Andhra Pradesh High Court - Amravati
Puli Siva Nageswararao, vs The State Of A.P.,Through S.I. Of ... on 25 February, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Crl.R.C. No. 1513 of 2007
ORDER :
The petitioner herein, who is Accused No.1 in C.C.63 of 2004, was tried for the offence punishable under section 498-A IPC. By its judgment, dt. 24.06.2004, the learned Magistrate convicted A.1 alone for the offence punishable under Section 498-A IPC and sentenced him to suffer Rigorous Imprisonment for a period of six months and to pay fine of Rs.1,000/-, in default SI for two months.
2. Challenging the same, the petitioner herein preferred Criminal Appeal No.240 of 2004. By its judgment, dt. 30.09.2007, the learned IX Additional Sessions Judge, Guntur, dismissed the same, affirming the conviction and sentence passed by the trial Court. Challenging the same, the present Criminal Revision came to be filed.
3. The facts in issue as under:
One P. Madhavi/complainant, who is the wife of A.1, was examined as PW1. According to her, marriage took place on 25.06.1997 at Thurpu Kammapalem Village of Ongole, as per their rights and customs in the presence of PWs. 2, 6, 7 and others. Both of them lived happily for some time and thereafter on the instigation of A.2 and A.3, who were the parents of A.1, started harassing PW1 for more dowry. It is 2 said that PWs.6 and 7 mediated the issue, but there was no change in the attitude of the accused. On 22.08.2001, the Accused No.1 came to Repalle and made galata at the house of Pw.2, who is the father of PW1, to give divorce, which said to have been witnesses by Pws. 3 to 5. Thereafter, on 13.09.2001 at 09.00 am, a written complaint came to be presented by PW1 about the incident to PW8. Basing on which, PW8 registered the same as a case in Cr.No.140 of 2001 under Section 498-A r/w 34 IPC, against accused No.1 to 3. After completing the investigation, he laid charge sheet for the offence punishable under Section 498-A r/w 34 IPC, which was taken on file as C.C.No.63 of 2009.
4. On appearance of the accused, copies of material documents were furnished to the accused under Section 207 Cr.P.C. On appearance of the accused, charge under Section 498-A IPC came to be framed, read over and explained to the accused, to which, they pleaded not guilty. In support of its case, the prosecution examined PWs 1 to 8 and got marked Exs. P.1 and P.2. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against the accused in the evidence of prosecution witnesses, to which they denied. They got examined DWs. 1 and 2 and got marked Exs. D.1 to D.4 in support of their plea. 3
5. Appreciating the evidence available on record, the trial Court convicted the Accused No.1, while acquitting A.2 and A.3, which was affirmed by the appellate Court. Challenging the same, the present revision came to be filed.
6. It is to be noted that pending appeal, A.1 filed Crl.M.P.No.448 of 2007, seeking permission of this Court to examine himself as DW3 and also mark Exs. D.5 to D.15, which was allowed.
7. The point that arise for consideration is whether the Courts below were right in convicting the accused for the offence punishable under Section 498-A IPC ?
8. Learned counsel for the appellant mainly submits that there is absolutely no evidence on record to show that the accused harassed PW1 for dowry. He further pleads that though the prosecution tried to establish that the accused went to the house of PW2 at Repalle on 22.08.2001 and insisted for divorce, but the same appears to be incorrect for the reason that if such incident took place, there was no justification for them to wait 13.09.2001 for lodging a report. Be that as it may, it is his case that the evidence of the defence witnesses completely falsifies the theory of the prosecution as there is material on record to show that the petitioner was elsewhere on that date. He relied upon the judgment of the Apex Court in Himanshu Singh Sabharwal 4 v State of M.P and others1, State of Haryana, Appellant v Ram Singht, Respondent. Rai Saheb and another, Appellants v State of Haryana, Respondent2, Reena Hazarika v State of Assam3 to show that the evidence of the defence witnesses cannot be brushed aside without assigning any reasons.
