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Telangana High Court · body

2022 DIGILAW 146 (TS)

Savalam Koteswar Rao v. State of Telangana

2022-03-07

K.LAKSHMAN

body2022
ORDER : Criminal Petition No.1228 of 2020 is filed by the petitioner - de facto complainant under Section - 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) against the order dated 17.01.2020 passed by the IV Additional Metropolitan Sessions Judge, Ranga Reddy District at L.B. Nagar in Crl.M.P. No.544 of 2018 in S.C. No.777 of 2013, while Criminal Petition No.1345 of 2020 is filed against the order dated 17.01.2020 passed by the very same Court in Crl.M.P. No.820 of 2018 in the said S.C. 2. Heard Mr. Moshe Marpur, learned counsel for the petitioner, Mr. E. Sudhanshu Rao, learned counsel for respondent No.2 to 7 and learned Assistant Public Prosecutor appearing on behalf of respondent No.1 - State in both the petitions, and perused the record. 3. The petitioner herein is the de facto complainant (PW.1) in S.C. No.777 of 2013. He is the father of the deceased. The offence alleged against respondent Nos.2 to 7 herein - accused Nos.1 to 6 is under Section - 304B of IPC. 4. In the said Sessions Case, prosecution has filed an application vide Crl.M.P. No.544 of 2018 under Section - 231 of the Cr.P.C. to receive the original receipt, dated 26.04.2011. Whereas, the prosecution filed another application vide Crl.M.P. No.820 of 2018 under Section - 311 of the Cr.P.C. to recall PW.1 for the purpose of marking documents, such as photographs along with Compact Discs. Both the applications were dismissed by the Court below vide orders both dated 17.01.2020. Challenging the same, the de facto complainant filed these petitions. 5. Crl.P. No.1228 of 2020 i) The prosecution filed Crl.M.P. No.544 of 2018 under Section - 231 of the CrP.C. on the ground that PW.1, the father of the deceased, had paid a sum of Rs.5,00,000/- (Rupees Five Lakhs Only) on 26.04.2011 in the presence of bridegroom and his relatives towards the marriage expenses as against the agreed amount of Rs.7,50,000/- (Rupees Seven Lakhs and Fifty Thousand Only). The balance amount of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand Only) would be given by 22.05.2011. According to the petitioner herein, the said amount of Rs.2,50,000/- was also paid to the bridegroom and his relatives on the said date i.e., 22.05.20211. The balance amount of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand Only) would be given by 22.05.2011. According to the petitioner herein, the said amount of Rs.2,50,000/- was also paid to the bridegroom and his relatives on the said date i.e., 22.05.20211. ii) It is further contended that PW.1, the father of the deceased, could not trace out the said receipt and, therefore, he has not mentioned the said fact in his statement recorded under Section - 161 of the Cr.P.C. and in his deposition as PW.1 in the said S.C. On tracing out the said original receipt, he had handed over it to the Investigating Officer, who in turn filed Crl.M.P. No.544 of 2018 to receive the said original receipt dated 26.04.2011. The same was resisted by respondent Nos.2 to 7 herein - accused Nos.1 to 6. The Court below vide order dated 17.01.2020 dismissed the said application on the ground that the petitioner herein - de facto complainant (PW.1) did not mention or state about the said receipt dated 26.04.20211 either in his statement recorded under Section 161 of the Cr.P.C. or in his deposition as PW.1. He has not even mentioned the date on which the alleged receipt was traced out. The petitioner is silent in that regard. iii) There is no dispute that the petitioner herein - the de facto complainant (PW.1), father of the deceased, has not stated about the receipt dated 26.04.2011 either in his statement recorded under Section - 161 of the Cr.P.C. or in his deposition as PW.1 in S.C. No.777 of 2013. Even he has not mentioned the date on which the said receipt was traced out in the petition filed under Section - 231 of the Cr.P.C. But, perusal of the said receipt would reveal that there is specific mention about the payment of Rs.7,50,000/- on two different dates towards the marriage expenses duly signed by the relatives of both sides. According to the petitioner herein, the said amount was paid towards dowry and respondent Nos.2 to 7 herein have received the same. Their signatures are also there in the said receipt proof of the receipt of the said amount. iv) As stated above, the offence alleged against respondent Nos.2 to 7 - accused Nos.1 to 6 is under Section - 304B of IPC. Burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. Their signatures are also there in the said receipt proof of the receipt of the said amount. iv) As stated above, the offence alleged against respondent Nos.2 to 7 - accused Nos.1 to 6 is under Section - 304B of IPC. Burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. Thus, this Court is of the opinion that the said receipt dated 26.04.2011 is a crucial piece of evidence and at any stage the same can be filed. Just because the petitioner herein did not refer about the same either in his statement recorded under Section - 161 of the Cr.P.C. or in his deposition as PW.1, he cannot be denied of filing such document which is a crucial piece of evidence to decide the lis in the matter. Therefore, the Court below erred in dismissing Crl.M.P. No.544 of 2018 filed by the prosecution. Though in the present petition, there is no challenge to the impugned order dated 17.01.2020 in Crl.M.P. No.544 of 2018, this Court is having power to grant relief which is not sought by the petitioner in invocation of its inherent power under Section 482 of the Cr.P.C. In view of the above, the impugned order dated 17.01.2020 passed by the Court below in Crl.M.P. No.544 of 2018 in S.C. No.777 of 2013 is liable to be quashed. 