Telangana High Court
Mohd. Rasheed, Hyd vs State Of Telangana, Rep. By P.P., Hyd on 30 July, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CRIMINAL APPEAL NOs.917 OF 2014 AND 978 OF 2014
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice Sambasivarao Naidu) These are the Criminal Appeals filed by the accused in Sessions Case No.499 of 2010 on the file of V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad, filed under section 374 (2) of Criminal Procedure Code (in short 'Cr.P.C.'). The trial Court while finding the accused in the above referred Sessions Case guilty under various Sections convicted them under Section 235 (2) of Cr.P.C. and imposed sentence for the offences under Section 302 and 498-A of Indian Penal Code (for short 'I.P.C.'). The trial Court having found all the four accused guilty for the offence under Section 498-A of IPC, sentenced them to undergo Rigorous Imprisonment for two (2) years and to pay fine of Rs.1,000/- each in default to suffer Simple Imprisonment for six (6) 2 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 months. In addition to this, A1 was found guilty of the offence under Section 302 of IPC and was sentenced to suffer Rigorous Imprisonment for Life and to pay fine of Rs.5,000/- with default stipulation of one (1) year.
2. Being aggrieved by the conviction, all the appellants have filed Criminal Appeals. A1 has filed Criminal Appeal No.978 of 2014, whereas A2 to A4 have filed Criminal Appeal No.917 of 2014 and seeks to assail the conviction on various grounds. The appellants have claimed that the trial Court failed to appreciate the oral evidence in a proper way. Unnecessary importance was given to the evidence of interested witnesses. The trial Court ought not to have relied on the confession said to have been made by A1 since it is inadmissible under Section 25 of Indian Evidence Act. The trial Court should have seen that the prosecution was not able to examine the son of deceased, who is figured as an eyewitness to the alleged offence, who said to have informed the alleged assault of appellant No.1 against his wife, the deceased. The trial Court failed to see that even as per the evidence of PWs.1 and 3 appellant and his wife were living in 3 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 a separate house. The weapon said to have been used by A1 in the commission of offence is not recovered. Therefore, they sought for setting aside the judgment and prayed for their acquittal for the above referred penal provisions. Since both the appeals are filed against the same judgment, even though, two separate appeals are filed, they can be disposed by a common judgment. Hence, this common Judgment.
3. Before adverting to the arguments advanced by the learned counsel for the appellants, it is just and necessary to verify the allegations made against the appellants in the charge sheet filed by Assistant Commissioner of Police, Falaknuma. According to the said charge sheet, one Smt. Ameena Begum (herein after will be referred as 'deceased') is daughter of Mohd Abdul Wahad and PW.1 Smt.Ghousia Begum. She was married to appellant No.1 herein in October 1999 and at the time of marriage, as per the demand made by appellant No.1 and his family members, the parents of the deceased have presented an amount of Rs.15,000/-, and gold ornaments weighing 3 Tulas and other Jahez articles. The deceased joined her husband and they 4 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 lived happily for a period of six months. But subsequently, all the appellants started harassing the deceased with a demand for additional dowry and they used to beat her often. Thereby, she made a complaint at Women Police Station, South Zone, Hyderabad about two years prior to the death of deceased. However, the said case was ended in compromise and deceased joined her husband but subsequently, she said to have informed her parents that her husband was frequently quarreling with her by demanding additional dowry.
4. On 16-03-2005, LW.1 Mohd Abdul Wahab visited police station and presented a report stating that his grandson through the deceased came to his house and informed them that the 1st appellant herein killed his daughter by beating her with a bat and they rushed to the house of his daughter and found her dead body in a pool of blood and sought the intervention of the police. Based on the said complaint, PW.10, the then Inspector of Police, Falaknuma, registered a case against the appellants and took up the investigation.
5. The prosecution has further alleged that PW.10 the then Inspector of Police, Falaknuma, conducted the 5 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 investigation of the above said crime, examined the material witnesses, visited the scene of offence, prepared panchanama and seized blood stained pillow, plastic mat and small cricket bat used in the commission of offence. Subsequent investigation was conducted by PW.12 and in view of his transfer, PW.13 has filed charge sheet against all the accused.
