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2015 DIGILAW 289 (SC)

Hymad Pasha v. State of A. P.

2015-02-25

PRAFULLA C.PANT, T.S.THAKUR

body2015
JUDGMENT 1. These appeals arise out of two different orders passed by the High Court of Andhra Pradesh at Hyderabad one dated 07.03.2008 passed in Criminal Appeal No. 502 of 2006 and the other dated 15.12.2008 passed in Crl. Appeal Mis. Petn. No. 2349 of 2008 whereby the High Court has not only affirmed the conviction of the Appellant for offences punishable under Sections 302, 498A, Indian Penal Code but also quashed an order of acquittal of the Appellant passed in Criminal Appeal No. 690 of 2006. The Appellant was tried and convicted by the Trial Court for murder of his wife and sentenced to undergo imprisonment for life under Section 302 with a fine amount of Rs. 1,000/- and a default sentence of rigorous imprisonment for a further period of two months. For the offence punishable under Section498-A he was sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs. 500/-. In default of payment of fine he was sentenced to undergo a further rigorous imprisonment for two months. 2. Aggrieved, the Appellant preferred Criminal Appeal No. 502 of 2006 before the High Court. While Criminal Appeal No. 502 of 2006 was still pending before the High Court, Criminal Appeal No. 690 of 2006 was also preferred by the Appellant against the very same judgment of the Trial Court. It so happened that while Criminal Appeal No. 502 of 2006 came up for hearing the High Court remained oblivious of the pendency of Criminal Appeal No. 602 of 2006 which too as noticed above was directed against the very same judgment of the Trial Court. Not only that while Criminal Appeal No. 502 of 2006 was dismissed by the High Court affirming the Appellant's conviction and sentence, Criminal Appeal No. 690 of 2006 that came up separately for hearing before another Bench of that Court was allowed by an order dated 29.12.2008. Two conflicting judgments thus came to be pronounced by the High Court on the same subject matter which fact was brought to the notice of the High Court in Crl. Misc. Petn. No. 2349 of 2008 filed under Section 482, Code of Criminal Procedure. That petition was heard and allowed by the High Court in terms of its order dated 15.12.2008. The High Court was of the view that the conviction of the Appellant having been affirmed in Crl. Misc. Petn. No. 2349 of 2008 filed under Section 482, Code of Criminal Procedure. That petition was heard and allowed by the High Court in terms of its order dated 15.12.2008. The High Court was of the view that the conviction of the Appellant having been affirmed in Crl. A. No. 502 of 2006, the later judgment acquitting the Appellant in Crl. Appeal No. 690 of 2006 could not be allowed to stand. Relying upon the decisions of this Court in State of A.P. v. Thadi Narayaana AIR 1962 SC 240 (1), A.R. Antuley v. R.S. Nayak AIR 1988 SC 1531 and Keshar Deo v. Radha Kissen AIR 1953 SC 23 the High Court corrected the mistake committed by it and recalled order dated 29.08.2008 passed in Crl. Mis. 690 of 2006 on the ground that the same was non est and a nullity in the eye of law and was of no effect whatsoever. In the present appeal the Appellant has assailed not only the judgment and order passed by the High Court in Crl. A. No. 502 of 2006 whereby his conviction and the sentence awarded to him was affirmed but also order dated 15.12.2008 whereby the order of acquittal passed in Crl. Appeal 690 of 2006 has been recalled. 3. Before us learned Counsel for the Appellant fairly conceded that in case the Appellant's conviction for offences punishable under Sections 302 and 498A, IPC is affirmed the question whether the High Court was right in recalling the order passed by it in Crl. Appeal No. 690 of 2008 may be rendered academic for the simple reason that the acquittal by a subsequent order of one who stood convicted cannot be justified on any juristic principle. 4. We have heard learned Counsel for the parties at considerable length on the merits of the challenge to the order of conviction recorded by the Trial Court and that passed by the High Court in the appeal preferred by the Appellant. The prosecution case in a nutshell is that the Appellant was married to deceased Rayeesa Begum some three years prior to her demise. The parents of the deceased it appears had given a sum of Rs. The prosecution case in a nutshell is that the Appellant was married to deceased Rayeesa Begum some three years prior to her demise. The parents of the deceased it appears had given a sum of Rs. 15,000/- in cash towards dowry at the time of the marriage between the Appellant and the deceased which did not according to the prosecution satisfy the Appellant who is alleged to have kept harassing the deceased for some more money. The deceased had on account of that harassment approached her father examined at the trial as PW13 for money to satisfy the demands of the Appellants. Payments of an amount of Rs. 3,000/-, Rs. 10,000/- and Rs. 3,000/- on three different occasions by the father of the deceased also do not appear to have satisfied the Appellant who kept on harassing the deceased for more dowry. The night before the incident the Appellant is alleged to have harassed the deceased to get another Rs. 10,000/- from her father for which purpose the deceased is alleged to have visited her parental home and demanded the said amount from her father who is according to the prosecution said to have expressed his inability to raise that amount and sent her back to her matrimonial home with the promise that he would arrange the amount within a week. Three days thereafter the father of the deceased is alleged to have received a message that the deceased had died. On receipt of the information, the father of the deceased accompanied by Hameed Bee PW4 mother of the deceased and brother of the accused PW3 came to the house of the Appellant and found the dead body of the deceased. A report was thereupon lodged with the jurisdictional police station which set the legal process into motion culminating in filing of a charge-sheet accusing the Appellant of murder and dowry harassment punishable under Sections 302, 498-A of the IPC. 5. At the trial the prosecution examined as many as 17 witnesses in support of its case including PW12 the Doctor who conducted the autopsy. 