Andhra Pradesh High Court - Amravati
Pinjari Chinna Khasim, vs Pinjari Khasim Jetpol Khasim, 2 Others, on 25 October, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
CRIMINAL APPEAL No. 1024 of 2012
JUDGMENT:(Per the Hon'ble Sri Justice C.Praveen Kumar)
1) Aggrieved by the judgment of acquittal, dated 14.08.2012, in Sessions Case No. 413 of 2008, on the file of the I Additional Sessions Judge at Kurnool, the present appeal is filed by the aggrieved person, under Section 372 of Cr.P.C.
2) The substance of the charge against the Accused is that, on 13.10.2006, the Respondent/Accused caused death of one Pinjari Moula Bee ['the Deceased'], within Seven [07] years of marriage by throttling her neck.
3) The facts, in issue, are as under:
i. PW.1 is the brother of the Deceased. PW.2 is the mother of the Deceased. PW.3 is another brother of the Deceased. The marriage between the Accused No. 1 and the Deceased was performed 3 ½ years prior to the date of incident. At the time of marriage, cash of Rs., 30,000/- and 03 tulas of gold was given to Accused No. 1 as dowry. After the marriage, the Deceased joined the Accused at Konidela Village. Out of wedlock, they have blessed with a daughter. 2 It is said that, till the birth of the said child, the Deceased was looked after well and thereafter problems started. The Accused started harassing her on the ground that the dowry given was not enough. It is said that, the Deceased used to weep and narrate her woes to them. She also expressed apprehension in the hands of the Accused. It is said that, the Deceased has also shown injuries sustained by her to PW.1 and others. The parents of PW.1 gave Rs.20,000/- to PW.1 and asked him to take the Deceased to the house of the Accused. Accordingly, he gave Rs.20,000/- to the Accused and also promised to give 01 tula gold at the time of marriage. He requested the Accused to look after the Deceased properly, but, however, there was no change in the attitude of the Accused and continued beating her for additional dowry. It is said that, 10 days after receipt of Rs. 20,000/-, the Accused beat her and sent her to her matrimonial home demanding her to get some more amount. It was clarified that the 10 days referred to above was one year prior to the date of incident. It is said that the Deceased stayed in the house as she apprehended threat to her life if she goes back. A panchayat was conducted in which PW.9, PW.19 and PW.20 acted as elders, who advised them not to go to the house of the Accused for a period of Six [06] months. After Six [06] months, the Deceased was sent to the house of the 3 Accused, but, they were informed by the villages that there was no change in the attitude of the accused.
ii. On 14.10.2006, PW.1 and others were informed that Accused No. 1 and 2 killed the Deceased by throttling her in the early hours of the day. The same was informed to PW.3 and his wife, who were staying in Kurnool. On the arrival of PW.3 and his wife, PW.1 and PW.2 went to Konidela Village and found the Accused absconding. The dead body of the Deceased was kept in the centre of the house in front of the door. They noticed swelling around the throat of the Deceased. Suspecting that the Accused are responsible for the death, PW.1 went to the Police Station and lodged a report with PW.17- Sub-Inspector of Police, Nandikotkur P.S. under Ex.P-1. Basing on Ex.P-1, he registered a case in Crime No. 187/2006 under Sections 302 and 304-B of Indian Penal Code and submitted First Information Report -Ex.P.11 to higher authorities. iii. On 15.10.2006, PW.15- the Additional Superintendent of Police, Nandyal, received a copy of the First Information Report from Nandikotkur Police Station and took up investigation into the matter. He visited the scene of offence situated at the house of the Accused, examined PW.1 to PW.3, PW.7, PW.8, PW. 10 to PW.13 and recorded their statements. He also prepared a rough sketch of the scene -Ex.P9. In the presence of PW.16, inquest was held 4 between 10.00 AM and 1.30 P.M. Ex.P10 is the Inquest Report. On 17.10.2008, PW.15 arrested Accused No. 1 and 2 at the house of Accused at Konidela Village and sent them to remand. PW.14 - the Civil Assistant Surgeon, Community Health Centre, Atmakur, conducted autopsy over the dead body and issued Ex.P-8 postmortem certificate. According to him, the case of death was "Asphyxia due to throttling". PW.18 took up investigation, verified the investigation done and filed charge-sheet against the Accused before the Court of Judicial First Class Magistrate at Nandikotkur, for the offence punishable under Sections 302, 304(B) of IPC and Sections 3 and 4 of the Dowry Prohibition Act, which was taken up as P.R.C. No. 4 of 2007. On appearance of the Accused, copies of the documents were furnished as required under Section 207 Cr.P.C. As the case is exclusively triable by a Court of Sessions, the same was committed to the court of I Additional Sessions Judge, Kurnool, under Section 209 Cr.P.C. On appearance of the Accused, charges referred to above came to be framed, read over and explained to the Accused to which, the accused pleaded not guilty and claimed to be tried.
