State Of Mah vs Ibrahim Alikhan Pathan & Ors
2016 Latest Caselaw 4395 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.801 OF 2005




                                                 
     The State of Maharashtra,
     Through P.I. of Police Station,
     Talwada, Tq-Georai, Dist-Beed.




                                         
                                     ...APPELLANT 
                                  (Ori. Complainant)
                             
            VERSUS             

     1) Ibrahim s/o Alikhan Pathan,
                            
        Age-40 years, Occu:Labour,
        R/o-Dhanora Rui, Tq-Georai,
        Dist-Beed,
      

     2) Sk. Papa s/o Gulab Shaikh,
        Age-29 years, Occu:Labour,
   



        R/o-Dhanora Rui, Tq-Georai,
        Dist-Beed,

     3) Sk. Gulab s/o Sk. Kareem,





        Age-65 years, Occu:Labour,
        R/o-Dhanora Rui, Tq-Georai,
        Dist-Beed.      
                                     ...RESPONDENTS
                                     (Ori. Accused)





                          ...
       Mrs. V.N. Patil-Jadhav, A.P.P. for  Appellant.
       Mr. R.G. Hange Advocate for Respondent
       Nos.1 to 3.       
                          ...       




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                   CORAM:  A.I.S. CHEEMA, J.

DATE : 3RD AUGUST, 2016

ORAL JUDGMENT :

1. This Appeal has been filed by the State

under Section 378 (1)(3) of the Code of Criminal

Procedure, 1973 ("Cr.P.C." in brief) against

acquittal of the Respondents - accused by

Assistant Sessions Judge, Beed in Sessions Case

No.145 of 2004 under Section 324 read with 34 of

the Indian Penal Code, 1860 ("I.P.C." in brief),

as can be seen from the prayer in the Appeal Memo.

2. The case of prosecution, in short, may be

stated to be as under:-

. The Respondents - accused are resident of

Dhanora Rui, Tq-Georai, Dist-Beed. One Ashok Khune

was also resident of the same village. On 19th May

2004 at about 8.00 p.m. said Ashok (hereafter

referred as "victim") had gone to the Pan shop of

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accused No.1 - Ibrahim. He purchased a cigarette

and offered Rs.10/- to accused No.1. There was

exchange of words and accused No.1 abused the

victim. One Madhukar Khune PW-11 intervened. The

victim then went home. There was yet another

incident on 20th May 2004 at about 10.00 a.m.,

wherein accused Nos.1 to 3 went to the house of

the victim and quarreled with victim on account of

incident occurred on earlier day. The victim was

abused and beaten by cycle chain, sticks, hands

and kicks. Complainant Sunita, wife of the victim

had tried to save her husband but she was also

beaten. The victim and complainant were admitted

in the civil hospital, Beed. At that place,

statement of the victim (Exhibit 27) came to be

recorded on the basis of which N.C. No.139 of 2004

was registered at police station, Talwada. It

appears that the complainant and victim then went

to the place of her father at village Masapur-

Pimpalgaon, after they were discharged from the

hospital, on 21st May 2004. They met the parents

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of the complainant. After a night halt there, they

started to return on 22nd May 2004. While on the

way, the victim asked wife to go ahead to the

house. Subsequently, the victim reached home at

about 8.00 p.m. He fell near the entrance of the

house. He disclosed to his wife and others present

there, that he had consumed poisonous substance.

The reason given was that as the accused had

beaten him, he had felt insulted and was unable to

show his face in the village and so he consumed

the poison. The victim was taken to the hospital

but however he died. On the report of Kashinath

(PW-2) the brother of victim, A.D. No.12 of 2004

came to be registered at the police station and

was taken up for enquiry. Subsequently, the

complainant PW-1 Sunita filed F.I.R. Exhibit 16 on

26th May 2004. The same was taken up for

investigation. The police took necessary steps

regarding the post-mortem. The statements of

witnesses were recorded and after necessary

investigation, the charge-sheet came to be filed.

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3. The matter came up before VIIth Ad-hoc

Assistant Sessions Judge, Beed. Charge was framed

against the accused persons under Section 504, 324

and 306 read with 34 of I.P.C. 15 witnesses came

to be examined. The Assistant Sessions Judge

convicted accused No.1 under Section 504 of I.P.C.

and all the accused Nos.1 to 3 under Section 323

read with 34 of I.P.C. All the accused persons

came to be acquitted of offence punishable under

Section 324 and 306 of I.P.C.

