THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1559 of 2005 Date: 18.10.2011 Between: Yanam Srinivasa Rao … Petitioner AND State of Andhra Pradesh, Rep.by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1559 of 2005 ORDER: The revision petitioner is the accused. He is the husband of PW.1. PW.1 lodged a complaint under Ex.P.1 claiming that the accused was treating her cruelly demanding for additional dowry and that the accused thus committed the offence under Section 498-A of the Indian Penal Code (IPC, for short). The prosecution examined as many as eight witnesses. Exs.P.1 and P.4 are the complaint and the First Information Report (FIR). As against the evidence of the prosecution, the accused examined himself as DW.1 and examined his daughter as DW.2. He also examined another witness in support of his claim. The learned IV Metropolitan Magistrate, Vijayawada considered that the prosecution has made out a case against the accused beyond reasonable doubt. She recorded a conviction against the accused and sentenced him to rigorous imprisonment for a period of one year and fine of ` 500/- with appropriate default sentence. The accused was unsuccessful in the appeal. He consequently preferred the revision assailing his conviction. 2. The point for consideration is whether the accused is guilty of the offence under Section 498-A IPC. 3. Sri M. Kumara Swamy, learned counsel for the accused contended that there are contradictions between the evidence of PWs.2 & 4 and between the evidence of PWs.5 & 7 with reference to time of the mediation and the demand for additional dowry and that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. He also urged that the very offence u/s.498-A IPC was not made out. On the other hand, Smt. Zareena Afsar, learned counsel representing the Additional Public Prosecutor contended that the offence u/s.498-A IPC was established beyond reasonable doubt, in view of the evidence of PW.1 primarily and in view of corroboration from PWs.2 to 7. 4. It is the case of the prosecution that the accused and PW.1 were married to about 15 years prior to the evidence in 2003. Though it is not clear from the record, it would appear that the marriage of the accused and PW.1 was solemnized in 1987. Admittedly, the accused and PW.1 lived happily for a period of 10 years after the marriage. They begot two children. 5. It is the case of PW.1 that unfortunately, the accused became an alcoholic in or around 2002. Bickering started thereafter between the accused and PW.1, as the accused started demand for dowry and for the settlement of house in his name. 6. It is the further case of the prosecution that on 15.09.2002, the accused necked out PW.1 after beating her, as she did not fulfil his unholy demands. On 16.09.2002, PW.1 lodged Ex.P.1 complaint. PW.8 is the Head Constable, Patamata Police Station. He received Ex.P.1 complaint at about 7.30 p.m. and registered the same as FIR under Ex.P.4. 7. PW.1 is the wife of the accused. Her contention is that about 10 years after their marriage, the accused started beating, abusing PW.1 and demanding ` 15,000/- and that the accused was addicted to vices. It is also her case that ` 15,000/- was paid to the accused thereafter. 8. PW.1 further claimed that for about three months thereafter, the accused did not make any further demands after receipt of ` 15,000/-, that the accused thereafter demanded that the house in the name of PW.1 should be conveyed in his favour and that he started harassing PW.1 with that demand. She submitted that the accused used to beat and abuse her and that she lodged a police complaint, as the accused did not pay heed to the advice of elders. 9. PW.2 is the brother of PW.1. It is his case that about four years prior to his evidence in January, 2004, the demand of the accused was met by paying ` 15,000/- to the accused. It is his further evidence that the accused renewed the demand about five or six months thereafter and also asked PW.1 to sign papers as if she sold the apartment standing in her name. The learned counsel for the petitioner/accused pointed out the inconsistency regarding the period as mentioned in the evidence of PWs.1 and 2. According to PW.2, the payment of ` 15,000/- was in or around 2000. According to PW.1, the incident was about three months prior to the lodging of the complaint. It may be noticed that the complaint was lodged on 16.09.2002. The learned counsel for the accused contended that the difference between 2000 and 2002 was so wide and large that the evidence of PW.1 and PW.2 could not be accepted. 10. PW.3 is a neighbour of PW.1. Her house is opposite to the house where PW.1 and the accused resided. However, PW.3 did not support the prosecution story. She claimed that she did not know anything about the case. PW.4 is the mother of PW.1. In her evidence, apart from claiming that the bickerings started about 10 years after the marriage, she deposed that ` 15,000/- was paid to the accused about four years after the marriage. As already pointed out, the marriage of PW.1 and the accused was in or around 1987. If the evidence of PW.4 is accepted, the payment of ` 15,000/- was in or around 1991. The period widely differs from the year after the payment as mentioned by PWs.1 and 2. According to PW.1, the payment was in or around 2000. According to PW.4, the payment was primarily in 1991. 