CRLA/973/2016 of B.Swapna Vs Bobbili Malla Reddy on 29 December 2016

HONOURABLE SRI J USTICE SURESH K UMAR K AIT

CRIMINAL APPEAL No. 973 of 2016

J UDGMENT:

Vide present Criminal Appeal, the appellant/De facto complainant/P.W.1 has assailed the judgment dated 19.11.2014 passed in Criminal Appeal No. 40 of 2012 by the learned Additional District and Sessions Judge, at Vikarabad, Ranga Reddy District setting aside the judgment dated 24.09.2012 passed in C.C.No.3 of 2011 by the learned Judicial Magistrate of First Class, Chevella, whereby the first respondent/accused was convicted for the offence punishable under Section 498-A IPC and sentenced him to suffer two years simple imprisonment and to pay a sum of Rs.2,00,000/- to the victim (appellant herein) towards compensation under Section 357 Cr.P.C.

The case of prosecution as per the de facto complainant is that the first respondent/accused married the appellant /P.W.1 in a temple at Yellakondu village of Nawabpet Mandal and after the marriage by taking one month shelter at the house of P.W.1's sister, joined in the house of P.W.1 parents at Laxmaraoguda village. Thereafter the first respondent/accused harassed the appellant/P.W.1 physically and mentally by demanding Rs.2,00,000/- and gold as dowry.

The case of first respondent/accused before the Court below was that as his marriage with the appellant/P.W.1 was a love marriage, no dowry was taken at the time of marriage. The first respondent/accused left the house of appellant/P.W.1 and did not return to in-law's house, however, went to his parents house. The appellant/P.W.1 came to know that the first respondent/accused contacted second marriage with another woman of Kerally village. Thus, the first respondent/accused committed the offence punishable under Section 498-A IPC.

Basing on the above allegations, the trial Court framed the appropriate charge for the aforesaid offence and after conducting full-fledged trial, convicted the first respondent/accused for the offence punishable under Section 498-A IPC vide judgment dated 24.09.2012 and sentenced him to suffer imprisonment as stated supra.

Being aggrieved thereby, the first respondent/accused challenged the said judgment in Criminal Appeal No.40 of 2012. The lower Appellate Court allowed the said appeal vide judgment dated 19.11.2014 acquitting the first respondent/accused for the offence punishable under Section 498-A IPC.

The appellant/P.W.1 in her cross examination admitted that she married one Gopal Reddy, resident of Palguda village prior to her marriage with the first respondent/accused. It was also admitted that the appellant/P.W.1 again married one Ramulu prior to her marriage with the first respondent/accused and the said Ramulu died in a road accident. She deposed that she got married to Gopal Reddy at the age of 13 years. Since said Gopal Reddy deserted her and since her second husband by name Ramulu died in the road accident, she married the first respondent/accused. The said facts have been corroborated by the evidence of P.Ws.2 to 4. It is thus established that the appellant/P.W.1 got married twice prior to her marriage with first respondent/accused.

Learned Counsel appearing on behalf of the appellant/P.W.1 submits that appellant/P.W.1 got married to one Gopal Reddy at the age of 13 years and the said marriage is not a marriage in the eye of law. He submits that after the marriage with Ramulu, who died in the road accident, the appellant/P.W.1 therefore was living with the first respondent/accused as his wife, however, the first respondent/accused deserted her by demanding dowry of Rs.2,00,000/-. The trial Court after appreciating the evidence on record rightly convicted the first respondent/accused. However, the lower appellate Court committed an error while acquitting the first respondent/accused.

Arguments

It is an admitted fact that the appellant/P.W.1 married one Gopal Reddy at the age of 13 years. However, no documentary evidence was produced to show that the appellant/P.W.1 was 13 years of age at the time of said marriage. Further the said marriage was not dissolved by the Court of law or by customary rights. If she got married at the age of 13 years, the said marriage is not a void marriage, but a voidable marriage to be decided by the Court.

In addition to the above, the prosecution has also failed to bring on record the evidence to show that as per customs of the appellant/P.W.1, her marriage with Gopal Reddy has been annulled in customary manner, as such on the face of admissions made by P.Ws.1 to 3 , it can be concluded that the appellant/P.W.1 married to Gopal Reddy prior to her marriage with first respondent/accused. Thus living together of the appellant/P.W.1 with the first respondent/accused cannot be termed as marriage. Consequently the appellant/P.W.1 cannot be termed as wife of the first respondent/accused.

It is not in dispute that for the offence punishable under Section 498-A IPC, the husband or the relatives of husband of a married woman are liable to be prosecuted. However in the case on hand, there is no documentary evidence to show that marriage between the appellant/P.W.1 and first respondent/accused is legally binding. In view of the same, the first respondent/accused cannot be treated as husband of the appellant/P.W.1. If that is the position, Section 498-A IPC can not be made applicable against the first respondent/accused.

In view of the foregoing discussion, the lower appellate Court rightly acquitted the first respondent/accused by setting aside the conviction and sentence recorded in the order dated 24.09.2012 by the trial Court in CC.No.3 of 2011.

Even before this Court, the appellant/P.W.1 failed to establish her case that the order of the lower appellate Court is illegal, perverse or not based on appreciating the evidence on record.

Finding no merit, the Criminal Appeal is dismissed accordingly.

Miscellaneous petitions pending consideration if any in the Criminal Appeal shall stand closed in consequence.

-------------------------------------------- JUSTICE SURESH KUMAR KAIT

DATED 29[th] December, 2016. Msnrx