Daily Archives: July 7, 2013

CANT file IPC 498a, 420, 3/4 DP act against female lover, girl friend ! these sections for ELDERLY mothers and sisters , brothers of hubby, and other close relatives…. since we wish to empower YOUNG women, girl friend excluded

THE HIGH COURT OF ANDHRA PRADESH

THE HONOURABLE SRI JUSTICE P.S.NARAYANA

Criminal Petition No.5184 of 2007

10-03-2010

Kumari Sri Uma
D/o. A.Venkateswara Rao
Aged about 24 years, Occ:Student
R/o.Flat No.19, Sri Ranga Sai Towers,
Seetharampuram, Vijayawada

VS

The State of A.P. rep by
Public Prosecutor, High Court of A.P.
and another

Counsel for the petitioner: Sri V.Hari Haran, Advocate

Counsel for the Respondents: Addl. Public Prosecutor
Sri Y.Krishna Mohan Rao, Advocate

:ORDER:

1. Heard Sri Ramakrishna, learned counsel, representing Sri Hari Haran,
learned counsel for the petitioner, learned Additional Public Prosecutor
representing the first respondent and Sri Y.Krishna Mohan Rao, learned counsel
representing the second respondent.

2. This Criminal Petition is filed under Section 482 of Cr.P.C. (herein
referred as ‘the Code’, for the purpose of convenience) praying for quashing of
the proceedings in C.C.No.620 of 2007 on the file of the XIII Additional Chief
Metropolitan Magistrate, Hyderabad, for the offences punishable under Sections
498-A, 420 read with 109 I.P.C. and Sections 4 and 6 of the Dowry Prohibition
Act, 1961. Sri Ramakrishna, learned counsel, representing Sri Hari Haran,
learned counsel for the petitioner would maintain that even if the allegations
made out in the charge sheet are to be taken as true and correct, none of the
alleged offences would be attracted as it relates to petitioner / Accused No.5
since she is an outsider and not a relative within the meaning of Section 498-A
IPC; that when the ingredients of Section 498-A IPC are not attracted as it
relates to the petitioner / Accused No.5, the question of trying the petitioner
/ Accused No.5 under Sections 4 and 6 of the Dowry Prohibition Act, 1961 would
not arise; that even the alleged offence under Section 420 IPC is not applicable
to the petitioner / Accused No.5 as there is no specific allegation on her to
the effect that she had cheated the defacto complainant; that as far as the
alleged offence under Section 109 IPC is concerned, the stand taken that the
petitioner / Accused No.5 threatened the defacto complainant being false, this
alleged offence also is not applicable. Thus, learned counsel would ultimately
pray this Court to quash the proceedings as against the petitioner / Accused
No.5 and to allow the Criminal Petition. To substantiate his submissions,
learned counsel also relied on certain decisions.

3. Learned Additional Public Prosecutor representing the first respondent had
taken this Court through the allegations made in the charge sheet and would
maintain that it is not that the petitioner / Accused No.5 approached this Court
for the first time, but the petitioner, infact, filed Crl.P.No.1371 of 2005 in
this Court praying to quash proceedings in FIR No.253 of 2004 of Musheerabad
Police Station, Hyderabad, and in the light of the specific observation made
that the threats may, prima facie, amount to criminal intimidation, this is not
a fit matter to quash the proceedings against the petitioner / Accused No.5.

4. Sri Y.Krishna Mohan Rao, learned counsel representing the second
respondent / defacto complainant would maintain that the whole episode of the
prosecution revolves around the petitioner / Accused No.5. It may be that the
petitioner / Accused No.5 cannot be charged with Section 498 I.P.C. and Sections
4 and 6 of the Dowry Prohibition Act, 1961, but, however, as far as other
alleged offences are concerned, may be at appropriate stage, she may also be
tried along with the other accused. Learned counsel pointed out to the order
made in Crl.P.No.1371 of 2005 of this Court in this regard.

5. Heard the learned counsel on record.

6. At the earlier instance, the petitioner herein / Accused No.5 filed
Criminal Petition No.1371 of 2005 before this Court and this Court, by order
dated 29.08.2006, dismissed the Criminal Petition observing as hereunder.
"The present petitioner is A.5 in the crime. The case is registered for the
offences punishable under Sections 498A, 420 and 109 I.P.C. and 4 and 6 of the
Dowry Prohibition Act. Even if the entire allegations in the complaint are
taken as true and correct at this stage, they do not make out a prima facie case
for the offence alleged against the petitioner/A.5. Insofar as the offence
punishable under Section 109 I.P.C. is concerned, the allegation is that this
petitioner threatened the defacto complainant to take divorce from her husband
failing which she would kill her. No act has been committed in consequence of
that abetment. Therefore, even if the allegations in the complaint are taken as
true, no prima facie case for the offence punishable under Section 109 I.P.C. is
made against the present petitioner. However, there was a threat given by the
present petitioner to the defacto complainant, which prima facie amounts to
criminal intimidation. Under Section 503 I.P.C., whoever threatens another with
injury to his person, reputation or property is said to have committed criminal
intimidation. Therefore, there are no grounds to quash the proceedings. It is
for the police to take appropriate decision at the time of filing of the charge
sheet after completion of investigation, on the prima facie offence alleged to
have been committed by the petitioner.
With the above observations, the Criminal Petition is dismissed."

7. The brief facts of the case are as follows:-
The respondent No.2 – defacto complainant married A-1 on 28.11.2003 by
paying Rs.12,00,000/- as dowry, as demanded by A-1 and his brother A-2; that 3
days after the marriage, her husband – A-1 informed that he is not interested in
the defacto complainant and he had a pre-marital affair with petitioner whom he
wanted to marry but his brother and sister-in-law did not permit the same as
petitioner belongs to a different caste; that subsequently, when she informed
the same to A-2 to A-4, they took it lightly, demanded and harassed her for
additional dowry; that the petitioner herein threatened the defacto complainant
over phone to leave A-1 or else she will be killed. Finally, that A-1 to A-4,
by concealing the pre-marital affair of A-1 with A-5, cheated the defacto
complainant by performing his marriage with the defacto complainant.

8. It is also stated that the petitioner went to Chennai to pursue her
studies in MCA and was staying at her elder sister’s house. A-1 pursued his MBA
at Chennai, from Anna University and being neighbours, the petitioner was
friendly with A-1. In reply to the allegations, the petitioner denies that the
same is false and invented for the purpose of the complaint and to harass her.
The petitioner is a third party to all the transactions that took place between
the defacto complainant and her husband and his other relatives. The
petitioner, during that time, was in Chennai and is no way concerned with the
said state of affairs between the defacto complainant and her husband. The
petitioner humbly submits that the said allegations against her in the charge
sheet are false and do not constitute any offence. The defacto complainant and
her family members malafidely filed the criminal case against petitioner / A-5
to harass her.

9. It is also stated that after lodging complaint in crime No.253 dated
16.07.2004 by the defacto complainant, the petitioner filed Crl.P.No.1371 of
2005 before this Hon’ble Court seeking to quash of FIR and this Hon’ble Court
rightly pointed out that even if the entire allegations in the complaint are
taken to be true and correct do not make out a prima facie case and while
disposing the said criminal petition, it was left open to the police to
investigate the matter further and file charge sheet in the case. It is humbly
submitted that even as per the allegations in the charge sheet, no offence is
made out against the petitioner nor the petitioner was charged with any offence
and the continuation of the criminal proceedings against this petitioner is
unwarranted, abuse of the process of law and hence, the same needs to be
quashed. It is further submitted that now marriage of the petitioner is fixed
and continuation of the above criminal proceedings, without making out any
offence against the petitioner, will cause severe loss and hardship to the
petitioner.

10. In such a situation, the petitioner / Accused No.5 approached this Court
by filing the present Criminal Petition, under Section 482 of the Code.

11. Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned
counsel for the petitioner, placed strong reliance on para 6 of the decision
reported in Sia Ram and another Vs. State of U.P.1, wherein, it was observed as
follows.

The question which then arises for consideration, a question to which the
Sessions Court and the High Court have not paid enough attention, is whether the
only interference which arises from the fact that Violet gave the particular
shout is that by so doing, she intended to facilitate the murder of Kunwar
singh, Section 107 of the Penal Code which defines abetment provides to the
extent material that a person abets the doing of a thing whom "Intentionally
aids, by any act or illegal omission, the doing of that thing". Explanation 2
to the section says that:

"Whoever, either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act, and thereby
facilitates the commission thereof, is said to aid the doing of that act."

Thus, in order to constitute abetment, the abettor must be shown to have
"intentionally" aided the commission of the crime. Mere proof that the crime
charged could not have been committed without the interposition of the alleged
abettor is not enough compliance with the requirements of Section 107. A person
may, for example, invite another casually or for a friendly purpose and that may
facilitate the murder of the invitee. But unless the invitation was extended
with the intent to facilitate the commission of the murder, the person inviting
cannot be said to have abetted the murder. It is not enough that an act on the
part of the alleged abettor happens to facilitate the commission of the crime.
Intentionally aiding and therefore active complicity is the gist of the offence
of abetment under the third paragraph of Section 107.

12. Learned counsel also placed reliance on para 7 of the decision reported in
Suram Kiran Kumar Reddy and others Vs. State of A.P. and another2, wherein, it
was observed as follows.
The other offences alleged against the petitioners are under Section 417 and 420
read with section 109 IPC. Under Sec.109 IPC, abettor is liable to the same
punishment as that which may be inflicted on the principal offender if (a) the
act of the offender is committed in consequence of the abetment and (b) no
express provision is made in the IPC for punishment of such abetment. Obviously,
prosecution is taking the aid of Section 109 IPC to rope in petitioners 2 and 4
for the offences alleged against the 1st petitioner by the 2nd respondent. As
stated earlier, no offence can be said to have been committed by 1st petitioner
under Section 493 and 376 IPC. So petitioners 2 to 4 also cannot be said to
have abetted under Sections 493 and 376 IPC.

