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IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF
FIRST CLASS: KADAPA
Present:- Sri Shaik Reyaz.,
II Additional Judicial Magistrate of I Class, Kadapa
Thursday, this the 20th day of April, 2023
Calendar Case No.627 of 2020
Between: State: Represented by the Sub-Inspector of Police, Kadapa Taluka U/G Police Station. ….Complainant.
Vs.
1Shaik Mohammad, Nazeer Basha, S/o Syed Sab, age 48 yrs, D.No.75/19, 4th lane, Vijaya Durgamma Colony, Kadapa City. 2Shaik Taara Begum, age 54 yrs, W/o Abdul Sattar, D.No.7/17, Agadi Street, Kadapa City. 3Syed Chand Bee @ Chand Begum, age 56 yrs, W/o Mahaboob Basha, D.No.11/86, Kummarakunta, Kadapa City. 4Shaik Kursheed Begum @ Kursheed, age 66 yrs, W/o S.M.Ali Basha, D.No.6/261, KMH Street, Kadapa city. 5Shaik Masood Basha @ Masood, Age 39 yrs, S/o S.M.Ali Basha, D.No.6/261, K.M.H.Street, Kadapa city. 6Syed Mahaboob Basha, age 59 yrs, S/o Syed Hussain, D.No.11/86, Kummarikunata, Kadapa City. ….Accused.
This case is coming on 12.04.2023 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the
Complainant and of Sri M.Venkata Rama, Advocate for accused and having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
The Sub-Inspector of Police, Kadapa Taluka U/G Police Station has filed charge sheet against the accused/A1 to A6 in Cr.No.164/2020 for the offence punishable u/Sec.498-A r/w 34 of the Indian Penal Code 1860 (for short ‘the IPC’) and Secs.3 & 4 of the Dowry Prohibition Act, 1961 (for short ‘the D.P. Act’).
2.The brief facts that are necessary for the disposal of this case are as follows:
The marriage of LW.1/Shaik Kursheed Begum, was solemnized with A1 on 15.08.1998. At the time of marriage, LW.1’s parents presented 20 tulas gold, Rs.50,000/- cash and house hold articles worth 2
Rs.1,00,000/- and expended Rs.1 lakh for the marriage. After 10 days of their marriage, A1 sold away 17 tulas of gold belongs to LW.1 stating that he had debts and he will re-arrange them. A1 cleared off his debts and again A1 restored all her jewelry’s. LW.1 has 3 daughters and 1 son.
Among them LWs.4 & 5/Shaik Ayesha and Shaik Afiya are one of them.
A1 works as traveling agent who sends women to gulf countries on VISA and in that process, A1 developed illegal intimacy with several other ladies. When LW.1 asked A1 about his illegal affairs, A1 used to beat her, abuse her and harass her. A1 used to send LW.1 to her brothers to get money stating that they are earning well. LW.1’s brothers adjusted money for several times and also elders held panchayat to lead marital life peacefully, but accused No.1 had not changed his attitude and recently harassed to bring Rs.5 Lakhs from her brothers.
LW.6 & 7/Shaik Abdul Sattar and Shaik Mahammad Musthaq
Ahmed held panchayat and advised A1 to lead marital life happily, but A1 had not changed his attitude. A2 to A6 also used to support A1 and with the support of them, A1 totally neglected her and her children. A1 developed illegal intimacy with other lady and is in a plan to marry another woman. On 05.05.2020, LW.1 and her daughter i.e. LW.4/Shaik Ayesha heard the phone call recordings of A1 about the conversation between A1 and his concubine speaking about their marriage in romantic means and on the same day, LWs.1 & 4 asked about the phone call recordings. Then,
A1 turned aggressive stating that how will they question him and beat both of them severely and they all hardly escaped by praying the accused.
Further A1 used to threaten LW.1 stating before their marriage A1 murdered one person and he can easily murder all the five and A1 would not shiver his hands and he will easily escape without any evidence. A1 plays dual role inside and outside the house. A1 used to abuse not only
LW.1 and also L.W.1’s elder daughter i.e. LW.4. Then, they hardly escaped from A1 and came out of their house. On 05.05.2020 at 02.00 pm, A1 pushed LW.1 and her children out and stated to complain as her will and wish. On informing over phone by LW.4, LW.1’s brothers i.e.
