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2023 DIGILAW 544 (AP)

Nallapilli Balaram v. State Of A. P.

2023-03-15

V.R.K.KRUPA SAGAR

body2023
ORDER : This Criminal Revision Case under Sections 397 and 401 Cr.P.C. is filed by a convict and it assails the conviction of the revision petitioner for the offence under Section 498-A I.P.C. The respondent herein is the State on whose prosecution this revision petitioner was convicted. 2. Sub-Inspector of Police, Women Police Station, Srikakulam investigated the case and filed charge sheet against A.1 and A.2 alleging that they committed offence under Section 498-A I.P.C. The case was tried by the learned Special Judicial Magistrate of First Class, Prohibition and Excise, Srikakulam in C.C.No.12 of 2006. After due contest and trial, the learned Magistrate by a judgment dated 08.01.2007 found A.1 guilty and convicted him and sentenced him to undergo simple imprisonment for one year and pay a fine of Rs.1,000/- with default sentence of simple imprisonment for 15 days. A.2 was found not guilty and was accordingly acquitted. 3. As against acquittal of A.2, proceedings before the learned Magistrate attained finality as none appealed against it. However, the convict/A.1 preferred Criminal Appeal No.7 of 2007. The learned II Additional District and Sessions Judge (Fast Track Court), Srikakulam after due hearing, by a judgment dated 22.05.2009 dismissed the appeal and confirmed the judgment of the trial Court. Assailing those judgments, this revision is filed by A.1. 4. It is urged for the revision petitioner that the marriage between this revision petitioner and the alleged victim-cum-de facto complainant was not proved and that they were not spouses and in fact the victim woman was a married lady and wife of Sri Shankar Rao. Yet, both the Courts wrongly convicted A.1/revision petitioner for the offence under Section 498-A I.P.C. Judgments cited before the trial Court and the first appellate Court were incorrectly appreciated. It was improbable that 16 to 17 years subsequent to the alleged marriage there could have been any harassment for dowry. That the sentence imposed is excessive. For these reasons, learned counsel argues for acquittal of the revision petitioner. 5. Learned Special Assistant Public Prosecutor submits that the contentions raised herein were also raised before the Courts below and they were dealt with in accordance with law and the evidence on record established the guilt. There can be no justification to interfere with the well considered judgments of the Courts below. 6. 5. Learned Special Assistant Public Prosecutor submits that the contentions raised herein were also raised before the Courts below and they were dealt with in accordance with law and the evidence on record established the guilt. There can be no justification to interfere with the well considered judgments of the Courts below. 6. The point that falls for consideration is: “Whether the evidence on record did not establish spousal relationship between the revision petitioner and the victim woman/wife and no offence was made out to punish the accused and the Courts below misread the evidence and misinterpreted the law requiring interference?” 7. Point: Before the trial Court two individuals were prosecuted as accused. This revision petitioner was A.1. The other accused was a woman arrayed as A.2. According to prosecution, A.1 was running an affair with A.2 and wanted her to bring to his home as she was ready and agreed to give him money. A.1 became a drunkered and being under the influence of his relationship with A.2 he was cruel towards his wife/PW.1. He was demanding his wife to bring Rs.1,00,000/- and as she failed to bring it, he used to beat her and finally he threw her out of the house. Prosecution case further shows that between A.1 and PW.1 there was cohabitation for 17 years and they begot children also and in this episode of cruelty A.1 sent out of home his children also. To prove this case, prosecution examined PWs.1 to 5 and got marked Exs.P.1 to P.3. 8. As against that, the case of revision petitioner/A.1 was that A.2 is his wife and PW.1/victim is not his wife and children were not born for them and he never demanded money and there was no cruelty on his part. 9. In the light of those rival contentions, the evidence that was made available on record by the prosecution was examined by the Courts below. Defence did not adduce any evidence whatsoever. Therefore, it was only the credibility of the witnesses that was to be tested, apart from any other legal issues that may have cropped up from the facts of the case. 10. From the evidence it was found that it was in 1988 the marriage between the victim/PW.1 and the revision petitioner/A.1 took place. Therefore, it was only the credibility of the witnesses that was to be tested, apart from any other legal issues that may have cropped up from the facts of the case. 10. From the evidence it was found that it was in 1988 the marriage between the victim/PW.1 and the revision petitioner/A.1 took place. Victim