Nallapilli Balaram, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 1422 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE No.828 of 2009

ORDER:

This Criminal Revision Case under Sections 397 and 401

Cr.P.C. is filed by a convict and it assails the conviction of the

revision petitioner for the offence under Section 498-A I.P.C.

The respondent herein is the State on whose prosecution this

revision petitioner was convicted.

2. Sub-Inspector of Police, Women Police Station,

Srikakulam investigated the case and filed charge sheet against

A.1 and A.2 alleging that they committed offence under Section

498-A I.P.C. The case was tried by the learned Special Judicial

Magistrate of First Class, Prohibition and Excise, Srikakulam in

C.C.No.12 of 2006. After due contest and trial, the learned

Magistrate by a judgment dated 08.01.2007 found A.1 guilty

and convicted him and sentenced him to undergo simple

imprisonment for one year and pay a fine of Rs.1,000/- with

default sentence of simple imprisonment for 15 days. A.2 was

found not guilty and was accordingly acquitted.

3. As against acquittal of A.2, proceedings before the learned

Magistrate attained finality as none appealed against it.

Dr. VRKS, J Crl.R.C.No.828 of 2009

However, the convict/A.1 preferred Criminal Appeal No.7 of

2007. The learned II Additional District and Sessions Judge

(Fast Track Court), Srikakulam after due hearing, by a

judgment dated 22.05.2009 dismissed the appeal and confirmed

the judgment of the trial Court. Assailing those judgments, this

revision is filed by A.1.

4. It is urged for the revision petitioner that the marriage

between this revision petitioner and the alleged victim-cum-de

facto complainant was not proved and that they were not

spouses and in fact the victim woman was a married lady and

wife of Sri Shankar Rao. Yet, both the Courts wrongly convicted

A.1/revision petitioner for the offence under Section 498-A

I.P.C. Judgments cited before the trial Court and the first

appellate Court were incorrectly appreciated. It was improbable

that 16 to 17 years subsequent to the alleged marriage there

could have been any harassment for dowry. That the sentence

imposed is excessive. For these reasons, learned counsel

argues for acquittal of the revision petitioner.

5. Learned Special Assistant Public Prosecutor submits that

the contentions raised herein were also raised before the Courts

Dr. VRKS, J Crl.R.C.No.828 of 2009

below and they were dealt with in accordance with law and the

evidence on record established the guilt. There can be no

justification to interfere with the well considered judgments of

the Courts below.

6. The point that falls for consideration is:

"Whether the evidence on record did not establish spousal relationship between the revision petitioner and the victim woman/wife and no offence was made out to punish the accused and the Courts below misread the evidence and misinterpreted the law requiring interference?"

7. Point:

Before the trial Court two individuals were prosecuted as

accused. This revision petitioner was A.1. The other accused

was a woman arrayed as A.2. According to prosecution, A.1

was running an affair with A.2 and wanted her to bring to his

home as she was ready and agreed to give him money. A.1

became a drunkered and being under the influence of his

relationship with A.2 he was cruel towards his wife/PW.1. He

was demanding his wife to bring Rs.1,00,000/- and as she

failed to bring it, he used to beat her and finally he threw her

out of the house. Prosecution case further shows that between

Dr. VRKS, J Crl.R.C.No.828 of 2009

A.1 and PW.1 there was cohabitation for 17 years and they

begot children also and in this episode of cruelty A.1 sent out of

home his children also. To prove this case, prosecution

examined PWs.1 to 5 and got marked Exs.P.1 to P.3.

8. As against that, the case of revision petitioner/A.1 was

that A.2 is his wife and PW.1/victim is not his wife and children

were not born for them and he never demanded money and

there was no cruelty on his part.

9. In the light of those rival contentions, the evidence that

was made available on record by the prosecution was examined

by the Courts below. Defence did not adduce any evidence

whatsoever. Therefore, it was only the credibility of the

witnesses that was to be tested, apart from any other legal

issues that may have cropped up from the facts of the case.