LW.2/M.Irsha Ali Khan came and have taken them to his house. A1 threatened her over phone stating that he will kill them if they complain to the police and then LW.1 switched off her phone getting afraid of. After three days, A1 went to her brother’s house, asked LW.1 to give divorce and tried to obtain signatures on some papers, but LW.1 had not signed on it. On 10.05.2020 at 8.00 pm, while LW.1 was in brother’s(LW.2) house 3 bearing D.No.9/704, Kashirao thota, Kadapa. A1 to A6 came to LW.1 and tried to take away LW.1 forcibly. Meanwhile, LW.2 reached there, admonished and send them from his house. As this was occurred during lock down and holy Ramzan month was in process, she failed to complain with the police immediately. Later, she requested to take necessary action against A1 to A6 who abused, beat ant threatened LWs.1 & 4.
Basing on the complaint of LW.1, LW.10/Sri. S.K.M.Hussain, S.I. of
Police registered a case in Cr.No.164/2020 for the offence punishable u/Sec.498(A) r/w 34 IPC, Sec.3 & 4 of DP Act. He examined L.Ws.1 to 9.
recorded their respective statements and seized wedding invitation under cover of Police proceedings dt.26.06.2020. During the course of investigation, he arrested A1 on 03.07.2020 at 10.30 am, in front of his house and forwarded him before this court and then released on bail. On 05.07.2020, he served 41-A Cr.P.C. notices to A2 to A6. Thus, LW.10 after completion of investigation filed charge sheet against the accused.
3.The case has been taken into cognizance against the accused/A1 to A6 for the offence punishable u/Sec.498-A IPC and Secs.3 & 4 of D.P.
Act.
4.On appearance of the accused before this Court, copies of the documents were furnished to them as contemplated u/Sec.207 of the
Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).
5.The Accused Nos.1 to 6 were examined U/Sec.239 of Cr.P.C. and the charge for the offence punishable u/Sec.498-A IPC and Secs.3 & 4 of
D.P. Act has been framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed the case to be tried.
6.In pursuance of the case of prosecution, the prosecution has examined PWs.1 to 9 and got marked Exs.P.1 to P10. No material objects were marked. The learned public prosecutor given up the evidence of
LW.2/Mahammad Irshad Ali Khan as most of the witness supported the prosecution evidence.
7.The accused were examined u/Sec.313 Cr.P.C explaining the incriminating material appearing against them, for which they denied the offence and reported no defence evidence.
8.Heard the learned Asst. Public Prosecutor and the learned counsel
for the accused.
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9.Now the point that arise for determination is:
Whether the prosecution has proved the guilt of the accused beyond all reasonable for the offence punishable u/Secs.498-A and Secs.3 & 4 of D.P Act?
10.P O I N T:For the commission of an offence under Section 498-
A, following necessary ingredients require to be satisfied:
1. The woman must be married;
2. She must be subjected to cruelty or harassment; and
3. Such cruelty or harassment must have been shown either by the husband of the woman or by the relative of her husband.
This section’s bare perusal points out that the word ‘cruelty’ covers the occurrence of the following Act(s):
1. any willful behaviour which might lead a woman to suicide or cause serious damage or danger to life, limb, or life;
2. a woman’s health (mental or physical);
3. The harassment of a woman in the event of such harassment, with a view to obliging her or any other person related to her to fulfill an illegal requirement for any property or valuable security.
In order to prove Secs.3 & 4 of D.P Act, the prosecution has to prove that the accused has took dowry at the time of marriage and thereafter, demanded additional dowry.
10.To prove the case, PW.1/Smt Shaik Khursheed Begum, in her evidence deposed before this court that on 15.8.1998 her marriage with
A1 was performed at Ameen Function Hall, Kadapa as per Muslim Rites and Customs. At the time of marriage, her parents gave 20 tulas of gold and Rs.50,000/- cash along with other house hold articles worth of
Rs.1,00,000/- and also performed marriage. Her parents gave the same to the mother of A1 in the presence of A1 to A4. They both lived happily for 10 days after the marriage. Thereafter, accused No.1 sold away 17 tulas of gold belonging to her for clearing the debts by saying that he will be arrange the same. He looked after her well for some days. Due to the wed lock, they begot three daughters and one son. A1 used to work as a traveling agent and used to send people including some woman to Gulf countries. In that process, he developed illegal intimacy with some women. The accused sold all her gold ornaments. When, she asked A1 about his affairs, he used to beat her, abuse and harasse her. He also 5 used to state that he being a male, he can do whatever he like. The parents of A1 used to support him. A2 to A4 also stated that their brother
A1 will have illegal intimacy with others as he is a male and supported A1.
