MD. SHAKEEL v.

STATE POLICE THROUGH P.S. HANMAKONDA & ANR. (Criminal Appeal No. 197 of 2008)

NOVEMBER 6, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the order passed by a learned Single Judge of the Andhra Pradesh High Court  dismissing  the application  filed by the  appellant  in  terms of section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short 'Code'). The appellant who was accused No. 1 was convicted  for  offence  punishable  under  Section  304  Part-II  of  the Indian Penal Code, 1860 (in short 'IPC') and Sections 3 and 4 of the Dowry  Prohibition  Act  (in  short  'Act').  The  allegation  against  the appellant was that he and two others were responsible for the suicide of Farzana (hereinafter  referred to as the 'deceased') who was the wife  of  the  appellant.  The  occurrence  purportedly  took  place  on 21.10.1998.  13  witnesses  were  examined  before  the  learned Principle Sessions Judge, Warangal. It needs to be noted that after the report was lodged, investigation was done and charge sheet was filed. Since the accused persons pleaded innocence, they are put on trial. The trial court found that the appellant and two other accused were  guilty  of  the  charges  levelled  against  them.  They  were convicted and sentenced.  The appellant  was convicted for offence punishable under Section 304-B IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and further he was also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for three months for the offence under Section 498-A IPC and further sentenced to undergo rigorous imprisonment for a period of one year and  also  pay  a  fine  of  Rs.  1,000/-  in  default  to  suffer  simple imprisonment for three months for the offence under Section 4 of the Act.  Other  two  co-accused  were  sentenced  to  undergo  rigorous

imprisonment for a period of one year each and also pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months each for the offence under Section 498-A IPC and further convicted and sentenced to undergo R.I. for a period of one year and pay a fine of  Rs.  1,000/-  in  default  to  suffer  simple  imprisonment  for  three months  each  for  the  offence  under  Section  4  of  the  Act.  The appellant preferred an appeal before the First Appellate Authority i.e. learned  Vth  Additional  Sessions  Judge,  Warangal.  The  First Appellate Authority held that the conviction and sentence as imposed so  far  as  the  appellant  is  concerned  do not  warrant  interference. However, the co-accused persons were acquitted. The order of the First  Appellate  Authority was challenged before the High Court  by filing  a  revision  petition  as  noted  above.  The  same  has  been dismissed by the impugned order.

2.  In  support  of  the  appeal,  learned  counsel  for  the  appellant submitted that no reason has been indicated by the High Court while dismissing the revision petition. Learned counsel for the respondent- State supported the judgment of the High court.  

3. It is to be noted that the High Court has not indicated any basis or reason as to why the revision petition filed by the appellant was without any substance. Strong reliance is placed by learned counsel for  the  appellant  on  a  dying  declaration  purported  to  have  been recorded  on  21.10.1998  at  about  5.50  P.M.  which  does  not, according to him, implicate the appellant. We find that the High court has referred to the factual scenario for a major part of the judgment. It,  however,  came  to  an  abrupt  conclusion  that  the  revision  was without  any  merit.  It  also  did  not  analyse  various  stands  of  the appellant. The way the High Court has disposed of the petition is not the correct way to dispose of the revision petition. It is not that no arguable point was involved. As a matter of fact, the relevance of the dying declaration and its effect on the prosecution case has not been considered by the High Court at all.  

4. Above being the position, we set aside the impugned order of the High Court and remit the matter to it for fresh consideration in accordance with law. We make it clear that we have not expressed any opinion on the merits of the case.  

5. During the pendency of the appeal before this court, no bail was granted to the appellant. It is pointed out by learned counsel for

the appellant that the appellant has undergone more than two years of sentence. It  is open to the appellant to move the High Court for bail. We make it clear that we have not expressed any opinion on the question  as  to  whether  the  appellant  is  entitled  to  bail  or  not. Needless  to  say  all  relevant  aspects  shall  be  considered  if  an application for bail is filed.  

6. Since the matter is pending since long, we request the High Court to take up the revision petition at an early date and make an effort to dispose of the same as early as practicable preferably within six months from the date of receipt of our order.

7. The appeal is disposed of accordingly.