lodged Ex.P.1 written information on 06.08.2004 and that was registered as Crime No.8 of 2004 as per Ex.P.3-F.I.R. Thus, Ex.P.1 is the former statement of PW.1. Both the Courts below recorded that the marriage that was spoken to by PW.1 was found believable since other witnesses also deposed about such long marital cohabitation of nearly 17 years between them. Ex.P.2 was Policy of Life Insurance Corporation of India obtained on 28.12.2001 by the revision petitioner. Courts below verified it and considered the evidence of PW.1 and recorded that in that Life Insurance Policy this revision petitioner mentioned the name of PW.1 as his wife and made her his nominee for the policy. Thus, based on long cohabitation, based on entries in Ex.P.2 and based on the sworn evidence of PW.1, learned Special Judicial Magistrate of First Class recorded a categorical finding that it believed valid solemnization of marriage between revision petitioner and PW.1. 11. With reference to the alleged marriage between A.1 and A.2, learned Magistrate recorded that absolutely there was no evidence on record to see any such marriage. In that way it found A.2 was nowhere related to A.1 and since she was not related to A.1 a prosecution for the offence under Section 498-A I.P.C. could not be maintained against her and accordingly acquitted her. It is a fact from the record that no positive evidence was brought to the notice of the Court by the present revision petitioner to show any semblance of marital relationship between him and A.2. His theory, though suggested to prosecution witnesses, was unanimously denied as false by all the witnesses. Thus, the finding of the Courts below that A.2 was not wife of A.1 has to stand. 12. While there was no specific line of defence taken up when he entered his plea, it was during the course of cross-examination of PW.1 the defence projected his theory. It was elicited from PW.1 that earlier her marriage was performed with her maternal uncle’s son. 12. While there was no specific line of defence taken up when he entered his plea, it was during the course of cross-examination of PW.1 the defence projected his theory. It was elicited from PW.1 that earlier her marriage was performed with her maternal uncle’s son. It is on that defence contended that the said marriage was subsisting and therefore, PW.1 cannot be stated to be the legally wedded wife of this revision petitioner. Be it noted that about marriage of PW.1 with her maternal uncle’s son neither a document is thereon record nor one who performed the marriage testified nor one who attended the marriage testified. There is absolutely no material to think whether that was a validly solemnized marriage or not. 13. If the statement of PW.1 is to be taken to have proved the marriage of her with her maternal uncle’s son then on the same token, her further evidence should also be considered. In her evidence she stated that by her caste customs she had obtained divorce from her earlier husband and thereafter her marriage was solemnized with this revision petitioner. Through facts on record and by any principles of law, the defence never brought on record whether in the community of PW.1 marriage could not be dissolved by way of caste customs without approaching a Court of law. Therefore, what PW.1 spoke has to be given its own value and having so given it has to be recorded that by the time PW.1 married this revision petitioner there was no spouse living for her in the eye of law. Learned Judicial Magistrate of First Class bestowed lot of attention on these contentions of revision petitioner and held that the contentions of A.1 have no force in the context of evidence and law available. 14. Courts below recorded that this revision petitioner though was telling that he had no connection with PW.1, he did not even choose to examine any of his parents or other close relations to show that he never married PW.1. Courts below evaluated the evidence properly and looked at the issue from different dimensions and finally recorded their conclusions. 14. Courts below recorded that this revision petitioner though was telling that he had no connection with PW.1, he did not even choose to examine any of his parents or other close relations to show that he never married PW.1. Courts below evaluated the evidence properly and looked at the issue from different dimensions and finally recorded their conclusions. As to how these findings are incorrect in the context of the evidence on record has to be demonstrated by the revision petitioner and in this revision he completely failed to show any such lapses which could enable this Court to think that both the Courts committed errors. 