He used to harass her since 20 years. He beat her indiscriminately, due to which, she received bleeding injuries. When, questioned the same, he stated her that she became old and also stated he will burn her by pouring petrol. He also stated that she became fat and he was not interested to live with her. He used to abuse her in filthy language. When, her children tried to interfere while A1 was beating her, he also beat them. He also used to press the neck of her elder daughter when she interfered to rescue her. She bear all the harassment in the hands of A1, thinking about the future of her children and also their reputation in the society.
Then, on one day i.e. on 5.5.2020 at about 2.00 p.m., all her children, questioned the attitude of A1 why he is having illegal intimacy with ladies as they had heard some phone recording. Then, A1 pushed them and stated to tell to whom they like, on which her elder daughter informed the incident to PW.4/M.Nazeer Ahammad Khan on phone. She along with her children came to her brother’s house i.e. PW.4. Then, on 10.5.2020, at about 6.00 to 7.00 p.m., while she was in her brothers’ house i.e.
LW.2/M.Irshad Ali Khan and PW.4, A1 to A6 and 15 others came and tried to beat her younger brother i.e. PW.4. On that, she tried to interfere. On that, A1 caught hold of her tuft, dragged her and beat her. On that, her brother PW.4 kept her in a room and locked the door with an intent to escape from the beatings. Thereafter, the neighbours interfered and pacified the matter. On which, the accused and 15 others went away by threatening them. Then she went to Taluk police station and gave Ex.P1 report. She also filed Ex.P2/photos along with C.D. and pen drive along with Sec.65-B certificate, Ex.P3/the Scan center report of Sridevi scan center, Ex.P4/discharge summary of Dr. P.Surendra Raju i.e. Tirumala hospital, Ex.P5/prescriptions of M.M. Hospital and Ex.P6/prescriptions of
Ameen Multi specialty hospital. She got treated as the accused No.1 beat her with pestle. She got operated as accused beat her with the bricks on her stomach. He also fisted her in her stomach. He harassed her and jer children cruelly and threatened that he will kill them. When her brother intervened when he was beating her children, he also beat him. He made galata also during the pendency of this case. She stated her health condition was worsened due to the harassment made by accused.
11.PW.2/Shaik Ayesha in her evidence deposed before this court that, 6 they were four children to A1 and PW.1 i.e., three female and one male.
She studied B.Com. Her father worked as an agent to send the persons to gulf countries. In the said process, her father developed illegal intimacy with some ladies who approached him to go to Gulf countries. He used to torture her mother and harass her. Once, he demanded Rs.5,00,000/- from her uncles LW.2 and PW.4, who conducted mediation before elders, in which A1 agreed that he will not demand any amount further. For some days, her father looked after them well. Thereafter, he used to talk with others for more time on phone. Then, her mother got suspicion over him.
She stated her mother checked the phone of her father and found the call records. In the recordings, she found that A1 promised other ladies that he will marry them. When, her mother questioned her father, her father beat her. When, they interfered, A1 beat her also. He also tried to press her neck and kill her when she tried to rescue PW.1. Her sisters rescued her from the hands of A1. A1 stated PW.1 that she was the reason for the disputes and that he will kill her. He also stated that he murdered one person before his marriage with P.W.1 and that he has no count if he murder another person. Saying so, on 5.5.2020 in the afternoon at 2.00 p.m., A1 necked PW.1, herself, her sisters and brother out of the house.
She called her uncle and informed the incident. Then, PW.4 came and took them to his house. After three days, A1 brought Divorce papers and asked her mother to sign on it. Her mother had not signed on it. On 10.5.2020 at night time at 8.00 p.m., all the accused came to the house of
PW.4 and raised a galata. A1 demanded additional dowry. He tried to forcibly took away PW.1 to his house stating if she was along with him, dowry will automatically come thereafter. The said incident was videographed by PW.4. Then, L.W.2 also came there. LW.2 and PW.4 pacified the matter and sent the accused. Thereafter also, A1 used to harass them. On 26.6.2020 her mother unable to bear the harassment gave a report to Taluk P.S. On 27.6.2020 police examined her.