9. The same is opposed by the learned Additional Public Prosecutor contending that there is no material on record to show that the defence taken by the accused was suggested to prosecution witnesses, and as such, the theory of alibi taken by the accused cannot be accepted. According to him, the evidence of PWs. 1 and 2 gets corroboration from the evidence of PWs. 3 to 7, who are independent witnesses, and hence treats that the finding of fact arrived at by both the Courts requires no interference.
10. From the evidence available on record, it is clear that the accused was working as an Assistant Engineer in Ongole during the relevant point of time. PW1 is the wife of A1 while PW2 is his father in law. DW1 was working as Divisional Engineer, A.P. Southern Power Distribution Company Limited, Ongole, at the relevant point of time and the accused was working under him. Ex.D.1 is the portion in 161 Cr.P.C. statement of DW2, Ex. D.2 is the Certificate given by DW1 to A1, Ex. D.3 is the Tour Diary approved by DW1 for the month 1 AIR 2008 SC 1943 2 AIR 2002 SC 620 3 2019 Crl.J.388 5 of August, 2001, and Ex.D.4 is the trip sheet. DW2 was working as Assistant Divisional Engineer in Andhra Pradesh Southern Power Distribution Company Limited. According to him, on 22.08.2001 himself and the accused inspected Inkollu having left from Ongole on 21.08.2001 to visit Parchur and Nuthalapadu. It is said that they stayed in Inkollu till 8.00 pm and returned to Ongole on that night.
11. Keeping the evidence of defence witness in the background, I shall first advert to the evidence of PWs. 1 to 6 and later test the evidence of DWs 1 and 2.
12. PW.1 in his evidence deposed that her marriage with A.1 took place on 25.06.1997 at Repalle. At the time of marriage, her parents gave Rs.1,00,000/- to A.1 and also presented 20 sovereigns of gold, apart from giving Ac.1-50 cents of land towards pasupukunkuma. Even, the accused, who completed B.Tech, was searching for job at the time of marriage. After marriage, he got employment in October, 1997, as Assistant Engineer in Electricity Department, Kurnool. After A.1 joined in Kurnool, PW1 left her in-law's house at Ongole. A1 told her that he will take her to Kurnool after getting a suitable house in Kurnool. He used to visit Ongole during week ends and festivals. According to PW1, all the accused used to say that A.1 got a good job and the dowry given by PW1 and his father was not sufficient and they started demanding for additional dowry by selling lands and 6 gold ornaments. She further deposed that on the instigation of A.2 and A.3, who remained silent spectators, A.1 used to beat her. But, the evidence of PW1 shows that when she informed the same to her parents, the mediators talked with A.1 and informed that the amounts demanded would be arranged and requested him to look after her properly. On 14.12.1997 A.1 took PW1 to Kurnool. From 19.01.1998, A.1 went to Hyderabad for training, while PW1 left for Ongole and by that time, she was in second month of pregnancy. On 10.02.1998, PW2 came to Ongole and gave Rs.23,000/- for purchase of scooter and Rs.25,000/- for purchase of house hold articles. It is said that during Sankranti festival, A.1 came to Repalle and demanded money for purchase of scooter and also household articles. As such, the said amount was paid in the month of February, 1998. Her evidence goes to the extent of saying that A.2 and A.3 harassed her during the said period though she was pregnant and she was made to do entire household work. It is said that she underwent abortion on 16.02.1998. As she had some bleeding, she informed the same to her father, who in turn took her to Repalle, and got her aborted at Repalle. Differences arose between them during her stay in Repalle. However, in the month of August, 1998, PW1 was sent to Kurnool. It is said that both A.2 and A.3 used to come to Kurnool frequently and harass PW1. It is also said that though she complained about her ill-health, A.1 did not take her to any hospital or doctor in Kurnool. On one 7 occasion, the doctor advised her not to take much salt, but A.2 and A.3 used to put much salt to spoil her health, and ultimately, on 14.10.2000, all the accused necked her out from the house at Kurnool and since then she has been staying in her parents house.
