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)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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.
___________________
JUSTICE P.SAM KOSHY
__________________________
JUSTICE SAMBASIVARAO NAIDU
Date: 30.07.2024
PLV