12.PW.3/Shaik Afiya, in her evidence deposed that her mother is a house wife. Her father was an traveling agent. They were three daughters and one son to their parents. Her father used to torture her mother a lot and harass her for little things. He used to demand additional dowry. One day her mother came to know that her father has illegal relationship with another women. When she questioned, her father used to harass her. Her mother informed the same to their relatives. When her mother brought the elders PW.5/S.Abdul Sattar and others and conducted 7 panchayat, her father stated he will look after her mother well. Then her father looked her mother well for some time. There after some time again he continued the illegal relationship and harassment. When her mother questioned, on 05.05.2020 A1 beat her mother and PW.2/Shaik Ayesha her elder sister. When they tried to rescue her sister and mother, A1 threatened them stating that all the harassment faced by her mother was due to them. On the same day at 2 PM, accused A1 stated them to go away from the house. Witness again stated he necked them out from his house. A1 demanded additional dowry of Rs.5,00,000/-. LW.2 and PW.4 took them to Kasirao thota. They stayed there for 3 days. On 09.05.2020,
A1 again came to the house at Kasirao thota and demanded her to sign on divorce paper. Her mother had not signed. On the next day at 8 PM,
A1 along with his sisters and relatives came (A2 to A6) forced and threatened her mother stating she had not brought the additional dowry.
The said incident was video graphed by PW.4. Thereafter shown the same to LW.2. When A1 is forcibly taking PW.1 with him LW.2 and PW.4 intervened, pacified and sent A1 away. Thereafter, A1 used to harass
PW.1 on phone. On 26.06.2020 PW.1 went to PS, gave Ex.P1 and gave report.
13.PW.4/M.Nazeer Ahammad Khan, in his evidence deposed that the marriage of PW.1/Shaik Kursheed Begum was performed with A1 on 15.08.1998 at Kadapa. 20 Tulas of Gold and Rs.1,50,000/- cash was given as dowry to accused. expenses were incurred to a tune of
Rs.1,00,000/- at the time of marriage. Marriage was performed by his parents. Since the marriage A1 started harassing PW.1. After one week of marriage, A1 took away the gold articles of PW.1. He used to drink alcohol and beat PW.1 and abuse her. He took away the entire gold. Due to wedlock, she begot three daughters and one son through A1. A1 was working as an Agent. He used to send ladies to Gulff country. At that time
A1 used to have illegal contacts with other ladies. When PW.1 asked the same, he used to abuse and beat her. In the lock down he beat PW.1 and necked her out. He used to demand PW.1 Rs.1,00,000/- and used to say to bring the amount from him by saying he earned more. As A1 beat her, the ear drums of PW.1 were damaged. He also beat PW.1 in her stomach, due to which blood clotted in her stomach. 4 months before A1 beat PW.1 on due to which she received bleeding injury on her forehead.
She was being treated in Hospital. A1 was threatening his children when they were going to school. Due to that they were not attending the school.
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Unable to bare the harassment PW.1 gave a report. A1 was also demanding PW.1 to give divorce and withdraw the case and if not he will kill them.
14.PW.5/Shaik Abdul Sattar, in his evidence deposed that the brother in laws of accused are running Super market. as such he know the accused. The brother in laws of accused once called him for a panchayat in between accused and his wife. While the mediation was going on it became a Galata. The accused No.1 demanded the amount. The accused
No.1 used to demand amounts every time from his wife. He stated
Accused No.1 that it is not good for their family. Then on the said day.
accused No.1 got angry and beat his wife. When they tried to interfere,
Accused No.1 also abused them ie., himself, PWs.8 & 6/Shaik
Mahammad Musthaq Ahmed & Syed Anwar Basha. Then they compromised the matter. The accused agreed that he will not beat and harass PW.1/Shaik Kursheed Begum and they both stated that they would live amicably. After some days he came to know that PW.1 filed a police case against all the accused. PW.8/Shaik Mahammad Musthaq Ahamed, in his evidence deposed before this court that on one day in the year 2020
PW.4/M.Nazeer Ahammad Khan called him to hold Panchayat before elders as A1 harassed PW.1 and her children and thereafter necked them out of the house by beating them. Then he went to house of A1 to raise mediation and questioned him. On that all the accused abused him and the persons along with him in filthy language. They questioned why they came to their house. Then they told them to go away. Then they brought
PW.1 and her children to the house of her parents. Thereafter he came to know that PW.1 gave a report.
