The State Of A.P . vs Mohd. Lateef Ismail,
2021 Latest Caselaw 1106 Tel

          THE HONOURABLE JUSTICE G. SRI DEVI

              CRIMINAL APPEAL No. 1490 of 2009

JUDGMENT:

This is an appeal preferred by the State against the judgment,

dated 26.03.2008, passed in S.C.No.490 of 2007 on the file of the V-

Additional Metropolitan Sessions Judge (Mahila Court) at

Hyderabad, acquitting the respondents/accused for the offences

punishable under Sections 498-A, 304-B and 306 of I.P.C. and

Sections 3 and 4 of the Dowry Prohibition Act, 1961.

The case of the prosecution is that on 09.02.2006 at 7.00 P.M..,

P.W.1 lodged a report stating that he performed the marriage of his

daughter by name Nazima Begum (hereinafter referred to as "the

deceased") with A-1 in the year 2004 and at the time of marriage, on

demand made by A-1 and his parents, he gave Rs.50,000/- cash,

Hero Honda Motor Cycle, five tulas of gold ornaments, 25 tulas of

silver ornaments and other jahez articles worth Rs.1,00,000/-. After

marriage, both the couple led happy marital life for six months and

thereafter, the deceased was subjected to harassment by the accused

with a demand of additional dowry or Indica car. On 09.02.2006 at

about 2.30 P.M., the accused poured petrol on the deceased and set

her ablaze, due to which she sustained burn injuries and admitted

in Osmania General Hospital. Basing on the said complaint, a case

in Crime No.38 of 2006 was registered for the offences punishable

under sections 498-A and 307 of I.P.C. During the course of

investigation, detailed statements of the witnesses were recorded

and dying declaration of the deceased was also recorded by the

Magistrate; scene of offence panchanama was conducted and

material objects were seized from the scene of offence. On

13.02.2006 at 7.15 P.M, the deceased succumbed to the injuries. On

receipt of the death message from Osmania General Hospital,

Hyderabad, Section of Law was altered to Section 304-B I.P.C. and

the dead body was subjected to inquest and post mortem

examination. After arresting the accused and after completing the

investigation and collecting all the material papers, the police filed

charge sheet against the accused before the VI-Additional Chief

Metropolitan Magistrate, Hyderabad, who in turn committed the

case to the Court of Sessions Division. On committal, the same

came to be numbered as S.C.No.490 of 2007.

On appearance of the accused, charges under Sections 498-A,

304-B and 306 of I.P.C. and Sections 3 and 4 of the Dowry

Prohibition Act, 1961 were framed, read over and explained to the

accused, to which they pleaded not guilty and claimed to be tried.

The prosecution, in order to prove its case, examined P.Ws.1

to 14 and got marked Exs.P1 to P12 and M.Os.1 to 5. After closure

of the prosecution evidence, the respondents/accused were

examined under Section 313 of Cr.P.C. On behalf of the

respondents/ accused, D.W.1 was examined and Exs.D1 to D9 and

Exs.C1 and C2 were marked.

The trial Court, on appraisal of entire evidence both oral and

documentary, held that the prosecution failed to establish the guilt

of the respondents/accused for the offences with which they were

charged and accordingly, acquitted the accused.

Heard and perused the record.

Learned Assistant Public Prosecutor appearing for the

appellant would submit that the trial Court failed to consider the

evidence on record and also the statements made by the deceased

to the Police as well as the Magistrate and wrongly acquitted the

accused for the charges levelled against them. He further

contended that the prosecution proved its case against the accused

beyond all reasonable doubt. In support of his contention, he

mainly relied upon the statements made by the deceased.

Learned Counsel appearing for the respondents/accused

would submit that the learned trial Judge has rightly acquitted the

accused as there being no evidence on record against them that they

have demanded dowry in connection with the marriage and

harassed for such dowry and that the death of the deceased is the

result of harassment made by the accused. He also submitted that

Exs.C1 and C2 would disclose that the deceased committed suicide.

He further submits that in a criminal trial, when two views are

possible, on the basis of the evidence of prosecution, there is

certainly a view supporting the different version, which should be

accepted by the Court. According to him, there is no substantial

material available on record to interfere with the impugned

judgment passed by the learned trial Judge and, therefore, prayed

to dismiss the appeal in its entirety.