13. Learned counsel further relied on Male Ramnadham and another Vs. State of
A.P.3, wherein, it was observed as under.

The FIR does not disclose the necessary ingredients of abetment like
‘instigation’ or ‘conspiracy’, or ‘active support’ by the petitioners in
B.Saroja (A-1) preparing illicit arrack, because mere sale of goods across the
counter cannot be said to be ‘instigation’, or ‘conspiracy’ or ‘active support’.
So, even if all the allegations in the FIR are taken to be true, petitioners
cannot be said to have committed an offence under Section 34 of the Excise Act
or abetment of such offence.

14. The petitioner is an outsider to the family of the defacto complainant.
No doubt, as there was an allegation that illicit intimacy existed between the
petitioner / A-1 and Accused No.5, offences relating to cheating and abetment
also had been attributed. It appears that certain threats also had been made.
The truth or otherwise of all these allegations cannot be gone into at this
stage. There cannot be any doubt or controversy that the ingredients of Section
498A IPC are not attracted so far it relates to the petitioner / Accused No.5.
It is needless to say that when the ingredients of Section 498-A IPC are not
attracted, Sections 4 and 6 of the Dowry Prohibition Act, 1961, also are not
applicable. Likewise, the alleged offence of cheating under Section 420 IPC and
abetment under Section 109 IPC are also not applicable.

15. Hence, it is made clear that the petitioner / Accused No.5 cannot be
charged with any of the alleged offences specified supra and all such offences
are are liable to be quashed.

16. Accordingly, the proceedings against the petitioner / Accused No.5 in
C.C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan
Magistrate, Hyderabad alone are quashed relating to offences under Sections
498A, 420 read with 109 IPC and Sections 4 and 6 of the Dowry Prohibition Act,
1961.

17. However, keeping in view the prima facie evidence relating to the offence
of criminal intimidation against the petitioner and also keeping in view the
observations made by this Court in criminal petition No.1371 of 2005, this Court
is not inclined to quash the whole proceedings in C.C.No.620 of 2007 on the file
of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, in toto,
leaving it open to the learned Magistrate to consider framing of charge relating
to criminal intimidation in the light of the material available on record.
18. In the result, the Criminal Petition is partly allowed to the extent
indicated above.

?1 AIR 1975 Supreme Court 175

2 2002 (6) ALT 565

3 2003 (1) ALT (Crl.) 95 (A.P.)

26th July, 2012.

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This judgment and other similar judgements posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgement or the judgement itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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husb say wife kick testicles, threat kill father, used goondas etc; wife say husb illicit relation ! still HC refuse divorce after 15year farcass !!

Husband says wife kicked testicles, threw chilli powder threated to kill dad and smear the dad’s ashes on his forehead, making his mother a widow. Wife says husand has illicit relations and gets some one to testify …. after 15 years of farcass, the HIGH court STILL REFUSES divorce and says divorce petition BY THE HUSBAND is dismissed !!!!

LONG LIVE MATRIMONY

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HIGH COURT OF ANDHRA PRADESH

THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA

Civil Miscellaneous Appeal No. 636 of 2001

10-03-2010

K.S.V.V.L. Narasimha Rao

Kamisetty Suguna

Counsel for the Petitioner: Sri D.V. Seetharam Murthy

Counsel for the Respondent: Sri Sarvabhovma Rao

:JUDGMENT:- (Per Hon’ble Sri Justice B.N.Rao Nalla)

01. This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 11.09.2000 passed in O.P. No.150 of 1998 by the learned Judge,
Family Court, Visakhapatnam, whereby the Original Petition filed by the
petitioner under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 ( for
brevity "the Act") for dissolution of the marriage on the ground of cruelty and
desertion for a continuous period of not less than two years immediately
preceding the presentation of the petition, was dismissed.

For the sake of convenience, the parties are referred to as they are
arrayed in O.P.No.150 of 1998.

02. The brief facts of the case are that the marriage of the petitioner
with the respondent took place on 22.12.1974 and was consummated. The
petitioner-husband was working in the State Bank of India, Visakhapatnam and
both of them lived together in the house of the petitioner’s father as joint
family members. It is averred that soon after joining the petitioner, the
respondent started harassing him to set up separate family, and as he did not
pay any heed to her words, she did not attend the house-hold chores, abused his
parents, insulted them on every occasion and disrupted the mental peace of the
petitioner. It is also stated the respondent-wife used to leave for her
parents’ house very often without his consent and the petitioner had to get her
back from her parents’ house. After she was blessed with two daughters, the
petitioner expected that the respondent would continue to stay with him along
with his children, but on 02.06.1979, the respondent left the matrimonial home
along with her children and a suitcase containing 15 tulas of gold belonging to
his mother, and the petitioner went to his in-laws’ house and requested her to
join him, but she bluntly refused to do so and abused him in filthy language.
Then, the petitioner-husband filed O.P. No.211 of 1979 on the file of II Addl.
District Judge, Visakhapatnam for restitution of conjugal rights and the same
was decreed. In spite of the decree in his favour, she did not join him for one
year. The respondent preferred C.M.A. No. 468 of 1990 against the order, dated
18.02.1990 made in
O.P. No.211 of 1979, but the same was dismissed. He further stated that as a
result of mediation effected by the petitioner on the advice of the elders, the
respondent joined the petitioner at his parents’ house, but again started
insisting him on setting up separate family and continued her cruel behaviour
towards him. At last, he set up separate residence in other portion of his
father’s house. When she became pregnant in the year 1981 for the third time,
on the pretext of delivery she went to her parents’ house without his consent,
and was blessed with a baby-girl by name Lakshmi in the year 1982, and when the
respondent came to take her to matrimonial home, she refused to join him and her
parents pushed him away from the house forcibly. In June, 1996, he was
transferred to Toopran of Medak District, where he came to know that his mother
and brother were arrested by the Police based on a report lodged by the
respondent for an offence punishable under Section 498-A IPC in II Town Police
Station, Visakhapatnam and the same was numbered as
C.C. No.42 of 1990, and by the time the report was lodged, according to the
petitioner, she was not residing with him for a continuous period of 7 years
preceding 03.10.1989. On 11.10.1989, he was transferred to Visakhapatnam and
having become vexed with the criminal attitude of the respondent and desertion
for more than two years, he filed O.P. No.422 of 1989 for divorce and O.P.
No.130 of 1989 for custody of the minor children. According to the petitioner,
on 10.05.1992, the respondent, with the help of her goondas, broke open the
locks of the house constructed by him at Paradesipalem, forcibly entered the
house and took away the household articles, in respect of which, he gave a
report to the police under Ex.A4, but of no avail. It is further stated that at
that stage, the respondent herself approached him and offered to join him for
restitution of conjugal life with a promise that she would stay and would not
desert him and prevailed upon him not to press the petitions filed by him on
condition that she would withdraw C.C. No.42 of 1990. Believing her words, and
in the interest of his minor children, both of them filed a joint memo before
the Family Court and both the petitions were dismissed on 14.02.1994.
Thereafter, the respondent joined him at his newly constructed house, at
Paradesipalem, but failed to withdraw C.C. No.42 of 1990. At that time, he was
working in Chittivalas Branch, State Bank of India and used to shuttle between
Chittivalas and Paradesipalem. Whenever he returns after office work, he used
to find the house locked forcing him to go to her parents’ house and bring her
back along with the children. While so, C.C No.42 of 1990 ended in acquittal.
Enraged with this, the respondent increased her cruel attitude by locking the
house at Paradesipalem and going away somewhere. The respondent’s parents did
not furnish her whereabouts several times and he had to wait at the doorstep of
her parents’ house till 09.00 P.M. and return to his house. On some occasions,
she used to say that dinner is ready, but he will be served only after she takes
food. After taking food, she used to say that food was exhausted and even did
not allow him to go out for dinner, thereby made him go to bed without food.
She used to say that she would pour kerosene on his body and set fire to him and
his house, and would make him lose his job and get the same published in new
papers, and would see his father killed and would apply the ashes of his father
on his forehead, thereby derive pleasure by seeing his mother as widow. She
used to sprinkle chilly powder in his eyes and kick him on his testicles. On
15.01.1996, she tore off her "Mangala Suthrams" and was proclaiming that he is
no more her husband, and therefore, being afraid of the respondent, he has been
living separately since then. On 06.03.1998, during his absence, the respondent
and her children forcibly trespassed into the house of his parents, beat their
cook by name T.Rama Devi with scissors, sprinkled chilli powder, caused bleeding
injuries, and on 24.03.1998, filed a false report before Mahila Police Station
and thereupon, he was detained by Sub-Inspector of Police, Mahila Police Station
for two days. On 19.04.1998, while the petitioner was on his way to Makkuva,
she way-laid him with goondas and threatened to kill him. In view of the
threat, he was afraid of attending his duties, and hence, he applied for leave.
The cruel attitude of the respondent caused reasonable apprehension in his mind
that it would be harmful and injurious for him to continue the marital tie with
the respondent, and hence, prayed the Family Court to dissolve the marriage on
grounds of cruelty and desertion for a period of more than two years.