15.PW.6 & 7/Syed Anwar Basha and P.Prabakarudu deposed that they do not know about this case. Thus, it is clear that they resiled their earlier
Sec.161 (3) Cr.P.C statements/Exs.P7 & P8 and had not supported the case, as such they are declared hostile PW.9/Sri SKM Hussain, the then
S.I. of Police, Kadapa TalukaU/G P.S. in his evidence deposed before this court on 26.06.2020 at 08.00 PM while he was present in Police station
PW.1/Shaik Kursheed Begum came to police station and gave Ex.P1 report basing on which he registered a case in Cr.No.164/2020 for the offence punishable u/Sec.498-A r/w.34 IPC and Sec.3 and 4 of DP Act under Ex.P9 FIR. He examined PW.1, PW.4 and LW.2 and recorded their statements. PW.1 produced a wedding card before him. He seized the 9 same under the cover of police proceedings Ex.P10. On 27.06.2020, he went to Kasiroathota, where he secured the presence of PW.2, 3, 5 to 8 and recorded their statements. On 03.07.2020 at 10.30 am, he arrested
A1 in front of his house at Vijayadurga colony and obtained sureties and released him on station bail. Later on 05.07.2020 he issued Sec.41 A crpc notice to A2 to A6. Thus after completion of investigation he filed charge sheet in this case.
17.Thus, a perusal of the above evidence clearly goes to show that though PWs.1 to 4 deposed in their evidence about the performance of marriage by giving dowry and other articles, there is no documentary proof to prove the same. PW.1 clearly stated that she had not filed any document to prove that she purchased the articles. PWs.1 to 4 also stated that the parents of PW.1 have no properties. There is also not independent witness to show that he was present at the time of giving of dowry, as such this court is of the view that the prosecution could not able to prove the ingredients of the offence punishable u/Sec.3 of D.P Act
18.Now to prove the offence u/Sec.498-A & Sec.4 of DP Act, the witnesses stated that A1 demanded additional dowry of Rs.5,00,000/-.
The evidence of PWs.6 & 7 is not helpful in nature, as they turned hostile.
The evidence of PW.9 is formal in nature with regard to the investigation done by him in this case. The remaining witnesses are PWs.1 to 5 & 8.
PWs.1 to 4 are related witnesses and PWs.5 & 8 are said to be the mediators. But, PWs.5 & 7 could not able to say the specific date and time when they conducted mediation between accused and PW.1. They also could not able to say the door number and address, in which and where the mediation was held. Moreover, PW.8 stated PW.4 is his friend and he called him for mediation, which raises a doubt in the mind of the court with regard to the testimony of PW.8. Now coming to the evidence of
PWs.1 to 4, they are related with each other. PWs.2 & 3 are the daughter of PW.1 and PW.4 is the brother of PW.1. PW.1 stated in her evidence that the accused harassed her since 20 years, but she had not filed any report during the span of said 20 years, and no other witness stated about the harassment for the said 20 years, as such it is not believable. PW.1 stated accused No.1 sold away 17 tulas of gold belonging to her for cleared the debts by saying that he will be arrange the same. She had not stated whether he cleared the debt or not, but a perusal of the charge sheet shows it was cleared. All the witnesses PWs.1 to 4 stated that A1 10 used to have illegal intimacy with other ladies. But, they had not filed any proof to show that he had illegal intimacy with others. They even had not stated a name of a single lady to prove that he had illegal intimacy with such lady. It is stated that they searched the phone and found the recordings with regard to the intimacy, but they had not produced the same before this court. Mere allegation is not enough without proof. The witnesses had not stated specific overtacts against A2 to A6, how they harassed her. It is stated only that A2 to A4 supported A1. PW.1 had not stated anything about A5 & A6.
19.PW.1 stated that on 10.5.2020, at about 6.00 to 7.00 p.m., while she was in her brothers’ house i.e. LW.2/M.Irshad Ali Khan and PW.4, A1 to A6 and 15 others came and tried to beat her younger brother i.e. PW.4.
On that, she tried to interfere, on which A1 caught hold of her tuft, dragged her and beat her. Her brother PW.4 kept her in a room and locked the door with an intent to escape from the beatings. To prove the same, she filed Ex.P2 photographs along with CD, pendrive and Sec.65-B certificate.
But, it does not contain the date when the photos were taken. It is not stated in whose mobile and who took the photographs. No police report was given on that date as the accused bet them. Exs.P3 to 6 discharge summary and prescriptions are dated after 13.06.2020, i.e., after one month of the incident, as such it cannot be said that they are related to the incident happened on 10.05.2020. Even the remaining witnesses except
PW.2 had not stated the date when the accused beat PWs.1 and 4. The reason why LW.2 is not examined is not explained by the prosecution.
