THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1138 of 2004 Date: 10.06.2011 Between: Burma Anand … Petitioner/ Accused No.1 AND The State of A.P., represented by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent/ Complainant THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1138 of 2004 ORDER: As many as 3 accused faced trial in C.C.No.416 of 1997 on the file of the Judicial Magistrate of First Class, Medchal. The first accused is the husband of Sunitha Bai (PW.1). A.2 and A.3 are the father and the mother of A.1. All of them were charge sheeted and charged for the offence under Section 498-A of the Indian Penal Code (‘IPC’ for short). After full-fledged trial, the learned trial judge found A.2 and A.3 not guilty of the alleged offence and acquitted them. He found A.1 guilty of the offence u/s.498-A IPC and sentenced him to Rigorous Imprisonment for one year and fine of Rs.500/- in default of payment of which, to suffer Simple Imprisonment for a further period of two months. A.1 preferred Criminal Appeal No.94 of 2002 before the learned III Additional Sessions Judge, Ranga Reddy District. Through the impugned judgment dated 07.07.2004, the learned Sessions Judge dismissed the appeal. He confirmed the conviction as well as the sentence recorded against A.1. A.1 assails the judgment of the trial Court in C.C.No.416 of 1997 on the file of the Judicial Magistrate of First Class, Medchal and the judgment of the Additional Sessions Judge, Ranga Reddy District in Criminal Appeal No.94 of 2002 through the present revision. 2. Sri T.K. Sreedhar, learned counsel for the sole accused (A.1 in C.C.No.416 of 1997 who is the husband of PW.1) submitted that the wife foisted a false case, as the husband did not budge to the overtures of PW.1 for a dishonourable compromise with PW.1. The accused and PW.1 have 2 children. It is the case of the accused that after PW.1 went to the house of her parents for the delivery of the second children, the wife refused to return after the delivery of the second child. It is the admitted case that the accused filed a petition before the Family Court for the restitution of conjugal rights. The wife (PW.1) laid counter to the case of the husband. The case filed by the husband would appear to have been referred to Lok Adalat. 3. Again admittedly, the husband furnished a wrong undertaking before the Lok Adalat in March 1997 that he would not harass the wife, if the wife joins the matrimonial home. PW.1 accordingly returned to the matrimonial home, but lived for 30 days only with the accused according to the accused. It is his case that PW.1 falsely alleged that on 09.05.1997 and on 10.05.1997, the accused beat her at the matrimonial home, demanding PW.1 for additional dowry. 4. It is the claim of the learned counsel for the accused that the wife initially laid complaint under Ex.P.1, that she improvised in her statement u/s.161 of the Criminal Procedure Code (Cr.P.C.) and that she further developed her claim against the husband as PW.1. The stand of the learned counsel for the accused is that the whole story of PW.1 is unbelievable and suffers from developments from stage to stage so much so the complaint and the evidence of PW.1 are inconsistent and unbelievable. 5. The prosecution examined 7 witnesses in support of its stand. PW.1 is the de facto complainant who is the wife of the accused (A.1). PW.2 is the mother of PW.1. PW.3 is the brother of PW.1. He would appear to be the younger brother of PW.1. PW.4 is an elder who acted as a mediator in the dispute between the accused and PW.1. PW.5 is another elder who is also an uncle of PW.1. PW.6 is the Investigating Officer while PW.7 is the Doctor, who treated PW.1 on 15.07.1997. 6. Ex.P.1 is the complaint lodged by PW.1. In her complaint dated 14.07.1997, PW.1 stated that her marriage with the accused was solemnized on 29.03.1992 and that dowry of Rs.3,00,000/- was paid at the time of her marriage. She further complained that her husband as well as her parents-in-law started harassing her for additional dowry and that they attempted to kill her many a time. She begot 2 children by name Abhishek and Sambhavi. In the case before the Family Court, the accused undertook not to harass PW.1 for additional dowry. 7. In Ex.P.1, PW.1 further claimed that her husband treated her cordially for a fortnight after she joined him and started harassing her again for additional dowry. Thereafter, PW.1 narrated the actual overt acts, that on 09.05.1997 all the accused demanded for additional dowry, that the brother of PW.1 (PW.3) expressed his inability to comply with the demand and that on 10.05.1997 the accused and his parents beat PW.1 at about 11.30 p.m. so severely that PW.1 became unconscious. She further explained that the entire episode occurred in the house of the accused at Jeedimetla, Hyderabad. 