03. The respondent-wife filed three counter affidavits denying her
leaving the house on 02.06.1979 with a suitcase consisting of 15 tulas of gold
and her refusal to join the petitioner. She denied the allegation that she
demanded the petitioner to set up separate family, abused her in-laws, broke
open the doors of the house constructed by the petitioner and forcibly took away
the belongings of the petitioner and his parents. She stated that she joined
the petitioner along with their children at Paradesipalem. She admitted in the
counter that II Town Law & Order Police Station registered a case in Cr.No.61 of
1998 against herself and her children, but stated that she never threatened nor
abused the petitioner and his parents. She further stated that after the
marriage, both of them lived in the house of the petitioner’s parents, during
which time, the petitioner used to harass her physically and mentally in order
to get her gold ornaments to meet his vices like gambling, drinking, etc. In
the light of the decree passed in O.P. No.211 of 1979 for restitution of
conjugal rights, and at the instance of the elders, the respondent joined her
husband by the end of the year 1980 and gave birth to a female child in June,
1982, and after the birth of the third child, both of them lived together till
June, 1986. While the trial in O.P.Nos.422 of 1989 & 130 of 1989 was in
progress, the petitioner was living with one Ms.Tatavarthi Ramadevi in the house
bearing D.No.3064 at Paradesipalem, and both of them visited several places on
pilgrimage and there is ample evidence to substantiate that they lived together
as husband and wife, and thus, the petitioner is guilty of matrimonial offence
of living in adultery with Ramadevi with the active support of his parents,
sisters and brothers. After the O.Ps. were dismissed as settled out of Court
i.e. on 14.02.1994, the petitioner took the respondent and the children to the
newly constructed house at Paradesipalem and started living with them.
Subsequently, the petitioner was transferred to Chittivalasa and from there to
Makkuva in October, 1997, and in November, 1997, the petitioner took the
respondent and the children to Makkuva and both of them lived there till
01.03.1998 while children were allowed to pursue their education at
Visakhapatnam. After making the respondent believe his outward goodness in
connivance with his family members, the petitioner surreptitiously inducted his
kept mistress, Thatavarthi Ramadevi in his parental house bearing D.No.29-10-53,
Visakhapatnam, thereby the respondent and her children were neglected and
subjected to inhuman and cruel treatments.

04. On the premise of the aforesaid pleadings of the parties, the trial
Court framed the following issue for determination:
"whether the respondent is guilty of cruelty and desertion of the
petitioner and the marriage between the petitioner and the respondent is liable
to be dissolved?"
Before the Family Court, the petitioner-husband examined himself as PW1
and his mother as PW2 and T.Ramadevi as PW3 and got marked Exs.A1 to A13. The
respondent-wife examined herself as RW1 and six others as RWs.2 to 7 and got
marked Exs.B1 to B29. Ex.C1 and Exs.X1 to X3 were marked on behalf of the
Court.

05. PW1, who is the petitioner-husband, deposed that the marriage
between him and the respondent took place on 22.12.1974, and for one and a half
months they led peaceful life in the petitioner’s joint family, and thereafter,
she began picking up quarrels on petty matters and pestered him to set up
separate family. On 12.09.1976, their
first daughter was born, in 1978, their second daughter was born and even then,
she pestered him to set up separate family. In June, 1979, in his absence, and
when his parents were not in the house, his wife went away along with 15 tulas
of gold with two kids to her parental house, and the petitioner had to rush to
her in-laws’ house to bring her back, but their in-laws, suppressing the fact of
her arrival, abused him stating that the respondent went away because of his
harassment and they did not know anything about her. When he insisted on
revealing the truth of her whereabouts, her brothers and friends threatened to
kill him. Then, he complained to the police about her missing of the
respondent, and the police after investigation, told that his wife is with her
parents. Then, he filed a petition in O.P. No.211 of 1979 for restitution of
conjugal rights, and the same was decreed in his favour. Even after the
petition was decreed, she did not join him and preferred an appeal against the
order in O.P., but it was dismissed. In the interest of the children and with
the help of elders he brought back his wife and children and lived with them
jointly with his parents, but again she resorted to the old game and stayed with
him up to December, 1981. Ultimately, he set up separate family by taking
separate portion of his father’s house in Visakhapatnam. Again, she got
pregnancy in December, 1981 and went away to her house stating that she had some
problem, and on 12.06.1982, third daughter was born to them. Thereafter, she
did not join him in spite of the petitioner going and requesting her to come and
lead matrimonial life. After getting promotion, he was transferred to Tupran,
Medak District, and on 3.10.1989, he knew that his mother and brother were
arrested by II Town Police, Visakhapatnam based on a complaint lodged by his
wife. In 1981, she filed a case against him for the offence punishable under
Section 498-A IPC and made number of complaints to his superiors. There was 7
years of estrangement between them. Hence, he was constrained to file O.P.
No.422 of 1989 seeking divorce and O.P. No.139 of 1989 for custody of his
children, and the police filed charge sheet against him in C.C. No.42 of 1990.
When he was transferred to Chittivalsa in 1994, she began to visit him and
caused lot of disturbance to him. She proposed to withdraw the criminal case
only if he withdraws the divorce petition and guardian petition against her. In
1994, on her persuasion and on the advice of elders, he withdrew both the O.Ps.,
but she did not withdraw the criminal case, however, on 06.02.1995, the criminal
case ended in acquittal, by which date, they were living together. Contrary to
his expectation, she was harassing him and not providing even food, and by the
time he returned from office, she went away to her parents’ house and during
night times, she was disturbing his sleep by putting on lights and hiding the
keys of his Branch Office and caused much difficulty. Ultimately, on
15.01.1996, during Pongal, she took off her "Mangal Sutrams", threw them on his
face claiming that the house is not his and threatened him with dire
consequences. In November 1997, he was transferred to Makkuva and on
06.03.1998, when he was in office, the respondent along with three daughters
entered the house of his parents with the help of goondas and caused physical
harassment and bleeding injuries with knives to his parents and their cook
Ramadevi. A complaint in II Town Police Station was lodged by his parents with
the help of neighbours and cook, and that criminal case is pending against his
wife. On 23.03.1998, his wife complained against him, and based on her
complaint, he was detained by the police at Mahila Police Station, for two days,
as such, there is absolutely no possibility of leading married life with her
because of her cruel behaviour. Hence, he filed the O.P.No.150 of 1998 seeking
divorce on the grounds of cruelty and desertion, and he is prepared to pay
maintenance and also willing to perform the marriages of their daughters as a
dutiful father. In the cross-examination, he denied a suggestion that he lived
with one Tatavarthi Ramadevi, who worked as cook in his parents’ house. He
stated that in 1997, when he was working at Makkuva, he used to stay alone. He
denied a suggestion that he took the respondent and the first child to Makkuva
and lived happily for five months, and on 22.02.1998, they returned to
Visakhapatnam and Ramadevi abused the respondent in the house of his mother, and
therefore, the respondent also retorted and later returned to Visakhapatnam, and
he harassed the respondent on the ground that she questioned the attitude of
Ramadevi. He further deposed that Exs.B5
(a to d) are photos with the corresponding negatives taken in Shiridi, but he
did not know by whom they were taken. Exs.B6(a to f) are another set of photos
with corresponding negatives, while some of which contain his photographs, some
others contained the photographs of Ramadevi. In the cross-examination, he
stated that Ramadevi was staying in the house of his parents in Visakhapatnam as
Cook and filed a Criminal Case for the offence punishable under Section 354 IPC
against the respondent and their children on the file of the Court of Mahila
Sessions Judge, Visakhapatnam.

06. PW2, the mother of the petitioner, deposed that the respondent did
not return after having gone to her parents’ house for the
second delivery, and the petitioner had gone to bring her back to his house.

After the disposal of the appeal filed by the respondent against the order in
O.P.No.211 of 1979 filed by the petitioner for restitution of conjugal rights,
there was compromise at the instance of some elders, and the respondent joined
the petitioner at his house and stayed only for one and a half years. She
further deposed that after the third delivery, the petitioner joined the
respondent at their house and stayed for sometime, and later she left the place.
She further deposed that after the petitioner left for Tupran, there was nobody
to look after her, as such, her husband engaged one Ramadevi to do all domestic
works in the house including cooking. Whenever they go to Shiridi, Hyderabad
and Tirupathi they used to take Ramadevi along with them, but the petitioner
never accompanied them to those places.

07. PW3, Ramadevi, deposed that her father and the father of PW1 are
friends and after her father expired, she used to stay in her sister’s house.
While so, in January, 1989, PW2 asked her to come and assist her and her husband
in her house at Visakhapatnam as they are old, as such, she went and stayed in
her house by doing domestic works including cooking. She stated that except
along with PW2, she did not visit any pilgrim centres with the petitioner. She
deposed that she does not remember the places covered in Ex.B6(c to e), Ex.B7(b
to d), Ex.B8, Ex.B9(a, b), Ex.B10(c, d), Ex.B11(a to d), which are her
photographs. She denied the suggestion that on 10.05.1992, she and the
petitioner lived together as wife and husband and visited pilgrim centres when
the respondent and her children visited the house at Madhurawada. In cross-
examination, she admitted that the petitioner has been working in Visakhapatnam
and living in the house of PW2 and she has been staying in the same house.

