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Court Name : Andhra High Court

Law Point: Facts & circumstances clearly indicate case is to wreak vengeance & is a gross misuse of 498A IPC.

Perugu Varalakshmi vs State And Ors. on 17 December, 2002
Equivalent citations: II (2004) DMC 610
Author: L N Reddy
Bench: L N Reddy
JUDGMENT L. Narasimha Reddy, J.

1. In C.C. No. 39 of 1995 on the file of First Additional Munsif Magistrate, Tenali, Perugu Nageswara Babu (A1) and his parents Perugu Narasimha and Perugu Venkayamma (A2 and A3) were tried for offence under Section 498A, IPC. The Trial Court, through its judgment dated 22.9.1997, acquitted the accused. The State filed Criminal Appeal No. 199 of 1998 and the de facto complainant, that is the wife of A1 Perugu Varalakshmi filed Crl. R.C. No. 1224 of 1997 against the judgment of the Trial Court.

2. The case of the prosecution was that Perugu Varalakshmi (P.W. 1) as married to A1 in the year 1991 and both of them gave birth to a son P.W. 2. Subsequently, A1, A2 and A3 started harassing the P.W, 1 for bringing money as well as to convey the property at Tenali in favour of A1. P.W. 1 filed a complaint (Ex. P1) alleging that she has been harassed by A1 for bringing more dowry and to convey the property, The complaint was specific with reference to an incident, said to have taken place on 27.1.1995.

3. On receipt of the report, the police have taken up the investigation. They have recorded the statement of P.W. 1 as well as P.W. 2, who is the son of P.W. 1 and A1. The statements of other witnesses were also recorded under Section 161, Cr.P.C.

4. During the course of trial, the prosecution examined PWs. 1 to 6 and marked Exs. P. 1 and P. 2. P.W. 1 is the complainant herself and P.W. 2 is her son. P.W. 3 is the maternal uncle of P.W. 1. P.Ws. 4 and 5 are said to be the eye-witnesses to the incident said to have taken place on 27.1.1995. P.W. 6 is the Sub-Inspector of Police, who has investigated the case. Ex. P. 1 is the Report given by P.W. 1 to the Police and Ex. P2 is the FIR. Exs. D1 to D5 were marked on behalf of the Defence. Ex. D1 is the portion of the affidavit filed by P.W. 1 in the CMA in this Court. Exs. D2 to D5 are the portions of statement under Section 161 of P.Ws. 1/2 and 3.

5. On appreciation of the oral and documentary evidence, the Trial Court found that there were material inconsistencies in the evidence adduced on behalf of the prosecution and that no case was made out against the accused under Section 498 A and accordingly acquitted the accused of the offences alleged against them.

6. The learned Public Prosecutor and Mr. Dharma Rao, Advocate, who appeared in the appeal and Revision respectively submit that the evidence before the Trial Court was sufficient to convict the accused, respondents herein. It is their case that independent witnesses P.Ws. 4 and 5 have deposed to the factum of physical assault on P.W. 1 by A1 and his insistence on bringing more dowry and conveyance of the property. It is their case that the various instances that have taken place ever since the marriage of P.W. 1 with A1 would certainly constitute harassment and offence under Section 498-A.

7. The learned Counsel for the accused/respondents, on the other hand, submits that P.W. 1 was only trying to wreak vengeance against the accused, in view of the decree of divorce passed against her and her not being able to be successful in the maintenance case filed by her.

8. The marriage of P.W. 1 with A1 took place in the year 1981. They lived together for about 2 years and P.W. 2 was born. Thereafter, P.W. 1 left the house of A1 in the year 1983. It has come on record that ever since 1983, P.W. 1 and A1 never lived together. A1 filed O.P. No. 36/1984 for divorce. The same is said to have been allowed on 30.7.1992. Thereby, the marital relationship between them ceased to exist. P.W. 1 has filed MC No. 22/1992 in the Court at Tenali, where she was living with her parents. The case was posted on 27.1.1995. A1 attended to the Court on that day.

9. The incident that gave rise to filing of the complaint by P.W. 1 is that on 27.1.1995, A1 was passing in front of her parents' house at Tenali. Having noticed him, she sent P.W. 2, her son, to request A1 to take herself and P.W. 2 with him to Nizampatnam. When P. 2 was imploring A1, she too has gone to him. She alleged that A1 replied stating that unless the amount demanded by him is paid and the property is conveyed, he will not take them and when P.Ws. 1 and 2 insisted, he kicked P.W. 1. The incident was said to have been witnesses by P.Ws. 4 and 5.