8. Thus, in Ex.P.1, it is the case of PW.1 that dowry of Rs.3,00,000/- was given at the time of her marriage. Her further claim was that her husband and his parents ill-treated her for additional dowry, that she joined her husband on account of the undertaking of her husband before the Family Court to look after PW.1 well without making demands for additional dowry. Finally, she spoke about the demand for additional dowry again on 09.05.1997 and physical ill- treatment on 10.05.1997. 9. As against this claim of PW.1 in Ex.P.1, the evidence of PW.1 may be examined. As PW.1, she claimed that cash of Rs.1,00,000/-, 20 tulas of gold, Rs.11,000/- in cash towards clothes, 3 kgs of silver and household articles and 2 tulas of gold to her husband were given at the time of the marriage and that the total value of the same was Rs.3,00,000/-. Thus, in her evidence, she gave the details of the cash, gold and silverware that were given to her at the time of the marriage as dowry. In Ex.P.1, her case was that she was given Rs.3,00,000/- as dowry. She did not either state that Rs.3,00,000/- was given in the shape of cash or in the shape of cash and other ornaments. The learned counsel for the accused contended that the evidence of PW.1 is an improvement from her statement under Ex.P.1. Whether PW.1 improved her story or otherwise in this context perhaps is irrelevant. The claim of PW.1 is about the incident on 09.05.1997 and not about the incident at the time of her marriage on 20.03.1992. There was no charge for the offences u/s.3 and 4 of the Dowry Prohibition Act. As rightly submitted by the learned Public Prosecutor, any inconsistency between the evidence of PW.1 in this context vis-à-vis her earlier statement under Ex.P.1 is of no consequence. 10. I may continue to examine the oral evidence of PW.1. She claimed that at the time of Deepavali in 1992, i.e., shortly after the marriage, the revision petitioner/A.1 demanded 4 tulas of gold and cash of Rs.8,000/- from the parents of PW.1 and that the parents of PW.1, however, presented 2 tulas of gold and Rs.1,000/- in cash at that time. PW.1 did not speak about the same in Ex.P.1 complaint. 11. PW.1 further claimed that the revision petitioner continued to harass her and used to beat her indiscriminately and that when PW.1 gave birth to the first child on 13.06.1993, the revision petitioner did not provide proper food and medicines to PW.1 during the pregnancy and thereafter. She deposed that she was forced to join in the hospital while she was in the 8th month of pregnancy on account of the harassment. She, however, did not specify in what hospital she joined, for what ailment did she join in the hospital and what was the treatment she was given at the hospital. PW.1 further failed to produce any medical record in proof of this contention that she joined in the hospital while she was in the 8th month of pregnancy carrying her first child. Added to it, there was no whisper about the same in Ex.P.1. PW.1 went further and claimed that the accused (perhaps including her parents-in- law) demanded Rs.50,000/- when she gave birth to her first child, that the father of PW.1 deposited Rs.15,000/- when PW.1 gave birth to the first child and that the father of PW.1 presented Rs.8,000/- in cash to the parents of the revision petitioner at that time. These facts were again not spoken to and were not referred to by PW.1 in Ex.P.1. 12. PW.1 deposed that the accused continued to harass her for additional dowry and that when she was in the 9th month of pregnancy, the revision petitioner beat her with a bottle causing injuries to her and that the revision petitioner was in a drunken stage at that time. She further contended that the accused (obviously the revision petitioner) promised not to misbehave again before elders and that he indeed failed to stand by his word. 13. PW.1 gave birth to a female child on 07.01.1995. PW.1 claimed that the attitude of the accused towards her did not change and that the averis of accused increased to the extent of demanding for a house from the parents of PW.1. She claimed that the accused crashed her head to a wall causing injury to her head, as the parents of PW.1 could not comply with the demand of the accused for additional dowry. 