Telangana High Court

Ahmed Hussain vs The State Of A.P. And 4 Others on 8 April, 2024

Author: P. Sam Koshy

Bench: P. Sam Koshy

     IN THE HIGH COURT FOR THE STATE OF TELANGANA
                   :: AT HYDERABAD ::
                                  ***

Between:

Ahmed Hussain, S/o.Rukmuddin
                                                         Petitioner
                                 VERSUS

The State of Andhra Pradesh,
Rep. by its Public Prosecutor,
High Court of A.P. and others.
                                                      Respondents


             JUDGMENT PRONOUNCED ON: 08.04.2024

   THE HONOURABLE SRI JUSTICE P. SAM KOSHY
                     AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU

1.     Whether Reporters of Local newspapers
       may be allowed to see the Judgments?           : Yes

2.     Whether the copies of judgment may be
       Marked to Law Reporters/Journals?              : Yes

3.     Whether His Lordship wishes to
       see the fair copy of the Judgment?             : Yes




                                               ____________________
                                               P.SAM KOSHY, J
                                  Page 2 of 15
                                                             PSK,J & SSRN,J
                                                               Crla_92_2014


      * THE HONOURABLE SRI JUSTICE P. SAM KOSHY
                     AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU


                 + Criminal Appeal No.92 of 2014


% 08.04.2024


#    Between:

Ahmed Hussain, S/o.Rukmuddin
                                                                Petitioner
                                 VERSUS

The State of Andhra Pradesh,
Rep. by its Public Prosecutor,
High Court of A.P. and others.
                                                            Respondents


! Counsel for the Appellant(s)             :    Mr. Achuta Reddy

^Counsel for the 1st respondent(s)
-State                                     :    Learned Public Prosecutor

Counsel for respondent Nos.2 to 5-
Accused                                    :    Mr. Koppula Gopal




<GIST:



> HEAD NOTE:



? Cases referred ::

1.     2016:CGHC:17082-DB [CRMP.No.147 of 2011, dated 04.10.2016,
       High Court of Chhattisgarh, Bilaspur]
2.     AIR 2014 SC 1256
                                  Page 3 of 15
                                                                PSK,J & SSRN,J
                                                                  Crla_92_2014

      THE HONOURABLE SRI JUSTICE P. SAM KOSHY
                                   AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
                  Criminal Appeal No.92 of 2014

JUDGMENT:

(per the Hon'ble Sri Justice P. Sam Koshy)

The instant is an appeal preferred by the appellant /

accused under Section 372 of Criminal Procedure Code, 1973

(for short, 'the Code') assailing the judgment of acquittal

dated 30.07.2012 in Sessions Case No.154 of 2008 on the file

of VI Additional Sessions Judge (F.T.C.) at Vikarabad, Ranga

Reddy District (for short, 'the impugned order').

2. Heard Mr. Achuta Reddy, learned counsel for the

appellant; the learned Public Prosecutor, for the 1st

respondent-State; and Mr. Koppula Gopal, learned counsel

for respondent / Accused Nos.2 to 5.

3. Vide the impugned order, the Court below has found

the respondent / Accused Nos. 2 to 5 not guilty for the

charges leveled against them and acquitted them.

4. The case of the prosecution in brief is that the deceased

Smt. Anusha Begum was married to the respondent No.2 /

Accused No.1, viz., Naseer Ahammed on 01.05.2005. It was

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contended by the complainant that the deceased is the

brother of PW.1 (Sri Mohammad Sultan). It was further

contended by the complainant that at the time of marriage an

amount of Rs.50,000/- was given in cash in addition to 5

tolas of gold, 25 tolas of silver, 1 bicycle, 1 cot and other

household articles to the respondent No.2 / Accused No.1.

However, soon after the marriage, the respondent No.2 /

Accused No.1 and other family members started harassing

the deceased asking her to convince her parents to arrange a

new Auto for respondent No.2 / Accused No.1. It was further

contended by the complainant that the respondent No.2 /

Accused No.1 along with the other accused persons have

started physically and also mentally torturing her, and there

is also threat to her life which was informed by the deceased

to the PW.1 on the telephone.

