped from the clutches of the accused and ran out of the house and the same was witnessed by P.W.3 and thereby the prosecution could able to establish that the accused has committed the offences under Sections 324 and 307 IPC. Accused No.1 appeared in person and argued the matter. He pleaded that he lead happy marital life with P.W.1 for 5 years and there is no occasion for him to harass P.W.1 for any amount and except the evidence of P.W.1, there is no other evidence on record to establish the alleged harassment caused by him demanding to get more money from her parents and P.W.3 has not witnessed the harassment caused to P.W.1 and also did not witness A.1 pouring kerosene on P.W.1 and trying to lit fire to her and according to P.W.1, she came out of the house and standing outside the house and thereupon P.W.3 and others came there. He also pleaded that a false case is lodged against him on the allegation that he has sold away the property given to P.W.1 towards pasupu-kumkuma by her parents and in fact he has not sold any property belonging to P.W.1 to any third person and the prosecution has failed to establish the same by producing any documentary evidence. He further pleaded that even though the Investigating Officer P.W.6 seized M.Os.1 and 2 the clothes of P.W.1 in the hospital on the next day, there is no material on record to show that the said clothes were emitting kerosene smell and the Doctor, who has examined P.W.1 on the same day of the alleged incident did not find emitting of kerosene smell from the body of P.W.1, as such the prosecution has failed to establish the story that the accused No.1 has poured kerosene and tried to lit fire with an intention to kill her and the lower Court has rightly found that accused Nos.1 and 2 have not committed any offence as alleged by the prosecution and rightly acquitted them. According to prosecution the marriage between P.W.1 and accused No.1 took place on 30.06.1994 and the alleged incident has taken place on 15.06.2002. P.W.1 has admitted in her evidence that she lived with accused No.1 for 5 years and as she did not beget any children out of the wedlock, accused Nos.1 and 2 started harassing her and also demanding her to bring more money from her parents house and on 15.06.2002 accused No.2 instigated accused No.1 to kill her, as such accused No.1 beat her with a stick and when she fell down, accused No.1 poured kerosene and tried to lit fire to her by litting a matchstick and she escaped from the hands of the accused and gone outside the house. It is also the case of P.W.1 that at the time of marriage, her parents gave Rs.50,000/- towards dowry and Rs.20,000/- towards saree samans and Ac.1.80 cents of land towards Pasupu- Kumkuma. According to her in the year 1998 accused No.1 sold away the said property and purchased Ac.5.00 of land at Ramudupalem near Vinukonda by executing an agreement and she has questioned the same, he tried kill her by pouring kerosene. P.W.2 is the father of P.W.1, he has also stated about the payment of dowry and giving of Ac.1.80 cents of land towards pasupu-kumkuma and Rs.20,000/- for saree samans and the accused No.1 has sold away the said property and purchased an extent of Ac.14.00 of land near Vinukonda and started harassing her to get more money from him. He also admitted that accused No.1 and P.W.1 lived happily for about 4 years. Therefore, according to prosecution only after 4 years of marriage alleged harassment has started by accused Nos.1 and 2. Admittedly, P.W.1 has not begotten any children out of the wedlock with accused No.1 and the allegation against accused No.1 is that he started abusing P.W.1 as barren lady and used to beat her and also demanded to get more money from her parents and accused No.2 instigated accused No.1 in that regard. P.W.3, who is the resident of locality where the incident has taken place, is not a witness for the harassment caused to P.W.1 by accused No.1, but he only attended the marriage of P.W.1 with accused No.1 and he also spoken about the payment of dowry and Ac.1.80 cents towards pasupu kumkuma. In order to establish the charge under Section 498-A IPC, the prosecution has to establish that husband or the relative of the husband of a woman, subjects such woman to cruelty and as per the explanation of Section 498-A 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. According to the prosecution, the accused harassed P.W.1 to get additional dowry from her parents. Therefore, the said allegations made against the accused falls under clause (b) of the explanation to Section 498- A IPC Now, it has to be examined whether the evidence of P.Ws.1 to 3 establishes the harassment caused by accused Nos.1 and 2 to P.W.1 for getting additional dowry. Admittedly, the marriage took place in the year 1994 and they lived happily for 5 years after the marriage and only after 5 years the alleged harassment of accused Nos.1 and 2 started. Admittedly, P.W.1 and accused No.1 are living separately from accused No.2 at Ramudupalem village near Vinukonda and accused No.1 is working as Para Teacher and P.W.1 is working as Anganvadi teacher