14. It is the case of PW.1 that on 26.02.1995, the revision petitioner went to the house of the parents of PW.1, quarrelled with them and tried to kill PW.1 and that he thereafter took away their son with him from the custody of PW.1. On 06.04.1995, PW.1 received legal notice from the revision petitioner demanding PW.1 to join him. PW.1 gave a suitable reply. As against the claim of the revision petitioner for the restitution of conjugal rights, PW.1 filed a case before the Family Court for the custody of the male child. Both the cases came up before the Family Court. On 23.09.1997 the dispute between PW.1 and the revision petitioner was resolved in the Lok Adalat, when the case was referred to it by the Family Court. PW.1 thereafter joined her husband. After treating properly for about one month, the revision petitioner again started harassing PW.1 demanding her for additional dowry. On 09.05.1997, PW.3 brother of PW.1 presented 5 tulas of gold to satisfy the greed of the revision petitioner, but the accused demanded a share in the property at that time. On 15.05.1997 the accused quarrelled with PW.1 in the absence of PW.3. Between 11.30 p.m. and 11.45 p.m. on the night of 09.07.1997, the accused beat PW.1 while she was on the bed. They failed to provide PW.1 with food for 3 days thereafter. On 13.07.1997 when PW.3 went to the matrimonial home of PW.1, PW.3 was not allowed to see PW.1. On 14.07.1997 PW.1 lodged Ex.P.1 report. She went to the Gandhi Hospital on 15.07.1997. Ex.P.2 is the medico legal certificate issued by PW.7. 15. The evidence of PW.1 thus is a considerable improvement from her complaint under Ex.P.1. It would appear that the evidence of PW.1 is also an improvement from her statement u/s.161 Cr.P.C. Curiously, the accused including the revision petitioner did not choose to confront PW.1 with her statement u/s.161 Cr.P.C. The statement of PW.1 u/s.161 Cr.P.C. therefore, cannot be looked into to determine the veracity of the evidence of PW.1. I have no alternative but to compare the evidence of PW.1 with her earlier version under Ex.P.1 and also look for corroboration from PWs.2 and 3 primarily and from PWs.3 to 5 on other aspects. PWs.2 and 3 indeed are expected to corroborate PW.1 as the misdeeds and overt acts of the revision petitioner were directed against PW.2 and her husband apart from against PW.1. I, therefore, propose to examine the evidence of PWs.2 and 3 and compare the same with the evidence of PW.1. 16. PW.2 is no other than the mother of PW.1. She also claimed that at the time of marriage of PW.1, Rs.3,00,000/- was given as dowry. She further substantially corroborated the evidence of PW.1 deposing that cash Rs.1,00,000/- and gold, silver and other articles worth Rs.2,00,000/- were presented at the time of the marriage of PW.1 with the revision petitioner. She did not speak about the demand of the revision petitioner for additional dowry at the time of the Deepavali of 1992. She merely deposed that about 2 months or 3 months after the marriage of PW.1, the accused started harassing PW.1 demanding for additional dowry and that the accused used to beat PW.1. 17. PW.2 claimed that when PW.1 gave birth to the male child at about Deepavali time in 1993, A.1 to A.3 demanded 4 tulas of gold and that PW.2 and her husband presented 2 tulas of gold and clothes apart from depositing Rs.15,000/- in the name of the newly born male child. PW.2 further proclaimed that Rs.8,000/- were given to the accused for purchasing new clothes at the time of the cradle ceremony of the grandson. It may be recalled that the evidence of PW.1 is that the revision petitioner demanded 4 tulas of gold and Rs.8,000/- in cash at the time of Deepavali of 1992, shortly after the marriage, whereas according to PW.2, the demand was at the time of Deepavali 1993 after PW.1 gave birth to the male child. 18. PW.2 claimed that the 3 accused went to the house of PW.2 after PW.1 gave birth to the second child in 1995 and beat PW.1 as PW.1 refused to go to the house of the revision petitioner along with him on the ground that she was not treated properly. PW.2 deposed that PW.1 became unconscious on account of the beating and that PW.1 was treated at Osmania General Hospital. There is no medical record for the same. PW.1 deposed that she was in the 8th month of pregnancy in 1993 carrying her first child when she was beaten by the accused and was taken to the hospital for treatment. She did not mention the hospital where she underwent treatment. While so, PW.2 mentioned that PW.1 underwent treatment at the Osmania General Hospital. PW.2 deposed that the incident occurred in 1995 after the birth of the second child as against the case of PW.1 that the incident was occurred when PW.1 was in the 8th month of pregnancy on the first occasion. 