suit under Section 83(2) of the Wakf Act, 1995 for eviction. The suit was decreed by a judgment dated 21.02.2015. The appellant filed A.S.No.98 of 2016, but the same was dismissed - There is no necessity for the Managing Committee of a Wakf to obtain the prior permission either of the Wakf Board or of the Chief Executive Officer to initiate action for recovery of possession from the tenants. -Section 90 (1) requires the Court or Tribunal, in every case relating to title or possession of Wakf property or the right of a Mutawali or beneficiary, to issue notice to the Board. An obligation was imposed under Section 90(1) upon the Wakf Tribunal or Court. The consequence of non-compliance with the obligation under sub-section (1) is spelt out in sub-section (3). Sub-section (3) merely states that in the absence of a notice under sub-section (1), any decree passed can be declared as void if the Board applies to the Court in this behalf. Sub-section (3) of Section 90 does not confer a right upon the tenant to come up with a plea that if no notice is issued under Section 90(1), the decree becomes void. Therefore, it is not for the appellant to say that the failure to issue notice makes the decree void. It is for the Wakf Board to say that. In any case, the object behind Section 90 is to protect Wakf as well as Wakf property. The object behind the Managing Committee of a Wakf evicting a tenant is also to protect the interest of the Wakf. - Section 54 applies to encroachers. When I made a pointed query to the learned counsel for the appellant as to whether the appellant is an encroacher, the learned counsel had no alternative except to deny the same. Therefore, what applies to an encroacher cannot be invoked by a person, who does not admit to be an encroacher.

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE MS. JUSTICE J. UMA DEVI                

SECOND APPEAL No.1014 of 2016    

21-04-2017

 Mohammed Iftekhar Uddin, S/o. Mohammed Abdul Rahman, R/o. 75-7-2,    
Bhavanipuram, Vijayawada.  Petitioner

Imdadgha Complex, Sarai Mosque Wakf, Rep. by its Secretary Mohammad Rafi,    
S/o. Abdul Sattar, R/o. D.No.76-8-18, Crambay Road, Bhavanipuram, Vijayawada,
Secretary, Board of Trustees of Sarai Mosque, Imdadghar, Kaleswarao
Market,Vijayawada-1, Krishna District. Respondent

Counsel for the appellant: Mr. S.M. Subhani

Counsel for Respondent: Mr. Ravi Kumar Tholety

                               
<GIST:

>HEAD NOTE:  

? Cases referred

1. AIR 2016 CALCUTTA 351  

THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN          

SECOND APPEAL No.1014 of 2016    

JUDGMENT:  

      Aggrieved by concurrent judgments of both the Courts below
directing eviction, the tenant of a Wakf has come up with the above
second appeal.
      2. Heard Mr. S.M. Subhani, learned counsel appearing for the
appellant and Mr. Ravi Kumar Tholety, learned counsel appearing for the
respondent.
      3. The respondent is admittedly a Wakf. They filed a suit under
Section 83(2) of the Wakf Act, 1995 for eviction. The suit was decreed by
a judgment dated 21.02.2015. The appellant filed A.S.No.98 of 2016, but
the same was dismissed by the first appellate Court by a judgment and
decree dated 16.11.2016. Hence the present second appeal.
      4. The substantial questions of law raised by the appellant are as
follows:
1.      Whether the Lower Appellate Court is right in not framing the
detailed points for consideration as required under Order 40 Rule
31 CPC and also consider all the grounds raised by the Appellant
herein in these Appeals as per the judgments of this Honble
Court reported in 2002 (2) ALT 589 and 2005 (3) ALD 813?
2.      Whether the Lower Appellate Court is right in conforming the
eviction order of the trial court directing the eviction of the
Appellant/defendant from the suit schedule premises on the
basis of eviction suit filed by the plaintiff Managing Committee
without the consent and directions of the Wakf Board as
required under Section 13(3) and Section 27 of the Wakf Act,
1995?
3.      Whether the Lower Appellate Court is right in ordering of
eviction of defendant from the plaint schedule premises by
dismissing the appeal with cost confirming the eviction order of
the trial Court without there being a statutory notice to the
Wakf Board under Section 90(1) of the Wakf Act, 1995?

Question No.1:
      5. It is true that the lower appellate Court could have framed
detailed points for consideration as required under Order XLI Rule 31
C.P.C. The points taken up for determination by the first appellate Court
are as follows:
1.      Whether the eviction order by the trial Court under the
impugned judgment is sustainable based on the material on
record?
2.      To what relief?

      6. On point No.1 there has been a discussion by the first appellate
Court. Therefore, this is not a case which can be treated as one that
would fall foul of Order XLI Rule 31 C.P.C. Hence the first question of law
is answered against the appellant.
Question No.2:
      7. The second question of law is as to whether the Managing
Committee of the Wakf would require the consent and directions of the
Wakf Board under Section 13(3) and Section 27 of the Wakf Act, 1995.
      8. Under Section 13(3), the Wakf Board is required to be a body
corporate having perpetual succession. It has no correlation to the
disputes of this nature. Insofar as Section 27 is concerned, the same
speaks about the delegation of powers by the Board. Therefore, the same
has nothing to do with the issues arising in this case.
      9. There is no necessity for the Managing Committee of a Wakf to
obtain the prior permission either of the Wakf Board or of the Chief
Executive Officer to initiate action for recovery of possession from the
tenants. Hence the second question of law is also answered against the
appellant.
Question No.3:
      10. The 3rd question of law revolves around Section 90(1) and (3)
of the Act. Heavy reliance is placed by the learned counsel for the
appellant upon the judgment of the Division Bench of the Calcutta High
Court in Sayed Hassan Ali v. Mahammed Sahidul Islam , wherein a
Division Bench of the Calcutta High Court held that in the light of the
prescription contained in sub-section (3) of Section 90 issuance of a
notice before institution of the suit was mandatory.
      11. But I do not think that the decision of the Calcutta High Court
can be applied to the facts of the present case. Section 90 (1) requires the
Court or Tribunal, in every case relating to title or possession of Wakf
property or the right of a Mutawali or beneficiary, to issue notice to the
Board. An obligation was imposed under Section 90(1) upon the Wakf 
Tribunal or Court. The consequence of non-compliance with the obligation
under sub-section (1) is spelt out in sub-section (3). Sub-section (3)
merely states that in the absence of a notice under sub-section (1), any
decree passed can be declared as void if the Board applies to the Court in
this behalf. Sub-section (3) of Section 90 does not confer a right upon the
tenant to come up with a plea that if no notice is issued under Section
90(1), the decree becomes void. Therefore, it is not for the appellant to
say that the failure to issue notice makes the decree void. It is for the
Wakf Board to say that. In any case, the object behind Section 90 is to
protect Wakf as well as Wakf property. The object behind the Managing
Committee of a Wakf evicting a tenant is also to protect the interest of
the Wakf. There is no conflict of interest between the respondent/plaintiff
and the Wakf Board. Hence the third question of law is also to be
answered against the appellant.
      12. Based upon Section 54(1) of the Wakf Act, 1995 one more
question of law was sought to be raised by the learned counsel for the
appellant in the course of arguments. But obviously, Section 54 applies to
encroachers. When I made a pointed query to the learned counsel for the
appellant as to whether the appellant is an encroacher, the learned
counsel had no alternative except to deny the same. Therefore, what
applies to an encroacher cannot be invoked by a person, who does not
admit to be an encroacher.
      13. Hence the substantial questions of law are answered against
the appellant and the Second Appeal is dismissed.
      14. The learned counsel for the petitioner, made a plea, after the
dismissal of the second appeal, to grant six months time to vacate and
handover the vacant possession. The said request would be considered, if
the petitioner files an affidavit to the said effect. Post on 27.04.2017 for
filing affidavit.
      15.       As a sequel, miscellaneous petitions pending, if any, shall
stand closed. There shall be no order as to costs.

__________________________  
JUSTICE V. RAMASUBRAMANIAN      
21st April, 2017

contributory negligence on the part of the claimant is concerned, as, it was admitted by the claimant that she was sitting on the edge of the Jeep thereby contributing to the accident. ; Dr.T.Narsing Rao, who issued Ex.A-3, wound certificate, is a stock witness. The approach of the lower Court in that regard does not find favour with this court.

HONOURABLE SMT. JUSTICE T. RAJANI      

MACMA No.470 of 2008  

07-04-2017

Smt. Gangone Vijayalaxmi  ...Appellant

Mr. D.Madan Kumar and another...Respondents  

Counsel for Appellant: Sri Venkateshwar Varanasi

Counsel for 2nd Respondent: Sri G.Vasantha Rayudu

<GIST:

>HEAD NOTE:  

? Cases referred

SMT. JUSTICE T.RAJANI  

MACMA. No.470 of 2008  

JUDGMENT:  

        This appeal is preferred by the appellant, who is the claimant
before the lower Court, assailing the judgment dated 28.04.2006 passed
in O.P. No.990 of 2002 by the IV Additional District Judge (FTC),
Nizamabad by virtue of which, the lower Court dismissed the said
O.P. that was filed by the claimant seeking compensation for the injuries
sustained by her in a motor accident, which took place on 25.03.2002
at 5.00 pm.

        Heard the learned counsel on either side and perused the material
on record.

        At the hearing, the learned counsel for the appellant argued on the
aspect of contributory negligence, which was awarded by the lower Court
at the rate 25% against the claimant. No interference is felt necessary
with regard to the judgment of the lower Court, so far as its conclusion
that there was contributory negligence on the part of the claimant is
concerned, as, it was admitted by the claimant that she was sitting on
the edge of the Jeep thereby contributing to the accident. The learned
counsel for the appellant submits, by bringing to the notice of this Court,
that apart from the claimant another girl also sustained injuries and died
subsequently and seeks to hold that there is no contributory negligence
on the part of the claimant.  In this regard, this Court sees that there is
absolutely no evidence with regard to where the said injured girl was
sitting. The FIR shows that the driver of the Jeep dashed against an
electrical pole, which speaks about gross negligence on the part of the
driver of the Jeep. But however, negligence of the claimant cannot be
ruled out totally and interests of justice would be met if it is concluded
that there was contributory negligence  on the part of the claimant,
if not to an extent 25%, to an extent of 15%.

        After having rendered a finding that the accident occurred due to
the negligence of the driver of the crime vehicle, the lower court dismissed
the claim of the claimant, going by the understanding that Dr.T.Narsing
Rao, who issued Ex.A-3, wound certificate, is a stock witness.  The
approach of the lower Court in that regard does not find favour with this
court.  It may be true that said Dr.T.Narsing Rao is a stock witness.  But,
the observation of the lower Court to that effect does not carry any basis.
Apart from that while dealing with the claim under a beneficial
legislation the approach of a Court should be different from what it has
been by the lower court, in this case. A comprehensive study of the
documents would have perhaps led the court to a different conclusion.

        The report given with regard to the accident is marked as Ex.A-1,
which shows that the accident caused injuries on the head and legs of
the claimant and that the claimant was taken for treatment to the
hospital at Nizamabad.  Hence, prima faice, the fact that the petitioner
sustained injuries in this accident is proved.

