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2009 DIGILAW 395 (AP)

N. Swarna v. N. Surya Narayana

2009-06-22

K.C.BHANU

body2009
JUDGMENT :- The complainant in CC No.228 of 1997 on the file of XXII Metropolitan Magistrate-cum- Mahila Court, Hyderabad filed the present appeal challenging the order of acquittal, dated 31.12.2001. 2. The complainant filed the private complaint against the accused alleging that the marriage of the complainant with Al was performed on 18.5.1969 as per the Hindu rites and customs and thereafter, she was harassed by A1 for more dowry and ultimately he deserted her. During the subsistence of the marriage between the complainant and A1, he contacted for second marriage with A2 in the year 1975 at Bylali Village, Bidar District in Karnataka. The trial Court took cognizance of the case for the offences under Section 498-A IPC, and Sections 3 and 4 of the Dowry Prohibition Act against A1 and under Section 494 IPC against A1 and A2. 3. When the charges under Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act against A1 and Section 494 IPC against A2 were framed, read over and explained to the accused in Telugu they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, on behalf of the complainant, she herself was examined as PW1 and marked Exs.P1 to P6. On behalf of accused, DW1 was examined and no documents were marked on his behalf. 5. The trial Court after considering the evidence on record came to the conclusion that except the bald allegation that A1 was harassing the complainant to bring additional dowry, she did not speak anything as to the quantum of amount and purpose of demanding additional dowry and as there is no evidence on record to establish the solemnization of the alleged second marriage between A1 and A2 and accordingly, acquitted the accused. Challenging the same, the present criminal appeal is filed. 6. The learned Counsel appearing for the appellant contended that the evidence of PW1 would clearly go to show that she was being harassed by the first respondent with regard to the demand of more dowry and that during the subsistence of the first marriage, he contacted for the second marriage with the second respondent and as the offence under Sections 498-A and 494 IPC are made out, she prays to set aside the order of acquittal. 7. 7. The learned Counsel for the respondents 1 and 2 (Accused Nos.1 and 2) contended that there is no evidence on record to establish the solemnization of alleged second marriage between A1 and A2 and mere admission of marriage by A1 does not substantiate the solemnization of marriage between A1 and A2. Therefore, the Court below rightly acquitted the accused. 8. Except the evidence of PW1, there is no other evidence. The allegation of the complainant would go to show that her husband deserted her when he contacted second marriage. When there is a solitary evidence on record, that evidence should be free from all blemishes and it must be convincing, cogent, trustworthy and further more, that evidence should be put in the category of wholly reliable. Then only, her evidence needs no corroboration. Except stating that the accused took dowry from her at the time of marriage, she did not speak anything about the quantum of dowry demanded by A1 at the time of marriage. She also did not state that the articles as demanded by A1 were received by him at the time of marriage. No doubt, any unlawful demand by the husband or relatives of the husband is cruelty within the meaning of Section 498-A IPC, but at the same time, bald allegation would not be sufficient. PW1 did not specifically speak about the purpose and quantum of additional dowry demanded by A1. Even according to her own saying, after her marriage with A1, she lived with her husband for about four or five months only. If really she was harassed by her husband, she ought to have lodged a complaint against A1 in the year 1969 itself. Having waited for nearly thirty years, she lodged a complaint with the police and the police filed a final report stating that it is a 'Mistake of Fact'. Thereafter, the present complaint is lodged. Though the accused admitted in EX.P5-Certificed Copy of counter in M.C. No.4 of 1991 and P6 Certified Copy of plaint in OS No.1257 of 1999 that A2 is his wife, law is well settled that mere admission of second marriage by the accused cannot be a proof for an offence of 'bigamy' under Section 494 IPC. The burden is on the complainant to establish that both the marriages of A1 were performed in accordance with Hindu law. The burden is on the complainant to establish that both the marriages of A1 were performed in accordance with Hindu law. Absolutely, there is no evidence on record to show that A1 married A2 lawfully during the subsistence of the earlier marriage. 9. In view of the above circumstances, I am of the view that the findings of the trial Court are based upon proper appreciation of evidence on record. None of the findings is shown to be perverse or contrary to law. In view of the fact that there is no evidence at all to convict the accused for the offences under Sections 498-A and 494 IPC the appeal deserves to be dismissed. 10. The criminal appeal is, therefore, dismissed. 2009121 AlD (CrLI September