at Ramudupalem village. According to P.W.1 as she did not get children out of her wedlock with accused No.1, accused No.1 used to abuse her as a barren lady and used to beat her. According to her the said conduct of accused No.1 has started only after 5 years of their marriage and on 21.05.2002 they went to Ravurupalem to the house of her in-laws for summer holidays, there accused No.1 beat her at the instigation of accused No.2 and accused No.2 also utter that she will kill her so as to enable accused No.1 to marry another lady for more dowry. But she did not speak anything about both the accused harassing her to get additional dowry from her parents. P.Ws.1 and 2 only spoken about the dowry given at the time of marriage and they did not speak anything about the harassment caused by accused Nos.1 and 2 for not getting additional dowry. As already observed above that P.W.3 is not an eyewitness to the harassment caused by accused Nos.1 and 2 to P.W.1. Therefore, the prosecution could not establish the cruelty on the part of the accused in order to attract the provisions of Section 498-A IPC. The next allegation made against the accused is that on 15.06.2002 at about 3.00 P.M. accused No.1 beat her with a stick and when she fell down, he poured kerosene and tried to lit fire to her with a matchstick and she escaped from the hands of the accused and ran out of the house and the same was witnessed by P.W.3 and others. To establish the said offence alleged against the accused, the only evidence available on record is the evidence of P.Ws.1 and 3. Admittedly, P.W.2, who is the father of P.W.1, was not present at the time of incident, he came to the spot after the occurrence of the incident and he came to know about the incident only through P.W.1. Therefore, the said evidence of P.W.2 in that regard is only hearsay evidence. With regard to the said incident P.W.1 has stated that on 15.06.2002 accused No.2 instigated accused No.1 to kill her and at the instigation of accused No.2, accused No.1 beat her with a stick on her hands and legs and she sustained bleeding injuries and fell down on the ground. Accused No.1 beat her with a stick on her fore arms and knees and again accused No.2 instigated accused No.1 to kill her by pouring kerosene and at the instance of accused No.2, accused No.1 poured kerosene on her body, and while going to lit the matchstick, she escaped from the hands of accused and fell down and lost her consciousness. In the meanwhile, Byragi, Srimannarayana and Srinivasa Rao came there and took her to Adavuladeevi police station, her parents also accompanied her to police station and the accused No.1 ran away from the house and she gave Ex.P.1 report to the police. In the cross-examination, she admitted that she has stated to police and also police mentioned in Ex.P.1 that the accused beat her on her thigh and also on her hands and she admitted that she has not stated in Ex.P.1 that the accused beat her on her legs as well as on her fore arms. After the incident, she came outside the house and stood in front of the house and raised hue and cries. With regard to the injuries sustained by P.W.1, the prosecution examined P.W.5, who treated her. P.W.5 Doctor has stated that he examined P.W.1 on 15.06.2002 at 11.15 P.M. and found the following injuries. (1) A lacerated injury over posterim aspect of lower 1/3rd of left forearm 1 ¼” X ¼” X ¼ ” (2) A red contusion over left lateral aspect of left knee 2” X ¾” X 2 ¼” (3) A red contusion over lateral aspect of right knee 2” X 1 ½”. (4) A red contusion over medial side of right elbow 3” X 2 ½” According to him, the injuries are simple in nature and might have caused with blunt object. Therefore, according to the Doctor, the injuries were found on the left forearm, left knee, right knee and right elbow, but P.W.1 admitted in the cross-examination that she did not state in Ex.P.1 or before the police that the accused beat her on her legs as well as on her forearms and she admitted that she has stated before police and also police mentioned in Ex.P.1 that the accused beat her on her thigh and also on her hands. Therefore, the statement given by P.W.1 in her chief-examination that accused No.1 beat her with a stick on her forearms and knees is an improvement made by her during the course of evidence before the lower Court after receiving of Ex.P.4 wound certificate. Therefore, the alleged beating of accused No.1 as stated by P.W.1 is not supported by medical evidence of P.W.5. With regard to accused No.1 pouring of kerosene and attempt to kill her by litting a matchstick, P.W.1 has stated that after beating at the instigation of accused No.2, he poured kerosene and tried to kill her by litting a matchstick and she escaped from the hands of accused and fell down on the ground and lost consciousness. But in the cross-examination, she stated that after the incident, she came outside the house and stood in front of the house and raised hue and cries and according to her on hearing the cries, P.W.3 came there and admonished the accused and took her to the police station along with her parents. P.W.3 