5. It was further contended by the complainant that on

14.05.2006, the deceased has requested PW.1 (brother) to

come to Dornal Village, i.e., the matrimonial home of the

deceased. On 15.05.2006, when PW.1 went to the home of

the deceased at Dornal Village, the deceased had already died

under suspicious circumstances. Immediately, at 12:30

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P.M., the complainant (PW.1) lodged a report with the

Mominpet Police Station and the same was registered as a

case in Crime No.76/06 against the accused for the offence

punishable under Sections 498 and 306 of I.P.C. Thereafter,

an inquest was conducted and the body was sent to the

Government Civil Hospital Vikarabad for conducting an

autopsy; and a post-mortem report was issued by the Doctor

(PW.10). In the post-mortem report, the cause of death of the

deceased was due to asphyxia due to hanging. On

21.05.2006, the accused were arrested and sent for judicial

remand. Subsequently, charge-sheet was also filed against

the accused persons for the offence punishable under Section

498 and 306 of I.P.C.

6. Subsequent to the committal of the case to the Sessions

Court, the matter was registered as Sessions Case No.154 of

2008. In all nine witnesses were examined on behalf of the

prosecution. No evidence was examined in support of the

defence. During the trial, the Court below has framed an

additional charge under Section 302 of I.P.C.

7. After conclusion of the trial and the accused being

examined under Section 313 of the Cr.P.C., the Court below

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passed the impugned judgment in Sessions Case No.154 of

2008 on 30.07.2012 wherein it was held that the prosecution

had failed to prove its case beyond reasonable doubt, and

therefore, the accused persons are liable to be acquitted of

the charges leveled against them.

8. It is this judgment of acquittal which now stands

challenged by the appellant in the present appeal.

9. From the last couple of hearings, there has been no

representation on behalf of the appellant. Considering the

fact that it is an appeal of the year 2014 and that the appeal

is also an acquittal appeal, with the able assistance of the

learned Public Prosecutor we proceed to decide the appeal on

its merits.

10. There is one thing which needs to be highlighted at the

first instance, i.e., the prosecution has not dealt with

properly, or at least sufficient materials were not available on

record. That is the accused persons being charged both for

the offence under Section 302 and also for the offence

punishable under Section 306. In the opinion of this Bench,

the prosecution could not have charged the accused both

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under Sections 302 and 306 simultaneously. Either it could

be a case under Section 302 that of murder or it could have

been an offence under Section 306 pertaining to suicide. The

former would have been on an overt act by the accused

persons and the latter would have been by an act on the part

of the deceased herself under duress, compulsion and

abetment by the accused.

11. A plain reading of paragraph No.3 of the impugned

order would go to show that an additional charge under

Section 302 of I.P.C. has been framed against the accused. It

is also not a case where the charge under Section 302 of

I.P.C. has been alternatively leveled. No material is also

available on record to show as to what led to the framing of

the additional charge under Section 302 of I.P.C against the

accused. We leave this fact as it is at this juncture and

proceed further with the evidence that has come on record.

12. The post-mortem report (Ex.P.4) that was submitted by

PW.8, i.e., the Doctor, Smt. Indira Priya Darshini, bears a

clear opinion of the death being caused due to asphyxia due

to hanging. Nowhere in the post-mortem report does it show

that the ligature mark found around the neck of the deceased

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was anti-mortem or post-mortem. The post-mortem report

also does not reflect any injuries or marks of injuries found

on the body of the deceased. Neither is there any injury or

marks of injury found during the inquest. Another aspect

which needs to be considered is when PW.1 (brother of the

deceased) had reached the matrimonial home of the deceased

at Dornal Village, there was nobody in the house and the

deceased was found dead with ants and creatures over the

dead body. Though in his examination in chief, PW.1 refers

to the ill-treatment and harassment about the demand of

dowry by the respondent No.2 / Accused No.1's family

members, but in his cross-examination (Ex.P.1) he has

accepted that he did not mention anything about the

previous day the deceased had called him on the telephone

and informing him about being beaten by the in-laws. When

we read the deposition of PW.2 (father of the deceased), i.e.,

the same is totally silent of PW.1 having received the

telephone call the previous day of death, or that PW.1 had

visited the site on the fateful day and found the deceased

dead. Rather, PW.2 gave an altogether different story of his

other two sons, viz., Maqbool and Rehman, having gone to

the matrimonial home of the deceased the previous day to

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bring her to the parental home which was not permitted by

the accused persons; and thereafter, PW.2, along with other

family members went to the matrimonial home of the

deceased on the date of incident and found that the deceased

had already died.

13. If we take into consideration the statement of PW.3, the

mother of the deceased and wife of PW.2, PW.3 gives an

altogether different version in respect of the incident. She

stated that when some auto persons of Dornal Village

informed her about her daughter's death, PW.3 and her

children went to the matrimonial home of the deceased at

Dornal village and found the body of the deceased in the

house of respondent No.2 / Accused No.1 having injuries on

the face, and that the accused persons were not available in

the house.

