Telangana High Court
Mansoor Khan, Nizamabad vs P.P., Hyd on 5 June, 2024
Author: P. Sam Koshy
Bench: P. Sam Koshy
THE HONOURABLE SRI JUSTICE P. SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
Criminal Appeal No.88 of 2016
JUDGMENT:
(per the Hon'ble Sri Justice P. Sam Koshy) The instant is an appeal preferred by the appellant/accused under Section 374(2) of the Criminal Procedure Code, 1973 assailing the order dated 23.03.2015 in Sessions Case No.41 of 2014 passed by the Sessions Judge, Nizamabad Division, Nizamabad (for short, 'the impugned order').
2. Heard Mr. C. Vasundhara Reddy, learned counsel for the appellant / accused and the learned Assistant Public Prosecutor, for the respondent-State.
3. Vide the impugned judgment, the appellant / accused stood convicted for the offence under Section 302 of I.P.C. and he has been sentenced to undergo Rigorous Imprisonment for life and also to pay fine of ₹.500/-, and in default, to suffer simple imprisonment for a period of three months. He was further convicted for the offence under Section 498-A of I.P.C., and he has been sentenced to undergo Rigorous Imprisonment Page 2 of 12 PSK,J & SSRN,J Crla_88_2016 for three years and to pay a fine of ₹.500/-. In default of payment of fine amount, the appellant / accused shall suffer simple imprisonment for three months. Both the above sentences shall run concurrently.
4. The case of the prosecution in brief is that the deceased, viz., Tahera Begum died of burn injuries on 03.06.2013 at 13:10 hrs. It is the case of the prosecution that the appellant / accused herein (husband of the deceased) suspected the fidelity of the deceased and subjected her to cruelty, beat her up and also assaulted her. According to the prosecution, on 02.06.2023 at about 18:45 hrs., the appellant / accused picked up a quarrel with the deceased with a clear intention of killing her; and during the quarrel the appellant / accused poured kerosene on the deceased and set her ablaze. As a result, the deceased raised hue and cry which attracted the neighbouring people who rushed to the spot and tried to douse the flames. Thereafter, the neighbours rang up the ambulance and she was taken to the Government Hospital where the deceased succumbed to burn injuries on 03.06.2013 at 13:10 hrs. Meanwhile, a dying declaration was also recorded wherein the deceased is said to have in very categorical terms, stated that the incident occurred Page 3 of 12 PSK,J & SSRN,J Crla_88_2016 because of the pouring of the kerosene by the appellant / accused and setting her up ablaze by the appellant / accused.
5. The matter was subsequently put to trial and the prosecution in all examined as many as eight witnesses. The appellant / accused, in his defence examined three (03) witnesses including himself and after recording of the statement under Section 313 of the Criminal Procedure Code, 1973, the impugned judgment has been passed by the Trial Court wherein the appellant / accused has been found guilty of the offence under Sections 302 and 498-A of I.P.C.
6. Learned counsel for the appellant / accused stressed on the fact that there are no cogent pieces of evidence to establish the presence of the appellant / accused at the scene of occurrence on the afternoon of 02.06.2013. He further contended that though the appellant / accused in fact was with D.W.2, who is an auto driver, and that on the afternoon of 02.06.2023 when he was on work he received a call from some person intimating the incident that took place at his house and that his presence at the scene of incident is highly doubtful, yet Page 4 of 12 PSK,J & SSRN,J Crla_88_2016 the Trial Court passed the judgment of conviction on the appellant / accused.
7. Learned counsel for the appellant / accused submitted that on a plain reading of the material available on record it would appear that it is a case of the deceased having committed suicide and that the deceased had implicated the appellant / accused. He further contended that there were lot many discrepancies, omissions and improvements in the case of the prosecution witnesses, all of which create serious doubts in respect of : firstly, there being eye-witness or evidence who have reached the scene of offence immediately. According to him, it was highly doubtful whether the deceased was in a position to speak to narrate the fact that it was the appellant / accused who had committed the offence of pouring kerosene and setting her up ablaze. He therefore contended that the oral declaration made by the deceased to the prosecution witnesses and also the dying declaration recorded also are highly doubtful and therefore, the appellant / accused is entitled for the benefit of doubt and he is liable for acquittal of the charges under Sections 302 and 498-A of I.P.C.
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8. Lastly, it was contended by the learned counsel for the appellant that there is no cogent material whatsoever available on record to show that in the course of the prosecution there was material available for offence punishable under Section 498-A of I.P.C. He further contended that it is not a case where the death of the deceased took place immediately after marriage within a reasonable period of time after marriage. In the instant case, as per the records and the witnesses available, the deceased and the appellant / accused got married around eight years prior to the date of the incident and they also had a son born out of wedlock who was around seven years of age. He further submitted that there were no allegation, charge or even a remote contention on the part of the prosecution witnesses, particularly the family members of the deceased, that the deceased was subjected to cruelty on account of demand of dowry. Rather the entire prosecution case is that the appellant / accused used to ill-treat the deceased, or that the appellant / accused subject the deceased to cruelty on the suspicion of fidelity and not for any other reason. Thus, according to the learned counsel for the appellant, the conviction of the appellant Page 6 of 12 PSK,J & SSRN,J Crla_88_2016 / accused under Section 498-A is totally without any evidence and without any cogent material available on record.
9. Per contra, the learned Assistant Public Prosecutor for the respondent-State, referring to the prosecution witnesses, contended that a plain reading of the evidences which have been given by PW.1 (brother of the deceased) and the other witnesses who were the immediate neighbours, would establish that they were the persons who had reached the scene at the time of the incident. They have categorically stated to have witnessed the appellant / accused assaulting the deceased on the fateful day and thereafter when they reached the spot they found the appellant / accused and the deceased quarreling and then appellant / accused poured kerosene upon the deceased and set her up ablaze with a burning stick.