10. From the evidence it was found that it was in 1988 the

marriage between the victim/PW.1 and the revision

petitioner/A.1 took place. Victim lodged Ex.P.1 written

information on 06.08.2004 and that was registered as Crime

No.8 of 2004 as per Ex.P.3-F.I.R. Thus, Ex.P.1 is the former

statement of PW.1. Both the Courts below recorded that the

Dr. VRKS, J Crl.R.C.No.828 of 2009

marriage that was spoken to by PW.1 was found believable since

other witnesses also deposed about such long marital

cohabitation of nearly 17 years between them. Ex.P.2 was

Policy of Life Insurance Corporation of India obtained on

28.12.2001 by the revision petitioner. Courts below verified it

and considered the evidence of PW.1 and recorded that in that

Life Insurance Policy this revision petitioner mentioned the

name of PW.1 as his wife and made her his nominee for the

policy. Thus, based on long cohabitation, based on entries in

Ex.P.2 and based on the sworn evidence of PW.1, learned

Special Judicial Magistrate of First Class recorded a categorical

finding that it believed valid solemnization of marriage between

revision petitioner and PW.1.

11. With reference to the alleged marriage between A.1 and

A.2, learned Magistrate recorded that absolutely there was no

evidence on record to see any such marriage. In that way it

found A.2 was nowhere related to A.1 and since she was not

related to A.1 a prosecution for the offence under Section 498-A

I.P.C. could not be maintained against her and accordingly

acquitted her. It is a fact from the record that no positive

evidence was brought to the notice of the Court by the present

Dr. VRKS, J Crl.R.C.No.828 of 2009

revision petitioner to show any semblance of marital

relationship between him and A.2. His theory, though

suggested to prosecution witnesses, was unanimously denied as

false by all the witnesses. Thus, the finding of the Courts below

that A.2 was not wife of A.1 has to stand.

12. While there was no specific line of defence taken up when

he entered his plea, it was during the course of cross-

examination of PW.1 the defence projected his theory. It was

elicited from PW.1 that earlier her marriage was performed with

her maternal uncle's son. It is on that defence contended that

the said marriage was subsisting and therefore, PW.1 cannot be

stated to be the legally wedded wife of this revision petitioner.

Be it noted that about marriage of PW.1 with her maternal

uncle's son neither a document is thereon record nor one who

performed the marriage testified nor one who attended the

marriage testified. There is absolutely no material to think

whether that was a validly solemnized marriage or not.

13. If the statement of PW.1 is to be taken to have proved the

marriage of her with her maternal uncle's son then on the same

token, her further evidence should also be considered. In her

Dr. VRKS, J Crl.R.C.No.828 of 2009

evidence she stated that by her caste customs she had obtained

divorce from her earlier husband and thereafter her marriage

was solemnized with this revision petitioner. Through facts on

record and by any principles of law, the defence never brought

on record whether in the community of PW.1 marriage could not

be dissolved by way of caste customs without approaching a

Court of law. Therefore, what PW.1 spoke has to be given its

own value and having so given it has to be recorded that by the

time PW.1 married this revision petitioner there was no spouse

living for her in the eye of law. Learned Judicial Magistrate of

First Class bestowed lot of attention on these contentions of

revision petitioner and held that the contentions of A.1 have no

force in the context of evidence and law available.

14. Courts below recorded that this revision petitioner though

was telling that he had no connection with PW.1, he did not

even choose to examine any of his parents or other close

relations to show that he never married PW.1. Courts below

evaluated the evidence properly and looked at the issue from

different dimensions and finally recorded their conclusions. As

to how these findings are incorrect in the context of the evidence

on record has to be demonstrated by the revision petitioner and

Dr. VRKS, J Crl.R.C.No.828 of 2009

in this revision he completely failed to show any such lapses

which could enable this Court to think that both the Courts

committed errors.