      Ex.A-3 is the requisition given by the office incharge of P.S.
Yedpalli to the medical officer incharge Government Civil Hospital,
Nizamabad, to examine the claimant and render opinion.  On the reverse
of the same requisition Dr.T.Narsing Rao mentioned the injuries
sustained by the claimant.  Hence, by the above fact it can be concluded
that the requisition has reached the hands of Dr.T.Narsing Rao and that
he has examined the claimant.  The above two facts together would show
that the claimant was nevertheless examined as a patient, in which case
the same is expected to be reflected in the records. There is no contra
evidence produced with regard to the injuries allegedly sustained by the
claimant.  The lower Court took pains to summon the Medico Legal Case
(MLC) file from the said hospital to verify whether the claimant was
admitted in the hospital and found that there was no entry in the said
MLC containing the admission of the claimant.  Going by the fact of the
absence of entry of the name of the claimant in the MLC, the lower Court
disbelieved the very fact of the claimant sustaining injuries, which in
considered opinion of this Court is not proper.  Obviously, the lower
Court seems to have entertained a doubt with regard to the sustaining of
injuries by the claimant, from the fact that Dr.T.Narsing Rao was a stock
witness and it was prompted to call for the MLC, to verify the
genuineness of the case and incidentally no entry was found in the MLC
extract thereby giving strength to the opinion of the lower Court.  But the
probable assumption that can be made in this case, by looking at the FIR
and requisition given by the Police, is that the claimant sustained
injuries and was sent to the hospital. The lower Court stopped short of
further probing into the aspect of non entry of the name of the claimant
in the MLC, to understand the reason for the said non entry. The reason
for the said non entry may not be the falsity of the injuries alone.
The lethargy of the concerned can also result in such non entry and the
same would have come out if there had been a further probe. Hence,
in the above circumstances, it has to be believed that the claimant
sustained injuries as mentioned on the reverse of the requisition given by
the Police, which are two fracture injuries i.e.  fracture of left patella
and
fracture of  3rd and 4th left ribs and considering the same,
this Court is of the opinion that interests of justice would be met if
Rs.30,000/- is awarded towards pain and suffering caused by two
fracture injuries and accordingly, Rs.30,000/- is awarded.

      Further, this Court is also not in a position to uphold the
genuineness of the medical bills for the reason that the claimant did not
examine any doctor to testify about the genuineness of the said bills.  The
name of Dr.T.Narsing Rao is found on all the bills and the lower Court
did not believe the trustworthiness of Dr.T.Narsing Rao and this Court
opines that though there is no basis laid for the belief of the lower Court
about Dr. T.Narsing Rao being a stock witness, there must have been
some reason for the lower Court to come to that conclusion.  However, an
amount of Rs.10,000/- can be awarded considering probabilities of the
case and the fracture injuries having been sustained to left patella and
ribs of the claimant, might have disabled her for at least  two months
from attending her duties.  Even if she is considered as a housewife her
services can be valued, in the least, at Rs.3,000/-
per month.  Hence, Rs.6,000/- is awarded under the head of loss of
services or income as the case may be, during the period of treatment rest
and recovery, thereby making the total award as Rs.46,000/- out of
which, Rs.6,900/- is deducted towards contributory negligence of
claimant, thereby making the award as Rs.39,100/-.

      In the result, appeal is partly allowed by awarding Rs.39,100/- as
compensation, with interest at the rate of 7.5% per annum from the date
of petition till the date of realization.  Both the respondents shall be
liable
for the award amount and they are directed to deposit the award amount
within a month from the date of this award. Proportionate costs are
ordered.
___________________  
JUSTICE T.RAJANI  
Date: 07.04.2017

cheque bounce case - Stop Payment - Unclaimed Statutory notice - not save the skin of the accused - when presented returned dishonoured even outcome of stop payment, it is within the meaning of the provisions of the Act and even after dishonour when statutory notice issued for any dispute of not served when shows unclaimed from the presumption under Section 27 General Clauses Act of due service available therefrom it is of deemed service - there is no oath against oath and there is no evidence in rebuttal and Exs.P10 and P11 with reference to Ex.P1 not in dispute, the Courts below are right in finding the accused guilty and for this Court while sitting in revision against that concurrent finding of guilt concerned there is nothing to interfere.

HONBLE DR. JUSTICE B. SIVA SANKARA RAO        

CRIMINAL REVISION CASE No.2887 of 2015    

18-04-2017

M. Mohan Rao Petitioner    

Bheemshetty Sreedhar and another.Respondents    


Counsel for the petitioner: Sri T. Pradyumna Kumar Reddy

Counsel for the respondents:Sri D.V. Reddy for 1st respondent
                              Learned Public Prosecutor for State

<GIST:
       
>HEAD NOTE:  


? Cases referred
1.      2001 Crl.L.J. 4745
2.      (2015) 9 SCC 622
3.      (2012) 1 SCC 260
4.      (2014) 16 SCC 32
5.      (1990) 2 SCC 385
6.      (1977) 3 SCC 25
7.      (1990) 4 SCC 718
8.      2010 (5) SCC 663
9.      2013 (16) SCC 465
10.     (2007) 6 SCC 555