4) In support of its case, the prosecution examined PWs.1 to 20 and got marked Exs. P1 to P13 and MOs.1 to 3. Out of the 20 witnesses examined by the prosecution, PW.4, PW.5, PW.9, PW.10, 5 PW.12, PW.13, PW.19 and PW.20 did not support the prosecution case and they were treated hostile by the prosecution. After the closure of entire prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them, in the evidence of the prosecution witnesses to which they denied but did not adduce any evidence on their behalf.
5) Since, the evidence of PW.1 to PW.3 was found to be unacceptable, having regard to the contradictions elicited and as the medical evidence is in conflict with the oral evidence with regard to the cause of death, the learned Judge acquitted the Accused Nos. 1 and 2. Challenging the same, the present Appeal came to be filed by the aggrieved person under Section 372 of the Indian Penal Code.
6) Before proceeding further, it would be very important to note that though this Appeal was filed in the year 2012, the State has also preferred an Appeal before this Hon'ble Court in the year 2013 vide Criminal Appeal No. 1112 of 2013 challenging the judgment of acquittal in the above Sessions Case. However, the pendency of this Criminal Appeal filed by the Informant was not brought to the notice of the court at the time when it was heard. The Appeal filed by the State under Sections 378 (3) & (1) of Cr.P.C. was dismissed at the admission stage confirming the Judgment passed by the I Additional Sessions Judge, Kurnool, in S.C. No. 413 of 2008. In the said Criminal Appeal No. 1112 of 2013, the Division Bench discussed the evidence in detail and taking into consideration the legal position 6 and the evidence on record dismissed the Appeal. This fact of dismissal of the Appeal filed by the State was brought to the notice of this court by the learned Public Prosecutor when this Appeal was taken up for hearing.
7) The learned Counsel for the Petitioner Ms. Naseeb Afshan mainly pleads that the Judgment of the Division Bench is not binding on the Informant since the same came to be passed without hearing. According to her, the evidence on record clearly discloses the involvement of the accused in the commission of the offence, more so, when they failed to explain how the dead body of the deceased is found in the house. On the other hand, the learned Public Prosecutor appearing for the Accused would contend that the Division Bench went into the merits of the case and decided the case on merits, hence the question of re-appreciating the evidence again by this court, so as to come to a different conclusion, would be improper, more so when the earlier Judgment has became final and the same is not challenged till date.
8) In order to appreciate the same, it would be useful to refer to the judgments of the Apex Court and also of this Court.
9) The Counsel for the Appellant mainly relied upon a Judgment of the Division Bench of this Court in State of Andhra Pradesh v. Hymad Pasha1 in support of her plea that this court can re- appreciate the evidence again and come to a different conclusion. It was a case where the accused therein preferred two different 1 2009 (1) ALD (Crl.) 589 (AP) 7 criminal appeals. One through a private counsel and an other by addressing a letter through the jail authorities seeking legal aid. Both the appeals came up before two different benches. The two appeals came to be numbered as Crl. A. No. 502 of 2006 and Crl. A. No. 690 of 2006. The judgment under challenge in both the Appeals was one and the same, wherein, the accused was convicted by the Sessions Court, for the offences punishable under Section 302 of IPC and sentenced to undergo 'imprisonment of life' and to pay a fine of Rs.1,000/- and also under Section 498A of IPC. Initially, Crl. A. No. 502 of 2006 came to be admitted, on 12.04.2006, and four [04] months later, the accused sent a letter to the Andhra Pradesh High Court, Legal Services Committee, Hyderabad, through the Superintendent, Central Prison, Cheralapalli, enclosing copy of the Judgment for filing an Appeal. The same came to be numbered as Crl. A. No. 690 of 2006 and was admitted, on 08.06.2006. On 07.03.2008, Crl. A. No. 502 of 2006 came up for hearing before one Division Bench who confirmed the conviction and sentence awarded by the Trial Court vide Judgment, dated 07.03.2008. A copy of the said Judgment has been communicated to the Accused, which was served on him on 18.04.2008. Later, the appeal filed through Legal Aid, i.e., Crl. A. No. 690 of 2006 came up for hearing before another Division Bench, who vide Judgment, dated 29.09.2008, confirmed the conviction awarded under Section 498-A of IPC but set-aside the conviction and sentence imposed under Section 302 of IPC. The advance order of the said Judgment was communicated to the jail 8 authorities, on 01.10.2008. Therefore two judgments, with different findings came to be passed by the High Court in one Sessions Case.