08. RW1, who is the respondent-wife, deposed that after her marriage
with the petitioner, three daughters were born to them in 1976, 1978 and 1982
respectively and on 06.06.1979, the petitioner filed a petition on the file of
II Additional District Judge, Visakhapatnam, for restitution of conjugal rights
against her, and after the petition was decreed, and on the advice of the
Presiding Officer, both the petitioner and the respondent compromised the matter
in 1981 and started living together up to Septemper, 1987, and in which year,
the petitioner was transferred to Tupran and lived with the respondent and his
third child while the first two daughters were studying in St. Joseph Convent in
Visakahpatnam. She further stated that on one occasion, she came to know that
her parents-in-law forced the petitioner to marry again leaving her to her fate,
and when she questioned, the petitioner and his brother, Satyanarayana harassed
and beat her. In November,1989, when she came to Visakhapatnam in connection
with the marriage of his sister, she received a notice from the petitioner
claiming that she deserted him. When she questioned her mother-in-law as to why
the notice was issued to her, then her brother-in-law beat her. To avoid
further disputes the petitioner took her to Tupran. She further deposed that on
10.05.1992, herself and the children visited the newly constructed house of the
petitioner at Paradesipalem and found PW3 (Ramadevi) living with the petitioner.
She further deposed she and the petitioner along with the children lived in
Paradesipalem up to November, 1997. Thereafter, the petitioner got transfer to
Makkuva and the petitioner took her and the children to that place and lived
with them. She deposed that she was having Type Institute at Suryabagh,
Visakhapatnam with 6 typewriters. On 01.01.1998, while she was at Makkuva,
there was theft of all the typewriters, and in that connection, she came to
Visakhapatnam and found her husband at his parents’ house with Ramadevi and she
did not know when her husband came to Visakhapatnma. At Makkuva, the petitioner
looked after her well and ever since she and her children have been residing in
the house at Paradesipalem, the petitioner has been living in adultery with
Ramadevi in the house of his parents at Dabagardens, Visakhapatnam. The
petitioner filed I.A. No.359 of 1998 in O.P. No.422 of 1989 seeking to prevent
the respondent from going to the houses at Makkuva and Dabagardens. After
obtaining the injunction order, he joined his office on 07.05.1998 at Makkuva.
When she and the children visited their house at Makkuva, he stayed in the Bank
for one and a half days without coming out and opening the doors of the house,
therefore they could not collect their belongings and suffered with hunger. In
December, 1998, the petitioner got transfer to Visakhapatnam and she went to her
in-laws’ house, but on enquiry, it came to light that the petitioner instigated
Ramadevi to give complaint against her and the children, and on 21.01.1999, she
was arrested by the police. She further deposed that on 06.07.1999, at
Dabagardens, Visakhapatnam her father-in-law died and she went to see his dead-
body, but the doors of the house was closed and she was not allowed to see the
dead-body. She further deposed that she saw the petitioner and Ramadevi going
by car on several occasions. She performed the marriage of their first daughter
by taking loan from Margadarsi Chit Fund Company and her sister, Revathi. In
cross-examination, she deposed that since 10.05.1992, she has been residing at
Paradesipalem with the petitioner. She denied a suggestion that on 10.05.1992,
Ramadevi was not in the house at Paradesipalem. She denied a suggestion that
she committed theft of Exs.B20 and B27 from the house in Visakhapatnam on
06.03.1998 when she went there. She denied a suggestion that she went to her
husband’s house at Paradesipalem on 10.05.1992 along with goondas and looted all
the belongings of the petitioner. She stated that the petitioner beat her in
Hyderabad and in that regard and also with regard to other aspects, she gave a
police complaint, and Ex.A13 is the certified copy of the deposition in C.C
.No.42 of 1990.

09. RW2, who is the Sarpanch of Paradesipalem, Maruthivalsa and
Boravanipalem villages, deposed that he was invited by the petitioner to the
house-warming ceremony and the person shown in Exs.B6(c & d) – photographs is
called "Pantulamma" and he did not know her actual name, and as the petitioner
and she were moving closely and sat for house-warming ceremony, he thought that
she was his wife, but later the respondent told him that the respondent herself
is the actual wife. Then, the petitioner and that lady left the place and the
respondent and the children started living in that house. The petitioner and
"Pantulamma" came from Makkuva and exercised their franchise at Paradesipalem
for panchayat elections in 1998. In his cross-examination, he stated that after
the respondent came, the petitioner and the respondent started living together
at the house in Paradesipalem. One month after the respondent joined him
subsequent to the house-warming ceremony, the petitioner left her, and
thereafter, did not join the respondent.

RW3, who is also the Sarpanch of Paradesipalem, Boravanipalem,
Maruthivalasa villages, deposed that he attended the house-warming ceremony when
he was invited by the petitioner, and he saw one person called "Pantulamma"
getting up with the petitioner after performing Puja together, and 15 days
later, the respondent came and informed him that the respondent herself was the
actual wife of the petitioner, and from then onwards, the respondent started
living in that house. Later, the petitioner and the respondent lived in that
house for three years, and later, he got transfer to Makkuva. In February,
1998, the petitioner, the respondent and their first daughter came to
Paradesipalem and exercised their franchise.

RW4, the Branch Manager of State Bank of India, deposed that the
petitioner applied for travelling allowance for transportation of luggage and
for the travelling of himself, his wife and the three daughters from Chodavaram
to Makkuva. In cross-examination, he stated that the petitioner was transferred
from Makkuva to Visakahapatnam in December, 1998.

RW5, a Reporter in Eenadu at Makkuva, deposed that the petitioner and the
respondent lived together at Makkuva from November, 1997 for three or four
months in a portion beside the portion in which he was residing. In cross-
examination, he stated that they stayed in that portion from March, 1998 to
December, 1998.

RW6, the daughter of the petitioner, deposed that in 1992, her father got
transfer to Visakhapatnam from Tupran and in November, 1992, her father got
transfer to Makkuva. Then, he took her, her sisters and her mother from
Paradesipalem to Makkuva by car. She further stated that her father used to
stay along with Ramadevi in one portion and her grant parents used to reside in
other portion. She further deposed that Ramadevi is not a cook by profession
and her father developed illegal contacts with Ramadevi. In cross-examination,
she denied a suggestion that her father and Ramadevi did not stay together in
the house of her grand parents at Dabagardens.

RW7, the then Deputy Manager, State Bank of India, deposed that Ex.X1 is
the relevant TA Bill and it does not contain any details regarding the actual
place of transfer and number of persons for which T.A was applied for.

On the basis of the aforesaid evidence of the parties, both oral and
documentary, the Family Court dismissed O.P. No.150 of 1998 by order and decree
dated 11.09.2000. Challenging the order of dismissal, the petitioner-husband
has preferred the present C.M.A.

10. Having heard the learned counsel for both the parties, the only
question that arises for determination in this appeal is whether the dismissal
of O.P. No. 150 of 1998 filed by the petitioner-husband is justified in the
facts and circumstances of the case?

The petitioner filed O.P. No.150 of 1998 seeking dissolution of the
marriage between the petitioner and the respondent mainly on the grounds of
desertion and cruelty of the respondent.

This Court, in Kosuri (Chandana) Dhanum Kumari Vs. Kosuri Venkata Vara
Prasad1 held that mere living apart by the parties is not desertion. The
desertion indicates a state of mind in which a party is guilty of the act must
indicate either in express words or by conduct to put an end to the
relationship. The Court further held that that burden of proof of the fact of
desertion lies on the person who alleged it.

The aforesaid legal position laid down by the Supreme Court is also
reiterated in Adhyatma Bhattar Alwar Vs. Vadhyatma Bhattar Sri Devi2 and the
Supreme Court held that "desertion in the context of matrimonial law represents
a legal conception. The essential ingredients of the offence in order that it
may furnish a ground or relief are;

i) the factum of separation;

ii) the intention to bring cohabitation permanently to an end – animus
deserendi;

iii) the element of permanence which is a prime condition requires that both
these essential ingredients should continue during the entire statutory period
of two years immediately preceding presentation of the petition for divorce.
Thus, though the expression "desertion" is to be widely interpreted and
understood, these essential conditions have to be established.

Insofar as the term "Cruelty" is concerned, it is observed in
V.Bhagat Vs. Mrs. D.Bhagat3, to the following effect:
"Mental cruelty in Section 13(1) (ia) of the Act can broadly be defined as that
conduct which inflicts upon the other party such mental pain and suffering as
would make it not possible for that party to live with the other. In other
words, mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such conduct and
continue to live with the other party. It is not necessary to prove that the
mental cruelty is such as to cause injury to the health of the petitioner.
While arriving at such conclusion regard must be had to the social status,
educational level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are already living
apart and all other relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What is cruelty in one case may
not amount to cruelty in another case. It is a matter to be determined in each
case having regard to the facts and circumstances of that case. If it is a case
of accusations and allegations, regard must also be had to the context in which
they were made".
In the light of the above legal position, we have to examine the pleadings
and the evidence of the parties to determine the issue.

According to the petitioner, on 10.05.1992, the respondent, with the help of her
goondas, broke open the locks of the house constructed by him at Paradesipalem,
forcibly entered the house and took away the household articles, in respect of
which, he gave a report to the police under Ex.A4, but of no avail. This
statement was falsified by RWs.2 and 3, who attended the house-warming ceremony.
They stated that the petitioner performed the house-warming ceremony along with
Pantulamma (T.Ramadevi) and it is only 15 days after the house-warming ceremony,
the respondent visited Paradesipalem and reported that she herself is the
legally wedded wife of the petitioner. The police, based on the investigation
report, stated that the complaint given by the petitioner is false and the
respondent is proceeding against him in Civil Court as evidenced by Ex.A3 –
reply given by her. This goes to show that it is the petitioner himself, who
initiated criminal action against his wife in the first instance attributing
theft of gold of his mother, and also by apprehending that she is going to
proceed in the Court of law, he gave a notice demanding her to join him for
restitution of conjugal rights.

11. The petitioner, examined himself, his mother and Ramadevi, who is
said to be living with him in adultery, but there is no other corroborating
evidence to speak that the respondent is guilty of subjecting him to cruelty.
The evidence of PWs.1 to 3 can be said to be interested testimony inasmuch as
PW3 is a consenting party to the illicit relationship of PW1. Even though the
petitioner lived at different places as a tenant in view of his occupation, he
did not examine any of the house owners of the locality to speak about the
respondent that she picked up quarrels and left the matrimonial home very often
or the alleged cruelty.