HONBLE DR. JUSTICE B. SIVA SANKARA RAO        
Crl.R.C.M.P.Nos.1708 & 1709 of 2016
IN/AND
CRIMINAL REVISION CASE No.2887 of 2015    
ORDER:
      The revision petitioner is the sole accused in C.C.No.216 of
2012 on the file of Special Magistrate V, Hyderabad, which is for
the offence under Section 138 of the Negotiable Instruments Act
(for short the Act) and taken cognizance from the private
complaint of the revision 1st respondent-complainant based on
Ex.P11-cheque bearing No.601175 dated 05.12.2011 for
Rs.5,00,000/- which is claimed towards the part payment of out of
the total amount of Rs.35,00,000/- based on memorandum of
understanding-cum-deed of compromise dated 03.02.2011 under  
Ex.P10, which is outcome of contract for sale-cum-GPA dated
07.04.2011 Ex.P1 in relation to the property covered by original of
Ex.P3-sale deed dated 02.12.2010.
      2. The factual background show the complainant entered
into said sale agreement-GPA with 4 persons viz., Smt. R.Rani,
N.R. Nareder, N.R. Ravinder and S.Dhanalaxmi in relation to open
plot of 272 square yards in survey Nos.39 & 40, Kakaguda Village
of Secunderabad and for consideration of Rs.35,00,000/- and on
came to know of said property already sold by the said vendors
collusively to the accused under original sale deed supra, the
complainant demanded for refund of the amount from all including
the accused and on their refusal, there was a criminal case for the
offence of cheating and criminal breach of trust and also police
registered the crime and pending crime, there was a compromise
whereunder the accused promised to pay Rs.35,00,000/- for final
settlement of the amount due to the complainant vide the MOU-
compromise deed dated 03.12.2011 supra and issued the Ex.P11-  
cheque in question and when presented the same was returned
dishonoured on the ground of stop payment, on 08.12.2011 and
from the statutory legal notice sent to the accused returned as
unclaimed from the accrual of cause of action filed the complaint.
      3. After sworn statement recorded, the learned Magistrate
has taken cognizance for the offence by taken case on file and after
supply of copies and from examination of accused and on his
denial of the accusation put to trial.  In the course of trial, the
complainant came to the witness box as PW.1 and placed reliance
on 22 documents including those materially relevant referred
supra.  From said evidence and after hearing both sides, the trial
Court held that the cheque is routed from the account
undisputedly and it is in settlement of the amount due for the sale
agreement outcome of compromise and settlement, which is within
the meaning of legally enforceable debt and the burden is on the
accused also to rebut the presumptions and still to say how not
liable by also referring to the expression of the Apex Court in
K.N.Beena Vs. Muniyappan  and found him guilty for the offence
and after hearing, sentenced to undergo six months rigorous
imprisonment with payment of fine Rs.10,000/- with default
sentence of 3 months saying out of said fine amount of Rs.9,000/-
as compensation payable to the complainant.
      4. Against said conviction judgment dated 12.03.2014, the
accused preferred Crl.A.No.291 of 2014 and the learned
Metropolitan Sessions Judge as FAC I Additional Metropolitan
Sessions Judge vide judgment dated 23.12.2015 dismissed the
appeal confirming the trial Courts conviction judgment and also
the sentence of imprisonment with fine by repelling the several of
the contentions raised by the accused/appellant in the grounds of
appeal.
      5. It is impugning the same, the present revision is filed with
the contentions that the Ex.P10-MOU shows the complainant can
retain the property if consideration of Rs.35,00,000/- is not paid
and the Ex.P11 was issued on condition of the complainant will
withdraw the civil suit and according to MOU-Ex.P10 any dispute
will be settled amicably and the cheque case is not sustainable and
the amount covered by the statutory notice is not for the cheque
amount but the entire amount, notice is also not legally
sustainable and thereby the conviction judgment with concurrent
finding is unsustainable and accused is entitled to be acquitted by
allowing the revision.
      6. Pending revision, there was interim suspension of the
conviction judgment subject to executing a bond with sureties and
the complainant-R.1 to the revision sought for vacating the interim
orders of suspension and also filed application to dismiss the
revision and also to enhance the sentence of imprisonment with
fine and further to award compensation of Rs.5,00,000/- against
the accused in favour of the complainant vide
Crl.R.C.M.P.Nos.1708 & 1709 of 2016.
      7. Heard the learned counsel for the revision
petitioner/accused and also the learned counsel for the revision
1st respondent respectively at length and perused the material on
record.
      8. In so far as compensation and enhancement of sentence
concerned, the complainant placed reliance on the expression of
the Apex Court in Mainuddin Abdul Sattar Shaikh Vs. Vijay D.
Salvi  particularly from Paras 14 & 15 saying dishonour of cheque
for Rs.74,200/- the sentence of accused to undergo simple
imprisonment of 5 months and compensation of twice the cheque
amount is awarded therein by referring to R. Vijayan Vs. Baby
saying the provisions of the Act strongly lean towards grant of
reimbursement of the loss suffered by complainant by
compensation and the Courts should unless there are special
circumstances uniformly exercise power to levy fine up to twice the
amount of cheque keeping in view the cheque amount and the
simple interest @ 9% p.a. as a reasonable quantum of loss and
direct payment of such amount as compensation by way of
restitution in regard to loss on account of dishonor of cheque in a
practical and realistic way as a reasonable one, to say it is not only
ordering payment of cheque amount but also interest at such rate
thereon not only increase credibility of cheque as a negotiable
instrument but also credibility of Courts of Justice.  Needless to
say with default sentence for non-payment of said cheque amount
with interest.  The expression says it is not the imprisonment but
mainly payment of the cheque amount with interest to compensate
the complainant.  The other expression placed reliance is S.R.
Sunil & Company Vs. D.Srinivasavaradan  the Apex Court held
for the cheque amount of Rs.5,38,425/- which is in the interest
component for the borrowal amount ordered to pay concerned as
fine with default sentence saying undisputedly the principal
amount paid by the accused but the interest component for the
cheque pending for the last 15 years without realization, thereby
held the sentence no way called for interference where learned
Magistrate imposed till rising of the day and payment of the
amount.  The other judgment placed reliance is Sahab Singh and
Others Vs. State of Haryana  it says the High Court got even suo
motu revision powers to enhance the sentence in exercise of such
revision powers even in the appeal against conviction maintained
by the accused and even no appeal against sentence filed by State
and such power is there from the reading of the provisions under
Sections 397, 401, 374, 377 & 386 Cr.P.C.  In fact coming to the
Section 401 Cr.P.C., there is a specific bar under Section 401
clause (3) Cr.P.C. of if it is against acquittal, the revision Court has
no power to impose sentence, but for if at all to remand.  The
wording in this Section is that the High Court cannot convert the
acquittal into conviction.
      9. No doubt the case in Sahab Singh supra and also the case
on hand are not against acquittal, but by accused against
conviction and the complainant represented by State in a police
case even not maintained in revision what was held is the High
Court got the revision powers even suo motu to take with an
opportunity to accused appellant to contest with the same.  The
said suo motu revision for passing orders for that conclusion by the
two Judge Bench in Sahab Singh relied upon earlier Three Judge
Bench of Eknath Shankarrao Mukkawar Vs. State of
Maharashtra  saying provision of appeal against inadequacy of
sentence does not take away High Courts power to enhance the
sentence by exercising suo motu powers apart from the said power
to file appeal against the inadequacy of sentence, which is no
doubt in relation to Food Adulteration case outcome of private
complaint procedure.  The other decision placed reliance is in this
regard is Govind Ramji Jadhav Vs. State of Maharashtra  of the
suo motu revision powers of the High Court to enhance the
sentence however by giving opportunity of hearing to the accused
in compliance with the principles of natural justice.  The other
decision referred is of the Three Judge Bench in Damodar
S.Prabhu Vs. Sayed Babalal  saying the object of incorporating the
penal provisions by Sections 138 to 142 of the Act amended by
66/1988 is to provide a strong criminal remedy in order to deter
the worryingly high incidence of dishonour of cheques as
possibility of imprisonment provides a remedy of punitive nature
and provision for imposing fine thereby may extend to twice the
amount of cheque to serve as compensatory purpose to the
complainant for the dishonour of cheque to describe the same as
regulatory offence as the impact of the offence usually confirmed to
private parties involved in the commercial transactions, which is
somewhat different to other conventional offences.  Even the Two
Judge Bench expression of the Apex Court in Somnath Sarka vs.
Utpal Basu Mallick  clearly says generally in cheque bouncing
cases as per the settled law the endeavour of the complainant is
only to get the cheque amount with interest rather than punishing
the accused for somewhat different to other conventional offence
with punitive measure.
      10. Here the cheque in question was dated 05.12.2011.
What the Section 138 of the Act speaks is imprisonment up to 2
years or double the amount of cheque or both as the case may be.
But for the amendment introduced to Section 143 of the Act by Act
No.55/2002 with effect from 06.02.2003 providing for expeditious
disposal by adopting summary trial rather than summons case, the
fine to be imposed is above Rs.5,000/- notwithstanding anything
contained in Cr.P.C. with imprisonment up to maximum of one
year.  This amendment provides where fine is imposed above
Rs.5,000/- it is with imprisonment which shall not exceed one
year notwithstanding anything contained even in Section 138 of
the Act and even Section 29 Cr.P.C.  Thus for lack of non absentee
clause in Section 138 which un-empowers a Magistrate to impose
more than fine of Rs.5,000/-, that is amended in 2005 in Cr.P.C.
Section 29 (2) Cr.P.C. to Rs.10,000/-, however by virtue of Section
143 after 06.02.2003 for the offence subsequent to that, fine about
Rs.5,000/- can be imposed unlimited from the bar under Section
138 of the Act or Section 29 (2) Cr.P.C. have no application for
Section 143 prevails over them.
      11. Here from the series of expressions though the
complainant by the 2 applications sought for awarding of
Rs.5,00,000/- as compensation in addition to the cheque amount
and also to enhance the sentence of imprisonment to the maximum
of 2 years, in view of the expressions relied by the complainant
itself which shows the aims and objectives of the provisions of the
Act which are somewhat different to the punitive consequence in
the sentencing policy in other conventional crimes, more
particularly, in Damodar S.Prabhu, R.Vijayan, S.R. Sunil &
Company and also Mainuddin supra besides Somanth Sarka  
supra, where it was held, imposing of sentence imprisonment till
rising of the day is just besides to compensate the complainant by
not only ordering of the amount of the cheque but also further
compensation to the complainant in the form of interest or
otherwise up to double the amount of the cheque.  It is in relation
to the sentence concerned.
      12. Now coming to the legality and correctness of the
concurrent findings of the conviction judgments of the Courts
below impugning by the appellant concerned, undisputedly the
Ex.P10 undertaking letter executed by the accused to compensate
the complainant for the sale agreement consideration and out of
part payment of which, the cheque in question issued from his
account.  It is proved by complainant by said evidence of the
cheque issued is for legally enforceable debt or other liability
covered by Ex.P10.  For Ex.P11-cheque when presented returned  
dishonoured even outcome of stop payment, it is within the
meaning of the provisions of the Act and even after dishonour
when statutory notice issued for any dispute of not served when
shows unclaimed from the presumption under Section 27 General  
Clauses Act of due service available therefrom it is of deemed
service and also held in this regard by the Three Judge Bench in
C.C. Alavi Haji Vs. Palapetty Muhammed  to said conclusion for
not even after filing of the private complaint case taken cognizance
and service of summons accused not chosen to pay the said cheque
amount, even the sale agreement mentioned with reference to
compromise in the statutory notice when it is clear of the cheque
issued for Rs.5,00,000/- returned dishonoured in which demand
to pay also if other amounts mentioned the notice no way invalid
therefrom as rightly concluded by the Courts below.
      13. Having regard to the above and there is no oath against
oath and there is no evidence in rebuttal and Exs.P10 and P11
with reference to Ex.P1 not in dispute, the Courts below are right
in finding the accused guilty and for this Court while sitting in
revision against that concurrent finding of guilt concerned there is
nothing to interfere.
      14. From what is discussed supra so far as sentence of
imprisonment with fine/compensation outcome of the fine
concerned as referred supra, to sub serve the ends of justice it is
just to modify from sentence of 6 months simple imprisonment
with fine of Rs.10,000/-, to imprisonment till rising of the day by
giving set off to the period undergone if any and fine of
Rs.10,00,000/- of which Rs.50,000/- goes to the State and
Rs.9,50,000/- as compensation to the complainant which includes
Rs.10,000/- fine if paid to adjust and out of it in compensation
received by complainant, for the balance to pay or deposit within
one month from today failing which with default sentence of 6
months simple imprisonment for the lower Court to levy under
Section 421 Cr.P.C. and enforce it.
      15. Accordingly and in the result, the criminal revision case
and Crl.R.C.M.P.Nos.1708 & 1709 of 2016 are allowed in part.
      Consequently, miscellaneous petitions, if any shall stand
closed.  No costs.
_____________________________________    
JUSTICE Dr. B.SIVA SANKARA RAO      
Date: 18.04.2017

No maintainance from Paramour - but he is liable to pay maintenance to his illegitimate child = sole respondent (revision petitioner), used to approach her under the pretense of dropping the minor boy Ganesh in school and developed intimacy with her and lured her to marry him and there was a marriage between them on 27.11.2004, at Nakrekal and in their wedlock, they blessed with female child, M.C. 2nd respondent by name Venkata Harshini. It is thereby her claim is for entitlement of maintenance.= Having regard to the above, the awarding of maintenance to her of Rs.3,500/- per month is per se unsustainable and is liable to be set aside.

HONBLE DR. JUSTICE B.SIVA SANKARA RAO      

CRIMINAL REVISION CASE No.1587 OF 2012    

13-04-2017

Moodududla Srinivas, S/o M.Yoganandam, aged 31 years, OCC:sOFTWARE eNGINEER, r/O c-210, Siddamsetty Towers, Jawahar Nagar, M          

SMT  .N.Usha Rani. W/o M.Srinivas, aged 34 years,OCC: House Wife, Near Vishnu Apartments, Gndhinagar, Hyderabad, and others.  

Counsel for the petitioner: Sri I.Gopala Reddy

Counsel for the respondents: Sri K.R.Koteswara Rao , Public Prosecutor

<Gist

>Head Note:

?Citations:

 2000 Crl.L.J. 1(1)
  (2011)  1 SCC 141
  (1993) 3 SCC 406
  (2014) 1 SCC 188
  2014 1 NCC (SC) 1


HONBLE DR. JUSTICE B.SIVA SANKARA RAO      


CRIMINAL REVISION CASE No.1587 OF 2012    

ORDER:

         The revision petitioner is the sole respondent in
M.C.No.245 of 2009.   The revision respondent No.1, for herself
and minor daughter, in the so-called wedlock with revision
petitioner, maintained the M.C.No.245 of 2009, before the
Additional Metropolitan Sessions Judge-cum- Judge, Family
Court, Hyderabad and after contest in her claim at
Rs.25,000/- per month to herself and the minor daughter, the
learned Judge, Family Court, on 26.07.2012, awarded
maintenance of Rs.3,500/- to her and Rs.5,000/- to the minor
child per month, from date of passing the order.  Impugning
the same, the so-called husband maintained the present
revision as referred supra.

2.      Heard both sides at length and perused the material on
record.

3.      The undisputed facts, right from the maintenance claim
petition averments are that the M.C. Petitioner No.1
Smt.N.Usha Rani, married one Nomula Srinivas on 30.08.1999
and they resided at Gandhi Nagar, Hyderabad and in their
valid wedlock, they blessed with male child by name Sai
Ganesh, in and around 2009 and the said Nomula Srinivas
went to Malaysia subsequently and Nomula Srinivas and
herself lived even in U.S.A. from December, 2004 to February,
2005 and they came back to India and thereafter differences
arose between them and since February, 2005 or so, they are
residing separately as even efforts through elders became
futile.  Even the other averments undisputed are that there was
a so-called document of Ex.P.16, dated 25.11.2005, executed
between herself and Nomula Srinivas, stating there is no valid
marriage between them, however, if there is anything in
subsistence, it is dissolving by the memorandum of
understanding supra.

4.      It is her claim therefrom that thereafter the M.C. sole
respondent (revision petitioner), used to approach her under
the pretense of dropping the minor boy Ganesh in school and
developed intimacy with her and lured her to marry him and
there was a marriage between them on 27.11.2004, at 
Nakrekal and in their wedlock, they blessed with female child,
M.C. 2nd respondent by name Venkata Harshini.  It is thereby
her claim is for entitlement of maintenance.

5.      Section 4 of the Hindu Marriage Act, provides the
overriding effect of the Act provisions.  Undisputedly, it is not
even a case of there is any caste custom in prevalence or the
provisions of the Hindu Marriage Act are not applicable to
them.  Once such is the case, as provided by the Act and as
laid down in Section 4 of the Act, any dissolution of the
marriage or annulment of the marriage is only through court of
law and any agreement or understanding or proceeding 
outside the court has no legal sanctity, much less to say,
including by virtue of Ex.P.16, there from of the marital tie
between Nomula Srinivas and the M.C. 1st petitioner -
Smt.N.Usha Rani, any way terminated.  