6. Crl.P. No.1345 of 2020 i) Originally, the prosecution had filed an application vide Crl.M.P. No.201 of 2017 under Section - 231 of the Cr.P.C. to receive the photographs along with Compact Disk, and the same was allowed by the Court below subject to proof and relevancy vide order dated 20.02.2018. In the said order, it is also specifically mentioned that if respondent Nos.2 to 7 - accused Nos.1 to 6 have got any objection over the said documents, they are at liberty to raise their objections before the Court when they are admitted as evidence. The prosecution has filed Crl.M.P. No.820 of 2018 under Section - 311 of the Cr.P.C. to recall PW.1 for the purpose of marking the said documents viz., photographs and the Compact Disk in view of allowing the said Crl.M.P.No.201 of 2017. The prosecution has filed Crl.M.P. No.820 of 2018 under Section - 311 of the Cr.P.C. to recall PW.1 for the purpose of marking the said documents viz., photographs and the Compact Disk in view of allowing the said Crl.M.P.No.201 of 2017. Vide order dated 17.01.2020, the Court below has dismissed Crl.M.P. No.820 of 2018 on the ground that the purpose of recalling PW.1 is to mark the photographs along with CD, and there is no dispute that the said photographs are taken from Television Broadcast in Zee News and TV9 News. The said photographs are not originals and as such, the same are inadmissible in evidence. The said photographs were generated from a News item regarding the death of the deceased telecasted in the News Channel. On the said grounds, the Court below has dismissed the said application. Challenging the same, the petitioner - the de facto complainant (PW.1) filed this petition. ii) The learned counsel for the petitioner would submit that the impugned order is contrary to the order dated 20.02.2018 passed by the very same Court in Crl.M.P. No.201 of 2017. iii) It is settled law that Court while dealing with an application under Section - 311 of the Cr.P.C. has to adapt liberal approach. At any stage, a document which is relevant can be filed and marked by the parties. The Court while dealing with an application under Section - 311 of the Cr.P.C., has to consider the following three important aspects: (a) Whether recalling of witness is necessary to come to a just conclusion and to find out truth to decide the lis involved in the matter; (b) Whether the prosecution has filed the application to fill up the lacunae; and (c) Whether the accused filed the said application to delay the proceedings. iv) As discussed above, the Court below vide order dated 20.02.2018 in Crl.M.P. No.201 of 2017 in S.C. No.777 of 2013 has allowed the said petition and the documents were received subject to proof and relevancy. iv) As discussed above, the Court below vide order dated 20.02.2018 in Crl.M.P. No.201 of 2017 in S.C. No.777 of 2013 has allowed the said petition and the documents were received subject to proof and relevancy. Once the said I.A. was allowed and the documents viz., photographs along with CD are received subject to proof and relevancy, the Court below cannot dismiss the application filed by the prosecution under Section - 311 of the Cr.P.C. vide Crl.M.P. No.820 of 2018 to recall PW.1 for the purpose of marking the said documents on the ground that the same are not originals and that they are inadmissible in evidence. It is relevant to note that in the earlier order dated 20.02.2018 in Crl.M.P. No.201 of 2017, the Court below has specifically mentioned that if respondent Nos.2 to 7 - accused Nos.1 to 6 have got any objection over the said documents, they are at liberty to raise their objections before the Court when they are admitted as evidence. Thus, the accused will be given an opportunity to disprove the said documents. In view of the above, the Court below grossly erred in dismissing the application vide Crl.M.P. No.820 of 2018 filed under Section - 311 of the Cr.P.C. Therefore, the order dated 17.01.2020 passed by the Court below in Crl.M.P. No.820 of 2018 is liable to be quashed. 7. For the foregoing discussion, both the Criminal Petitions are allowed. Accordingly, Crl.M.P. No.544 of 2018 in S.C. No.777 of 2013 filed by the prosecution under Section - 231 of the Cr.P.C. to receive the receipt dated 26.04.2011 is allowed. Similarly, Crl.M.P. No.820 of 2018 in S.C. No.777 of 2013 filed by the prosecution under Section - 311 of the Cr.P.C. to recall PW.1 for the purpose of marking the photographs along with CD is also allowed. However, respondent Nos.2 to 7 - accused Nos.1 to 6 are at liberty to cross-examine PW.1 on the said documents. Further, the Court below is directed to issue summons to PW.1 for the purpose of marking the said documents. Since the Sessions Case is of 2013 year, the Court below is also directed to dispose of the same in accordance with law as expeditiously as possible. As a sequel, miscellaneous petitions, if any, pending in both the Criminal Petitions shall stand closed.