Moreover, Exs.B11(c & d) are the photographs of the petitioner and PW3
being together. The very taking of those photographs when PW2 went for
pilgrimage along with the family members, itself establishes the intimacy
between PWs.1 and 3. Contrary to those documents, the petitioner deposed that
he never went on pilgrimage along with PW3 and he did not know how the
photographs were taken and by whom. Further, even though PW3 denied the hand-
writings in Exs.B20 and B26 – letters, but on a comparison of her hand-writing
with the hand-writing in Ex.C1 obtained before the Court, it probablises that
the letters were written by PW3 to PW1. They would amply show that there is
love affair between PW1 and PW3 and the petitioner is treating her as his wife.
That apart, if really, PW3 – Ramadevi is only a Cook, and a domestic servant as
stated in her evidence, the question of her working in the house of the parents
of the petitioner, without any remuneration and addressing letters to PW1 when
he was working at different places, does not arise. The very admission of
Ramadevi that the petitioner and she were living in the house of PW2 in
Visakhapatnam when she gave a report to the police against the respondent and
her children further probabalizes that PW1 is instrumental in getting the report
lodged by PW3 against the respondent and her children in order to sever
connections by getting his marital tie dissolved and to continue his illicit
relations with PW3 with an oblique motive to marry her subsequently.

According to the petitioner, on 06.03.1998, when he was at Makkuva Branch,
the respondent along with her three daughters entered the house of her in-laws
with the help of goondas, caused physical harassment to his parents and cook
resulting in bleeding injuries with regard to which a complaint was given to the
police. As stated earlier, PW3 herself deposed in her evidence that on the date
when the alleged incident took place, the petitioner was very much available in
his parents’ house and was not at Makkuva. This incident appears to be the
result of the failure on the part of the petitioner in allowing the respondent
to enter the house to facilitate him to continue his illicit intimacy with
Ramadevi. According to him, during the year 1987, he stayed at Makkuva all
alone and the respondent did not join him, but Ex.X2 – copy of the expenditure
statement, establishes that he claimed T.A. from the Department not only for
shifting his luggage from Chodavaram to Makkuva, but also shifting the
respondent and his three children including himself.

RW6, daughter of the petitioner, stated that when they were at the house
of her paternal grand parents, her father used to stay with Ramadevi in one of
the portions while her grand parents used to live in another portion. She added
that her father looked after them well till he developed illegal contacts with
Ramadevi. It is to be noticed here that there was not even a suggestion to RW6
that the respondent used to harass the petitioner at every place of his work and
made Galata. Therefore, from the evidence of RW6 also it can be inferred that
the reason for the disputes between the petitioner and the respondent is only
due to the stay of Ramadevi in the house and her closeness with the petitioner.

12. After filing O.P. No.422 of 1989 for divorce and while the trial was
in progress, the petitioner filed Ex.A5 Compromise Memo, and even according to
him, he took the respondent to his matrimonial home and lived with her till
15.01.1996, as such, it can be said that by entering into a compromise and
living with the respondent subsequently for two years, the petitioner can be
said to have condoned the prior cruelty if any on the part of the respondent,
and therefore, he cannot be permitted to urge the alleged commission of cruelty
prior to 15.01.1996, and at any rate, after filing the compromise memo in the
year 1984 and relying upon Exs.A1 to A9.

The petitioner stated that on 15.01.1996, the respondent picked up quarrel
with him, tore her "Mangala Suthrams", left his company from Paradesipalem,
visited his parents’ house on 06.03.1998 and caused bleeding injuries to
Ramadevi, as a result, Ramadevi gave a report to the police under Ex.A7, and
thereupon, the respondent also lodged a report with the police against him and
others, but the petitioner failed to elaborate the reasons that led the
respondent to go to the extent of tearing her "Mangal Suthram" even in the
presence of the petitioner and proclaiming that he will be no more her husband.
No Hindu Woman with three daughters of marriageable age would go to the extent
of tearing her "Mangal Suthram". unless she is subjected to cruelty by her
husband.

Further, when the petitioner himself obtained an injunction order preventing the
respondent from living with him at Makkuva, he cannot make a complaint that the
respondent never lived with him at Makkuva and she herself deserted him. Even
the fact that he did not join the respondent to perform the marriage of his
first daughter establishes that he invented the entire story of the respondent
harassing him from time to time and at different places of his employment in
order to obtain divorce from the respondent and with an ulterior motive to marry
Ramadevi.

13. It is the contention of the learned counsel for the petitioner that
the respondent, after driving the petitioner out of the house on 15.01.1996, by
tearing her Mangal Suthram, the respondent did not join him till the date of
filing the O.P.No.150 of 1998, and there was continuous desertion for a period
of not less than two years immediately preceding the presentation of the
petition, as such, he is entitled to a decree for divorce. But the evidence of
RWs.1 , 5 and 6 is to the effect that sometime after his joining in office at
Makkuva, the respondent visited that place and lived with him till March, 1998
and thereafter, she was forced to leave the house as the petitioner obtained an
order of injunction against her. If she had not joined him from 1996, the
question of his filing the suit against the respondent and obtaining the order
of interim injunction in I.A. No.355 of 1998, does not arise. Therefore, his
contention that from 1996, the respondent continuously deserted the petitioner
for two years, is baseless and the fact that the respondent might have joined
the petitioner at Makkuva is further fortified by Ex.X2 and the evidence of
RWs.2 and 7.

14. It seems that after PW3 – Ramadevi came to live in the house of the
parents of the petitioner, misunderstandings developed between the petitioner
and the respondent leading to frequent quarrels between them in view of his
illicit relationship with PW3 from 1989 onwards, and unable to bear this, the
respondent used to go away to her parents’ house frequently, and ultimately the
petitioner filed the present application to get rid of the respondent and live
happily with PW3, which is obvious from the photographs, Exs.B6 to B13.

No doubt, the facts and circumstances on record probablise that there is
no love lost between the spouses, but the fact remains that it is only due to
the intrusion of Ramadevi into the petitioner’s family, the quarrels started.

The above pleadings and the evidence clearly established that the
petitioner himself is responsible for the domestic quarrels between the spouses
and the petitioner himself is guilty of cruelty towards his wife having
developed illegal contact with Ramadevi, who joined as cook in their house.

15. For the foregoing reasons, we are of the opinion that though the
factum of separation of the petitioner and the respondent was occasionally
proved, there are instances when the petitioner and the respondent lived
together as is clear from the evidence both oral and documentary, and at that
juncture, there is not even inclination of animus deserendi on the part of the
wife to permanently cease the cohabitation and marital relation. The factum of
separation on account of PW1 having illicit intimacy with PW3 – Ramadevi, by
itself is not sufficient to establish any animus on the part of the wife to
desert the husband as is sought to be alleged in the O.P.No.150 of 1998 filed by
the petitioner Further, the position of law is well-settled in the edict of
the Apex Court (3rd supra) that levelling disgusting accusation of unchaste and
indecent familiarity with a person outside the wedlock and allegations of extra
marital relationship is a grave assault on the character, honour, reputation,
status as well as the health of the wife. The aspersion of infidelity of the
husband, an educated man would amount to insult, adding to injury of the worst
kind, and sufficient to substantiate cruelty on his part. The allegation of the
husband in the claim petition adverted to by the Family Court while recording
the finding that they tantamount to cruelty by the husband to the wife, cannot
be said to be perverse. The petitioner-husband appears to have persisted in
his endeavour to hurt the feelings of the wife as to to cause reasonable
apprehension in the mind of the wife that it would be dangerous for her to live
with the husband..

16. On an appreciation of the entire evidence on record as well as the
findings of the Family Court, we are satisfied that there is no evidence on the
part of the husband to establish the desertion within the aforesaid three
essential ingredients, and in fact, the very establishment of animus deserendi
on the part of the wife is absent in the present case. The petitioner also
miserably failed to establish the allegation of cruelty meted out by his wife by
adducing substantial legal evidence.

17. The findings recorded by the Family Court, in our considered
opinion, are justified and there appears to be no infirmity therein and they are
not vitiated on the ground of perversity calling for interference from this
Court. The contentions urged by the learned counsel for the petitioner-husband
do not merit consideration and are rejected.
Hence, the Civil Miscellaneous Appeal inevitably fails, and is accordingly
dismissed. No order as to costs.
?1 1997 (5) ALT 805 (D.B.)

2 (2002) 1 SCC 308

3 AIR 1994 SC 710

husband is acquitted EVEN though wife is dead.. beautiful case from Andhra HC where the HC goes thru the prosecution case and tears it to shreads. The HC also laments how the lower court has NOT done it duty !! Sadly 8 years are lost to get freedom

Husband is acquitted EVEN though wife is dead.. beautiful case from Andhra HC where the HC goes thru the prosecution case and tears it to shreads. The HC also laments how the lower court has NOT done it duty !! Sadly 8 years are lost to get freedom

Quoting the Honb’le HC "……….When inherently, the above charges that were framed against the accused, are beyond the allegations in the charge sheet, the conviction recorded for the said charges, in my view, is nothing but amounting to non application of mind by the trial Court and apart from that, it also amounts to convict the accused on the baseless charges……."

thoughts
***********************
Unfortunate that the woman is dead, but should the husband and his parents be hanged for EVERY woman’s death ??

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case from judis dot net

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High Court of Andhra Pradesh

THE HONOURABLE SRI JUSTICE K.S.APPARAO

CRIMINAL APPEAL NO:1342 OF 2005

23-07-2012

DONTHARABOINA SADANANDAM & OTHERS

STATE REP BY THE SUB DIVISIONAL POLICE OFFICER & ANOTHER

Counsel for the Petitioners: Sri T.K. Sridhar

Counsel for the Respondents: PUBLIC PROSECUTOR.

<GIST:

> HEAD NOTE:

? Cases referred

1) (2006) 9 SCC 467.