10. P.W. 1 is none other than the complainant. She did not depose any thing about the proceedings that have taken place between herself and A1. Her version being self-serving cannot be totally relied upon. P.W. 2 is her son. Accordingly to P.W. 2 on that day, he came back to his house from school since he was suffering from stomach ache. He deposed that on being asked by P.W. 1, he went to A1 who was going in that lane and requested him to take himself and his mother of Nizampatnam. He repeated what is stated by P.W. 1. One important aspect, which needs to be noticed, is that according to P.W. 2, he studied his 2nd class in Tenali and 3rd and 4th Class (1991-92) at Nizampatnam, at the house of A1 to A3. He deposed that during that period, A2 and A3 used to beat P.W. 1. The subsequent studies are said to have taken place at Tenali. When it was the categorical case of P.W. 1, as evidenced from various other records that she left the house of the accused in the year 1983 and thereafter never went to that place, the version of P.W. 2 that he himself and P.W. 1 lived at Nizampatnam during 1991-92 is just unbelievable. The prosecution did not place any record before the Trial Court to substantiate the contention of P.W. 2.

11. P.W. 3 is the maternal uncle of P.W. 1. On account of his close relationship with the complainant, his evidence needs to be examined with a note of caution. Further, his evidence is so self-contradictory that it hardly needs any consideration at all. He is said to have mediated between P.W. 1 and A1. According to him, he went to the house of A1 on 14.8.1994 along with one G. Subbaiah. The mediation failed and the statement with regard to the whole affair was recorded by the police under Section 161 on the next day itself. It is a matter of record that the statement under Section 161 was recorded on 28,1.1995. This is sufficient to brush aside his evidence.

12. P.Ws. 4 and 5 are said to have witnessed the incident that has taken place on 27.1.1995 in the street in which the house of the parents of P.W. 1 is located, It is their evidence that both of them wore proceeding in that lane at about 1.30 to 2.00 P.M. and they stopped at Thirupathamma Temple is Ganganammapet for drinking water. When they were drinking water, P.W. 2 called A1 and when both of them were discussing. P.W. 1 came and asked A1 to take them to Nizampatnam. A1 is said to have told P.W. 1 that unless the money is given and property is conveyed, he will not take them. Both the witnesses said that P.W. 1 had caught hold of the legs of P.W. 1. While P.W. 3 states that A1 has kicked her, P.W. 4 states that he pushed her with hands and left the place.

13. It is not in dispute that as on the date of incident, there existed decree of divorce between A1 and P.W. 1. On 27.1.1995, the case filed by P.W. 1 under Section 125, Cr.P.C. was posted. It has come in evidence that A1 came to attend the case and returned from the Court after noticing next date of hearing. The sine qua non for charging a husband with an offence under Section 498-A of IPC is existence of relationship of husband and wife. Once decree of divorce was granted in favour of A1 against P.W. 1, there did not exist any legal basis to prosecute the respondents herein.

14. Even otherwise, if the complaint of P.W. 1 is examined from the attendant circumstances, it is not at all difficult to discern that she was only trying to harass A1 to A3 on one pretext or the other. The whole basis in the complaint was that when P.Ws. 1 and 2 approached A1 and requested him to take them back to Nizampatnam, he is said to have told them that unless the money is paid and property is conveyed, he will not take them and thereafter kicked PW. 1. The complaint itself was found to be interpolated. By the date of complaint, P.W. 1 was living separately from A1 for the past 12 years. In the meanwhile, the divorce O.P. came to be decreed and several proceedings have ensued between them including MC No. 22/1992 filed by her for maintenance. Except P.W. 3, none has spoken to the act that any demands were made for reconciliation. The purpose for which A1 came to Tenali was to attend the case filed against him by P.W. 1. Not only there did not exist any scope for reconciliation even by the 3rd parties, let alone the P.W. 1, but also relations were strained to a very bitter extent. Nobody would expect a wife, under such circumstances, to approach a husband, that too in a street, with such demands and requests. It is just impossible for any one in the place of A1, in a town where he does not reside, to kick his wife in a public street. The evidence of the witnesses examined on behalf of the prosecution does not gain confidence of the Court.

15. The various facts and circumstances would clearly indicate that the complaint submitted by P.W. 1 was nothing but a step to wreak vengeance against the accused and the whole case presents an instance of gross misuse of provisions of Section 498A of IPC.

16. The Trial Court has discussed the evidence on record in proper perspective and had arrived at a just and proper conclusion, I do not see any reason to differ with the finding recorded by the Trial Court. The Crl.R.C. and the Crl. Appeal are accordingly dismissed.

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