ii. While things stood thus, a news item appeared in a daily news magazine that parallel justice was done by the High Court. The learned Public Prosecutor was directed to conduct preliminary investigation, examine the issue and take steps in the matter in the interest of justice. Thereafter, the learned Public Prosecutor filed a Crl. M.P. under Section 482 of Cr.P.C., which was take up under the caption for being mentioned, under the instructions of the Hon'ble Chief Justice of Andhra Pradesh and dealt with in accordance with law.
iii. After considering the authorities on the subject, the scope of Section 482 of Cr.P.C., the Division Bench recalled the subsequent judgment passed by the High Court in Crl. A. No. 690 of 2006 as the same is non est or nullity in the eye of law and no effect whatsoever shall be attached to its purpose.
iv. One of the issue in the said Judgment was, whether Criminal Appeal No. 690 of 2006, is maintainable and what would be the effect of the Judgment rendered therein. Dealing the same, the Court held that, there is no specific provision expressly made permitting the accused to file a second criminal appeal. There is a passive reference under Section 384(4) of Cr.P.C., as to what should happen in case where the first appeal was dismissed summarily. It has been held that, the said provision clearly states that when a first criminal appeal was dismissed summarily, that is, without going 9 into the merits of the case, a second criminal appeal can be filed, however, subject to the satisfaction of the court and also in order to meet the ends of justice. But, it has been categorically held that, there is no express provision enabling an accused to file a second criminal appeal against similar order, which was already challenged before this court. Hence, it has been held that, the conditions mentioned under sub-section (4) of Section 384 of Cr.P.C., are not applicable to the said case. It has been held that, once a Judgment has been delivered by a competent Appellate Court, the same has to be treated as final and conclusive, except under two circumstances - firstly; as contemplated under Section 393 of Cr.P.C, an appeal against acquittal under Section 378 of Cr.P.C., arising out of the same case and secondly; an appeal for the enhancement of sentence under Section 377 of Cr.P.C., arising out of the same case.
v. From the above provision and the conditions incorporated therein, it was held that, under those two
circumstances only, the second appeal before the Appellate Court is permissible. But, the circumstances referred to therein were not prevailing and hence held that the question of entertaining the second appeal would not arise as it is non est in the eye of law.
10) Therefore the Judgment relied upon by the learned Counsel for the Appellant, in our view is not applicable to the case on hand. As observed earlier, it is not a case where both the appeals filed against the Judgment of the acquittal were disposed of after appreciation of evidence. It is also not a case where the appeal filed is for 10 enhancement of sentence. It is also to be noted here that, it is not a case of conviction where one appeal is filed challenging the conviction, while another appeal is for enhancement of sentence. Both the appeals are filed for the very same relief. It is also to be noted here that, the earlier Judgment rendered in Crl. A. No. 1112 of 2013 was on merits and that it was not disposed of summarily.
11) One another judgment which is relied upon by the learned Counsel for the Appellant is in Kulwant Singh v. Amarjit Singh2. This was a case where two appeals arising out of same incident resulting in cross sessions cases were not heard together. The High Court did not consider the evidence led in the case and disposed of the appeals holding that it is adopting the reasoning recorded by the Trial Court.
12) The facts in the case are as under:- ii. Two sessions cases, one arising out of FIR lodged by Surinder
Singh of Group-1 and the other lodged by Kulwant Singh of Group-2 were tried in the Court of Sessions Judge. Judgment was delivered in both the Sessions Cases, on 04.04.1996. Sessions Case No. 123/94, pertain to Group-1, while Sessions Case No. 65/94 pertains to Group-2. Against the convictions imposed therein, appeals came to be filed before the High Court. Strangely, both the appeals were not heard together and the High Court without considering the evidence led in the case disposed of the same adopted the reasoning recorded by the Trial Court. This was found fault by the Apex Court 2 AIR 2000 Supreme Court 1212 11 stating that the High Court should have applied its mind to the facts of the case and find out whether there was any right to private defence.
iii. This Judgment also in our view may not be of any help to the Counsel for the Appellant, since, two cross sessions cases, which were tried together and against which two appeals were filed before the High Court were not heard together. Apart from that, the Apex Court found fault with the High Court with regard to the manner in which the appeal came to be disposed of.