ORDER:

Aggrieved by the judgment, dated 12.8.2005 passed by the learned 1st Additional Sessions Judge, Karimnagar in S.C.No:308 of 2005 convicting the appellants and sentenced them to undergo R.I. for (7) years each and to pay a fine of Rs.1,000/- each in default to suffer S.I. for two (2) months for the offence under section 304-B IPC and further convicted and sentenced to undergo R.I. for a period of two (2) years each and to pay a fine of Rs.500/- in default to suffer S.I. for 1 (1) month for the offence under section 498-A I.P.C and further convicted and sentenced to undergo R.I. for two (2) years each and sentenced to pay a fine of Rs.1,000/- each in default to suffer S.I. for two (2) months for the offence under section 4 of Dowry Prohibition Act and further convicted and sentenced to undergo R.I. for five (5) years and to pay a fine of Rs.5,000/- each in default to suffer S.I. for one (1) month for the offence under section 306 I.P.C., the present appeal is filed by the appellants.

The appellants are accused-1 to 3 and the respondents are the State represented by the Public Prosecutor.

The case of the prosecution in short is that on 30.4.2004, P.w.1 gave a report to the police stating that he performed the marriage of his daughter (for short deceased) with A1 who is no other than the son of his elder sister. He gave a dowry of Rs.50,000/- and the coupled led happy marital life for one year. The marriage of the younger brother of A1 was performed and they are blessed with a son and since then, the husband and the in laws of the deceased started harassing her. They also demanded her to bring additional dowry of Rs.20,000/-and sent a word to her parents about three months back. P.w.1 could not pay the amount due to the financial problem. Due to the said harassment made by the husband and in laws of the deceased, she stayed in the house of P.w.1 for one month. 18 days prior to the incident, a festival was celebrated at the house of P.w.1 and the husband and in laws of the deceased attended the said festival. On the next day, they picked up a quarrel demanding additional dowry of Rs.20,000/- and they also beat her in that regard. The relatives of P.w.1 consoled them and asked them to have consultation with a Doctor. 3 days prior to her death, the deceased made a phone call to P.w.1 and informed him that her husband and in laws were harassing her for dowry. On that, when P.w.1 sent his son to the house of the deceased, he went there and returned to the house informing that the in-laws of the deceased drove him away while instructing him to send his father with dowry. On 29.4.2004, P.w.1 received informed that the deceased handed herself and died in front of their house.

They saw contusion on the neck of his daughter. Basing on the report of P.w.1, a case in Cr.No:43 of 2004 for the offence under section 304-B IPC was registered and after completion of the investigation, charge sheet was filed.

Before the trial Court, as many as 15 witnesses were examined as P.ws.1 to 15 and Exs.P1 to P8 were marked. No oral evidence was adduced on behalf of the accused. But, Ex.D1 to D5 contradictions were marked on their behalf. The trial Court after evaluating the evidence on record and after finding the accused guilty, convicted them as stated supra. Having aggrieved by the same, the present appeal is filed by the accused-appellants.

The learned counsel appearing for the appellants mainly argued that the trial Court erred in convicting the appellants for both the offences under sections 306 and 304-B IPC in the absence of any evidence to show that there was abetment to commit suicide and therefore, the conviction for the offence under section 306 IPC is unsustainable. The trial Court has also failed to take into consideration the contradictions in the evidence of P.ws.1 to 3 on the crucial aspects of time and the date of incidents and the alleged demand for additional dowry. The trial Court has failed to consider the contradictions in the evidence of P.w.5 on one hand and the evidence of P.ws.1 to 3 on the other, with regard to the galata for additional dowry and that therefore, framing of charge under the provisions of Dowry Prohibition Act, is without any basis of material evidence. Hence, the accused are liable to be acquitted for the charges leveled against them.

The learned Public Prosecutor appearing for the State while supporting the judgment impugned, sought for dismissal of the appeal.

The point for consideration is whether the prosecution proved the guilty of the accused for the charges leveled against them and whether the judgment of the trial Court is sustainable.

Before going into the merits of the case, it is relevant to go through the charges framed against the accused, which read in the same verbatim as under:

"Firstly, that you A1 to A3 being the husband and parents in law of the deceased-Dontharaboina Sujatha aged 24 years subjected her to cruelty and harassment with a demand to bring a motor cycle or an amount of Rs.20,000/- as additional dowry after the birth of a child aged about 5 months and thereby committed an offence punishable under section 498-A IPC and within my cognizance.

Secondly, that you all on the 29th day of April, 2004 at about 1500 hours at her in law’s house at Mulkanoor village caused the death of the aforesaid Dontharaboina Sujatha within 7 years of her marriage by subjecting her to cruelty or harassing her soon before her death in connection with a demand to bring additional dowry and that you thereby committed an offence punishable under section 304-B IPC and within my cognizance.

Thirdly, that you all on the same day, time and place as mentioned in charge No:2 and during the course of same transaction, Dontharaboina Sujatha committed suicide by hanging and that you thereby committed an offence punishable under section 306 IPC and within my cognizance. Fourthly, that since three months prior to 30.4.2004 you all demanded motor cycle or Rs.20,000/- as additional dowry from the parents of the deceased Dontharaboina Sujatha and thereby committed an offence punishable under section 4 of Dowry Prohibition Act and within my cognizance."

After the answer to the plea of the charges denying the same, the signature of A1 and two mere thumb impressions were found. Likewise, on the depositions of P.ws.1 to 9, mere thumb impressions appear to have been taken. Except the bald thumb impressions, they do not indicate the name of the person who put the thumb impression. In the absence of mentioning name against the respective thumb impressions, it is much difficult to conclude whether such thumb impression belongs to a particular person who contributed the said thumb impression.

This sort of attitude in obtaining mere thumb impressions on the charges as well as the depositions, amounts to infer the callousness and negligence on the part of the Presiding Officer who conducted the trial.

Apart from that, the very framing of the charges against the accused is ambiguous and vague for the following reasons: As per the allegations in the chargesheet, the trouble started between the deceased and the accused when the accused demanded for Rs.20,000/- towards additional dowry and that when the brother of A1 was blessed with a son, all the accused starting harassing the deceased on the ground that she did not beget children.

As a matter of fact, there is no whisper as to the demand of motor cycle and also as to the birth of a child, aged about 5 months to the deceased in the chargesheet. It is not known as to how the 1st charge was framed basing on such allegations, which are not found in the charge sheet.

Now coming to charge No:3 pertaining to abetment to commit suicide punishable under section 306 IPC., except baldly framing the said charge, there is no such whisper as to the abetment by the accused to the deceased to commit suicide.

In so far as charge No:4 is concerned, the same is with regard to demand of motor cycle or Rs.20,000/- by the accused since three months prior to 30.3.2004.

As already stated, there is no such whisper as to the demand of a motor cycle in the charge sheet.

When inherently, the above charges that were framed against the accused, are beyond the allegations in the charge sheet, the conviction recorded for the said charges, in my view, is nothing but amounting to non application of mind by the trial Court and apart from that, it also amounts to convict the accused on the baseless charges. There is no other go except to observe that the learned Presiding Officer had functioned as a silent spectator although from the stage of framing the charges till the recording of the depositions, without taking any proper care and caution. As such, the conduct on the part of the Presiding Officer who examined the accused before framing the charges and who obtained the thumb impressions on the charges and the depositions without indicating the names of the relevant person against the said thumb impressions, is very much questionable and the same is self explanatory.

All my above observations are regrettable, but in the circumstances, inevitable.

Now coming to the merits of the case, it has to be examined whether the prosecution proved the guilty of the accused for the charges leveled against them.

Out of the prosecution witnesses, the deceased is the daughter of P.ws.1 and 2 and sister of P.w.3.

P.w.4 is a child witness who is the sister of A1.

P.w.5, Sarpanch of the village, is the neighbour of P.w.1.

P.w.6 is kthe R.M.P Doctor.

P.w.7 is the Photographer.

P.w.8 is the inquestdar.

The deceased is a grand daughter of
P.w.9 by curtesy and P.w.10 is the neighbour of P.w.1.

P.w.11 is the S.I. of Police.

P.w.12 is one of lthe inquestdars.

P.w.13 is the Civil Assistant Surgeon and P.w.14 is the Mandal Revenue Officer.

P.w.15 is the Sub Divisional Police Officer who took up further investigation.

At this stage, in support of contention that the conduct of the family members of the deceased is relevant for considering the charges leveled against the accused and there was no such conclusion as to the death of the deceased at the time of conducting the inquest and that mere lodging a report against accused does lead to a conclusion that the accused committed the offence, the learned counsel for the accused relied on a judgment of the Apex Court reported in T.ARUNPERUNJOTHI VS. STATE THROUGH S.H.O. PONDICHERRY (1) Now, in the light of the principles laid by the Apex Court, let us examine the veracity of the testimonies of the prosecution witnesses.

According to P.w.1, the deceased is his daughter and she was married to A1 about 2 years back and they gave Rs.50,000/- towards dowry. They lived happily for 2 years and thereafter, the accused started harassing the deceased for additional dowry. Having come to know about the death of his daughter, he went to her in laws’ house and found the dead body of the deceased and on suspicion against all the accused, he lodged Ex.P1 report to the police.

During the course of cross examination, P.w.1 admitted that the marriage between A1 and the deceased was proposed long back i.e., from their childhood and the marriage was as such performed. He denied the suggestion that he stated to the police that the accused and the deceased lived happily for one year as in Ex.D2. He volunteered that the demand of dowry was firstly made one month prior to the death of the deceased and he did not inform to any of the caste elders or to the police about the demand of the dowry by the accused and no panchayats were convened. He further volunteered that he only informed to the police for the first time as to the harassment for dowry, after the death of the deceased. He denied the suggestion that he did not state before the police that the accused visited his house for the festival 15 days after the demand of dowry and he expressed his inability to give the additional dowry on the ground that his financial condition was not good.