11. PWs.5 and 7 are elders of the locality to whom PW.1 allegedly complained about the conduct of the accused. PW.5 did not support the prosecution story initially. He deposed that PW.1 informed him that the accused used to beat her in an alcoholic condition. He, however, deposed that when the Assistant Public Prosecutor put leading questions to him that PW.1 had informed him that the accused had harassed PW.1 demanding for additional dowry. But, he candidly admitted that he did not have any personal knowledge barring for the representation of PW.1. 12. Same is the case of PW.7. He also deposed that he did not have any personal knowledge about this matter and that he heard from PW.1 that the accused was beating her in a drunken state demanding for conveyance of house property in his name. PW.6, who is said to be a friend of the accused, did not support the prosecution story and pleaded ignorance about the dispute. 13. It is the case of the learned Additional Public Prosecutor that PWs.5 and 7 spoke about the demand for illegal gratification. I am afraid that the evidence of PWs.5 & 7 is complete hearsay evidence. They never witnessed the accused ill-treating, harassing, beating or demanding PW.1 for additional dowry. Their whole information is on the representation of PW.1. I do not consider that their evidence is sufficient to accept the case of the prosecution. 14. PWs.3 and 6 did not support the prosecution story. They were treated as hostile to the prosecution case. Apart from PWs.5 & 7 on the one side and PWs.3 & 6 on the other side, the other witnesses of the prosecution are PWs.1, 2 and 4. PW.2 is the brother of PW.1. PW.4 is the mother of PW.1. As already pointed out, they did not agree as to the approximate date of the demand for additional dowry. In the light of the inconsistency between the evidence of PWs.1, 2 and 4, I consider that it would be safe not to accept their evidence to conclude that the prosecution established the guilt of the accused beyond reasonable doubt. 15. Another curious factor is that the claim of PW.1 that she lodged another police complaint. While she deposed that she lodged a complaint in May, 2001, such a complaint had not seen the light of the day. PW.8 pleaded ignorance of such a complaint. It is the contention of the learned counsel for the accused that when the earlier complaint had not been put forth before the Court, it should be considered that the very genesis of the dispute has been suppressed by the prosecution and PW.1 and that the benefit of doubt arising from such circumstances should accrue in favour of the accused. 16. Apart from this contention of the learned counsel for the accused, DW.2 is the daughter of the accused and PW.1. She is a 14-year-old girl. She deposed that indeed her father beat her mother in a drunken state. However, she asserted that her mother quarrelling with her father and went away and that her father never harassed her mother for additional dowry. I am afraid that the evidence of DW.2 clinches the case in favour of the accused and against the prosecution. Where DW.2 is not a child, but was at the awkward age and was described to be 14 years old, primacy should be given to the evidence of DW.2. In view of the evidence of DW.2 that if there was any fault, it was on the part of PW.1, I am constrained to conclude that the prosecution has completely failed to establish the guilt of the accused for the offence u/s.498-A IPC beyond reasonable doubt. 17. I may also point out regarding the house property that the accused sought PW.1 to transfer in his favour. The accused examined DW.3 in this context. DW.3 claimed that the accused purchased house property in the name of his wife and that it is the accused who paid the consideration for sale of the property. Inter alia, it is the contention of the learned counsel for the accused that assuming that the accused demanded for the transfer of house property in his name, it could not be considered as dowry harassment, as the property indeed was purchased by him. It, however, is beside the point where the evidence of DW.2 is sufficient to unsettle the claim of the prosecution. In view of the evidence of DW.2 and in view of the inconsistency between the evidence of PWs.1, 2 and 4 in one set and the evidence of PWs.5 and 7 in another set, I consider that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. The trial Court and the appellate Court did not read the evidence of PWs.1, 2 and 4 correctly and committed an error in judging their evidentiary value. 18. Where the prosecution failed to establish the guilt of the accused, much less, beyond reasonable doubt, the Criminal Revision Case is allowed. The accused is found not guilty of the offence u/s.498-A IPC and is acquitted of the said charge. The fine amount, if already paid by the accused, shall be refunded to him. ________________ K.G. SHANKAR, J Date: 18.10.2011 Isn