19. PW.2 further deposed that PW.1 was beaten in 1997 and that PW.1 informed PW.3 about the beating PW.1 by A.1 to A.3. PW.2 deposed as if she and others gave a police complaint at Jeedimetla. It is the case of PW.1 that she lodged Ex.P.1, whereas PW.2 deposed as if she and others lodged the police complaint. Further, PW.1 deposed as if PW.3 was not allowed to see PW.1 on 13.07.1997 and that PW.1 lodged Ex.P.1 complaint on 14.07.1997. PW.2 deposed as if PW.1 informed PW.3 about the harassment by A.1 to A.3. PW.2 did not state that PW.3 was prevented from meeting or calling on PW.1 on 13.07.1997. Thus, there is any amount of contradictions between the evidence of PWs.1 and 2 on various aspects. 20. As already pointed out, PW.3 is a brother of PW.1 and would appear to be the younger brother of PW.1. He supported the stand of PWs.1 and 2 that cash of Rs.1,00,000/- as well as gold and silver articles were presented to the revision petitioner and his parents at the time of the marriage of PW.1. He deposed that 2 tulas of gold and clothes were presented to the revision petitioner at Deepavali time. He did not depose that the presentation of 2 tulas of gold and clothes was on the demand of the revision petitioner and the other accused. 21. PW.3 speaks about the payment of Rs.15,000/- in the shape of Kisan Vikas Patras in the name of Abhisek, son of PW.1 and the revision petitioner. PW.3 further deposed that the demand of the revision petitioner, however, was much higher. He did not speak about the harassment of PW.1 by the accused before the birth of the first child. 22. PW.3 deposed that the revision petitioner and his parents used to beat PW.1 proclaiming that the revision petitioner would have secured better dowry had he married another lady. Neither PW.1 nor PW.2 spoke about this sweeping comment of the revision petitioner. It is the case of PW.3 that on 25.02.1995 the revision petitioner and his parents demanded PW.1 to return to matrimonial home and that PW.1 refused to do so on the ground that PW.1 was not looked after her properly (PW.1 mentioned the date as 26.02.1995. However, this date between 25.02.1995 and 26.02.1995 perhaps is of not great importance). 23. PW.3 further deposed that the revision petitioner tried to snatch away the tali of PW.1 at that time and that PW.1 became unconscious when the revision petitioner tried to kill her. PW.2 also deposed about this incident without mentioning the date of the incident. Thus, PW.1 mentioned about the incident as occurring on 26.02.1995 and did not mention the name of the hospital where she was treated. PWs.2 and 3 spoke about the name of hospital as Osmania Government Hospital. PW.2 did not mention the date of the incident, whereas PW.3 deposed that the incident was on 25.02.1995. The crucial issue in this regard is the absence of medical record apart from the minor inconsistencies between the evidence of PWs.1 to 3. In the absence of medical record, I am afraid that the evidence of PW.1 stands refuted regarding the claim that the revision petitioner and the other accused treated PW.1 with physical cruelty on 26.02.1995 or around that time. 24. PW.3 further deposed that when he went to call on PW.1 at the house of the accused on 16.05.1997, the revision petitioner beat PW.1 in the absence of PW.3. He also deposed that on 13.07.1997 when he went to the house of the revision petitioner, he found number of injuries on the person of PW.1 and that PW.1 informed him that the revision petitioner and his parents beat her on 10.07.1997. He also claimed that on the next day i.e., on 14.07.1997, they reported the matter to the police. PW.1 did not speak about her being beaten on 13.07.1997 in the presence of PW.3. It is her case that she was not allowed to see PW.3 on 13.07.1997. PW.3 on the other hand deposed as if he could speak to PW.1 on 13.07.1997. Again, the basic conflict regarding the evidence of PW.3 is the evidence of PWs.1 and 2 as to who lodged the complaint. According to PW.3 and PW.2, it is they who reported the matter to the police. According to PW.1, it is she who went to the police station on 14.02.1997 and lodged a complaint. Thus, PWs.2 and 3 did not even agree as to when and how police report was lodged. 