13) As stated, the situation on hand is something different. The first Appeal filed by the State was disposed of on merits, though, filed later point of time, and the Appeal filed by the Informant, in the year 2012, is listed for hearing before us, in the year 2019. A perusal of the Judgment of the Division Bench of the High Court in the Appeal filed by the State would show that after narrating the facts of the case; formulated the points for determination, namely as to whether the prosecution was able to bring home the guilt of the accused for the charges leveled against them beyond all doubt and whether the Judgment of the Trial Court acquitting the accused needs interference. Similar argument on merits as advanced now was also advanced before this court by the learned Public Prosecutor stating that the evidence of PW.1 to PW.3 discloses harassment and demand of additional dowry and the evidence of postmortem doctor would establish the involvement of the accused in the offence. Dealing with the same, the Division Bench, after referring to the 12 evidence of PW.1 to PW.3, who are brother, mother and elder brother of the Deceased, who deposed about the demand of dowry by the accused prior to the marriage and after marriage held that, prior to the death of the Deceased, two mediations took place in the presence of PW.19 and PW.9 and Poli Reddy of Konidela Village and the inquest panchayatdars and elders who mediated the matter as per the evidence of PW.1 to PW.3 did not support the case and were treated as hostile. Coming to the evidence of PW.1 to PW.3, the court referred to the evidence of the investigating officer to test their veracity, who in his cross-examination admitted various omissions by PW.1 to PW3 in their earlier statements with regard to the demand made by the Accused, one year prior to the date of incident, payment of Rs., 20,000/-; sending the Deceased to the house of PW.1 with a demand for additional dowry; beating of the Deceased by the Accused and sending her to the house and the compromise made by the accused that they will look after the Deceased well. The investigating officer also admits the omission in the evidence of PW.3 with regard to the dowry amount paid to Accused No. 1 and 2. Having regard to the omissions, in the evidence, and this being an appeal against acquittal, the Court found that the findings of the Trial Court cannot be said to be perverse or contrary to the evidence on record. From the Judgment of the Division Bench referred to above, it is very clear that the court went into the merits of the case, appreciated the evidence available on record and held in favor of the Accused.
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14) In view of the law laid down by this court and having regard to the scope of the court in the appeal filed against acquittal, at the instance of a private party, we feel that it would be improper for this court to re-appreciate the entire evidence again and come to a different conclusion. Had the case has been dismissed summarily, at the admission stage, without considering the evidence on record, definitely there would have been some merit in the argument of the counsel. Since, the earlier Appeal was decided on merits, we feel that interference with the findings arrived at would be improper.
15) Even on merits, the main ground urged by the learned counsel for the Appellant is that, the Deceased was harassed, which made her to leave the house of the Accused and live with her brother and mother. It is pleaded that the fact of Deceased leaving her husband due to harassment gets corroboration from the evidence of mediators who were examined as PW.9 and PW.19. But, both these witnesses did not support the prosecution case and were treated hostile by the prosecution.
16) Insofar as cause of death, the evidence of the prosecution witnesses show that the Deceased was throttled to death by the Accused. Though the evidence of postmortem doctor show that the cause of death was due to Asphyxia due to throttling but in the cross-examination, he admits that, in a case of throttling, there will be visible finger marks causing bruises on the neck. He also admits that the type of fracture on Hyoid bone is not noted in his postmortem examination. He further states that, in case of 14 throttling, there will be inward compression of Hyoid bone. He also admits that, he has not mentioned the colour of injuries in Ex.P8. According to him, the colour of the injuries is helpful in determining the age of the injuries. From the evidence of Doctor, more particularly, the colour of the injuries and failure to notice fracture on Hyoid bone and injuries on the neck, a doubt arises as to how the cause of death.
17) Apart from that, it has to be noted here that on 14.10.2006, PW.1 and others were informed that Accused No. 1 and 2 killed the Deceased by throttling her in the early hours. PW.2 who is mother of Deceased, in her evidence, deposed that, the information about the death of Deceased was given to them at 9.00 AM and thereafter they sent a word to PW.3 and on his arrival, all of them went to Konidela Village.
