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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 78 OF 2010
1) Habib s/o Bashir Sheikh,
Aged about 31 years,
Occupation - Driver,
R/o Near Sanjuba High School,
Bahadura Fata, Nagpur.
2) Sheikh Mehbub s/o Sheikh Nijam,
Aged about 32 years,
Occupation - Mistry Work,
R/o Shirdi Nagar, Bahadura,
Nagpur. .... APPELLANTS
VERSUS
State of Maharashtra,
through Police Station Mouda,
District Nagpur. .... RESPONDENT
______________________________________________________________
Shri A.B. Mirza, Advocate for the appellants,
Shri A.M. Kadukar, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 28
NOVEMBER, 2017
th
ORAL JUDGMENT :
The appellants assail the judgment and order dated 30-1-2010 in Special Case 1/2009 delivered by the learned Special ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 02:04:54 ::: 2 apeal78.10 Judge & Additional Session Judge, Nagpur, by and under which the appellants (hereinafter referred to as the "accused") are convicted for offence punishable under Section 294 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for one month and to payment of fine of Rs.500/- and are convicted for offence punishable under Section 323 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs.500/- and are further convicted for offence punishable under Section 354 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.1,000/-. Appellant 1 Habib s/o Bashir Sheikh is also convicted for offence punishable under Section 3(1)(xi) of the Scheduled Castes and the Schedule Tribes (Preventions of Atrocities) Act (hereinafter referred to as the "Atrocities Act") and is sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.2,000/-. The accused are acquitted of offence punishable under Section 506 read with Section 34 of the Indian Penal Code and accused 2 Sheikh Mehbub s/o Sheikh Nijam is also acquitted of offence punishable under Section 354 of the Indian Penal Code and under Section 3(1)(xi) of the Atrocities Act.
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2. Heard Shri A.B. Mirza, learned Counsel for the accused and Shri A.M. Kadukar, learned Additional Public Prosecutor for the respondent.
3. The genesis of the prosecution lies in first information report lodged by the complainant Smt. Vaishali Kishor Nagdevte on 05-6-2008, on the basis of which offences under Sections 294, 323, 354, 506 read with Section 34 of the Indian Penal Code and Section 3(1)(xi) of the Atrocities Act were registered against the accused at Mouda Police Station.
4. The gist of the oral report is that on 04-6-2008 when the complainant and her husband were returning to their residence on a two wheeler, the accused and two others were drinking liquor infront of the residence of a neighbour Nagdevte. The accused attempted to stop the husband of the complainant, the husband of the complainant Kishor ignored the accused, the complainant and her husband opened the lock of the residence, turned on the lights and at that point in time the accused came at the residence of the complainant and started abusing her husband in filthy words. The accused caught the complainant's husband by collar and brought him down on the ground, ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 02:04:54 ::: 4 apeal78.10 the complainant attempted to rescue her husband Kishor and was assaulted by the accused. The complainant was also abused in extremely filthy words, her blouse was torn, modesty outraged and cheek marked by nails. The complainant and her husband left the residence to save themselves. However, when they returned, the accused again threatened them on cell phone. The complainant and her husband approached the Sakkardara Police Station and were directed to the Mouda Police Station. The report was accordingly lodged at Mouda Police Station.
The husband of the complainant Kishor, unfortunately left for heavenly abode even before the commencement of the trial. The prosecution case, substantially if not entirely, rests on the evidence of the complainant who is examined as P.W.1.
5. The learned Counsel for the accused submits that even if the entire evidence is accepted at face value, the evidence against accused 2 is not confidence inspiring and cogent. I have given my anxious consideration to the evidence of the only eye-witness to the incident, that is the complainant, and having done so, I agree with the submission of the learned Counsel for the accused that in so far as accused 2 is concerned, the evidence is not sufficient to bring home the ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 02:04:54 ::: 5 apeal78.10 charge. Accused 2, could not have been convicted even with the aid of Section 34 of the Indian Penal Code. The prosecution has not brought on record any material to suggest that there was any meeting of mind or a concerted plan or design, which would suggest that both the accused shared common intention to outrage the modesty of the complainant or to assault the complainant and her husband.
6. The evidence of the complainant P.W.1 would reveal that it is only against accused 1 that she has alleged a specific role, to wit, that accused 1 heaped filthy abuses. It is true that the complainant has referred to both the accused in her deposition, with reference to the call given to her husband, giving of abuses and the physical altercation, but then the complainant has not attributed any specific overt act to accused 2, nor is there any other evidence on record to bring home the charge against accused 2 beyond reasonable doubt. I would consider it extremely hazardous to convict accused 2 Sheikh Mehbub s/o Sheikh Nijam on the basis of the evidence of the complainant.