A perusal of the evidence of P.w.1 makes it crystal clear that A1 is no other than the son of the sister of P.w.1 and the marriage of A1 and his daughter was settled even in the childhood itself and the accused started harassing the deceased for additional dowry from two months prior to the death of the deceased and that the alleged demand of additional dowry was not reported to anybody by P.w.1. Therefore, it can be said that by the date of giving Ex.P1, there was no such complaint by P.w.1 against any of the accused for the alleged demand of additional dowry of Rs.20,000/-.

Now, coming to the evidence of P.w.2 who is the mother deceased, she stated that the marriage of the deceased with A1 was performed two years back and an amount of Rs.40,000/- was given prior to the marriage towards the dowry and an amount of Rs.20,000/- was given at the time of marriage and they lived happily for about 4 months. From then, A1 was harassing the deceased for bringing the amount so as to prosecute his studies. About 8 months after the marriage, they celebrated a festival. But, A2 and A3 did not attend the festival. A1 refused to eat non-vegetarian food and he insisted for preparing vegetarian dishes and that he did not have his dinner and quarreled with the deceased. After making a big issue, he went to his house. After one month, A2 and A3 came to their house and the deceased was at their house by that time and both of them abused her in filthy language. They sent the deceased along with them. After 7 days, he received a phone call from the deceased to send her brother to her house. On that, she sent L.w.3 to her house and that L.w.3 returned and informed that herself and P.w.1 should go to the house of the deceased. Subsequently, they came to know about the death of the deceased. During her cross examination, she admitted that she did not state the details as stated by her in the chief examination, to the police. It is also admitted that after they reached the house of the deceased, she along with the accused took her to the hospital.

A scrutiny of the evidence of P.w.2, the same is entirely different to that of P.w.1, her husband on all material aspects. Nowhere, she stated that the accused demand additional dowry of Rs.20,000/-. But, she gave a different version with regard to the alleged dowry. She had also given a different version to the effect that A1 was harassing the deceased for bringing the amount so as to prosecute his studies. According to P.w.1, he signed Ex.P1 along with P.w.2 whereas P.w.2 did not state that she signed Ex.P1 on the next day of the alleged incident.

P.w.3 is the brother of the deceased and the son of P.ws.1 and 2. According to him, the deceased was married to A1 about 2 years back and Rs.50,000/- was given as dowry at the time of marriage and they lived happily for about one year. After the birth of son to the wife of the brother of A1, disputes arose between A1 and the deceased on the ground that the deceased did not beget children and also on the ground of additional dowry. He further added that the deceased came to their house after the disputes with A1 and stayed for one month and that in connection with the festival celebrating in their house, they invited all the accused and all the accused came to their house. The daughter of A2 and A3 also came to their house and later they left their house and subsequently, A1 and the deceased left their house. Prior to that, there was a small galata in their house. After 15 days, he received a phone call from the deceased informing that there were disputes. Thereafter, they came to know about the death of the deceased.

During the cross examination, he stated that he along with P.w.2, personally handed over Rs.50,000/- to the accused. It is strange to note that neither P.w.1 nor P.w.2 stated that the said dowry amount of Rs.50,000/- was paid through P.w.3. The evidence of P.w.3 on that count, is nothing but an improvement. During the cross examination, he volunteered that A1 to A3 and L.w.4 stayed for one day during their visit and the festival was celebrated by all of them together and that the deceased was happy while leaving their house. Thus, P.ws.1 to 3 did not state that the deceased was unhappy at the time of leaving their house after celebrating the festival in their house. The evidence of P.ws.1 to 3 is inconsistent with regard to the quantum of dowry and also with regard to the mode of payment to the accused. Thus, the evidence of P.ws.1 to 3 suffers from contradictions, improvements and inconsistencies, which were falsified by the evidence of the Investigating Officer, P.w.15 as per Exs.D1 to D3. Exs.D1 to D3 are the material contradictions and if the same are taking into consideration, they create a doubt crept in the mind of the Court as to the veracity of the testimonies of P.ws.1 to 3.

The judgment relied on by the learned counsel for the accused, as stated supra lends support to the defence taken by the accused that the conduct of the family members of the deceased suffers from suspicious circumstances. Coming to the evidence of P.w.4, a child witness who is the sister of A1, she stated that the deceased died by hanging herself on the ground that she disliked A1.On the date of incident, all the accused and herself went to attend their work and after returning, they found deceased died and they forcibly opened the doors of the room and A2 cut the rope with which the deceased hanged herself.

She was not cross examined in this regard. If the evidence of this child witness is taken into consideration, it can easily be said that at the time of the alleged suicide, A1 to A3 including the child witness were not present in the house.

At this juncture, the case of the Investigating Officer as narrated in the remand, plays a vital role. According to the investigation, on 29.4.2004 at about 3 P.M. while A1 to A3 were in the fields, the deceased who disgusted with the harassment made to her, sent P.w.4 to have a chacklet and hanged with the rope already tied to the hook of the fan. P.w.4 who found the door bolted from inside, noticed the dead body of the deceased through the window and rushed to the accused and informed them and they came and broke opened the doors and A2 cut the plastic rope and relieved the deceased.

Even if the investigation done by P.w.15, is taken into consideration, there is no tangible evidence suspecting the involvement of the accused in this crime for the reason that at the time of the suicide, A1 to A3 went to attend their work in the fields and P.w.4, the child witness was sent for buying a chacklet by the deceased and by the time, A1 to A3 came to the house on intimation by P.w.4 about the hanging of the deceased, the doors were found locked from inside and therefore, they were broke opened by the accused and A2 cut the rope and laid the deceased on the ground. From these circumstances, it can be inferred that the conduct of the accused in breaking opened the doors and cutting the rope and laying the deceased on the ground and sending for a Doctor, shows their anxiety to survive the deceased and the said attitude and the conduct of the accused, appears to be a bonafide one in the ordinary course of life of a person.

The case of the prosecution rests on the following: The alleged harassment according to the prosecution version is that trouble started on the ground that the deceased did not beget children and she did not bring additional demand of dowry of Rs.20,000/-. In this regard, the framing of the charge, which is framed on the allegations that are not found in the chargesheet, is very vague.

With regard to the demand for additional dowry of Rs.20,000/-, the evidence of the witnesses is not consistent as to the quantum of dowry, the mode of payment and as to the demand for additional dowry. Admittedly, the factum of demand of additional dowry has not been reported to any of the elders. On a perusal of the evidence, the fact that remains undisputed is that P.w.1 is no other than the brother of the mother of the deceased and the deceased is his niece and the marriage between A1 and the deceased was fixed even from their childhood. In this background of the matter, it gives rise to a doubt in the mind of the Court as to the veracity of the testimonies of the prosecution witnesses as to the dowry and the demand for additional dowry and the alleged harassment.

P.w.5 who is the sarpanch of the village is a neighbour to P.ws.1 and 2. He deposed that he was not informed about any disputes and about 20 days prior to the death of the deceased, there was a galata near the house of P.w.1 and when he enquired, P.w.1 informed him that the accused demanded Rs.20,000/- as additional dowry.

According to him, he did not know any disputes. If there were really disputes in the family of his daughter, the silence on the part of P.w.1 without intimating the same to P.w.5, being neighbour who is a sarpanch and elder of the village, appears to be quite unnatural and apart from that, the silence on the part of P.w.1 leads to draw an adverse inference against the case of the prosecution. However, the evidence of P.w.5 is falsified due to the contradiction marked as Ex.D5. P.w.6 is a R.M.P. Doctor by profession. He deposed that about a year back, A2 came to him and informed that the deceased hanged herself and that she was struggling for life and thereby, requested him to examine her. Therefore, he went to his house and on examination, advised them to take her to Dr.Sudhakar who is a M.B.B.S Doctor. P.w.8, one of the inquestdars deposed that the issue of dowry death did not arise at the time of inquest and the said fact was not stated by any of the witnesses examined at the time of inquest. He postulated that the contents of panchanama were not read over to him. It is to be noted that in spite of the above deposition, this witness has not lbeen declared as hostile and thereby, his evidence remains unrebutted. If this piece of evidence is taken into consideration, no motive has been gathered at the time of even conducting panchanama on the death of the deceased i.e., with regard to the alleged harassment or the additional dowry.

P.w.9 is the grand mother of the deceased by curtesy. She gave a different version that one year back, A1 to A3 came to the house of P.w.1 and there was a quarrel in their house and in that quarrel, A3 got enraged and took a broom stick and a chappal and scolded P.ws.1 to 3. But, at this stage, it is strange to note that none of the prosecution witnesses have stated these facts either in their chief examination or in the cross examination or in their 161 Cr.P.C statements. However, this witness turned hostile and did not support the case of the prosecution.

P.w.10 who is a neighbour of P.w.1 stated that on behalf of P.w.1, he paid Rs.40,000/- which was raised through a sale of the land by P.w.1, to A-2 and A3.

But, it is neither the case of the prosecution witnesses nor the case of the prosecution and apart from that, the evidence of this witness, falsifies the evidence of P.w.3 who stated in his cross examination that he personally handed over Rs.50,000/- to the accused. P.w.3 also stated that he was not aware of the alleged harassment and he was not present at the time of conversation between the deceased and the accused. P.w.11, the S.I. of Police stated that he registered Ex.P.6 F.I.R and arrested the accused. He stated that P.w.1 gave Ex.P1 report and the said report was already drafted. According to P.w.1, Ex.P1 was written in the police station and himself and P.w.2 signed in the document.

A perusal of Ex.P1, it does not contain the signature of P.w.2 except P.w.1.