Hence, the said incident is also doubtful. PW.2 had not stated the overtacts against the accused, but only stated there was a galata. PW.4 stated A1 demanded additional dowry of Rs.1,00,000/-, while the case is
Rs.5,00,000/-. PW.4 stated A1 beat on the ear drums of PW.1, as such they were damaged. He also beat PW.1 in her stomach, due to which blood clotted in her stomach. 4 months before A1 beat PW.1, due to which she received bleeding injury on her forehead. She was being treated in
Hospital. He had not seen the date and place of incident. There is also no corroboration in the manner of harassment of PW.1 made by A1 in the evidence of PWs.1 to 4. The witnesses themselves stated that A1 used to lookafter their children and used to pay their education fee in the year 2011, joined good schools before, he used to take PWs.2 & 3 to their colleges, made them study in good college, as such these admission clearly goes to show that A1 lookedafter PWs.1 to 3 and 2 other children 11 happily till they studied in colleges, as such the disputes may be started recently for the marriage of their children as alleged by the counsel for accused. PW9 also stated that he had not ascertained with whom PW.1 had illegal contacts. He had not ascertained the addresses of other ladies also. Mere talking with ladies, will not lead to an inference that he had illicit intimacy with all of them. He stated that PW.1 had not stated before him that A1 poured kerosene on her, that PW.5 conducted mediation, that
PW.4 had not stated before him that A1 used to come home in drinking condition and beat PW.1 and used to demand Rs.1,00,000/- as additional dowry, that PW.1 received damage to her ear drum, and that A1 used to threaten his children. Thus, there are omissions and developments also in the evidence of the witnesses.
18.With regard to Sec.498-A IPC, in Shakson Belthissor v. State of
Kerala and another [2009 (2) ALD (Crl.) 497 (SC)], it is held at 21 to 23 as follows:
“21. In the light of the aforesaid language used in the Section, the provision would be applicable only to such a case where the husband or the relative of the husband of a woman subjects the said woman to cruelty. When the ingredients of the aforesaid Section are present in a particular case, in that event the person concerned against whom the offence is alleged would be tried in accordance with law in a trial instituted against him and if found guilty the accused would be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The said section contains an explanation, which defines "cruelty" as understood under Section 498-A IPC. In order to understand the meaning of the expression `cruelty' as envisaged under Section 498-A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.
22. When we examine the facts of the present case particularly the FIR and the charge sheet we find that there is no such allegation either in the FIR or in the charge sheet making out a prima facie case as narrated under explanation (a) there is no allegation that there is any such conduct on the part of the appellant which could be said to be amounting to cruelty of such a nature as is likely to cause the Respondent No.2 to commit suicide or to cause any injury to her life. The ingredient to constitute an offence under explanation (a) of Section 498A IPC are not at all mentioned either in FIR or in charge sheet and in absence thereof, no case is made out. Therefore, explanation (a) as found in Section 498-A IPC is clearly not attracted in the present case. 23. We, therefore, now proceed to examine as to whether the case would fall under explanation (b) of Section 498- A of IPC constituting cruelty of the nature as mentioned in explanation (b). In order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful 12 demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. When the allegation made in the FIR and charge sheet is examined in the present case in the light of the aforesaid provision, we find that no prima facie case even under the aforesaid provision is made out to attract a case of cruelty.
A perusal of the above evidence shows that there is a delay in giving the report as PW.1 gave the report after 21 days of incident. In a judgment reported in State of A.P v. M. Madhusudhan Rao, [(2008) 15 SCC 582 = (2009) 3 SCC (Cri) 1123], it is held that:
“….. when the First Information Report was lodged by the complainant more than one month after the alleged incident of forcible poisoning. Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained”
In the present case on hand also, there no explanation for the inordinate delay of lodging the report. The said fact also strengthened by the judgments relied upon by the learned counsel for the accused viz.,Manju Ram Kalita v. State of Assam [(2009) 13 SCC 330], wherein it is held that:
“It is to be established that the woman has been subjected to cruelty continuously or atleast in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as cruelty to attract the provisions of Sec.498-A of IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty."
In Gurcharan Singh v. State of Punjab [(2017) 1 SCC 433], it is held that:
“proof of the willful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental of physical, is the sine qua non for entering a finding of cruelty against the person charged”.