18) While the evidence of PW.1 is that, the information about death was received in the early hours of the day, PW.2 in her evidence deposed that the information about the death of Deceased was received at 9.00 AM. Be that as it may, the contents of FIR show as if the incident took place, on 13.10.2006, itself. At this stage, it would be useful to refer to the evidence of PW.11, who is a registered Medical Practitioner at Konidela Village, and who visited the house of the Accused. He knows the Accused. According to him, on 14.10.2006 at 4.00 AM PW.10 [declared hostile] came to his house, woke him up and informed that the Deceased was suffering with stomach pain. Immediately, he rushed to the house of Accused No. 1 15 and found the Deceased lying in the verandah. She is said to have informed PW.11 that she is having stomach pain. Then he advised the Accused to take the Deceased to Nandikotkur and then returned home. In the morning around 9.00 AM he was informed that Deceased died. Strangely, this witness was not declared hostile by the prosecution, nor, was he cross-examined by the Public Prosecutor. This evidence of PW.11 goes unrebutted. From a reading of this evidence, it is very clear that the Deceased was alive on 14.10.2006 at 4.00 AM and that PW.11 went and talked with her, who complained about stomach pain. He advised the Accused to take the Deceased to Nandikotkur for treatment. He never noticed any injuries or marks of violence on the body of the Deceased. When the evidence of PW.11 remained un-rebutted, a doubt arises as to how the Deceased died, more so, on the night of 13.10.2006, as stated in the FIR.
19) The learned Counsel for the Appellant tried to contend that the incident might have happened prior to the visit of PW.11 to the house of the Accused, but, if that was so, PW.11 would have noticed some injuries on the neck of the Deceased or any other part of the body. As observed earlier, his evidence is to the effect that, the Deceased complained to him about stomach pain. If the evidence of PW.11 is doubtful, the prosecution should have cross-examined him by treating hostile. But, no effort was made on this aspect. Therefore, in our view, it can be said that the Accused discharged his burden under Section 106 of the Evidence Act. 16
20) Apart from that, as observed by us earlier, the evidence of the investigating officer show that, the version of PW.1 to PW.3 with regard to the demands made by the Accused were never spoken to in their earlier statements. It would be appropriate to extract the cross- examination of PW.15, which is as under:
"Cross of defence:- PW1 did not state before me that one year prior to the date of incident and ten days after payment of Rs.,20,000-00, his sister Moula Bi was sent to her home by the accused with a demand for additional dowry. PW1 did not state before me that villagers of Konidela informed him that the accused were harassing his sister. PW1 did not state before me that by the time, he went to Konidela, the child of his younger sister left in the house. PW2 did not state before me that her daughter was beaten and sent to her home, but she stated that her daughter was harassed. PW2 did not state before me that she took her daughter to the house of the accused, but she stated that her son has taken her daughter to the house of the accused. PW2 did not state before me that on second occasion also, her daughter was beaten by the accused and sent home. PW2 did not state before me that a Panchayat was convened at the house of Reddys at Konidela by three elders. PW2 also did not state before me that at the Panchayat, the accused promised to look after her daughter properly. PW2 did not state before me that the dead body of her daughter was in the centre of the house and her granddaughter was not found in the house. PW3 did not state before me that dowry amount was given to A1 and A2. PW3 did not state before me that on coming to know the matter from PW1 about the accused sending the deceased to the house of her parents, he enquired the deceased at Nandikotkur and she gave the details. The witness adds that PW3 received information over phone. PW3 did not state before me that his younger sister was afraid of going to the house of the accused. PW3 also did not inform me that by the time I examined him, he was already examined by the Tahsildar of Nandikotkur".
21) The answers elicited show that the version of PW.1 to PW.3 is an improvement from what they stated before the police during the course of investigation.
22) Viewed from any angle namely, the evidence referred to above more particularly that of PW.11, the discrepancy in time, the cause of death, the findings given by the Division Bench earlier which have 17 became final, and this being an appeal against acquittal, we feel that it is not a case to interfere with the findings arrive at. Accordingly, the Appeal is dismissed confirming the findings and conclusions arrived at in S.C. No. 413 of 2008 on the file of I Additional Sessions Judge at Kurnool.
23) Consequently, miscellaneous petitions, if any, pending shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 25.10.2019.
Note: LR copies to be marked B/o.
SM.
18THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CRIMINAL APPEAL No. 1024 of 2012 (per the Hon'ble Sri Justice C.Praveen Kumar) Date : 25.10.2019 SM.