6.      Once such is the case, whether she and the minor child
are entitled to claim maintenance or not concerned, as per
Section 16 of the Hindu Marriage Act (as per 1976
amendment), even a child of void marriage is legitimate for all
purposes including for purpose of succession, to say including
for entitlement of maintenance during minority and till
marriage or securing independent means.  Here, as per the
pleadings and also from the evidence on record, there was a
marriage between M.C. 1st petitioner and M.C. sole respondent.
Thus, by virtue of the marriage - though void, because of the
M.C. 1st petitioners marital tie with Nomula Srinivas -
admittedly in subsistence for not dissolved even from the
Ex.A.16, M.O.U., dated 25.11.2005, the child is entitled to
claim maintenance, but not by herself as
self-infected hardship cannot be taken advantage by any
person is also the settled law as one of the fundamental
principles.

7.      Even from the petition averments and evidence on record
of he knowingly married her, for she being wife of Nomula
Srinivas of the marital tie in subsistence and knowingly
married the M.C. respondent M.Srinivas, said marriage is once
void, she is not getting the status of a wife, but for to consider
to the status of the child within the limited scope as laid down
in Section 16 of the Act as referred supra.

8.      Coming to the M.C. petitioner wants to rely on the
expressions of the Apex Court:
(a) Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and
another , what the principle laid down therein by the two
judge bench of the Apex Court is that strict proof of marriage is
not required to claim maintenance in the proceedings under
Section 125 Cr.P.C.  There is no dispute on the proposition,
including to draw any inference from long living together, but
for to appreciate with reference to the facts, as each case
depends upon its own facts.  Here from the very petition
averments, the marriage with Nomula Srinivas to the M.C. 1st
petitioner was validly performed on 30.08.1999 and from
Ex.P.16 - M.O.U., dated 25.11.2005, outside the court there is
no valid dissolution of said marital tie and once there is no
legal dissolution of the marital tie of her with Nomula Srinivas,
even any ceremony of marriage with Moodududla Srinivas (the
M.C. respondent) taken place, that does not give sanctity and
thereby the decision in Dwarika Prasad Satpathy (referred
supra) has no application to the case on hand.
(b)     In Chanmuniya Vs. Virendra Kumar Singh
Kushwaha and another , where the proposition laid down
from the settled expressions is that a long living together gives
the presumption to say subsistence of the relation of man and
wife and that too there was performance of a marriage
ceremony between them from the evidence to give a strong
presumption of valid marriage.  Here that proposition has no
application to the facts, because in the very maintenance claim
petition, it is admitted that there is already a first marriage with
Nomula Srinivas to the M.C. 1st petitioner in subsistence.
     
(c)     In Rameshchandra Rampratapji Daga Vs.
Rameshwari Rameshchandra Daga, dated 13.12.2004,  
a case under Section 25 of the Hindu Marriage Act (for short,
HMC Act) for permanent alimony from the finality of the
proceedings in relation to the matrimonial status in dispute,
there is no dispute on the proposition but for to say this
decision has also no application to the facts, for not a claim
under Section 25 of the HMC Act.  This Court even cannot
convert the Section 125 Cr.P.C. proceedings as one under
Section 25 of HMC Act.  Further there is no matrimonial
proceedings filed or pending much less disposed of for
annulment of the void marriage to invoke Section 25 of HMC
Act  vide Chand Dhawan vs Jawaharlal Dhawan .

(d)     Even from the decision in Badsha Vs. Urmila Badsha
Godse and another , in the facts where the husband having a
wife already suppressed that factum and married the M.C.
petitioner (who was earlier spinister) and it is held there from
that once he suppressed the factum of he got a valid 1st wife,
she is entitled to maintenance.  Here the facts are entirely
different.  It is not even her case that M.C. respondent got
another wife and suppressed the fact and married her.  It is
her case in fact that she got another husband Nomula Srinivas,
with whom marital tie not terminated.

(e)     In Indra Sarma Vs. V.K.V.Sarma , of the Apex Court,
is the outcome of domestic violence there was a discussion in
considering domestic relationship is subsisting or not.  There is
no any finding in favour of the petitioner to say that despite she
got 1st husband from the so-called marriage, against the 2nd
husband she is entitled to maintenance or other claims under
Domestic Violence Act.

9.      Having regard to the above, the awarding of maintenance
to her of Rs.3,500/- per month is per se unsustainable and is
liable to be set aside.  Needless to say, her remedy, if any, is
either under Section 24 or 25 of the Hindu Marriage Act or to
maintain any suit for compensation as one of the arguments
advanced in the course of hearing, which remedy is elsewhere
as discusses supra.  So far as child maintenance is concerned,
it is upheld as entitled by virtue of the discussion supra.

12.     Accordingly, this criminal revision case is partly allowed.
Miscellaneous petitions pending, if any, in this case shall stand
closed.

______________________________  
DR.B.SIVA SANKARA RAO, J    
13.04.2017

whether FIR be treated as 161 statement =Their preliminary act of visiting the scene cannot be regarded as part of investigation.- the police visited the scene much prior to the registration of FIR and conducted the investigation and therefore, Ex.P.1 was hit by Sec.162 Cr.P.C. In our considered view, even if the said admission of PW.1 is taken into consideration, the FIR would not be hit by Sec.162 Cr.P.C for the reason that in this case, the acts performed by the police after reaching the spot cannot be regarded as part of investigation.

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND  THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO                    

Criminal Appeal No.1603 of 2010

21-04-2017

Maskoori Srinivas.Appellant/Accused No.1

The State of A.P. Rep by its Public Prosecutor, High Court of A.P, Hyderabad. . Respondent

Counsel for Appellant : Smt. C. Vasundhara Reddy

Counsel for Respondent   : Public Prosecutor (Telangana)

<Gist:

>Head Note:

? Cases referred:
1)(2014) 2 SCC Pg.1
2)1993 CriLJ 3684 (SC)
3)2010(1) ALD Crl. Pg.699 (AP)
4)(2004) 13 SCC 165
5)2017(1) ALT (Crl.) 48 (AP) = 2017(1) ALD (Crl.) 265 (AP)
6)1994(2) SCC Pg.685
7)2009 CriLJ 4655(SC)
8)(1995) 4 SCC 392
9)(2004) 13 SCC 165

HONBLE SRI JUSTICE SURESH KUMAR KAIT        
AND
HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
CRIMINAL APPEAL No.1603 of 2010    
JUDGMENT: (Per Honble Sri Justice U.Durga Prasad Rao)  
     The challenge in this Criminal Appeal, at the instance of
Appellant/A1, is the conviction and sentence recorded by the learned
VI Additional District and Sessions Judge, Medak at Siddipet in his
Judgment dt.28.09.2010 in S.C.No.154/2009 whereby and  
whereunder the learned Judge while acquitting A2, found A1 guilty of
the charges under Sections 302, 379, 498-A of Indian Penal Code and
Sections 3 and 4 of Dowry Prohibition Act (for short D.P.Act) and
sentenced him to suffer imprisonment for LIFE and other sentences as
mentioned in the judgment.
2)      The facts which led A1 to file the instant Criminal Appeal
briefly are that the deceased is the wife of A.1 and since after the birth
of a male child namely Nootan, A.1 started harassing the deceased for
additional dowry and inspite of her parents paying amounts to him
from time to time, he was not satisfied and he used to harass her
physically and mentally for additional dowry.  Besides he was
addicted to vices like playing cards and consuming alcohol.  The
deceased refused to have sexual intercourse with him on the
apprehension that he was suffering with HIV disease. A.1
misunderstood her refusal as her having some extra marital affairs and
decided to kill her ultimately. On the intervening night of
12/13.09.2008, A1 brutally killed her by hacking with an axe in their
rented house situated at Ganesh Nagar, Siddipet.  After investigation,
the I.O laid charge sheet against the accused.
a)      On appearance of accused, the trial Court framed charges
against A1 and A2 for the offences under Sections 302, 379, 498-A of
IPC and Sections 3 and 4 of D.P.Act, for which, the accused pleaded
not guilty and claimed to be tried.
b)      During the trial, PWs.1 to 15 were examined and Exs.P1 to P14
were marked and MOs.1 to 14 were exhibited on behalf of the
prosecution. No defence evidence was adduced on behalf of the
accused, but Exs.D1 and D2 were marked from the portions of the
Section 161 Cr.P.C., statements of PWs-3 and 6 respectively.
c)      The defence of the accused is one of total denial of the offence.
d)      The trial Court on appreciation of the evidence, found A1 guilty
for the charges framed against him and accordingly convicted and
sentenced him as stated supra, however acquitted A2.
     Hence, the Criminal Appeal by A1.
3)      Heard arguments of Smt. C.Vasundhara Reddy, learned counsel  
for appellant/A1 and learned Public Prosecutor for the State
(Telangana).
4 a)    Severely fulminating the Judgment, learned counsel for the
appellant/A1 firstly argued that it is a case based purely on
circumstantial evidence, as admittedly, there were no eye-witnesses
for the offence allegedly committed by A1 but the trial Court
erroneously convicted the accused even though the prosecution failed
to establish the suspicious circumstances projected against him.
Hence, the conviction and sentences are legally not tenable and liable
to be set aside. In-expatiation, learned counsel would submit that
PWs.1 to 4, 7 and 8 were highly interested witnesses and the trial
Court placed implicit reliance on their evidence without any
corroboration and came to a wrong conclusion as if A1 demanded
additional dowry and harassed the deceased and even murdered her.
No independent witnesses were examined to establish the guilt of the
accused.
b)      Secondly, she argued, there was absolutely no reliable evidence
to hold that A1 and the deceased were last seen together and in that
regard the evidence of PWs.5 and 6 was highly doubtful and
unbelievable and therefore, the Trial Court ought to have rejected their
evidence as unnatural and improbable.
c)      Thirdly, learned counsel would argue that the entire prosecution
case is unbelievable and liable to be discarded for the main reason that
in this case most of the investigation such as inspection of scene of
offence, recovery of dead body, examination of the main witnesses
etc., were completed long prior to the registration of FIR and hence the
FIR is hit by Sec.162 Cr.P.C.  Learned counsel argued that on
receiving information, the police must at first register FIR and then
commence the investigation which is the trite law but the reverse
procedure is followed in this case obviously to manipulate the FIR to
suit their case. Learned counsel relied upon the following decisions to
argue the necessity to register the FIR on receipt of information:
1)  Lalitha Kumari vs. Government of Uttar Pradesh and others