10. Learned Assistant Public Prosecutor further contended that even there was no strong cross-examination conducted on the prosecution witnesses so as to doubt their statement or the veracity of their contention of having witnessed the entire incident.
She further contended that there was no material Page 7 of 12 PSK,J & SSRN,J Crla_88_2016 available on record to disbelieve the Magistrate who recorded the Dying Declaration and also the contents recorded therein, nor was the Magistrate subjected to strict cross-examination to disprove the recording of the Dying Declaration.
11. As regards the charge under Section 498-A of the I.P.C., the learned Assistant Public Prosecutor referred to the statement of the prosecution witnesses who have consistently taken a stand that, the deceased was subjected to ill-treatment, cruelty and regular beating at the hands of the appellant / accused itself is sufficient to prove the said charge under Section 498-A of the I.P.C. Therefore, the conviction of the appellant / accused under Section 498-A of the I.P.C. also does not warrant interference by this Court. She further contended that there were eye-witnesses whose statement has been recorded and which was again un- rebutted and unchallenged and that in their cross-examination also there is no such statement with which the version of the eye-witnesses has to be doubted. There is also no reason to doubt the Dying Declaration given by the deceased before the Magistrate (PW.6) who had also been extensively examined by the Trial Court and that there was not much which could be Page 8 of 12 PSK,J & SSRN,J Crla_88_2016 elicited from the cross-examination of the Magistrate to doubt his statement recorded.
12. Having heard the contentions put forth by either side and on a perusal of the record particularly taking into consideration the statements of PWs.1 to 3, it would clearly establish the case of the prosecution that PW.1 (the brother of the deceased), though he may be an interested witness, but his deposition is relevant to the incident that his residence was close to the house of the appellant / accused. Also, PW.1 was staying along with his mother, i.e., the mother of the deceased as well. PW.1, in his deposition, there is a categorical statement that for some time now, the appellant / accused used to suspect the fidelity of the deceased and used to beat her up several times. He has also deposed that many an occasion he has himself intervened in the fight between the appellant / accused and the deceased and tried to pacify the appellant / accused but he would again ill- treat the deceased and beat her up whenever he gets drunk.
13. The deposition of PW.1 stands corroborated with the statement of PW.s 2 and 3, i.e., Smt. Shaheen Begum and Nazma Begum, both of which were the immediate neighbours to Page 9 of 12 PSK,J & SSRN,J Crla_88_2016 the appellant / accused. Both of them are said to have reached the scene of incident upon hearing the hue and cry of the deceased, and they found the deceased drenched in kerosene poured on her by the appellant / accused who thereafter is said to have set her up ablaze by litting up a match stick. Therefore, as regards these two witnesses also there is no material available on record, nor is there any averment in the evidence of the defence witnesses that PWs.2 and 3 were not having good relations with the appellant / accused which led to deposing before the Court against the appellant / accused neither it was the stand of the appellant / accused that he had any sort of a strained relationship or animosity with PWs.2 and 3. Further, PWs.2 and 3 have, in very categorical terms, proved the case of the prosecution of having witnessed the appellant / accused frequently subjecting the deceased to cruelty or assault and also about suspecting fidelity and they also stated that they have intervened in the fight between the appellant / accused and the deceased on many occasions and also tried to pacify the appellant / accused not to assault the deceased. The statement of these two witnesses further stands fortified from the evidence of PW.6 (the Magistrate) who had recorded the Dying Declaration Page 10 of 12 PSK,J & SSRN,J Crla_88_2016 of the deceased. There also does not seem to be any omissions, contradictions so far as the statement of PWs.1 to 3 and PW.6 is concerned. Thus, this Court does not find any good and strong reason available to hold that the finding of guilt by the Trial Court so far as the offence under Section 302 of I.P.C. is concerned, as not having made out. However, we have strong doubt as to whether the prosecution has been able to make out a case under Section 498-A against the appellant.
14. For ready reference, the provision of Section 498-A is reproduced hereunder :
"498-A. Husband or relative of husband of a woman subjecting her to cruelty
-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section, 'cruelty' means-
a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand."
15. A plain reading of the statutory provision would clearly indicate that the two clauses, viz., Clause (A) and Clause (B) Page 11 of 12 PSK,J & SSRN,J Crla_88_2016 reflected in the explanation clause of Section 498-A is not attracted in the present facts of the case inasmuch as the case of the prosecution is not that of the burn injuries suffered by the deceased or self-inflicted at the behest of cruelty or pressure exerted by the appellant / accused, rather it is a clear case where the appellant / accused is said to have poured kerosene from the kerosene container that was in the house upon the deceased and set her up ablaze by litting up a match stick. As such, the ingredients required for attracting the provision of Section 498-A is not available in any of the evidence so collected or in the deposition of the witnesses examined during the course of investigation.
16. For all the above reason, we have no hesitation in reaching to the conclusion that finding of guilt under Section 498-A on the appellant / accused as awarded by the Trial Court is without any basis or any evidence available on record. Therefore, the conviction of the offence under Section 498-A of I.P.C. on the appellant / accused, therefore, is liable to be set aside. The appellant / accused stands acquitted from the said charges. However, the appellant / accused stands convicted under Section 302 of I.P.C., and the same is confirmed. Page 12 of 12
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17. Accordingly, the appeal stands allowed in part as above. No costs.
18. As a sequel, miscellaneous applications pending if any, shall stand closed.
___________________ P.SAM KOSHY, J ____________________________ SAMBASIVARAO NAIDU, J Date : 05.06.2024 Ndr