6. The charge sheet was taken on file, and learned Magistrate having completed committal proceedings, transferred the police report along with all the relevant record to the District Court, where it was registered as SC.No.499 of 2010 and was made over to V Additional Metropolitan Sessions Judge for trial. The appellants herein stood charged under Sections 498-A, 304-B, and 302 of IPC and under Sections 3 and 4 of Dowry Prohibition Act. To prove the case, the prosecution has examined PWs.1 to 13 and marked Exs.P1 to P9 and MOs.1 to 5.
7. After the closure of the prosecution evidence, the appellants herein were examined under Section 313 of Cr.P.C. and incriminating evidence has been stated to them and they 6 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 denied the evidence. However, they did not examine any witness on their behalf.
8. The trial Court having heard both prosecution and defense counsel, concluded that the guilt of A1 herein was proved for the offence under Section 302 of IPC, and guilt of all the accused for the offence under Section 498-A of IPC has been proved, and convicted them for the said charges. However, the trial Court found them not guilty for the rest of the charges and acquitted the appellants for the charges under Section 304-B of IPC and Sections 3 and 4 of Dowry Prohibition Act.
9. As already stated in the previous paragraphs, two separate appeals have been filed by the accused in the above referred Sessions case. A1 who was convicted by the trial Court for the offence under Section 302 and 498-A of IPC has filed Criminal Appeal No.978 of 2014, whereas, A2 to A4, who were convicted for the offence under Section 498-A of IPC have filed Criminal Appeal No.917 of 2014. Though the complaint which was presented by LW.1 Abdul Wahab has set the police in motion, the prosecution could not examine him 7 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 due to death pending trial, his wife has been examined as PW.1, his daughter and his two sons, were examined as PWs.2 to 4.
10. According to the evidence of these four material witnesses, the marriage of the deceased was performed with A1 about 14 years prior to the date of the alleged offence. The witnesses have claimed that at the time of said marriage, they have presented sufficient cash, gold and house-hold articles and deceased joined the company of husband (appellant No.1) but subsequently, he started quarreling with the deceased by making demand for additional dowry. It seems prior to the date of her death; the deceased lodged a complaint against her husband for the offence under Section 498-A of IPC but the said case was closed in view of compromise between the couple.
11. According to the evidence of PW.1, who was examined before the trial Court on 19-11-2013, about 8 years prior to her evidence, her grand- son by name Muzammil visited their house and informed LW.1 Abdul Wahab and PW.1 about the quarrel between the deceased and appellant No.1 8 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 and also informed them that the 1st appellant herein beat his mother on her head. The remaining three witnesses also stated the same version, and they deposed about the alleged dowry demand which was much prior to the date of death of the deceased.
12. To bring home the guilt of the accused for the offence under Section 498-A of IPC, there must be positive evidence before the Court to believe that the accused/appellants subjected the deceased to cruelty in connection with dowry demand or made her to cause bodily injury or attempt to commit suicide. Though these witnesses have deposed about the alleged assault of A1, there is nothing on record to accept that such attack of A1 was in connection with dowry. The evidence placed before the Court clearly indicates that after the compromise between couple, they put up a separate residence away from the other family members of A1. Therefore, absolutely there is no evidence to believe that all the appellants subjected the deceased to harassment/cruelty, thereby, the offence under Section 498-A of IPC is not proved. But the trial Court, perhaps in view of 9 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 the presentation of a complaint by the deceased during her life time, which was registered as a case under Section 498-A of IPC, though it was ended in compromise, came to an incorrect conclusion and found these appellants guilty for the offence under Section 498-A of IPC. Thereby the said conviction is liable to be set aside. Therefore, A1 to A4 are found not guilty for the offence under Section 498-A of IPC and they are entitled to acquittal, thereby, the appeal preferred by A2 to A4 vide Criminal Appeal No.917 of 2014 deserves to be allowed, and the conviction of A1 who preferred appeal vide Crl. A. No. 978 of 2014 can be allowed to the extent of his conviction u/s 498 A IPC.
13. However, about the allegations against the first accused/appellant No.1, there is ample evidence to believe that the deceased succumbed to the injuries caused by her husband. The learned counsel for the accused has submitted that the son of deceased namely Muzammil, who happened to be the boy of 5 years age said to have informed the alleged attack of his father against his mother by all the way travelling a distance of 1 km to reach the house of PW 1, and 10 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 said to have informed the alleged attack which is highly unbelievable. The learned counsel has submitted that in a city like Hyderabad, it would be difficult task for a boy of 5 years to go to the house of PW.1 to PW.3 and inform the incident, therefore, that portion of the evidence of prosecution witnesses cannot be accepted. He has also argued that the prosecution did not examine the said boy, though he is shown as eye-witness to the offence and who said to have informed the attack of his father against his mother to his grand parents.