15. PWs.3 and 4 are the very close relatives of this revision

petitioner. All these witnesses categorically stated that this

revision petitioner was demanding PW.1 to bring Rs.1,00,000/-

and for that money he used to beat her and used to beat her

quite often and his relatives stated that in their presence also he

beat her several times for that money. Why he wanted that

money has to be spoken to by revision petitioner only. He did

not explain. When the evidence show that he made demand for

Rs.1,00,000/- and beat his wife for that money, it is an

unlawful demand followed by cruelty for failure to satisfy the

demand. Precisely that conduct is made punishable by Section

498-A I.P.C. Courts below validly recorded that. But the

argument of the learned counsel for revision petitioner that it is

quite unlikely that after 1½ decades of spousal living there

could have been a dowry demand. This argument is a matter of

imagination and not a matter of fact. In fact money that was

demanded by an earning husband from non-earning wife is

unlawful demand for money and whether the lay witnesses call

Dr. VRKS, J Crl.R.C.No.828 of 2009

it as dowry or additional dowry or unlawful demand much does

not turn on it. The evidence of PWs.1 to 5 indicated awful

drunkenness of this revision petitioner. For a man of such

habits need for money is always there. Therefore, this unlawful

demand for money/dowry/additional dowry after a long

cohabitation and marital relationship cannot be ruled out.

16. At any rate, revision petitioner failed to show any

irregularity or impropriety or illegality in the judgments of the

Courts below. Since the evidence established the spousal

relationship and matrimonial cruelty and since their findings

are in accordance with the facts and law, there is nothing to

interfere in that regard.

17. Learned counsel for revision petitioner in all earnestness

argued for modification of sentence. Learned counsel submits

that this revision petitioner, as per evidence on record, was

directed by a learned Magistrate to pay monthly maintenance to

his wife and children and he has been paying it accordingly all

these years. That the revision petitioner is a Government

servant and any imprisonment would make him to lose his job

and if he loses his job he would not be in a position to pay

Dr. VRKS, J Crl.R.C.No.828 of 2009

monthly maintenance to his wife and children. That he had

already spent about three weeks in prison and this Court shall

let him by considering the sentence he underwent as sufficient.

18. Learned Special Assistant Public Prosecutor opposed the

submission and stated that a moderate sentence of

imprisonment was inflicted by the Courts below and there can

be no justification to modify it.

19. The facts on record indicate that for 17 years legal

proceedings have been going on in connection with this crime.

It is depravity of the accused which is one of the factors that fall

for consideration in quantification of sentence. The present

case shows about an alleged Government servant denying his

paternity, denying his spousal relationship and claiming marital

tie with a woman with whom no marriage was ever solemnized.

It is in the context of such facts, guilt of him was found by both

the Courts below. If one takes these facts there shall be no

possibility for reduction of any sentence. However, as the adage

goes process is punishment and for more than 1½ decades the

revision petitioner is embroiled in his legal tussle. Viewed in

that context, this Court is inclined to modify the sentence.

Dr. VRKS, J Crl.R.C.No.828 of 2009

20. In the result, this Criminal Revision Case is allowed in

part modifying the judgment dated 22.05.2009 of learned II

Additional District and Sessions Judge (Fast Track Court),

Srikakulam in Criminal Appeal No.7 of 2007 and the judgment

dated 08.01.2007 of learned Special Judicial Magistrate of First

Class, Prohibition and Excise, Srikakulam in C.C.No.12 of 2006.

While retaining the fine and the default sentence that were

imposed by the Courts below, the substantive sentence of

simple imprisonment for one year that was imposed by the trial

Court and confirmed by the appellate Court is reduced to simple

imprisonment for six (6) months. The revision petitioner shall

submit himself immediately before the learned trial Court and

undergo the punishment, failing which the learned trial Court

shall secure his presence and enforce the punishment.

21. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the order of this Court to the

Court below and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

petitioner in C.C.No.12 of 2006, dated 08.01.2007, and to report

compliance to this Court. Registry is directed to dispatch a

copy of this order along with the lower Court record, if any, to

Dr. VRKS, J Crl.R.C.No.828 of 2009

the Court below on or before 17.03.2023. A copy of this order be

placed before the Registrar (Judicial), forthwith, for giving

necessary instructions to the concerned Officers in the Registry.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 15.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.828 of 2009

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.828 of 2009

Date: 15.03.2023

Ivd