15. PWs.3 and 4 are the very close relatives of this revision petitioner. All these witnesses categorically stated that this revision petitioner was demanding PW.1 to bring Rs.1,00,000/- and for that money he used to beat her and used to beat her quite often and his relatives stated that in their presence also he beat her several times for that money. Why he wanted that money has to be spoken to by revision petitioner only. He did not explain. When the evidence show that he made demand for Rs.1,00,000/- and beat his wife for that money, it is an unlawful demand followed by cruelty for failure to satisfy the demand. Precisely that conduct is made punishable by Section 498-A I.P.C. Courts below validly recorded that. But the argument of the learned counsel for revision petitioner that it is quite unlikely that after 1½ decades of spousal living there could have been a dowry demand. This argument is a matter of imagination and not a matter of fact. In fact money that was demanded by an earning husband from non-earning wife is unlawful demand for money and whether the lay witnesses call it as dowry or additional dowry or unlawful demand much does not turn on it. The evidence of PWs.1 to 5 indicated awful drunkenness of this revision petitioner. For a man of such habits need for money is always there. Therefore, this unlawful demand for money/dowry/additional dowry after a long cohabitation and marital relationship cannot be ruled out. 16. At any rate, revision petitioner failed to show any irregularity or impropriety or illegality in the judgments of the Courts below. For a man of such habits need for money is always there. Therefore, this unlawful demand for money/dowry/additional dowry after a long cohabitation and marital relationship cannot be ruled out. 16. At any rate, revision petitioner failed to show any irregularity or impropriety or illegality in the judgments of the Courts below. Since the evidence established the spousal relationship and matrimonial cruelty and since their findings are in accordance with the facts and law, there is nothing to interfere in that regard. 17. Learned counsel for revision petitioner in all earnestness argued for modification of sentence. Learned counsel submits that this revision petitioner, as per evidence on record, was directed by a learned Magistrate to pay monthly maintenance to his wife and children and he has been paying it accordingly all these years. That the revision petitioner is a Government servant and any imprisonment would make him to lose his job and if he loses his job he would not be in a position to pay monthly maintenance to his wife and children. That he had already spent about three weeks in prison and this Court shall let him by considering the sentence he underwent as sufficient. 18. Learned Special Assistant Public Prosecutor opposed the submission and stated that a moderate sentence of imprisonment was inflicted by the Courts below and there can be no justification to modify it. 19. The facts on record indicate that for 17 years legal proceedings have been going on in connection with this crime. It is depravity of the accused which is one of the factors that fall for consideration in quantification of sentence. The present case shows about an alleged Government servant denying his paternity, denying his spousal relationship and claiming marital tie with a woman with whom no marriage was ever solemnized. It is in the context of such facts, guilt of him was found by both the Courts below. If one takes these facts there shall be no possibility for reduction of any sentence. However, as the adage goes process is punishment and for more than 1½ decades the revision petitioner is embroiled in his legal tussle. Viewed in that context, this Court is inclined to modify the sentence. 20. If one takes these facts there shall be no possibility for reduction of any sentence. However, as the adage goes process is punishment and for more than 1½ decades the revision petitioner is embroiled in his legal tussle. Viewed in that context, this Court is inclined to modify the sentence. 20. In the result, this Criminal Revision Case is allowed in part modifying the judgment dated 22.05.2009 of learned II Additional District and Sessions Judge (Fast Track Court), Srikakulam in Criminal Appeal No.7 of 2007 and the judgment dated 08.01.2007 of learned Special Judicial Magistrate of First Class, Prohibition and Excise, Srikakulam in C.C.No.12 of 2006. While retaining the fine and the default sentence that were imposed by the Courts below, the substantive sentence of simple imprisonment for one year that was imposed by the trial Court and confirmed by the appellate Court is reduced to simple imprisonment for six (6) months. The revision petitioner shall submit himself immediately before the learned trial Court and undergo the punishment, failing which the learned trial Court shall secure his presence and enforce the punishment. 21. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the Court below and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner in C.C.No.12 of 2006, dated 08.01.2007, and to report compliance to this Court. Registry is directed to dispatch a copy of this order along with the lower Court record, if any, to the Court below on or before 17.03.2023. A copy of this order be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. As a sequel, miscellaneous applications pending, if any, shall stand closed.