14. However as per the arguments advanced by the learned counsel for the appellants itself, it is very clear that the son of the deceased, who has informed about the attack was less than 5 years, thereby, the prosecution might not have cited him as a witness on the ground that he cannot understand the significance of the oath, or he could not have understood the Court Proceedings. But the fact remains that all the four witnesses categorically stated that they came to know the alleged attack through the said boy only. Even as per the report presented by LW.1 Abdul Wahab which is 11 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 marked through Investigating Officer, it is further clear that only on coming to know about the attack, the family members rushed to the house of accused and they found the deceased in a pool of blood with injuries. The homicidal death of deceased due to the above referred injuries has been proved by the evidence of PW.8 Associate Professor, Department of Forensic Medicine, Kamineni Academy of Medical Sciences and Research Centre, who conducted post-mortem on the dead body of the deceased. According to his evidence, on 16-03-2005, when he conducted autopsy on the dead body of the deceased, he has noticed a laceration of 5x2 cms bone deep on right forehead and another laceration 3cmx5cmxbone deep over center of forehead vertically placed with irregular margins. Apart from the above two injuries, he has noticed abrasions and contusions on her person. PW.8 opined that the deceased died due to said head injury. The evidence of Investigating Officer coupled with the panchanama, goes to show that during the course of investigation, the bat that was used by appellant No.1 in committing the above said offence was also seized and referred to Forensic Science Laboratory.
12 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 According to the report received from FSL vide Ex.P9, it shows that the bat contains blood stains of 'B' Group Blood. The clothes of the appellant No.1 were also referred to the FSL as they contain some blood stains and the report goes to show that both the clothes of appellant No.1 and pillow, mat and bat recovered from the scene of offence contain the same Blood group.
15. The learned counsel for the appellant No.1 sought to rely on the cross-examination of PW.1 and tried to explain that appellant No.1 used to do petty business in Charminar area, and he used to conduct such business even during night times during Festival days. Therefore, he was not present at the house on the date of the death of his wife. Admittedly, the deceased was found dead in a pool of blood in March, 2005. There is no material before the Court to believe that there was any Festival in those days nor there is any evidence to accept that the first appellant was busy round the clock 24/7 in selling toys by leaving the house. Therefore, he cannot claim that he was not there at the house on the date of death of his wife.
13 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014
16. According to the evidence placed before the Court, the incident took place at night on 15/16-03-2005 and Ex.P5 report was presented by LW.1 at police station at 9.00 a.m., on 16-03-2005. If it is accepted that the deceased was residing with appellant No.1 far away from the house of PWs.1 to 3 unless they were informed about the death of deceased, by somebody there was no occasion for her father to present a report at 9.00 a.m., itself. Therefore, the evidence of Pws.1 to 3 that they came to know about the attack through the son of deceased itself can be accepted.
17. The learned counsel for the first appellant has also submitted that the trial Court having acquitted the appellant No.1 for the offence under Section 304-B of IPC could have acquitted him for the offence under Section 302 of IPC, since the acquittal was based on the same evidence which was not accepted by the trial court. However it appears from the record that the trial court found the prosecution could not make out a case for the offence under Section 304- B of IPC and the ingredients of Section 304-B of IPC were not established. Therefore, there is no wrong in the finding 14 PSK,J & SSRN, J CRIMINAL APPEAL NOs.917 & 978 of 2014 recorded by the trial court about the guilt of A1 for the offence u/s 302 of IPC. Therefore, the 1st accused, the appellant in Criminal Appeal No.978 of 2014 is liable for the punishment u/s 302 of IPC.
18. In the result, the Criminal Appeal No.978 of 2014 filed by appellant No.1 to the extent of his guilt for the offence u/s 302 IPC is dismissed, but his conviction for the offence u/s 498-A IPC is set aside. The appeal preferred by A2 to A4 vide Criminal Appeal No.917 of 2014 is allowed setting aside their conviction and sentence. The fine amount, paid by all these accused for the offence u/s 498-A IPC shall be returned to them after appeal time is over.
Consequently, Miscellaneous petitions if any, are closed. No costs.
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JUSTICE P.SAM KOSHY
__________________________
JUSTICE SAMBASIVARAO NAIDU
Date: 30.07.2024
PLV