13. Her evidence further discloses that A.1 filed OP for divorce, which was dismissed. According to her, on 22.08.2001, A.1 came to her parents house at Repalle at 09.30 pm, and beat her severely for the reason that she is defending divorce OP by engaging a counsel and demanded her to sign on white papers stating that he was willing to give divorce. The said act was witnessed by her parents and neighbours and thereafter, on 13.09.2001, a report came to be lodged.
14. The cross examination of this witness will be dealt little later but from the chief evidence itself, it is clear that A.2 and A.3 were harassing her constantly for dowry and at their instigation, A.1 was beating her. The evidence of PW.1 in chief also shows that it was A.2 and A.3, who beat her while she was pregnant; made her to do all house hold works; used to put lot of salt in the food for deteriorating her health; used to come to Kurnool frequently and harass her for dowry and used to complain A.1 about PW1 after he returns home from the office. Therefore, substantial allegations, in the evidence 8 of PW1, are mainly directed against A.2 and A.3, who are acquitted.
15. Coming to the cross examination of PW.1. A reading of the cross examination of PW1 makes it very clear that on 14.01.1998 her father came to Kurnool and brought A.1 and PW1 to Repalle for Sankranthi festival. A1 stayed there for two days and thereafter dropped her in Ongole. She stayed there till 14.02.1998. If this admission is tested with the evidence in chief, it is clear that what PW1 deposed in chief appears to be incorrect wherein she says that it was A.1, who came to Repalle for Sankranthi festival in 1998, and demanded her parents to give money for purchasing a scooter and household articles, which fact as stated earlier, is incorrect since it was PW2, who brought A.1 and PW1 to Repalle for Sankranthi festival. Further, he stayed only for two days and thereafter went to Hyderabad for training. In the cross examination, she admits that A.1 had a scooter and he purchased the same by taking finance. That being the position, the question of A.1 demanding PW2 to give money for purchase of scooter may not be correct. It is not as if he demanded money for repaying the finance taken for purchasing the scooter. She further admits in the cross examination that on 10.02.1998, scooter was given as gift to A.1. It will be appropriate to extract the same, which is as under:
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" It is true that I gave in reply notice that on 10.02.1998, scooter was given as gift to A.1".
16. Therefore, this admission relating to scooter of A1; and demand of money for purchase of scooter, appears to be doubtful.
17. Apart from that, very strangely PW1, who lodged the report, admits that she does not know the contents of the report which was reduced into writing by the Sub Inspector of Police. This circumstance throws doubt on her entire evidence. It will be appropriate to extract the relevant portion in the evidence of PW1, which is as under:
"On 14.10.2000 she was ultimately necked out from Kurnool. My father brought her to Repalle from that place. Upon her dictation to the SI of Police, contents in the report were written. I do not know what exactly he had written".
" I do not remember whether the contents in the report were read over to him or not".
18. Coming to the evidence of PW2, he is the father of PW1. While deposing about the marriage and the money paid at the time of marriage, PW2 states that in the month of December, 1997, A1 took PW1 to Kurnool and thereafter in the month of January, 1998, he brought PW1 and A1 to Repalle for Sankranthi festival. At that time, A.1 is said to have demanded money stating that he is a government employee now; and wanted additional dowry and Ac.1.50 cents of land given to PW1 shall be sold. Thereafter, A.1 left to Hyderabad for training, leaving PW1 at the house of his parents. He 10 seems to have stated that he wanted money, which can be given to his parents at Ongole, on 10.02.1998, PW2 gave Rs.45,000/- to A.2 at Ongole. Out of which, Rs.23,000/- was towards scooter and the remaining towards dowry and purchase of other household articles. Accordingly, it is said that A.1 demanded money when he came to Ongole. This evidence of PW2, if testified, shows that in the earlier part of his evidence in chief, he did not say that A.1 demanded money for purchase of scooter and household articles. On the other hand, he only demanded additional dowry and Ac.1.50 cents of land given to PW1 to be sold, which is in contradiction with the evidence of PW1, who did not depose about the same.