has stated that on 15.06.2002 while himself, Byragi and Srimannarayana were chitchatting at his house, in between 3.00 to 3.30 P.M. they heard the cries from the house of accused No.1, on hearing the same, himself and Byragi went there and found P.W.1 coming out from the house by weeping and accused NO.1 coming back of P.W.1 armed with match box and saying that he would kill her and accused No.2 also instigated accused No.1 to kill P.W.1, by that time the entire body of P.W.1 wetted with kerosene. In the meanwhile, 4 or 5 neighbours gathered there and the parents of P.W.1 came there and she narrated the incident to them and they took her to the police station. In the cross-examination, he has stated that he is related to P.W.2 and that P.W.1 and her parents went to the police station in an auto and he followed them on his cycle to the police station on his own accord. Therefore, from the above it is evident that P.W.3 being relative of P.W.2 has accompanied them to the police station even without any request made by P.W.1 or P.W.2. With regard to his witnessing accused No.1 coming behind P.W.1 and P.W.1 wetted with kerosene when she came out the house was not supported by the evidence of P.W.1 as she has stated that she fell down and became unconscious and she did not speak that A.1 chased her to lit the matchstick and set fire to her. Therefore, the evidence of P.W.1 in that regard is not corroborated by P.W.3’s evidence. Except the evidence of P.Ws.1 and 3 there is no other evidence in that regard. With regard to P.W.3 witnessing P.W.1 coming out of the house wetted with kerosene and according to the prosecution P.W.1 was sent to the hospital by P.W.6 immediately after receiving the complaint and P.W.5 examined her on the same day at 11.15 P.M., but he did not speak anything about the emitting of kerosene smell from P.W.1 at the time of his examination and Ex.P.4 also does not disclose about his observing that P.W.1 having kerosene smell from her clothes. According to the Investigating Officer, he has inspected the scene of offence and seized M.O.3 containing kerosene and thereafter seized the clothes of P.W.1 in the hospital at Repalle in the presence of P.W.4. P.W.4 even though has stated that M.Os.1 and 2 were seized by P.W.6 from P.W.1 but did not speak anything about M.Os.1 and 2 are emitting kerosene smell. Therefore, there is no evidence on record to show that M.Os.1 and 2, the clothes of P.W.1 emitting kerosene smell at the time of seizure. Therefore, the evidence of P.Ws.1 and 2 with regard to the accused pouring kerosene was not established by the prosecution. Therefore, the question of accused No.1 litting matchstick in order to kill her cannot be believed. Accused No.1 also pleaded that P.W.6 has kept the sister of P.W.1 as his mistress and at the instigation of P.W.1’s sister; a false case is foisted against him. P.W.6 Investigating Officer has stated that he has received the complaint from P.W.1 on 15.06.2002 at 7.00 P.M. and registered the same as Crime No.25 of 2002 under Sections 498-A, 324 and 307 read with 34 IPC. According to him, Ex.P.1 is the complaint given by P.W.1, but P.W.1 has stated that she does not know who scribed Ex.P.1, but it only contains her signature. She has stated that the signature on Ex.P.1 has subscribed by her in the presence of S.I of police in the police station, but whereas P.W.6 Investigating Officer denied P.W.1 affixing her signature on Ex.P.1 in his presence in the police Station. Moreover, even though the crime was registered on 15.06.2002 at 7.00 P.M., the same was sent to the Magistrate on the next day at 4.20 P.M. as admitted by P.W.6 and according to him as there is no men available in the police station he could not sent the First Information Report immediately to the Magistrate. As admitted by him, he has sent P.W.1 along with a constable to the Government Hospital, Repalle and the Magistrate’s Court is also located at Repalle, but no reasons were stated by him as to why he could not sent the First Information Report to the Magistrate immediately along with P.W.1 when she was sent to the hospital with escort. Therefore, there is delay in sending First Information Report to the Court and there is a doubt with regard to scribing of Ex.P.1 and there is a suspicion about the lodging of complaint by P.W.1 with the allegations as alleged by her in view of the allegation of the accused that the Investigating Officer is related to P.W.1 and her elder sister is living with him. Therefore, the above circumstances creates a doubt with regard to the commission of offence by the accused as alleged by the prosecution. Therefore, the prosecution has failed to establish the charges under Sections 498-A, 324 and 307 IPC against the accused beyond reasonable doubt. Thus, the lower Court has rightly found the accused not guilty for the offences under Sections 498-A, 324 and 307 IPC and acquitted them and the said finding of the lower Court does not warrant any interference by this Court. In the result, the Criminal Appeal is dismissed. _______________________ P.DURGA PRASAD, J 17th June, 2011 KSP