7. In so far as accused 1 is concerned, the conviction under Section 354 of the Indian Penal Code and as a consequence under Section 3(1)(xi) of the Atrocities Act, is clearly unsustainable. The ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 02:04:54 ::: 6 apeal78.10 evidence of the complainant is indeed trustworthy, to the extent, there appears to be a physical altercation between the accused and the husband of the complainant. The complainant apparently interjected in the physical altercation, it is conceivable that she did bear the burnt of some physical assault. But then, the evidence on record is grossly insufficient to bring home charge under Section 354 of the Indian Penal Code. The statement in the evidence that accused 1 pulled the blouse of the complainant, caught her hair and the complainant received nail marks on the cheek is not trustworthy or confidence inspiring. The version is inconsistent with both the contents of the first information report and the medical evidence. The version of the complainant is again inconsistent with the statement which she attributes to accused 1. It has come in the evidence of the complainant, that accused 1 told accused 2 that since this is a "woman's case" they should go home. This utterance is incompatible with the inference that accused 1 had either the intention to outrage the modesty of the complainant or that the necessary knowledge can be attributed to accused 1 that by the physical assault, which again may be incidental or accidental, since the complainant attempted to rescue her husband Kishor, he would be outraging the modesty of the complainant. The learned Additional Public Prosecutor Shri A.M. ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 02:04:54 :::
7 apeal78.10 Kadukar submits that giving filthy abuses would ipso facto be outraging the modesty of the complainant. The submission is noted only for rejection. The offence could have been under Section 509 of the Indian Penal Code, but then, the accused have not been charged under Section 509 of the Indian Penal Code. I have no hesitation in holding that the conviction under Section 354 of the Indian Penal Code and as a necessary consequence the conviction under Section 3(1)(xi) of the Atrocities Act is unsustainable.
8. However, the version of the complainant that accused 1 assaulted her and her husband Kishor and that obscene words were hurled in public place, is trustworthy. Be it noted, that the evidence of the complainant on the core aspects of the incident of physical altercation has gone virtually unchallenged. In the cross-examination, a general and feeble suggestion, that the accused did not abuse the complainant and that the accused did not assault the complainant and her husband, was indeed given, as a ritual. However, nothing is brought on record to dent the credibility of the evidence of the complainant to the extent she has deposed that accused 1 physically assaulted her and Kishor.
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9. I have no hesitation in upholding the conviction of accused 1 for offences punishable under Sections 294 and 323 of the Indian Penal Code.
10. The learned Sessions Judge has sentenced accused 1 to suffer rigorous imprisonment for one month and six months for offences punishable under Sections 294 and 323 of the Indian Penal Code respectively. The incident occurred in 2008. A statement is made by the learned Counsel that the accused has not been involved in a similar offence, is maintaining his wife and two children by honestly and sincerely earning livelihood as a truck driver. An affidavit is filed on record, which states that the prosecution under the Motor Vehicles Act was instituted against accused 1 which ended in acquittal by the appellate Court, in the year 2016. The affidavit discloses that a case is registered under Section 65 of the Maharashtra Prohibition Act at Police Station Kuhi in the year 2009-2010 while accused 1 was an employee at a dhaba owned by Mrs. Mamta Date at Bahadura Fata, Nagpur.
11. I have given my anxious consideration to the sentence awarded. In my opinion, since the accused is making an effort to ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 02:04:54 ::: 9 apeal78.10 honestly earn his livelihood as a truck driver and does not appear to have been involved in a similar offence or offence involving moral turpitude, he deserves an opportunity to reform. If he is sentenced to further imprisonment, at this stage, the chances that he would turn into an obdurate criminal is a real possibility.
12. In the totality of the circumstances, while I maintain the conviction of accused 1 Habib s/o Bashir Sheikh under Sections 294 and 323 read with Section 34 of the Indian Penal Code, the sentence is modified to already undergone. Accused 1 is, however, acquitted of offences punishable under Sections 354 of the Indian Penal Code and 3(1)(xi) of the Atrocities Act. Accused 2 Sheikh Mehbub s/o Sheikh Nijam is acquitted of offences punishable under Sections 294, 323 and 354 read with Section 34 of the Indian Penal Code.
The appeal is partly allowed.
JUDGE adgokar ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 02:04:54 :::