POTHURU SUBBARAYUDU Vs. THE STATE AND ANOTHER
LAWS(APH)-1955-8-43
HIGH COURT OF ANDHRA PRADESH
Decided on August 21,1955

Pothuru Subbarayudu Appellant
VERSUS
The State And Another Respondents


Referred Judgements :-

REG V. BERRIMAN [REFERRED TO]
BASANTA KUMAR CHATTAK V. QUEEN EMPRESS [REFERRED TO]
MOHIDEEN ABDUL KADIR V. EMPEROR [REFERRED TO]


JUDGEMENT

CHANDRA REDDY, J. - (1.)The petitioner was convicted under section 6 of the Child Marriage Restraint Act and sentenced to a fine of Rs. 50. He along with two others were charged with this offence in connection with a marriage of their youngest brother who had not completed 18 years of age at the time of marriage. The 2nd accused (petitioner herein) is the uterine brother of the child who was married on 3rd July, 1953, the 1st accused being their half-brother and the 3rd accused the father of the bride. The material portion of the complaint which initiated the prosecution runs thus:
"The 1st and 2nd accused have an undivided brother a minor by name Venkatappa Naidu also called Venkatappa Choudari who is under their custody and lawful guardianship. The 1st accused is the manager of their joint family and he and 2nd accused both negotiated for the marriage of the said Venkatappa Choudari to the above said Salamma."

(2.)Thus, it is seen that the gravamen of the charge against the first accused was that, he being the guardian of the child, solemnised the marriage of his ward, an offence punishable under section 6 of the Act. As regards the 2nd accused the complaint was that he negotiated for the marriage of his younger brother with Salamma. The prosecution adduced evidence which only supports the recitals in the complaint, namely, that the 1st accused was the manager of the joint family of which the 2nd and 3rd accused were members and that he performed the marriage and that the part prayed by the 2nd accused was the same as attributed to him in the complaint. The prosecution also proved that the bridegroom had not completed 18 years and on that relevant date he was only 17 years 8 months and 23 days, by filing an extract from birth-register.
(3.)When the 2nd accused was questioned under section 342, Criminal Procedure Code, he said that the bridegroom was his ward and he had completed 19 years. The trial Court thought that in view of the statement of the 2nd accused the 1st accused could not be said to be the guardian of the child and it was the 2nd accused that managed the affairs of the bridegroom and was also his guardian within the meaning of section 6. Therefore, it is the 2nd accused that incurred the liability in respect of this marriage and not the 1st accused. As he felt that only one of the two could be the guardian, and rightly in my opinion, only such person as occupied that position would come within the purview of that section. In this view of the matter, he found the 2nd accused guilty under section 6 and acquitted the 1st accused as well as the 3rd accused who was not shown to have committed any offence within the meaning of that section. The question that arises for consideration in this revision is whether the conviction of the second accused could be sustained having regard to the case made out against him. As I have already pointed out, the definite case of the prosecution was that A-1 was the manager of the family and also the guardian of the child and not A-2. The oral evidence led by the prosecution agrees with this statement. But the District Magistrate, who tried the case, though that the statement made by the accused under section 342 was sufficient to bring home the guilt to the petitioner. I do not think this conclusion of the District Magistrate is sustainable. it is well settled that the prosecution cannot fill up the gaps in its evidence by the statements of the accused under section 342 and it has become a part of the criminal jurisprudence of this country. The Law Reports abound in cases containing the rule stated above.
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