It is well settled that in an appeal against acquittal, the

appellate Court is circumscribed by the limitation that no

interference has to be made with the order unless the approach

made by the trial Court to the consideration of evidence is vitiated

by some manifest illegality or the conclusion recorded by it is such,

which could not have been possibly arrived at by any Court acting

reasonably and judiciously and, is therefore, to be characterized as

perverse. There is no embargo on the appellate Court reviewing the

evidence upon which an order of acquittal is based. Generally, the

order of acquittal shall not be interfered with because the

presumption of innocence of the accused is further strengthened by

acquittal. The golden thread which runs through the web of

administration of justice in criminal cases is that if two views are

possible on the evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence, the view which

is favourable to the accused should be adopted.

As seen from the material available on record, Ex.C1-case

sheet and Ex.C2-M.L.C. Chit would clearly show that the deceased

attempted to commit suicide. Learned Assistant Public Prosecutor

mainly relied upon Exs.P6 and P11 to prove the guilt of the

accused. Ex.P6 is the dying declaration recorded by the Magistrate

at 9.00 P.M., whereas Ex.P11-statement of the deceased recorded by

the police at 7.30 P.M. In Ex.P1, the deceased included her father-

in-law also in the list of persons who poured petrol on her and set

her fire. But, in Ex.P6 the deceased did not mention the name of her

father-in-law, whereas Ex.P10-F.I.R. shows the name of the father-

in-law of the deceased as one of the accused and that no reasons

were mentioned in the charge sheet for not including him as

accused therein. P.W.5, who conducted post mortem examination

on the dead body of the deceased, did not make any distinction

from the injuries, whether it is a case of suicide or homicide and

there is no indication in Ex.P4-post mortem examination certificate,

that the death is homicidal. P.W.6-Magistrate, who recorded the

dying declaration of the deceased, deposed that the deceased stated

that her mother-in-law and her husband set her on fire by pouring

petrol on her. The deceased also stated that her mother-in-law set

her fire. P.W.6 in his cross-examination admitted that, he has not

well versed with Urdu language and as such he sought the help of

one Swaroopa. He also admitted that in the requisition and the

M.L.C. it is mentioned that the deceased attempted to commit

suicide. He also admitted that he did not specifically put a question

to the deponent/deceased whether she was in a fit state of mind

and can give a statement, but as per the preliminary answers given

by the patient, he could understand that she was capable of making

the statement. In Ex.P11, recorded by the Assistant Sub Inspector of

Police, Asifnagar Police Station, the deceased stated that on

09.02.2006 at about 2.30 P.M., her husband and in-laws poured

petrol on her person and set her ablaze and when she shouted hue

and cry, neighbours came and put off the flames and thereafter her

husband brought her to hospital for treatment and got admitted

her.

Having examined the contents of Exs.P6 and P11 carefully, I

find that there was variation between the two statements with

regard to the manner in which the deceased was set on fire. The

learned Sessions Judge discredited the dying declaration under the

impression that it was made out of tutoring. From the evidence of

prosecution witnesses, it is established that immediately after the

incident, the husband of the deceased brought her to hospital for

treatment and when she was shifted to Osmania General Hospital,

Hyderabad, he remained present there till her death. It is true that

conviction can be indisputably based on a dying declaration but

before it can be acted upon, the same must be held to have been

rendered inconsistency. Consistency in dying declaration is the

relevant factor for placing full reliance thereupon. In the present

case, deceased had stated contradictory and inconsistent versions in

Exs.P6 and P11. Hence, I am unable to see any reason to interfere

with the findings of the trial Court particularly this being an appeal

against acquittal. It is settled principles of law that if any one speaks

differently in different stages, it is difficult to be accepted on its face

value. The trial Court having taken into consideration various

factors proceeded not to rely on the evidence of the prosecution

witnesses. The trial Court has given cogent and convincing reasons

for not accepting the evidence of the prosecution witnesses as well

as the dying declarations made by the deceased. I do not find any

valid ground to interfere with the reasons assigned by the trial

Court in discarding the said evidence. Therefore, I see no merit in

the appeal.

Accordingly, the Criminal Appeal is dismissed.

Miscellaneous petitions, if any, pending, shall stand closed.

_____________________ JUSTICE G.SRI DEVI 07.04.2021 Gsn/gkv