2)  State of Andhra Pradesh vs. Punati Ramulu and others
d)      Fourthly, she argued that the alleged confession of A1 and the
consequent recovery of blood stained cloths and Axe were all fertile
manipulation by the police and thus ought to have been discarded.
Learned counsel thus prayed to allow the appeal and set-aside the
conviction and sentences.
e)      Alternatively she argued, even if prosecution case is believed to
be true, the charge under Sec.302 IPC is not maintainable for the
reason that the facts would reveal that the motive for accused to kill
his wife was due to the fact that on the night of incident she did not
permit him to have intercourse with her.  If that is true, the accused
might have committed the offence in a fit of anger and he had no
intention to kill her.  Further, the evidence of post-mortem doctor
would show that the fatal injuries found on the dead body could be
caused with the reverse portion of MO12Axe which indicate that
the accused had no intention to kill the deceased as otherwise he
would have chopped her body with the sharp edge of the axe.  Hence,
she would argue, the case may be treated as a culpable homicide not
amounting to murder and consequently the punishment may be  
converted from Sec.302 IPC to 304 Part II IPC. She relied upon the
decision reported in Kandi Venkata Suneel Kumar Reddy S/o Subba  
Reddy vs. The State of Andhra Pradesh rep. by its Public Prosecutor
High Court of A.P.  to buttress her argument.
5)      Per contra, while supporting the judgment learned Public
Prosecutor argued that the prosecution by cogent evidence of PWs.1
to 4 and 7 to 8, established the strained relation between A.1 and
deceased due to his harassing her for additional dowry. He argued that
PWs.1 to 4 being the close relations of the deceased were the best
persons to speak of dowry harassment meted out by the accused and
hence their evidence cannot be discarded on the sole ground that they
are relations of the deceased.  He further argued, their evidence would
reveal that few days prior to the incident, the accused took a house on
rent in Siddipet. He setup his family with deceased and on the night of
incident, he was with the deceased as spoken by PWs.5 and 6 and on
the early morning of next day, the dead body was found in his house.
Therefore, the accused being the husband of the deceased and inmate
of the house where murder took place, owes a responsibility to offer
an explanation about the cause of death of deceased under Sec.106 of
Indian Evidence Act, as the said fact was especially within his
knowledge.  Since the accused disappeared from the very next day of
incident and did not offer any explanation and he was arrested by the
police few days after the incident and most importantly, upon his
confession and revelation, police recovered MOs.4, 12, 13 and 14, all
the suspicious circumstances which were established by the
prosecution unerringly proved the guilt of the accused. Therefore, the
trial Court rightly recorded conviction against him and thus there are
no merits in the appeal. He further argued that the FIR was not hit by
Sec.162 Cr.P.C as argued by the appellant because, PW.13
emphatically stated that the police commenced investigation only after
registration of FIR and not before. He alternatively argued that even
assuming that on cryptic information by some person about their
finding dead body in the house of A.1, the police went to the scene of
offence to ascertain the truth of the said fact, that act of the police
itself would not amount to commencement of the investigation.
Accordingly, the FIR registered subsequently would not be hit by
Sec.162 Cr.P.C. On this aspect, he relied upon the following decisions:
1)  State of Rajasthan vs. Maharaj Singh and another
2)  S.K.Dawood vs. The State of A.P. rep.by its Public Prosecutor
        He thus prayed to dismiss the appeal.
6)      In the light of above rival arguments, the points that arise for
determination are:
i)      Whether the prosecution could establish all the suspicious
circumstances projected against the appellant/A.1 and whether
such proven circumstances unerringly establish his guilt?
ii)     Whether the judgment of the trial Court is factually and legally
sustainable?
7)      POINT No.1: It is a case based on circumstantial evidence.
Admittedly A.1 and deceased were husband and wife and she was  
murdered in his house. Hence the prosecution is expected to establish
the following incriminating circumstances:
i)      A.1 used to harass the deceased for additional dowry and on
other family issues;
ii)     Both of them lived in rented house of PW.5 since few days
before the incident.
iii)     On the night of incident, A.1 and the deceased were together in
the rented premises.
iv)      A.1 absconded since the night of incident and did not offer
explanation either for the death of his wife or his abscondance.
v)      Recovery of incriminating material objects on the disclosure of
A.1
vi)      Motive.
       The prosecution sought to prove most of the above
circumstances through the evidence of PWs.1 to 8.  PW.1 is the
mother; PW.3 is the brother and PWs.2 and 4 are maternal uncles of
the deceased; PW.5 is the owner of the rented house of A.1 at Siddipet
and PW.6 is the co-tenant; PW.7 is the mediator who arranged the
marriage of deceased with A.1; and PW.8 is the master of PW.3 under
whom PW.3 worked as driver. Hence we gave our anxious  
consideration to the above evidence.
8)      The evidence of PW.1 is to the effect that the marriage of
deceasedRenuka, who was her eldest daughter and A.1 was held  
about 8 years prior to her evidence; during marriage, they gave dowry
of Rs.1,30,000/- gold and other paraphernalia; about 2 years back,
they begot a son by name Nootan, aged about 6 years; after the birth
of son, A.1, A.2 and their other relations started harassing the
deceased to bring additional dowry; A.1 used to beat her daughter
severely and send her to parental home demanding additional dowry
of Rs.50,000/-; PW.1 used to pay amounts to A.1 through their
daughter and it so happened four or five times; Once A.1 poured
Kerosene on her and threatened to kill her and her daughter escaped
and ran to the house of PW.7 to save herself and on knowing it, PW.1
and her relations went to Deepayampally village where A.1 resides
and raised galata and at that time, A.1 promised that he would not ill-
treat the deceased; however, sometime thereafter again A.1 beat her
daughter and sent her away; 3 days thereafter A.1 came to their house
informing that he took a rented house in Ganesh Nagar area of
Siddipet (belonging to PW.5) and he would live amicably with
deceased and requested to send her and on his repeated requests, they
persuaded and sent the deceased with A.1 to Siddipet which is at a
distance of 3 kms from the village of PW.1 i.e, Ensanpally; PW.1 used
to vend milk at Siddipet everyday and she used to go to the house of
deceased also to give milk to her daughter; As usual, a day before
incident when she went to give milk to her daughter, her grandson
wanted to come to their village and so she sent her son Ramesh, who
brought the boy to their village; On the date of incident as usual at
7:00 or 7:30am, PW.1 supplied milk in some houses at Siddipet and
went to rented house of A.1 and found the doors locked from outside;
So she handed over milk to PW.6, the co-tenant and requested to
handover it to her daughter when she returned home; At about 9:00 or
9:30am her grandson insisted to return back to Siddipet to her
mothers house from Ensanpally and so PW.2 took him to Siddipet
and found the house of A.1 locked, hence he brought back the boy to
the house of PW.1 and informed the said fact; Later, when PW.2 gave
a ring to A.1 through his cell phone, A.1 abused him and abruptly
disconnected the call; on suspicion PW.1, PW.2 and others went to the
house of A.1 and found the doors were still locked; PW.2 climbed the
roof and peeped through the sunglass and found the dead body of
Renuka in supine position on the floor of the second room with hands
and legs tied with pieces of a bed sheet cloth, injuries on the head and
a white cloth tied around the neck and the tongue protruded; On
intimation by somebody, the police came and opened the doors and
saw the dead body in the conditions mentioned above; PW.1 gave
Ex.P.1report to police complaining that A.1 and relations murdered
her daughter; PW.1 identified Exs.P.2 to P.5photographs of the
deceased, MOs.1 to 3clothes and MO.4pair of gold pusthelathadu  
of the deceased.
9)      The evidence of PWs.2 to 4 is more or less in similar lines.
Their evidence mainly project how the A.1 used to harass and torture
the deceased repeatedly for additional dowry inspite of PW.1 paying
him amounts periodically to the best of her ability.  Their evidence
would also reveal that few months prior to the incident, once A.1
poured Kerosene on deceased and threatened to set her ablaze and she
could save herself by running to the house of PW.7, who was the
mediator for their marriage.  Their evidence would further reveal that
about few days prior to the incident, A.1 approached PW.1 and took
his wife and son on the promise that he would look after them well
and setup his family at Ganesh Nagar, Siddipet in the rented premises
of PW.5.  Since then they hardly lived together for a week or so before
the deceased was brutally murdered in that house. Their evidence
would further demonstrate the crucial fact that on the previous day of
incident A.1 and deceased resided in the rented premises.
a)      Coming to the probative value of their evidence, PWs.1 to 4
were extensively cross-examined but it must be said that their evidence
touching the aforementioned crucial facts could not be shattered.  On
the other hand, their evidence contained a ring of truth and
corroborated by other independent witnesses like PWs.5 to 8.
10)     PW.5 deposed that he resides at Ganesh Nagar, Siddipet; he
knows A.1 and in the month of September, 2008 he leased out one of
the three portions of his house to A.1 on a monthly rent of Rs.500/-;
PW.6 is also his tenant; after taking the premises on lease A.1 brought
his wife and son within three days; he hardly lived in the said house
for one week and within that period incident (death of deceased) took
place; on the fateful night he saw the deceasedRenuka talking with
PW.6 in her house by rolling beedies till 9:00pm and thereafter he did
not know what happened; he woke up early in the morning at about
4:00am and found the premises of A.1 locked and the common main  
door for all the four portions was also opened and on seeing it he
thought that A.1 and his wife have gone out by locking their house;
PW.1 came in the morning at about 7:00am and handed over milk to
PW.6 to give it to deceased after her returning home; he left the house
at 6:00am and returned at 12:00 noon and found number of persons
and police gathered at the house of accused and all of them noticed the
dead body of Renuka.
a)      In the cross-examination PW.5 admitted that there was no
written lease deed between him and A.1.  Except that nothing specific
could be elicited to belie the evidence of PW.5.  Most importantly no
specific suggestion was given to the effect that A.1 never resided along
with deceased in his house as tenant.  PW.5 is an independent witness
and no enmity was brought-forth between A.1 and him. Therefore, the
entire evidence of PW.5 can be accepted to be true.
11)     Then PW.6 one of the co-tenants deposed that she knows A.1,
who took the premises of PW.5 on lease about 10 days prior to the
incident; his premises is opposite to her portion and each portion
consists of two rooms; the incident took place on the night of
12.09.2008 and on that night she along with the deceased rolled
beedies in her portion till 9:30pm and thereafter the deceased went to
her portion to go to bed; A.1 was present in the house on the fateful
night; A.1s son was not in the house as the younger brother of
deceased took the boy to Ensanpally village on that day evening at
about 5:00pm; she woke up at 6:30am on 13.09.2008 and found the
house of A.1 locked and she thought that the deceased and A.1 might
have left the house in the early morning; she found the chappals of the
deceased lying in front of the house; at about 7:00am PW.1 came and
enquired about her daughter and this witness expressed her ignorance
and then PW.1 handed over milk to her with a request to give it to her
daughter; about an hour thereafter PW.1 again came and enquired
about her daughter and PW.6 replied that she had not returned yet;
thereafter PWs.1 and 2 and others came again and the male person
climbed on the roof of the house of A.1 and found the dead body of
Renuka lying in the house and thereafter police came to the scene and
the door of A.1 was opened and she also went and found the dead
body of the deceased in the second room of A.1s portion; the legs and
hands of the deceased were tied with bed sheet pieces and a towel was
tied around her neck and the deceased was strangulated; tongue was
protruded, injuries were also there on the head of the deceased.
a)      This witness was also cross-examined at length but her evidence
could not be impeached.  No doubt Ex.D2 was marked from her 161
Cr.P.C statement wherein she stated as if PW.1 climbed the roof top
and saw the dead body which she denied in her evidence.  As rightly
observed by the trial Court, the question of an aged lady like PW.1
climbing on the top of roof is most unlikely. This contradiction is not
a material one to impeach the credibility of PW.6.  Like PW.5, she is
also an independent witness and having no enmity with A.1 to speak
ill of him.  Thus the evidence of PWs.5 and 6 amply support the
evidence of PWs.1 to 4 to the effect that A.1 and deceased resided in
the house of PW.5 as tenants since few days prior to the incident and
most importantly, both of them were seen together in their rented
portion on the previous night of the incident.
12)     PW.7 is a resident of Deepayampally village where A.1 and A.2
were living.  He was the mediator for the marriage between A.1 and
deceased as he happens to be the distant relation of PWs.1 to 4.  He
deposed that for two years after marriage A.1 and deceased lived
amicably and begot a son. As the boy was prematurely born, he had
health problems and A.1 and deceased spent money for his treatment
and so A.1 claimed that he spent Rs.30,000/- and demanded his in-
laws to reimburse Rs.30,000/- spent by him.  PW.7 stated that in that
