HYMAD PASHA Vs. STATE OF A.P.

JUDGEMENT

(1.) These appeals arise out of two different orders passed by the High Court of Andhra Pradesh at Hyderabad one dated 07.03.2008 passed in Criminal Appeal No. 502 of 2006 and the other dated 15.12.2008 passed in Crl. Appeal Mis. Petn. No. 2349 of 2008 whereby the High Court has not only affirmed the conviction of the Appellant for offences punishable under Sections 302, 498A, Indian Penal Code but also quashed an order of acquittal of the Appellant passed in Criminal Appeal No. 690 of 2006. The Appellant was tried and convicted by the Trial Court for murder of his wife and sentenced to undergo imprisonment for life under Section 302 with a fine amount of Rs. 1,000/- and a default sentence of rigorous imprisonment for a further period of two months. For the offence punishable under Section 498-A he was sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs. 500/-. In default of payment of fine he was sentenced to undergo a further rigorous imprisonment for two months.

(2.) Aggrieved, the Appellant preferred Criminal Appeal No. 502 of 2006 before the High Court. While Criminal Appeal No. 502 of 2006 was still pending before the High Court, Criminal Appeal No. 690 of 2006 was also preferred by the Appellant against the very same judgment of the Trial Court. It so happened that while Criminal Appeal No. 502 of 2006 came up for hearing the High Court remained oblivious of the pendency of Criminal Appeal No. 602 of 2006 which too as noticed above was directed against the very same judgment of the Trial Court. Not only that while Criminal Appeal No. 502 of 2006 was dismissed by the High Court affirming the Appellant's conviction and sentence, Criminal Appeal No. 690 of 2006 that came up separately for hearing before another Bench of that Court was allowed by an order dated 29.12.2008. Two conflicting judgments thus came to be pronounced by the High Court on the same subject matter which fact was brought to the notice of the High Court in Crl. Misc. Petn. No. 2349 of 2008 filed under Section 482, Code of Criminal Procedure. That petition was heard and allowed by the High Court in terms of its order dated 15.12.2008. The High Court was of the view that the conviction of the Appellant having been affirmed in Crl. A. No. 502 of 2006, the later judgment acquitting the Appellant in Crl. Appeal No. 690 of 2006 could not be allowed to stand. Relying upon the decisions of this Court in State of A.P. v. Thadi Narayaana, 1962 AIR(SC) 240, A.R. Antuley v. R.S. Nayak, 1988 AIR(SC) 1531 and Keshar Deo v. Radha Kissen, 1953 AIR(SC) 23 the High Court corrected the mistake committed by it and recalled order dated 29.08.2008 passed in Crl. Mis. 690 of 2006 on the ground that the same was non est and a nullity in the eye of law and was of no effect whatsoever. In the present appeal the Appellant has assailed not only the judgment and order passed by the High Court in Crl. A. No. 502 of 2006 whereby his conviction and the sentence awarded to him was affirmed but also order dated 15.12.2008 whereby the order of acquittal passed in Crl. Appeal 690 of 2006 has been recalled.

(3.) Before us learned Counsel for the Appellant fairly conceded that in case the Appellant's conviction for offences punishable under Sections 302 and 498A, IPC is affirmed the question whether the High Court was right in recalling the order passed by it in Crl. Appeal No. 690 of 2008 may be rendered academic for the simple reason that the acquittal by a subsequent order of one who stood convicted cannot be justified on any juristic principle.