25. PW.4, who is an elder, who participated in mediation on 14.07.1997 and advised PW.1 to lodge police complaint, deposed that in 1993, when PW.1 begot male child, there was no demand for additional monies and that the money at Rs.15,000/- in the shape of FDR and Rs.8,000/- in the shape of cash for purchase of clothes were indeed presented by the parents of PW.1. He admitted that PW.1 was never ill-treated by the accused in his presence and that neither the demand nor payment of dowry or additional dowry occurred his presence. His entire evidence is the evidence of hearsay by the representations of PWs.1 to 3 and the father of PW.3. I am afraid that the evidence of PW.4 albeit the independent evidence of an independent witness does not prove the case of the prosecution in any manner. PW.4 merely speaks about the conflict between the revision petitioner and PW.1. His evidence regarding the case of the conflict is hearsay and is not proved. 26. PW.5 is an uncle of PW.1. He was also one of the mediators, who participated in the mediation on 14.07.1997 when the mediators proposed that police action should be initiated against the revision petitioner and others. He claimed that he was present at the time of payment of dowry. He, however, was not present when the accused ill-treated PW.1. Thus, PW.5 also was not a direct witness to any of the incidents proper. 27. I n Tarun @ Gautam Mukherjee v. State of West Bengal[1], PW.4, maidservant of the family deposed that the husband used to assault the wife almost daily on the instigation of his sister. It was found out that she did not refer to this aspect when she was examined by police u/s.161 Cr.P.C. The Supreme Court held that it would be tantamount to a material omission discrediting the evidence of PW.4. The learned counsel for the revision petitioner submitted that the evidence of PW.1 not spoken to in her statement u/s.161 Cr.P.C. throws doubt over the very veracity of the evidence of PW.1. It may be recalled that the maxim falsus in uno, falsus in omnibus has no application in India. As part of the evidence of PW.1 had not been spoken to by PW.1 before police in her statement u/s.161 Cr.P.C., her entire evidence cannot be thrown out. Further, where PW.1 was not confronted with her statement u/s.161 Cr.P.C., the very statement u/s. 161 Cr.P.C. of PW.1 cannot be looked into. The question of searching for the inconsistency and material omission between the evidence of PW.1 and her statement u/s.161 Cr.P.C. before police, therefore, would not arise. The decision of Tarun’s case (supra) relied upon by the learned counsel for the revision petitioner, therefore, has no application to the facts of the present case. 28. In State of Andhra Pradesh v. M. Madhusudhan Rao[2], the Supreme Court observed that harassment simpliciter is not cruelty and that when the harassment was committed for the purpose of coercing a woman to meet an unlawful demand for property, it would amount to cruelty punishable u/s.498-A IPC. It may be noticed that in the present case, PWs.1 to 3 repeatedly stated that PW.1 was ill-treated and was harassed by the revision petitioner and his parents demanding additional dowry. It is not a case of simple harassment but was a case of cruel treatment for additional dowry. Whether the evidence can be accepted is a question of fact. The point with reference to the decision relied upon by the learned counsel for the revision petitioner is that the witnesses did not speak about harassment simpliciter. The claim of the learned counsel for the revision petitioner that prima facie the offence u/s.498-A IPC is not made out, therefore, cannot be accepted. 29. In Ramji Surjya v. State of Maharashtra[3], the Supreme Court observed that the extraordinary delay in lodging the FIR was a latch to suspect the contents of the FIR when the prosecution failed to explain the delay. In that case, the offence alleged was the offence of murder. The report was allegedly prepared at about 12 noon, but it was presented at about 2.15 a.m., more than 14 hours after the preparation of the FIR. The present case is a case of matrimonial dispute. PW.1 further deposed as if she could release herself on 14.07.1997 and lodged the complaint on the same date. I, therefore, do not consider that there was any unexplained delay in lodging the complaint in this case. In M. Madhusudhan Rao’s case (supra) there was a delay of one month in lodging complaint in a matrimonial dispute. The Supreme Court indeed suspected the veracity of the evidence of the prosecutorix. In the present case, there was absolutely no delay in lodging the complaint. Therefore, I am afraid that this is not a case where the evidence of PW.1 can be brushed aside or doubted with