regard disputes arose between A.1 and deceased and therefore, PWs.1
to 4 came to the house of A.1 and this witness also went there twice or
thrice and advised them to live amicably. He further stated that after
the birth of the son, A.1 was addicted to vices like liquor and playing
cards and was living wayward life. He further stated that on knowing
about the death of deceased, he went to the rented house of A.1 at
Siddipet and saw the dead body. Ofcourse this witness did not speak
about earlier A.1 pouring Kerosene on the deceased and threatening to
kill her.  The said fact was spoken by PW.8.
13)     Coming to PW.8, he owns a Tata sumo vehicle and PW.3  
worked under him as a driver for 4 years. During that period, once
PW.3 informed him that A.1 poured Kerosene on his sister and
attempted to kill her and requested this witness to come along with
him to the house of accused at Deepayampally. PWs.7 and 8 were also
cross-examined but the basic fabric in their evidence to the effect that
A.1 used to harass his wife for money and once he threatened her to
kill by pouring Kerosene, as spoken by the aforesaid witnesses could
not be shattered.
14)     Then Exs.P.2 to P.5photos and Ex.P.12post-mortem report    
coupled with the evidence of PW.12post-mortem doctor which are
not controverted would cumulatively show that the deceased was
found with the following external ante-mortem injuries:
1)      An U shaped ligature mark present over the anterior
neck.  An U shaped ligature mark placed over the adoms
apple. The free ends were forwarding both sides of neck
horizontally and tapering posterior neck.  Dimensions of injury
Ligature marks is " to  floor: brownish and parched.  Edges
of ecchymosed.  Underneath the ligature mark neck structure not
bruised.
2)      A massive contusion over the right fronto parietal area of
the scalp. Underneath the said contusion there is linear
compound fracture of fronto parietal bone (compound fracture).
Underneath the fracture subdural and external dural hematoma
present.
3)      A massive contusion over the left parieto-occipital region.
Underneath the contusion a fracture of 3 giving rise to extra
dural and sub dural hematoma.
        The Doctor opined that the cause of death of deceased was due
to head injury and injuries 2 and 3 were fatal and sufficient to cause
death in the ordinary course of nature.
15)     Then PW.11 speaks of the confession of A.1 leading to recovery
of MOs.4 and 12 to 14. He deposed that on 26.09.2008 he along with
one B.Narender went to Siddipet town Circle where the police
interrogated A.1 in their presence and the A.1 admitted his guilt under
Ex.P.10 which is the admissible portion of his confessional statement.
Thereafter, A.1 led the police and the panchayatdars to his rented
house situated in Ganesh Nagar area and he led them to the bed room
and pointed out the upper shelf where he has hidden a bag containing
MO12(Axe) and MOs.13 and 14(his blood stained clothes) and    
the police recovered the same under Ex.P.12seizure panchanama.  
a)      The I.O sent material objects to FSL and Ex.P.14FSL report
would show that human blood was detected on Items 1 to 6.  Item
No.5 among them is the blood stained axe (MO12).  PW.11 is an
independent witness, who is a resident of Siddipet Town and he was a
tailor by profession. Ofcourse he admitted that he stitched clothes for
Police Constables but he categorically stated that he never acted as a
witness for police. Having regard to it, the evidence of PW.11 can be
safely believed.
16)     Thus on a conspectus of the above material evidence discussed
supra, it must be said that the prosecution by cogent evidence could
establish all the incriminating circumstances which are like individual
links in a chain. If all these individual links are fastened together, in
our opinion, they form into a complete chain unerringly pointing out
the guilt of A.1, for, they would manifestly depict that A.1 and
deceased were the couple; A.1 started harassing the deceased for
additional dowry since after the birth of his son; several times he bet
and drove her away to her parental home; PW.1 and her husband used
to pay him amounts to their mite but he did not mend his way and on
the other hand once he threatened her to kill by pouring kerosene and
the deceased could save herself by rescuing to PW.7; few days prior to
the incident, A.1 by persuading the family members of the deceased
took the deceased with him to his rented house of PW.5 at Siddipet
and started living with her and on the previous night of the incident he
was very much there with deceased in his house as spoken by PWs.5  
and 6 and on the next day morning, the deceased was found lying
murdered in her portion and A.1 found absconded.  Since A.1 was the
husband and an inmate of the house along with the deceased, the facts
relating to her death and the reason for his abscondance were
especially within his knowledge and therefore, he owe a responsibility
under Sec.106 of Evidence Act to divulge them which he failed.
Considering all these, the trial Court rightly found him guilty of the
charges under Sections 302, 379, 498-A of IPC and Sec.3 and 4 of
D.P.Act.
17)     Coming to the arguments advanced on behalf of appellant, it
was firstly argued that as if the prosecution failed to prove all the
incriminating circumstances projected against him. However this
argument does not carry any conviction in view of the above
discussion to the effect that the prosecution could prove all the
suspicious circumstances and able to complete the chain.
18)     Secondly it was argued that the prosecution failed to establish
that the deceased and A.1 lived together for the last time before her
death.  This argument also does not hold water in view of the rocklike
evidence of PWs.5 and 6, who are independent witnesses.
19)     Thirdly, it was argued that the FIR was hit by Sec.162 Cr.P.C
inasmuch as material part of investigation was completed long before
registration of FIR.
a)      It is trite law that soon the information relating to commission
of a cognizable offence is received, the police shall register the FIR and
start the investigation. The reverse process of registering FIR either in
the midway or after completion of investigation will deflate the
credibility of FIR.  The reason is not far to seek. FIR is expected to be
registered at the earliest point of time so that the facts narrated therein
are supposed to be true and intrinsic but not embellished or varnished.
The true facts narrated in FIR will help police investigate in correct
lines. On the other hand, despite receiving information, police without
registering FIR, if proceed with investigation at first and later register
the FIR, such FIR looses its credibility for the reason that the contents
in FIR might be manipulated to suit the prosecution case and its
investigation. Hence, FIR shall precede the investigation is the
generally accepted rule. However, sometimes the police may receive
only a cryptic or an incomplete information regarding the commission
of a cognizable offence, basing on which duty minded officer may
proceed to the scene of offence to ascertain the truth in that
information, or if necessary to save the victims or protect the scene of
offence etc. After completing the aforesaid preliminary exercise, he
may register FIR on the basis of information given by somebody and
embark on the full-fledged investigation thereafter.  In such an event,
can it be said, since he already visited the scene and performed certain
acts, the late registration of FIR was hit by Sec.162 Cr.P.C?  The law
on this aspect is no more res integra.
i)      In Ramsing Bavaji Jadeja vs. State of Gujarat , the Apex Court
observed thus:
Para 7: From time to time, controversy has been raised, as to at
what stage the investigation commences. That has to be
considered and examined on the facts of each case, especially,
when the information of a cognizable offence has been given on
telephone. If the telephonic message is cryptic in nature and the
officer in charge, proceeds to the place of occurrence on basis
of that information to find out the details of the nature of the
offence itself, then it cannot be said that the information, which
had been received by him on telephone, shall be deemed to be
first information report. The object and purpose of giving such
telephonic message is not to lodge the first information report,
but to request the officer in charge of the police station to reach
the place of occurrence. On the other hand, if the information
given on telephone is not cryptic and on the basis of that
information, the officer in charge, is prima facie satisfied about
the commission of a cognizable offence and he proceeds from
the police station after recording such information, to
investigate such offence then any statement made by any person
in respect of the said offence including details about the
participants, shall be deemed to be a statement made by a
person to the police officer in the course of an investigation,
covered by Section 162 of the Code. That statement cannot be
treated as first information report. But any telephonic
information about commission of a cognizable offence
irrespective of the nature and details of such information cannot
be treated as first information report. This can be illustrated. In
a busy market place, a murder is committed. Any person in the
market, including one of the shop-owners, telephones to the
nearest police station, informing the officer in charge, about the
murder, without knowing the details of the murder, the accused
or the victim. On the basis of that information, the officer in
charge, reaches the place where the offence is alleged to have
been committed. Can it be said that before leaving the police
station, he has recorded the first information report? In some
cases the information given may be that a person has been shot
at or stabbed. It cannot be said that in such a situation, the
moment the officer in charge leaves the police station, the
investigation has commenced. In normal course, he has first to
find out the person who can give the details of the offence,
before such officer is expected to collect the evidence in respect
of the said offence.
ii)     In Satish Narayan Sawat vs. State of Goa , the police on the
cryptic information and without any further details about the incident,
proceeded to the place of occurrence to make some survey and later
registered FIR.  It was held by the Apex Court that such act of Police
Officer going to the scene to make survey does not amount to
proceeding with investigation and therefore, recording of FIR later was
not hit by Sec.162 Cr.P.C.
iii)    In State of Rajasthan vs. Maharaj Singh and another , cited by
the learned Public Prosecutor, the facts were that the deceased in
injured condition admitted in hospital and the duty doctor sent
intimation to police station pursuant to which the SHO came to
Hospital but could not record statement of deceased as he was not in a
fit condition. Thereafter the police did not take action on that day but
the police swung into action only when a written complaint was
lodged in the police station next day at about 10:30am.  Delay in
registering FIR was held not fatal.
b)      From the above, it is clear that every information more-so a
cryptic information of commission of a cognizable offence though first
in point of time, need not be registered as FIR and in such an event,
the police may rush to the spot to ascertain the truth and if need be, to
save the victims by referring them to the hospital or to safeguard the
crime scene and do some other preliminary works. Doing these acts
cannot be termed as investigation, for, the meaning of investigation as
envisaged in Sec.2(h) of Cr.P.C is the collection of evidence and
preliminary works done by police was not collection of evidence.  In
such an event, the registration of FIR at a later stage will not be hit by
Sec.162 Cr.P.C.
20)     In the instant case, Ex.P.13FIR was registered at 14:00 hours
on 13.09.2008.  PW.13, who registered FIR has emphatically stated
that no police personnel from Siddipet I town PS visited the scene of
offence prior to the registration of FIR.  PW.1 also at one stage stated
as if after her giving Ex.P.1report, the police came to the scene of
offence and opened the doors.  Basing on the aforesaid evidence the
trial Court opined that Ex.P.1 was not hit by Sec.161 Cr.P.C.
a)      However, basing on the admission of PW.1 at a different stage
that the police came and opened the door at 10:00 or 10:30am, it was
argued by the counsel for appellant that the police visited the scene
much prior to the registration of FIR and conducted the investigation
and therefore, Ex.P.1 was hit by Sec.162 Cr.P.C.  In our considered
view, even if the said admission of PW.1 is taken into consideration,
the FIR would not be hit by Sec.162 Cr.P.C for the reason that in this
case, the acts performed by the police after reaching the spot cannot
be regarded as part of investigation.  PW.2 deposed that after he saw
the dead body from the top of the roof, he telephoned to Siddipet I
town P.S and informed about the lying of dead body in the house of
A.1 and thereafter police came to the scene of offence and after
observing the dead body in the house of A.1 and after staying at the
scene of offence for sometime, the police went back to PS and
subsequently PW.1 drafted Ex.P.1complaint and went to the Police
Station and presented. So as per PW.2 the police only visited the
scene and stayed there for sometime and returned back, which shows
the police visited the scene to ascertain the truth of the information
and nothing more.  Their preliminary act of visiting the scene cannot
be regarded as part of investigation. Hence the argument of appellant
cannot be accepted and consequently the decisions cited have no
application. Thus the prosecution could establish the guilt of A.1
beyond all reasonable doubts.  This point is answered accordingly.
21)     POINT No.2: In view of the findings in point No.1, the
judgment of the trial Court can be held to be factually and legally
sustainable.
        Accordingly this Criminal Appeal is dismissed by confirming
the conviction and sentences passed against A.1 by the trial Court.
     As a sequel, miscellaneous petitions, pending if any, shall stand
closed.
______________________  
SURESH KUMAR KAIT, J    
________________________  
U. DURGA PRASAD RAO, J    
Date: 21.04.2017

