Allowed

Mohd. Yousuf Ali , Mental Yousuf , (A-3) Jawan Yousuf v. State of A.P. rep. by P.P.

Telangana HC16 Nov 2012CRLA/1498/2005

Case brief

AI extract

What is this about?

This Criminal Appeal challenges conviction under Section 364 IPC. The Supreme Court held that convicting without framing a charge is impermissible. The evidence of the eyewitness sister was found untrustworthy as her testimony contradicted the FIR regarding abduction testimony. Appeal allowed, conviction set aside, and appellants acquitted.

What did the court decide?

The conviction and sentence imposed on the appellants is set aside and the appellants are acquitted of the offences levelled against them.

Mohd. Yousuf Ali , Mental Yousuf , (A-3)… — Murder and Culpable Homicide | Telangana HC (2012)

¶1

THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1498 OF 2005

¶2

DATED 16^th NOVEMBER, 2012.

¶3

BETWEEN :

¶4

Mohd.Yousuf Ali & others

¶5

.. Appellants -A.3, A.4 and A.7

¶6

and State of A.P.

¶7

..Respondent

¶8

THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1498 OF 2005

¶9

JUDGMENT:

¶10

Appellants-A.3, A.4 and A.7 preferred the present Criminal Appeal by invoking the provision under Section 374 (2) of the Code of Criminal Procedure (in short ‘Cr.P.C.’) challenging the judgment dated 26.09.2005 rendered in Sessions Case No.414 of 2004 wherein the Additional Metropolitan Sessions Judge, Cyberabad, NTR Nagar, Hyderabad, convicted the appellants herein under Section 235 (2) Cr.P.C. and sentenced them to undergo rigorous imprisonment for four years each and to pay a fine of Rs.1000/- each for the offence punishable under Section 364 of Indian Penal Code (in short ‘IPC’).

¶11

Prosecution case, in brief, is that due to some group rivalry, one Akber Khan, who is the elder brother of the deceased Aslam Khan, along with his associates attacked A.4 and his friend. In retaliation to the same, A.1 to A.7 gathered at the house of A.4 on the night of 08.03.2004 and hatched a plan to kill said Akber Khan and in pursuance of the same A.1 took a knife and A.2 possessed a sword and searched for said Akber Khan by forming themselves into an unlawful assembly. On the intervening night of 8/9.03.2004 A.1 to A.7 in search of said Akber Khan went to the house of Niaymath Khan

¶12

where they found the deceased and the accused herein also manhandled him and all the accused took the deceased from the said house. Further, when the inmate of the house Nayeem Sultana tried to intervene, accused threatened her and so she went inside and closed the doors. Further, on the next day morning the dead body of the deceased was found. Hence, the case.

¶13

After investigating into the complaint lodged by the complainant, police registered a case and after due investigation they filed charge sheet against A.1 to A.7 for the offence punishable under Sections 147, 148, 364 and 302 read with 149 of Indian Penal Code and Section 25 of Indian Arms Act and after taking cognizance of the same, the learned Additional Judicial Magistrate of First Class, Hyderbad West, in P.R.C.No.161 of 2004 committed the case to the Court of Sessions and the same was made over to the Court of Additional Metropolitan Sessions Judge, Hyderabad, for disposal in accordance with law.

¶14

Since A.1 reported to have died, case against him was abated. A charge under Section 302 IPC was framed against A.2 to A.7 wherein the accused denied the offence. Prosecution examined PWs 1 to 7 and got marked Exs.P.1 to P.14 and also MOs.1 to 6 in order to bring home the guilt of the accused. On behalf of the accused, Exs.D.1 to D.3 were marked. After appreciating the entire oral and documentary evidence, the learned trial Judge by impugned judgment while acquitting A.2 to A.7 for the offence punishable under Section 302 IPC, convicted the appellants for the offence punishable under Section 364 IPC as stated above. Aggrieved over the same, present appeal has been filed.

¶15

The main evidence relied by the trial Judge while convicting the appellants is the evidence of P.W.3, who is none other than the sister of the deceased.

¶16

This Court perused the entire material on record and also heard the arguments.

¶17

It is unfortunate to note that even though the investigation agency

¶18

after due investigation into the occurrence filed charge sheet for an offence punishable under Sections 364 and 302 IPC, the learned trial Judge failed to frame charge under Section 364 IPC and he framed charge only under Section 302 IPC. The learned trial Judge has also not adduced any reasons for not framing charge under Section 364 IPC. However, the learned trial Judge while rendering judgment recorded that the offence under Section 302 IPC is being a grave offence and 364 IPC is a lesser offence, the trial Court can convict the accused under Section 364 IPC.

¶19

In this regard, this Court is of the view that the course adopted by the learned trial Judge is not permissible under law since the offence under Section 302 IPC and 364 IPC are completely distinct in nature. The learned trial Judge after knowing that he committed a mistake while rendering the judgment recorded that the accused can be convicted for an offence under Section 364 IPC in view of the evidence available on record. Since there is no charge framed for an offence under Section 364 IPC, the appellant were deprived of their opportunity to cross examine the witnesses in connection with the said kidnap or abduction.

¶20

Apart from the same, P.W.3 in her evidence before the Court has categorically stated that she saw the appellants herein taking the deceased from the house. Further, it is the case of P.W.3 that she has informed the said occurrence to P.W.1 who lodged the complaint and set the law in motion. But P.W.1 either in his evidence or in Ex.P.1 complaint has not stated regarding the information received by him from P.W.3 in connection with abduction of the deceased from the house of P.W.3. The entire reading of Ex.P.1 complaint clearly discloses that P.W.1 suspected one Khajim of Qayyam Nagar and further in inquest report also it is stated as ‘suspicious death’. If it is the case of P.W.3 that she witnessed the abduction of the deceased by the appellants herein and also the same is informed to P.W.1 necessarily it should have been recorded in the F.I.R. The investigation agency

¶21

also rightly recorded the complaint and registered the case only for an offence under Section 302 IPC and further there is nothing on record to show when the investigation agency altered the Section of Law to one under Section 364 IPC and when P.W.3 was examined in that regard. In the absence of any record to show the involvement of the appellants herein in the alleged abduction of the deceased, the evidence of P.W.3 is totally untrustworthy and the same cannot be relied upon solely for convicting the present appellants. If the evidence of P.W.3 is eschewed no other evidence is available on record to convict the appellants for the offence for which they are convicted. Hence, the conviction and sentence imposed by the trial Court on the appellants is liable to be set aside.

¶22

Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants vide judgment dated 26.09.2005 is hereby set aside and the appellants are acquitted of the offences levelled against them.

¶23

Miscellaneous petitions filed in this appeal, if any, shall stand closed.

¶24

________________________ JUSTICE RAJA ELANGO

¶25

Date : 16.11.2012 sur

Mohd. Yousuf Ali , Mental Yousuf , (A-3) Jawan Yousuf v. State of A.P. rep. by P.P.

Case brief

What is this about?

What did the court decide?

Mohd. Yousuf Ali , Mental Yousuf , (A-3) Jawan Yousuf v. State of A.P. rep. by P.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Polubothu Ravi Sankar Vs State of A.P.

Alimili Subba Reddy, Vs The State of Andhra Pradesh, rep.by its Public Prosecutor

Neelakhanta Co-operative Urban Bank Ltd., Vs Smt. B. Vimala

Naguluru Sriramulu, Vs Kogili Sugunamma, (A-2)

Puvvada Venkateswara Rao, Vs The State of a.P., rep. by its Public Prosecutor

Yalavarthi Murali Krishna Vs Sri Shaik Khaji Babu