In Chauhan Kanuji Jivanji v. State of Gujrat [2013 Law Suit (Guj) 1549], it is held that:
“It was observed that in order to constitute cruelty, the cause and conduct have to be incessant and persistent. They have to be sufficiently grave as are likely to drive a woman to a point of desperation leaving her with no option except to think about committing suicide. It was observed that even in some cases a single act may incite the wife, still however, it would 13 not attract section 498A as the element of persistency and consistency would be lacking. Thus, the position of law with regard to the nature of cruelty to constitute the offence under section 498A is that the harassment must be unabated, continuous and of recurring nature. As observed in Indrasing (supra) it must be of such unbearable degree as would drive the woman to opt for suicide”.
In Indrasing M Raol v. State of Gujarat [1999 Law Suit (Guj) 346], it is held that:
“The expression "cruelty" means and implies harsh & harmful conduct of certain intensity and persistence. It, therefore, covers the acts causing both physical and mental agony and torture, or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miseries & woes strongly stirring up her feeling that life is now not worth living and she should die, being the only option left. The provision of Sec. 498A therefore, envisages intention to drag or force the woman to commit suicide by unabated, persistent & grave cruelty. In one case, therefore, the facts on record may constitute the cruelty showing required intention and in another case, it may not. The concept of cruelty, therefore, is found different or diversifying from place to place, individual to individual, and also according to social and economical status of the person and several other factors. The Court has, therefore, to becoming more heedful, chary & wary, exert and ascertain the cruelty & required intention on the basis of materials on record and also on the basis of the culture, ordinary sentimentality or sensitivity, capacity to tolerate, temperament, tendency, interse honour, matrimonial relationships, state of health, dissension, interaction, or conflicting ideology, will to dominate, utter disregard of one's own obligation or intractability or habits as well as customs & traditions governing the parties and other governing forces, provided necessary acceptable evidence in this regard is available on record. The word "harassment" is not defined in Sec. 498A. The meaning of the word "harass" which can be found from the dictionary is to subject some one to unbearable, continuous or repeated or persistent unprovoked vexatious attacks, questions, demands, or persecutions, or brutality, or tyranny, or harm, or pain, or affliction, or other unpleasentness, or grave annoyance, or troubles. In short what can be said is that Sec. 498A will not come into play in every case of harassment and/or cruelty. Reasonable nexus between cruelty and suicide must be established. It should, therefore, be shown that the incessant harassment or cruelty was with a view to force the wife to end her life or fulfil illegal demands of her husband or in-laws, and was not matrimonial cruelty, namely usual wear and tear of matrimonial life. It should hardly be stated that the prosecution has to establish the charge beyond reasonable doubt. No doubt arithmatical accuracy is not expected from the prosecution, but it has to adduce such evidence which would be credible leaving no room to any reasonable doubt; and pointing to the guilt of the accused”.
The learned counsel for the accused relied upon the judgments reported in Giridhar Shankar Tawade v. State of Maharashtra [(2002) 5 SCC
177], Manju Ramkalita vs. State of Assam [(2009) 13 SCC 300], Gur
14
Charan Singh v. State of Punjab [(2017) 1 SCC 433], Chauhan
Kanujivanji & ors v. State of Gujarat, [Law Suit (Guj) 1549], Indrasing
M. Rao v. State of Gujarat [1999 Law Suit (Guj) 345], Ravindra
Pyarelal BIdlan v. State of Maharashtra [1993 Law Suit (Bom)
63],Sanjeev Kumar Agarwal v. State of Delhi [2007 Law Suit (Del)
1176], Dajvip V. Patkar v. State of Goa [2016 Law Suit (Bom) 545],
State of Andhra Pradesh v. M. Madhusudhan Rao [2006 Law Suit (SC)
1561], and Omkar Nath Mehra v. State (NCT of Delhi) [(2008) 2 SCC
561], The learned counsel for the accused also relied on a Judgments in
Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 in
which it is held that “The court analyzing further in the context of Section 498A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to cruelty, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC” “The court ruled that in the facts of the said case the alleged extra-marital relationship was not of such a nature as to drive the wife to commit suicide” and the said judgments areapplicable to the facts of the case. In this case also except bare allegation of harassment, there is no proof of the same. PW.9 also in his evidence deposed that all the witnesses improved their version in their chief examination. Further, he had not examined the neighbours where PW.1 and A1 resided together to speak about the harassment made by A1. No ideograph was also filed before this court.