merely because the deceased had suffered 100% burns that was no ground to discard the dying declaration.

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND  THE HONBLE SRI JUSTICE  U. DURGA PRASAD RAO              

Criminal Appeal No.1584 of 2010

07-04-2017

Md. Farooq Appellant

The State of A.P., Rep by its Public Prosecutor,High Court, Hyderabad..
Respondent

Counsel for Appellant : Ms.Naseeb Afshan

Counsel for Respondent: Public Prosecutor (TG)

<Gist:

>Head Note:

? Cases referred:
1)1992 Supp (2) SCC 60
2)(2008) 16 SCC 705
3)(2010) 8 SCC 514
4)(2017) 1 SCC 529


THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        
AND
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          
CRIMINAL APPEAL No.1584 of 2010    
JUDGMENT: (Per Honble Sri Justice U.Durga Prasad Rao)  
        This appeal is filed by appellant/accused aggrieved by the
judgment dated 23.06.2010 in S.C.No.256 of 2009 passed by VI
Additional District and Sessions Judge, Medak at Siddipet whereby
the learned Judge convicted the accused for the offence punishable
under Section 302 IPC and sentenced him to suffer RI for life and to
pay fine of Rs.1,000/- in default of payment of fine amount, to suffer
SI for three months.
2)      The prosecution case is thus:
a)      The deceasedSanthoshi was a resident of Palata village of
Toopran Mandal, Medak District; she married one Yadagiri of
Imampur village; they lived together for one year and thereafter
Yadagiri discarded her and since then the deceased was living at
Nacharam Gutta and eking out her livelihood by doing coolie work.
The accusedMd. Farooq was a resident of Nacharam village and  
living by selling meat.  While so, he developed illicit intimacy with
deceased and enjoyed her sexually at Nacharam Gutta for three
months and thereafter he shifted deceased to Begumpet and kept her
in a rented house of PW1; the accused used to visit the house of
deceased at Begumpet frequently for sexual intercourse. While so,
parents of the accused decided to perform his marriage and fixed the
match; knowing about the said fact deceased used to quarrel with
accused. On that accused thought deceased would not allow him to
marry another girl and decided to eliminate her.
b)      On 15.03.2009, as usual, he visited the house of deceased and
spent that night. On 16.03.2009 at about 7 AM, he poured kerosene
on her and set fire and threw away the empty plastic kerosene tin
into the bushes behind the bathroom and fled away. On hearing her
cries, the neighbours came there and put off the flames and shifted
her to Gajwel Government Hospital and thereafter to Gandhi
Hospital, Secunderabad for better treatment where she succumbed to
injuries on 18.03.2009 at about 10.40 PM while undergoing
treatment. PW10X Additional Metropolitan Magistrate,
Secunderabad recorded her dying declaration in Gandhi Hospital.
c)      On 19.03.2009 at about 6.30 PM, PW4 gave Ex.P4    
complaint to PW11SI of Police. Basing on the said complaint
PW11 registered a case in Cr.No.27 of 2009 under Section 174
Cr.P.C and took up investigation. He examined PW4 and recorded
his statement; directed PW13Head Constable to hold inquest over
the dead body of the deceased in the hospital; examined PWs.1, 3
and P.Laxmimother of deceased (LW5) and recorded their  
statements; visited the scene of offence in the presence of PWs.6 and
7; prepared Ex.P16scene of observation report and Ex.P17  
rough sketch and sent the dead body of the deceased for post-mortem
examination. PW12Dr. V.Sandhya Manohar who conducted      
autopsy over the dead body of the deceased, issued Ex.P18post-
mortem report and opined that cause of death was due to burns.
d)      On 31.03.2009, on receipt of Ex.P13dying declaration,
PW11 altered the section of law from 174 Cr.P.C. to Section 302 IPC
and issued altered memo to Magistrate Court and handed over the
case to PW14Inspector of Police for further investigation. After
taking charge, PW14 arrested the accused on 09.04.2009 at 6 PM at
Nacharam village and basing on the confessional statement made by
accused, recovered MO1empty kerosene tin and after completion  
of investigation laid charge sheet under Section 302 IPC.
e)      On appearance of the accused, the trial Court framed charge
under Section 302 IPC against him and conducted trial.
f)      During trial, PWs.1 to 14 were examined and Exs.P1 to P22
were marked and MO1empty kerosene plastic tin was exhibited on  
behalf of prosecution. No oral or documentary evidence was let in on
behalf of defence.
g)      After completion of trial, the accused was examined under
Section 313 Cr.P.C. and incriminating circumstances revealed in the
prosecution evidence were put to him and the accused denied.
3)      The trial Court after considering both oral and documentary
evidence observed that version of deceased in her dying declaration
was convincing, credible and free from all infirmities and accordingly,
convicted and sentenced the accused as stated supra.
        Hence the appeal.
4)      Heard arguments of Ms. Naseeb Afshan, learned counsel for
appellant and learned Public Prosecutor for the State (Telangana).
5a)     Severely fulminating the conviction recorded by the trial Court
in the impugned judgment, learned counsel for appellant would
firstly argue that the evidence of PWs.1, 2, 4 and 13 and Ex.P.20
inquest report clinchingly established that the deceased due to
poverty and lack of sustenance disgusted with the life and committed
suicide by self-immolation and inspite of the aforesaid clinching
evidence, the trial Court basing on Ex.P.13dying declaration came
to a wrong conclusion that the accused caused the death of deceased
by pouring kerosene and setting her ablaze. Learned counsel argued
that the so-called dying declaration was shrouded with many doubts.
For instance, learned counsel would narrate, the deceased admittedly
suffered 90% burns due to which sedatives and pain killers must
have been administered on her to relieve her of the pain and in that
critical condition, it was most unlikely that she was in a conscious,
coherent and fit state of mind to give declaration before the
Magistrate. Therefore, the dying declaration given in such state of
mind should not have been made as a sole basis for conviction.
Nextly, the mother of the deceased was with her and tutored her to
speak ill against the accused and hence the dying declaration was not
a voluntary statement of deceased.
b)      Secondly, learned counsel argued that even assuming for
arguments sake the dying declaration was true, still the prosecution
failed to establish that the person Farooq referred by the deceased in
her dying declaration and the accused are one and the same. In fact,
in Ex.P12requisition issued by S.I of Police to the Magistrate he
referred the deceased as wife of one Yadagiri. Therefore, it is quite
unknown whether the deceased was the wife of Yadagiri or one
Farooq and further, whether the said Farooq is the accused in this
case. PW.10the learned Magistrate who recorded her dying
declaration did not elicit the particulars of Farooq who was
mentioned by the deceased as her husband. In that view also, it
cannot be said that the person Farooq referred in the dying
declaration and the accused are one and the same.
c)      Thirdly, learned counsel would argue that the prosecution
miserably failed to establish the intimacy between the accused and
deceased and their leading conjugal life together and motive for the
accused to kill the deceased.
        Learned counsel thus prayed to allow the appeal and set aside
the judgment of trial Court.
6a)     Per contra, while supporting the judgment, learned Public
Prosecutor would argue that though some of the witnesses did not
support the prosecution case to full extent, still the admissible
portion of the evidence of PWs.1, 2  and 4 would clearly establish
that the accused and deceased lived in the rented house of PW1 and
they cohabited together as wife and husband and therefore, the
accused cannot plead total ignorance or lack of intimacy with the
deceased and such an argument is too nave to be believed. Thus, the
prosecution could establish the intimacy between the accused and
deceased.
b)      Then, the motive for accused to commit the offence and the
incident are concerned, the deceased had, in Ex.P13 vividly narrated
that the accused is her husband and he wanted to have another
marriage for which she objected and he got angry upon her and
abused her and on the morning of 16.03.2009 he poured kerosene
and set her fire. Learned Public Prosecutor vehemently argued that if
the accused had no previous acquaintance and intimacy with her,
there was no need for her to falsely implicate him in the case. The
trial Court rightly believed the version of the deceased who was the
victim and convicted the accused and there were no merits in the
appeal and appeal may be dismissed.
7)      In light of above rival arguments, the point for determination
is:
Whether the conviction and sentence recorded by the trial Court are
factually and legally sustainable?
8)  POINT:   The prosecution case is already narrated supra. As
stated, the plea of accused is one of total denial of the offence.  He
even pleaded lack of knowledge and intimacy with her.
9)      Record shows there were no direct witnesses to the incident
and the prosecution case pivots mainly on the dying declaration of
the deceased and other corroborating evidence. Hence, the evidence
of PW10 and Ex.P13 have to be scrutinised to know whether the
prosecution could establish the complicity of accused.
10a)    PW10 is the X Additional Metropolitan Magistrate,
Secunderabad.  He deposed, on 16.03.2009 at about 6.30 PM on  
receiving Ex.P12requisition from SHO, Chilakalaguda PS, he went
to Gandhi Hospital, Secunderabad and recorded the dying
declaration of the deceasedSanthosa at about 7.00 PM. He stated
that before recording her statement, he put preliminary questions to
her to ascertain her ability to give statement. He deposed that duty
doctor who was present at the time of recording dying declaration,
had certified that victim was in a conscious, coherent and fit state of
mind to give statement and then he recorded her statement. Learned
Magistrate further stated that the victim had narrated him that she
married Farooq about one year back and they started living in the
village near Gutta and she belong to Vaddera community and her
husband belonged to Muslim community. She further stated to
Magistrate that her husband wanted to marry another girl and she
opposed, then he picked up quarrel with her and out of angry, he
abused her in filthy language. She further stated, on the fateful day
i.e. 16.03.2009 in the morning while she was in the house he poured
kerosene on her and set fire with a match stick and fled away from
the scene of offence; when she raised hue and cry, he again came and
brought her to the hospital. She emphatically stated that her husband
was responsible for her death. Learned Magistrate further deposed
that before closing the statement the duty doctor who was present
through out, had again certified that patient was conscious, coherent
throughout her statement. The Magistrate read over the contents of
the statement to the declarant and she admitted it to be true and
correct and then he obtained the impression of her left toe as the
fingers of her both hands were burnt completely. PW10 further
stated that while recording the statement, except himself and duty
doctor none others were present beside the declarant. Recording of
the statement was commenced at 7.00 PM and closed at 7.15 PM.  
b)      PW10 was extensively cross-examined by the accused but  
nothing specific was elicited to impeach the credibility of the dying
declaration.  In the cross-examination he stated that preliminary
questions were in printed format whereas substance of her statement
was noted in handwriting. PW10 stated that in Ex.P12requisition
since the name of her husband was mentioned as Yadagiri, he