5. At the trial the prosecution examined as many as 17 witnesses in support of its case including PW12 the Doctor who conducted the autopsy. In his deposition before the Trial Court, the Doctor described the injuries on the body of the deceased in the following words: Ligature mark present around the neck completely encircling the neck present over the level of middle of thyroid cartelege running transversely measuring 12" length and 1/2 width-ante mortem injury 3 abrasions 1/4th x 1/4th over the right side of neck-sharp in nature ante mortem. Abrasion 1/4th x 1/4th over right forearm sharp-ante mortem in nature. Fracture of thyroid cartelege right horn-caused by blunt weapon-ante-mortem injury. Ex-P. 9 post-mortem report opined that the deceased died of asphyxia due to strangulation. The prosecution also placed heavy reliance on the deposition of PW2 uncle, PW 4 mother and PW13 father of the deceased in support of its case that the deceased was harassed persistently for dowry. In addition, the prosecution also examined PW3 elder brother of the Appellant and PW5 neighbour of the Appellant to prove that the deceased was living alone with the Appellant and an infant child in the house where the incident is alleged to have taken place. The Trial Court eventually came to the conclusion that the couple was living alone in the house where the deceased was murdered and that the Appellant had no explanation to offer about the circumstance in which she had met that fate. The Trial Court also came to conclusion that the Appellant had absconded after the appearance of the parents of the deceased on the scene and that the prosecution story that the deceased was harassed for dowry stood established. The Trial Court accordingly found the Appellant guilty and sentenced him to imprisonment for life under Sections 302 and three years and Under Section 498A of the Code as already noticed above. In Crl. A. No. 502 of 2006 the High Court re-appraised the evidence and came to conclusion that the Trial Court had committed no mistake in finding the Appellant guilty. The High Court noticed that the evidence adduced at the trial regarding the harassment of the deceased for additional dowry was credible and that the death of the deceased homicidal. The High Court further placed reliance upon the circumstance that the Appellant had absconded from the scene of occurrence. The High Court noticed that the evidence adduced at the trial regarding the harassment of the deceased for additional dowry was credible and that the death of the deceased homicidal. The High Court further placed reliance upon the circumstance that the Appellant had absconded from the scene of occurrence. Recovery of towel used for the commission of offence at the instance of the Appellant was also taken as an incriminating circumstance which the High Court relied upon in finding the Appellant guilty. The sum total of these circumstances was in the opinion of the High Court sufficient to hold the Appellant guilty who affirmed the sentence awarded to him. The appeal filed by the Appellant was in that backdrop dismissed. The question is whether the conviction of the Appellant under Section 302 and 498A, IPC is on the evidence adduced before the Trial Court justified. Our answer to that question is in the affirmative. There is in our opinion sufficient evidence on record to prove that the Appellant and the deceased were the only two occupants of the house in which the murder had taken place along with their infant child. More importantly the Appellant has not offered any explanation as to the circumstances in which he found the dead body of the deceased nor is there any explanation as to the occurrence in question. The Trial Court and so also the High Court have concurrently come to the conclusion that the Appellant was present in the house on the night the murder took place. The Doctor has in the deposition before the Trial Court placed the time of the incident between 3 a.m. to 7 a.m. The fact that the death was homicidal is also beyond dispute keeping in view the deposition of the Doctor and the certificate as to the cause of death issued by him. To that extent there was no challenge even before us. In the circumstance and given the background in which the deceased was harassed for dowry the Appellant's case that the deceased had a love affair with Fareed, driver pales into insignificance. In the circumstances we do not see any error much less any perversity in the view taken by the High Court that the Appellant was indeed guilty of committing the murder of the deceased. We are also of the view that given the finality of the judgment delivered in Crl. In the circumstances we do not see any error much less any perversity in the view taken by the High Court that the Appellant was indeed guilty of committing the murder of the deceased. We are also of the view that given the finality of the judgment delivered in Crl. A. 502 the High Court had fallen in error in hearing the very same matter over again in Crl. A. No. 690 of 2006 obviously without being conscious of the fact that the conviction of the Appellant already stood affirmed no matter by another Bench of the same High Court. The High Court committed no error in recalling and declaring a nullity the second judgment delivered by it in Criminal Appeal No. 690 of 2006. There is no room for our interference with the conviction recorded by the Trial Court and affirmed by the High Court or with the order passed by the High Court under Section 482, Code of Criminal Procedure recalling its order passed in Crl. 690 of 2006. These appeals accordingly fail and are hereby dismissed.