Hence, in view of the above facts and circumstances of the case and in view of the above principles, this court is of the view that as there is delay in giving the report, and as there are omissions and contradictions in the evidence of PWs.1 to 5 & 8 the said evidence is not at all believable in nature and it seems that it is invented for the purpose of this case, as such the prosecution failed to prove that the accused demanded additional dowry or harassed PW.1, due to which she was subjected to cruelty both physically and mentally and that she was subjected to commit suicide or to cause grave injury and thereby, failed to prove the guilt of the accused of the offence punishable u/Sec.498-A IPC & Sec.4 of D.P Act. Thus, the points are answered in favour of the accused and against the prosecution.
15
16. In the result, the accused are found not guilty for the offence punishable u/Sec.498-A IPC and Secs.3 & 4 of D.P Act. Accordingly, they are acquitted u/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A of
Cr.P.C. As no property was seized and produced before this Court, no property order could be passed.
Typed to my dictation by the Stenographer Gr.III, corrected and
pronounced by me in the open court, on this the 20th day of April, 2023.
Sd/-Shaik Reyaz,
II Addl. Judicial Magistrate of I Class, Kadapa
APPENDIX OF EVIDENCE
Witnesses examined for prosecution: for Defence: Nil PW.1: Shaik Kursheed Begum PW.2: Shaik Ayesha. PW.3: Shaik Afiya PW.4: M.Nazeer Ahammad Khan PW.5: S.Abdul Sattar PW.6: Syed Anwar Bash PW.7: P.Prabakarudu PW.8: Shaik Mahammad Musthaq Ahamed PW.9: Sri. S.K.M. Hussain, S.I. of Police, Kadapa Taluka P.S.
Exhibits marked for prosecution:for Defence: Nil Ex.P.1: Report. Ex.P.2: Photos along with C.D. and pen drive along with Sec.65-B certificate. Ex.P.3: Scan center report of Sridevi scan center. Ex.P.4: Discharge summary of Dr. P.Surendra Raju i.e. Tirumala hospital Ex.P.5: Prescriptions of M.M.Hospital Ex.P.6: Prescriptions of Ameen Multi Speciality hospital. Ex.P.7: Sec.161 Cr.P.C statement of P.W.6 Ex.P.8: Sec.161 Cr.P.C. statement of P.W7. Ex.P.9: F.I.R. Ex.P10: Police proceedings.
Material Objects Marked: -Nil-
Sd/-Shaik Reyaz,
II Addl. Judicial Magistrate of I Class, Kadapa 16
CALENDER AND JUDGMENT
Calendar and Judgment tried by the II Addl. Judicial Magistrate of I Class , Kadapa.
DATE OF
Offence ReportAppreheReleaseCommenClose ofJudgme nsion ofon bailcementtrial nt accusedof trial
Prior to ---- 26.06.20 26.6.2001.04.21 10.04.2320.4.23 Calender and Judgment in C.C.No.627/2020 on the file of II Addl. Judicial
Magistrate of I Class, Kadapa.
COMPLAINANT: The SHO of Kadapa Taluka U/G P.S. Name of the accused Age Religio Residence with father's Name. n 1234
ShaikMohammad,48Muslim D.No.75/19, 4th lane, Vijaya Nazeer Basha, S/oyrsDurgamma Colony, Kadapa Syed Sab, City. Shaik Taara Begum,54 yrsD.No.7/17, Agadi Street, W/o Abdul Sattar, MuslimKadapa City.
Syed Chand Bee @56 yrsD.No.11/86, Kummarakunta, Chand Begum, W/oKadapa City. Mahaboob Basha, Muslim ShaikKursheed66 yrsD.No.6/261, KMH Street, Begum @ Kursheed,Kadapa city. W/o S.M.Ali Basha, Muslim
Shaik Masood Basha39 yrsD.No.6/261, K.M.H.Street, @ Masood, S/o S.M.AliKadapa city. Basha, Muslim SyedMahaboob59yrsD.No.11/86, Kummarikunata, Basha, S/o SyedKadapa City. Hussain, Muslim
Offence : u/Sec.498-A of IPC and Sec.3 and 4 of D.P. Act
Finding : Accused Nos.1 to 6 are found not guilty for the offence punishable u/Sec.498-A of IPC and Sec.3 and 4 of D.P.Act
Sentence: In the result, the accused are found not guilty for the offence punishable u/Sec.498-A IPC and Secs.3 & 4 of D.P Act. Accordingly, they are acquitted u/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A of Cr.P.C. As no property was seized and produced before this Court, no property order could be passed.
Sd/-Shaik Reyaz,
II Addl. Judicial Magistrate of I Class, Kadapa. Copy submitted to the Hon'ble I Addl. District and Sessions Judge, Kadapa. Dis. No. Dt.