19. Further, PW2 deposed about the demand of Rs.45,000/- (specific amount) for purchase of scooter at Rs.23,000/- and balance amount for household articles. He also in his cross examination admits that A1 was having scooter and that he does not know whether he purchased the same by taking finance. He also admits that he does not know when he purchased the scooter. When A1 was already having a scooter, the question of demanding money for purchase of scooter appears to be improbable. It is not the case that A1 wanted to purchase a new scooter by disposing off old one or that he was demanding money for repayment of the loan taken. All this has happened in the month of January, 1998. The demand was for purchase of scooter and for a double cot. 11 These demands were for the benefit of both. Definitely, it cannot be treated as dowry when the evidence does not show that he was harassing PW1 for any amount. On the other hand, PW2 in her evidence deposed that A1 wanted Ac.1.50 cents given to PW1 to be sold, for purchase of household articles, which again cannot be treated as dowry or harassment for property.
20. The main plank of argument by the learned Additional Public Prosecutor is with regard to the incident on 22.08.2001. It is said that on that day, A.1 went to the house of PW2 at Repalle and pressurized PW1 to sign on blank papers stating that the same are necessary for taking divorce as the matter is in Court and that she is objecting for the same. When PW1 refused to do so, he is said to have been beaten her. In respect of this incident, a report was lodged on 13.09.2001 i.e., nearly a month later. Insofar as this incident is concerned, the prosecution is relying on the evidence of PWs. 3,4 and 5.
21. PW3 in his evidence deposed that on 22.08.2001 at 09.00 pm, he heard shouts from the portion of PW2. He came down and saw A1 beating PW1 and there were some papers in the hands of A1. When he questioned PW2 about the same, he was informed that A1 was insisting PW1 to sign on papers. In the cross examination, PW3 admits that as on 22.08.2001 was holiday due to Vinayakachaviti, he did not go to office. He 12 further admits that he does not know at what time A.1 came to the house of PW2. He further says that he has seen A1 on several occasions when he came to the house of PW2. His evidence also discloses that PW2 was his tenant since 10 years and PW2 is his tenant even on the date when the evidence was given. However, to a suggestion that he is speaking false was denied by him.
22. PW4 in his evidence deposed that since last two years, PW1 was staying in her parents house due to harassment by A1. According to him, on 22.08.2001 at 09.00 pm, he went to the house of PW1 to inform about the land of the father of PW1. By that time, PW3 and LW6 were present and A.1 was attempting to beat PW1 and forcibly obtain her signatures on blank papers in order to give divorce. They all pacified the matter. PW4 is a retired Bill Collector, who knows the parents of PW1 since 10 to 15 years. He admits in his cross examination that he does not go to the house of PW2 daily, but now and then he visits his house. According to him, PW2 has Ac.2.00 of land at Dhulipudi of Nagaram Mandal. He further admits that he did not see A1 prior to 22.08.2001 at Rapalle. He also admits that he does not remember whether he has stated in his 161 Cr.P.C statement about harassment when he went to the house of PW2. This evidence of PW4, if tested, with the evidence of PW3, it is clear that PW.3 never spoke about the presence of PW4 when he went to the house. 13 On the other hand, the evidence of PW3 is to the effect that A1 was beating PW1 then.
23. PW5 is other witness who was made to speak about the incident on 22.08.2001. His evidence is also to the effect that A1 was attempted to beat PW1 as she refused to sign on papers. Then all of them interfered and pacified the matter.
24. This evidence of PWs 4 and 5 runs contra to the evidence of PWs 1 to 3 with regard to A1 beating PW1 and forcibly obtained signatures on blank papers. The evidence of PWs 4 and 5 also indicates that they cannot say as to when A1 came to the house of PW2 on that day.