Thus, there are inconsistencies as to the presentation of Ex.P1 and it goes a long way to infer against the case of the prosecution.

P.w.12, one of the inquestdars stated that he was present at the time of inquest conducted over the dead body of the deceased on 30.4.2004 at the house of the accused. In his cross examination, he stated that the details of the examination of the witnesses and regarding the relations between the deceased and A1 were not mentioned in Ex.P6 and he affixed signatures on 3 pages of the inquest report and he did not know the contentions of Ex.P6. For the reasons best known, the prosecution did not make any efforts to get the witness turned hostile.

P.w.14 is the Mandal Revenue Officer. According to him, he prepared Ex.P3 inquest report on the requisition given by the S.I. of Police. In the cross examination, he admitted that he did not remember the scribe and he did not obtain the signatures of the scribe on Ex.P3.

In view of the failure to obtain the signatures of the scribe on Ex.P3 and apart from that, in view of the failure to examine the scribe, the same is fatal to the case of the prosecution.

P.w.15 is the Sub Divisional Police Officer who took up the investigation in this case. During his cross examination, he stated that the statements of the witnesses were scribed by P.C.1467. But, he was not cited as a witness.

If the contradictions under Exs.D1 to D5 are taken into consideration, the evidence of P.ws.1 to 5 has no legs to stand in support of the case of the prosecution.

But, the trial Court without appreciating all these aspects and the evidence on record in a proper perspective, simply carried away with the arguments of the learned Public Prosecutor and convicted the accused without any positive, cogent, convincing and trustworthy evidence. In any view of the matter, in my considered opinion, the prosecution has miserably failed to prove the charges, which are very vague and ambiguous, against the accused and consequently, the accused are found not guilty for the charges leveled against them and they are entitled to be acquitted and hence they are acquitted.

Accordingly, the appeal is allowed setting aside the conviction and sentenced imposed by the trial Court in S.C.No:308 of 2005, dated 12.8.2005.

The bail bonds of the accused, if any shall stand cancelled and the fine amount paid, if any shall be refunded to the accused after the expiry of the staturoy period.

__________________

Justice K.S.Apparao

Date:24.07.2012

Divorce is the BIG case generator !! Registered letters can’t be returned without proper reason: Madras high court

Registered letters can’t be returned without proper reason: Madras high court

Registered letters can't be returned without proper reason: Madras high court
The postman should make it clear as to whether the registered letter was served on the addressee or refused by the addressee or no addressee was found in the given address, the judge said.

CHENNAI: The Madras high court has frowned on mechanical return of registered letters as "unclaimed" by postmen, and said that in case they could not be delivered, proper reasons must be given.

Justice S Tamilvanan, underscoring the importance of a registered post in litigations and other matters, said that when people pay a fee and affix sufficient postal stamp, the postal authorities or postmen must discharge their duties in a responsible manner. The postman should make it clear as to whether the registered letter was served on the addressee or refused by the addressee or no addressee was found in the given address, the judge said.

Passing orders on a matrimonial litigation, wherein a Chennai-based woman wanted her divorce proceedings to be transferred from a Puducherry court to a Chennai court, the judge said the woman’s notice sent by registered post had been returned undelivered with a simple endorsement "unclaimed." Slamming the practice, Justice Tamilvanan said the court was of the view that the reason for the non-delivery of the notice had not been properly explained to the person who sent it.

"The endorsement ‘not claimed’ is required to be made in a responsible manner by the postman or the official of the postal department, so as to convey proper reason and to bring out the fact as to under what circumstances the registered letter could not be served on the addressee by the postman," the judge said.

In case the registered letter is delivered to a person other than the addressee, the postman must obtain clear endorsement and explain the relationship of the signatory who received the letter on behalf of the addressee, Justice Tamilvanan said.

Return of registered letters with a comment "unclaimed" or with some other improper endorsement would cause inconvenience to the general public and the person seeking justice through court of law, the judge said, adding: "Service of notice by registered post plays a vital role in deciding several cases."

He then directed the chief post-master general of Tamil Nadu to give suitable instructions to all postal department officials to follow the guidelines laid down by the court in this case

source

http://timesofindia.indiatimes.com/india/Registered-letters-cant-be-returned-without-proper-reason-Madras-high-court/articleshow/20950186.cms

Husband dies after wife’s 498a. 498a a counterblast to husband’s divorce case. Still case against husband’s sisters persists. Sisters run to high court seek quash. The whole case of the wife seems to be make belive as even the date of marriage is false. Unfortunately the police charge sheet is a complete copy of the complaint with NO PROPER investigation… Police charge sheet also has the wrong marriage date !!

* Husband dies after wife’s 498a.
* THE VERY 498a seems to be a counterblast to husband’s divorce case and is filed immediately after the divorce case
* marriage since 2002 and parties are getting relief in 2012 …meaning 10 years lost !!
* Still case against husband’s sisters persists AFTER husband’s deat..i.e. till 2012.
* Sisters run to high court & seek quash.
* The whole case of the wife seems to be make belive as even the date of marriage is false.
* Unfortunately the police charge sheet is a complete copy of the complaint with NO PROPER investigation… Police charge sheet also has the wrong marriage date !!

HONBL’E HIGH COURT QUASHES THE CASE !!

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CASE FROM JUDIS DOT NET

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HON’BLE SRI JUSTICE K.G.SHANKAR

Criminal Petition No.10942 of 2009

26-7-2012

U.Mahalakshmi, Kamalapuri Colony, Hyderabad and another

The State of Andhra Pradesh, Rep. by Police, Women Police Station, Nalgonda,

Through Public Prosecutor, High Court of Andhra Pradesh and another

Counsel for the petitioners: Sri P.S.P.Suresh Kumar

Counsel for respondent No.1: Public Prosecutor, High Court of A.P.

Counsel for respondent No.2: Sri Pottigari Sridhar Reddy

<Gist :

>Head Note:

? Case referred: Nil.

Order:

The petitioners seek for quashment of C.C.No.282 of 2008 on the file of the Special Judicial Magistrate of First Class (for Prohibition and Excise Cases), Nalgonda. The 2nd respondent is the de facto complainant. The 2nd respondent laid complaint against three accused. The 1st accused is her husband. Accused 2 and 3, who are the elder sisters of the 1st accused, are the petitioners in this petition. The 2nd respondent laid a complaint making allegations against the accused for the offences under Sections 498-A and 506 IPC as well as under Sections 3 and 4 of the Dowry Prohibition Act. The same was registered as Crime No.80 of 2007 on the file of the Women Police Station, Nalgonda. Subsequently, charge-sheet was laid. The learned Judicial Magistrate of First Class took the case on file as C.C.No.282 of 2008. The petitioners consequently seek for the quashment of the case.

2. The marriage between the 2nd respondent and the 1st accused was solemnized on 03-4-2002 as can be seen from the copy of the Wedding Card. However, in the complaint, the 2nd respondent claimed that the marriage was solemnized on 03-4-2001. Sri P.S.P.Suresh Kumar, learned counsel for the petitioners, contended that the whole complaint is a make believe story and that the 2nd respondent did not even mention the correct date of the marriage. I am afraid that the date of marriage as shown in the complaint perhaps was a typographical mistake as the date of marriage was on 03-4-2002 whereas it was shown in the complaint that the marriage was solemnized on 03-4-2001.

3. However, the learned counsel for the petitioners contended that the Police did not conduct proper investigation and that they blindly followed the complaint, so much so, the charge-sheet also discloses as if the marriage was solemnized on 03-4-2001. I do not wish to go into this controversy at this stage.

4. The main contention of the learned counsel for the petitioners is that as no overt acts were attributed against the accused 2 and 3, who are the petitioners herein, the case against the accused 2 and 3 is liable to be closed. He also submitted that when the 1st accused, who is the husband of the 2nd respondent, breathed his last, prosecuting his sisters-accused 2 and 3 is nothing but abuse of process of law. The complaint alleged that the petitioners instigated the husband of the 2nd respondent to demand further dowry. The complaint further alleged that the 2nd respondent was driven out of the house by her husband and by the petitioners. In respect of the conduct of the petitioners, there is no time or date of the incident. A bald and sweeping allegation is made against the petitioners that they instigated their brother to demand more dowry and that they joined their brother in driving out the 2nd respondent from the matrimonial home.

5. In both the circumstances, the husband of the 2nd respondent is the main culprit; the petitioners 1 and 2 more or less are abettors. When the case against the main accused stands abetted on account of the death of the main accused, I am afraid that it is not just and reasonable to proceed against the petitioners.

6. Further, I agree with the contention of the learned counsel for the petitioners that the allegations against the petitioners are bald and do not call for any prosecution against the petitioners.

7. The learned counsel for the petitioners also submitted that this case was foisted by the 2nd respondent as a counter-blast to the divorce case filed by the 1st accused. While the 1st accused filed a case for divorce against the 2nd respondent in April, 2007, the complaint in the present case was filed on 17-5-2007. Again, I do not deem it appropriate to consider this aspect where the petition is liable to be disposed of otherwise.

8. As already pointed out, the allegations against the petitioners in the complaint are bald and superficial. I, therefore, consider it appropriate to hold that no prima facie case is made out against the petitioners from the complaint of the 2nd respondent where the husband of the 2nd respondent, who was the 1st accused, is no more. I consider that this criminal petition deserves to be closed against the petitioners as the same became superfluous on account of the death of their brother. The criminal petition consequently is allowed. The case in C.C.No.282 of 2008 on the file of the Special Judicial Magistrate of First Class (for Prohibition and Excises Cases), Nalgonda, against the petitioners 1 and 2 stands quashed.

___________________

K.G.SHANKAR, J.

26th July, 2012.

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This judgment and other similar judgements posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgement or the judgement itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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