14. PW.4 (sister of the deceased) resident of Dornal Village,

narrates an entirely different version. She stated that the

respondent No.2 / Accused No.1 had illegally married

someone else which the deceased has informed her whenever

they both met. When PW.4 learnt about the death of the

deceased she went to the house of the 2nd respondent /

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Accused No.1 and found that there was nobody present in the

house except the body of the deceased.

15. With so much of discrepancies, contradictions and

omissions in the statements of all the material prosecution

witnesses coupled with the fact that the post-mortem report

reflects the death to have been due to asphyxia on account of

hanging, we do not find any illegality or wrong appreciation of

evidence made by the Court below in holding that the

prosecution has failed in proving its case beyond reasonable

doubt.

16. In State of Chhattisgarh vs. Sanjay Kumar Mahale

and another 1, a learned Single Judge of the High Court of

Chhattisgarh, held at paragraph Nos.10 to 16, which for

ready reference is extracted as under :

"10. ... ... ... In the instant case, the Court below after dealing with the prosecution witnesses has pointed out different contradictory statements made by them at different stages of the trial. The Court below has emphatically held that there are omissions, contradictions and improvements in the version of the prosecution evidence which creates a great element of

2016:CGHC:17082-DB [CRMP.No.147 of 2011, dated 04.10.2016, High Court of Chhattisgarh, Bilaspur]

PSK,J & SSRN,J Crla_92_2014

doubt. It is also a settled position of law that whenever there is a doubt created in the mind of the Court, the benefit of which should always go in favour of the accused person.

11. It is settled position of law that in an appeal against an order of acquittal only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse can the Appellate Court interfere with the order of acquittal. Recently, Hon'ble the Supreme Court in the case of Phula Singh Vs. State of Himachal Pradesh 2, , in Para-10, has in very categorical term held that: "The appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

12. Once there is an order of acquittal in favour of the alleged accused person, the same should not be interfered with very lightly unless there is a prima facie strong case with cogent, sufficient and substantial proof in favour of the prosecution brought before the Court below and which has not been considered or has been overlooked by the Court below, only then can the order of acquittal have a scope of interference.

AIR 2014 SC 1256

PSK,J & SSRN,J Crla_92_2014

The law in this regard is by now well settled in a series of judgments of the Hon'ble Supreme Court wherein the Supreme Court has in very categorical terms held that whenever there is an order of acquittal, the higher Courts not to upset the holding without there being very convincing reasons and comprehensive considerations. That while re-appreciating and reconsidering the evidence upon which the order of acquittal is based, certain other principles pertaining to other facets are to be borne in mind.

13. According to the Supreme Court what the appellate Court must bear in mind is that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

14. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the trial Court. The high Court is also required to see that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal.

PSK,J & SSRN,J Crla_92_2014

15. It is trite here to refer to a few decisions in this regard by the Hon'ble Supreme Court:

• 2007 (4) SCC 415 - Chandrappa v. State of Karnataka.

• 2012 (1) SCC 602 - State of Rajasthan v. Shera Ram.

• 2013 (5) SCC 705 - Shivasharanappa v. State of Karnataka.

• AIR 2009 SC 1542 (Para 12) - State of Punjab v.

Sukhchain Singh & Anr.

• 2012 (6) SCC 589 (Para-27) - Rohtash v. State of Haryana.

It is also relevant at this juncture to highlight the recent view of the Supreme Court in the case of Dilawar Singh (Supra), paragraph-36 relied upon by the respondent which is reproduced hereunder:

"The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record."

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16. Thus, this Court is of the considered view that the finding arrived at by the Court below is purely in accordance with law and the Court below has not committed any error on law or on fact in reaching to the said conclusion of acquitting the respondents of the charges leveled against them."

17. In the light of the aforesaid judicial precedents coupled

with the fact that the appeal is more than ten years old and

the accused persons were already on bail during trial, and

after passing of judgment of acquittal by the Court below the

accused have been out for more than ten years, therefore, we

are not inclined to allow the appeal.

18. Another ground or reason why this Bench is not

inclined to entertain the appeal is the fact that except for the

vague, omnibus and a general allegation of harassment and

alleged torture of demand of dowry, in addition to the said

general and omnibus statements made by the prosecution

witness particularly PWs.1 to 4, the prosecution has