25. At this stage, it will be useful to refer to the evidence of DWs 1 and 2. DW1 was working as Divisional Engineer (DPE), Andhra Pradesh Southern Power Distribution Company Limited, and the accused was working as Assistant Engineer in his office. His evidence shows that their duty was to detect pilferage of energy and their job was to go around the clock. According to him, the accused was on duty on 22.08.2001. It is said that on the previous day i.e., 21.08.2001, the accused and another engineer went to camp and returned on 22.08.2001. Ex.D2 is the Certificate given to A.1 while Ex.D.3 is the tour approval by DW.1 and Ex.D.4 is the trip sheet containing three pages from 21.08.2001 to 23.08.2001 in respect of Jeep in which the accused and other persons went to camp. Ex.D.4 also shows two places. According to him, the 14 accused was on tour on 21.08.2001 and 22.08.2001 and on a local tour on 23.08.2001. It appears that DW1 was not cross examined by the prosecution. The endorsement shows that on a request by the Additional Public Prosecutor, cross examination was deferred on the ground that he addressed a letter to the Director of Prosecution for appointment of Special Additional Public Prosecutor or any other public prosecutor.
26. DW2 is Assistant Divisional Engineer, Andhra Pradesh Southern Power Distribution Limited, who in his evidence deposed that on 21.08.2001 he along with A1 left from Ongole to Parchuru and Nuthalapadu and stayed at Parchuru on 21.08.2001 and thereafter went to Inkollu and stayed there till 08.00 pm on 22.08.2001 and returned back to Ongole on that night. He further states that they inspected local area of Ongole on 23.08.2001. Except suggesting that what the witness has stated in chief is false, nothing has been elicited to discredit the same. Therefore, having regard to the discrepancy in the evidence of PWs. 3 to 5 vis a vis the evidence of PWs 1 and 2 with regard to demand for scooter and in respect of the incident on 22.08.2001, I am of the view that due weight can be given to the evidence of DW2, which gets corroboration not only from the evidence of DW1 but also from Exs. D.1 to D.4, thereby creating a doubt in the evidence of prosecution witnesses with regard to the incident on 22.08.2001.
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27. In State of U.P., v Babu Ram4, the Hon'ble Apex Court held that depositions of witnesses, whether they are examined on the prosecution side or defence side or as Court witnesses, are oral evidence in the case, and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a Court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.
28. In State of Haryana (Appellant) v Ram Singh (Respondent). Rai Saheb and another (Appellants) v State of Haryana (Respondent), wherein the Apex Court held as follows:
" Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court".
29. Therefore, having regard to the above, the reasons given by the trial Court in rejecting the evidence of DW.2, in my view, may not be correct. As observed by the Appellate Court, the evidence of DWs. 1 and 2 came to be rejected only on the 4 AIR 2000 Supreme Court 1735 16 ground that the evidence of DWs 1 and 2 does not specify the time and the working hours of the accused in the camp attended by him on 22.08.2001, more particularly, in the absence of any specific evidence as to the period for which DW2 and the revision petitioner worked together. But, it is to be noted that the evidence of DW2 is very clear to the effect that they were there together till 08.00 pm and they returned to Ongole at 08.00 pm and on the next day, they again went for a local inspection. No suggestion was given to this witness stating that he could not have reached Repalle from Ongole within an hour. The finding of the Appellate Court that no record has been produced showing his working hours, more particularly, on those two days, is incorrect, for the reason, as referred to earlier, the evidence of DWs 1 and 2 clearly indicate the time they left Ongole, and the time they returned Ongole, after touring Inkollu and Nuthalapadu etc., Having regard to the above circumstances, a doubt arises as to whether the petitioner went to the house of PW2 on 22.08.2001. Further, if such an incident had occurred on 22.08.2001, no reasons are given as to why no report was given immediately and that they took twenty days to lodge a report. Having regard to all the circumstances stated above, I feel that it is a case where benefit of doubt can be extended to the accused.
30. Accordingly, the Criminal Revision Case is allowed, setting aside the conviction and sentence imposed by the trial 17 Court in C.C.63 of 2004 on the file of Judicial First Class Magistrate for Excise, Guntur, which was affirmed by the Appellate Court in Crl.A.No.240 of 2004.
________________________ C.PRAVEEN KUMAR,J Dt: 25-02-2020 eha 18 THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Crl. R.C. No.1513 of 2007 Dt - 25-02-2020 eha