referred the deceased as Santosha w/o Yadagiri at the beginning of
dying declaration. The witness said that for question No.2(what is
your father/husband name) she answered as Farooq and this
witness forgot to strike out the word father at the question and he
claimed that it was a his bona fide mistake. He further stated that
when he went to the hospital none of her relations were at the bed of
the victim. He further deposed that according to him, her husbands
name is Farooq and earlier entry in the preamble of the dying
declaration, referring the victim as w/o Yadagiri has no relevancy in
view of statement given by deceased that she was the wife of Farooq.
The witness admitted that except giving her husbands name as
Farooq she did not give the particulars of Farooq. He admitted he did
not ask the victim whether she begot children through Farooq or
Yadagiri as he has no necessity to put such question. PW10 further
admitted that as per Ex.P12, the deceased sustained 90% burn
injuries and duty doctor informed him they did not give any
sedatives to the declarant. He admitted, he does not know whether
the patient who suffered 90% burns would have lot of pain and
agony as he had no medical knowledge in that regard. He denied the
suggestion that his statement that no sedatives were given to the
victim is false. He denied the further suggestion that the mother of
the deceased tutored her before his visit and Ex.P13 was not a free
and voluntary statement.
     The above is the evidence of PW10 with regard to dying
declaration given by the deceased.
11)     Then, a perusal of Ex.P13dying declaration which was
recorded in Telugu by PW10 shows, it is in tune with the deposition
of PW10. Now, the crucial questions concerning to Ex.P13 are,
whether the dying declaration was recorded at the earliest point of
time after the incident and if so, whether it was the free and
voluntary statement of the deceased or it was a tutored one and
further, whether the contents of the dying declaration were true and
infuse confidence in the mind of court to believe the version of
deceased.
12)     In the above context, Exs.P12, P13 and evidence of PW10
would show that the incident was occurred at 7.00 AM on
16.03.2009 and the deceased was admitted in Gandhi Hospital in the
afternoon and the hospital authorities sent telephonic information at
14.45 hours to police and the police in turn sent requisition to PW10
at 6.30 PM and PW10 commenced recording dying declaration at  
7.00 PM. Thus, the whole process would show that the dying
declaration was recorded at the earliest point of time and no delay
was occurred.
13)     PW10 emphatically stated that while recording the statement
except himself and the duty doctor none others were present beside
the declarant. Therefore, it can be safely concluded that the dying
declaration was the voluntary statement of the deceased and not a
product of tutoring by any body. Even otherwise, the evidence
shows, since after incident, the deceased was shifted from one
hospital to another hospital in quick succession and therefore, there
could be no occasion for anybody to tutor her to give false statement.
On that count also her statement can be believed to be intrinsic.
14)     As the contents of her statement are concerned, she
emphatically stated that herself and Farooq married about one year
back and set up their family near Gutta and her husband wanted to
marry another lady for which she opposed and therefore, he picked
up quarrel with her and out of anger he abused her and on the
morning of the incident, he poured kerosene and set fire on her with a
match stick and fled away. Thus, she narrated in clear tone, how the
accused perpetrated the crime. If really the accused was a stranger to
her as claimed by him, there was no necessity for her to implicate
him in a false case. Ex.P13 and the evidence of PW10 would show
the duty doctor had certified that the victim was in a conscious,
coherent and fit state of mind to give the statement. Ex.P13
demonstrates that the duty doctor certified her condition before and
after recording her statement. Hence, her statement can be safely
relied upon.
15)     The law on probative value of dying declaration is no more res
integra. The doctrine of dying declaration as enshrined under Section
32 of Evidence Act, 1872 is an exception to the general rule
contained in Section 60 of the Evidence Act which says oral evidence
in all cases must be direct i.e. it must be the evidence of a witness
who claims he saw the incident. The dying declaration is an
exception in the sense that it is the statement of a person who cannot
be called as a witness and therefore cannot be subjected to cross-
examination. His statement is divulged through the evidence of
another person who records such statement called dying declaration.
If the dying declaration infuses confidence and the court concludes
that the said declaration is free from prompting or tutoring, it can
base the conviction on the sole dying declaration without seeking for
corroboration from other evidence. Its acceptability is based on the
legal maxim nemo moriturus praesumitur mentire, which means a
man will not meet his maker with a lie on his mouth.  Generally it is
believed that the truth sits on the lips of a dying person and in his
last moments of departing from the mundane world, he would not
venture to tell lies more so with regard to cause of his death and
about his assailant. This belief generally guides the courts to accept
the dying declaration. Of course, if the accused can, by cogent
material, able to raise a suspicion about the genuinety of the dying
declaration, then the court may reject the dying declaration or seek
for corroboration.
16)     In State of U.P. vs. Shishupal Singh  the Apex Court observed
thus:
Para5. Needless to say that the law is well settled by the
judicial pronouncements of this Court as well as by various
High Courts that a conviction can be safely placed on a dying
declaration provided the said dying declaration is free from
vice of infirmities and if that dying declaration commands
acceptance at the hands of the Court.
17)     In Samadhan vs. State of Maharashtra  it is held as under:
Para16. A judgment of conviction can be recorded on
the basis of a dying declaration alone, but the court must
have been satisfied that the same was true and voluntary.
Indisputably, for ascertaining the truth as regards the
voluntaries of making such a dying declaration, the court
is entitled to look into the other circumstances but the
converse may not be true.
18)     In Lakhan vs. State of M.P.  the Apex Court observed thus:
Para--9. This Court has considered time and again the
relevance/probative value of dying declarations recorded
under different situations and also in cases where more than
one dying declaration has been recorded. The law is that if the
court is satisfied that the dying declaration is true and made
voluntarily by the deceased, conviction can be based solely on
it, without any further corroboration. It is neither a rule of law
nor of prudence that a dying declaration cannot be relied upon
without corroboration. When a dying declaration is suspicious,
it should not be relied upon without having corroborative
evidence. The court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the result
of tutoring, prompting or imagination. The deceased must be in
a fit state of mind to make the declaration and must identify the
assailants.
19)     In Ramesh and others vs. State of Haryana  when the trial
Court refused to act upon the dying declaration, the High Court
reversed the judgment and recorded conviction on the sole strength of
dying declaration. The High Court carped the approach of the trial
Court towards dying declaration and observed that the trial Court
was required to appreciate as to whether the statement of the
deceased was given in a fit state of mind and it was voluntarily given
without being influenced by any extraneous circumstances and
without any tutoring and if so, the dying declaration could be
believed. The High court further observed that doctor had declared
deceased was fit to make statement on which the Judicial Magistrate
recorded the statement and even after recording of the statement, the
doctor again endorsed that the deceased remained fit during the
period her statement was recorded and in that backdrop, merely
because the deceased had suffered 100% burns that was no ground to  
discard the dying declaration. The Apex Court ultimately agreed with
the High Court.
        In the light of above precedential jurisprudence and the dying
declaration being free from blemishes and infirmities, we hold on its
sole strength, the accused was guilty.
20a)     Now, coming to the arguments advanced on behalf of
appellant/accused, it is true that in Ex.P20 and in the evidence of
PWs1, 2, 4 it was stated as if the deceased committed suicide.
However, the categorical evidence of PW10the learned Magistrate
who recorded the dying declaration of the deceased manifests that the
deceased was set ablaze by the accused and it was not a case of
suicide. No motive can be attributed to PW10 who is the Magistrate.
In view of his categorical evidence, the evidence of PWs.1, 2 and 4
and Ex.P20 cannot be given weight. It must be noted that PWs.1, 2
and 4 and inquest mediators were admittedly not eye-witnesses and 
their depositions are only hear say version which cannot compete
with the pathetical and truthful disclosure of victim.
b)      The next argument was that the deceased suffered 90% burns
and thereby she must have been administered with sedatives and
hence she could not have given statement in a conscious and coherent
state of mind. This argument, it must be said, holds no substance for
the Magistrate deposed that the duty doctor informed him that they
did not give any sedatives to the declarant. Further, PW12the
post-mortem doctor stated that in case of burn injuries patient will
speak until a few minutes or few hours before death. Above all,
Ex.P13 shows that the duty doctor certified that the declarant was
conscious, coherent and in a fit state of mind to give statement both
before and after recording of the statement. In the light of strong
evidence, there can be no demur about the fitness of the declarant to
give statement.
c)      It was then argued that the mother and other relations of the
deceased tutored her before arrival of the Magistrate. This argument
also does not hold water because PW10 categorically stated that
while recording statement except himself and duty doctor none
others were present.  Hence, tutorage is only a myth.
d)      Further argument is that though deceased referred one Farooq
as her husband, the prosecution failed to establish that the said
Farooq and the accused is one and the same person and also the
intimacy between the accused and deceased. It was further argued
that in fact in Ex.P12 the deceased was referred as wife of one
Yadagiri and therefore, it was not clear whether she was the wife of
one Yadagiri or one Farooq or some other person.  This argument
also does not hold conviction as there is no identity problem with
regard to accused. It may be noted that though PWs.1 and 2 who are
the owner of the house of deceased and his son turned hostile on a
different aspect, still they stated that the accused used to visit the
house of the accused now and then. Thus, this fact establishes the
intimacy between the deceased and accused. Hence, it is futile on the
part of appellant to contend that the prosecution failed to establish
the intimacy.
23)     Thus, on a conspectus of facts and evidence, we hold that the
conviction and sentence passed by the trial Court do not suffer from
any perversity or illegality.
24)     Accordingly, this Criminal Appeal is dismissed by confirming
the judgment of the trial Court.
        Consequently, miscellaneous applications pending, if any, shall
stand closed.
______________________  
SURESH KUMAR KAIT, J    
_________________________  
U. DURGA PRASAD RAO, J    
Date: 07.04.2017