4. Against the conviction of the accused

persons under Section 323 and 504 of I.P.C., the

accused persons under Section 374(3) of Cr.P.C.

preferred Criminal Appeal No.21 of 2005 before the

Sessions Judge at Beed. The State, however, filed

this Appeal against the acquittal of the accused

under Section 324 read with 34 of I.P.C. to the

High Court under Section 378(1)(3) of Cr.P.C.

Although, the prayer in the Appeal memo was made

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only as regards Section 324 of I.P.C., the

admission orders of this Court dated 8th September

2006 show that the Appeal was entertained with

regard to the acquittal under Sections 324 and 306

read with 34 of I.P.C.

5. I have heard the learned A.P.P. as well

as the learned counsel for Respondents - accused

as if this Appeal is against acquittal under

Section 324 as well as 306 read with 34 of I.P.C.

6. The learned A.P.P. referred to the two

incidents dated 19th May 2004 as well as 20th May

2004 and submitted that the accused persons had

abused and beaten the victim using cycle chain and

sticks and this offence was proved before the

Assistant Sessions Judge but the Assistant

Sessions Judge wrongly convicted the accused

persons only under Section 323 of I.P.C. and not

under Section 324 of I.P.C. It has been further

argued by learned A.P.P. that the statement of the

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victim recorded in the hospital on 20th May 2004

Exhibit 27 and the A.D. Report filed by PW-2

Kashinath vide Exhibit 18 and the F.I.R. Exhibit

16 filed by PW-1 Sunita show that because the

victim was abused, beaten and insulted, he felt

frustrated and committed suicide. According to the

learned A.P.P., the Assistant Sessions Judge

should have convicted the accused persons also

under Section 324 of I.P.C.

7. Per contra, the learned counsel for the

Respondents - accused has submitted that the

Appeal deserves to be dismissed. According to him,

the question of considering offence under Section

324 of I.P.C. now would not survive, as the Appeal

with reference to that Section preferred by the

accused has been disposed by the Sessions Court.

As regards Section 306 of I.P.C., the learned

counsel submitted that no offence under said

Section was made out as abetment to commit suicide

was not established.

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8. The counsel for Respondents has filed

copy of Judgment in Criminal Appeal No. 21 of 2005

passed by Sessions Judge, Beed on 27th June 2006.

It can be seen from the impugned Judgment passed

by the Assistant Sessions Judge that the charge

was framed under Section 324 read with 34 of the

I.P.C., but the Sessions Court convicted the

accused persons for lesser offence under

Section 323 of I.P.C. inter-alia for the reason

that weapons of the offence had not been produced.

Regarding that part of conviction, the Sessions

Court dealt with the Appeal and while maintaining

the conviction, it maintained the sentence of fine

only. The counsel for the Respondents - accused

states that the concerned fine amount has already

been paid. Thus the punishment on that count has

been suffered by the Respondents and it would not

be appropriate now to re-consider the matter.

9. The learned A.P.P. has not shown anything

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to treat this Appeal as revision against the

Judgment of the Sessions Court. The Judgment of

the Sessions Court dated 27th June 2006 has not

been challenged by the State. In fact it would

have been much more appropriate for the State to

seek clubbing of both the matters when the State

had filed this Appeal in the High Court and

received notice in Criminal Appeal No.21 of 2005

which was filed by the accused before the Sessions

Court. The learned A.P.P. is unable to show as to

why steps were not taken at the concerned time for

clubbing the matters when both these Appeals were

admitted, one in the High Court and another in the

Sessions Court. It would have been appropriate at

that time to club the Appeal filed before the

Sessions Court with this Appeal in the High Court.

Thus, now I am not going into the details to

examine whether offence under Section 324 of

I.P.C. has been proved or not, as on that count

the matter has attained finality in Appeal before

the Sessions Court bearing Criminal Appeal No.21

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of 2005, and against that Judgment of the Sessions

Court no revision etc. has been filed in this

Court.

10. Coming to Section 306 of I.P.C., the

facts on record show that the incident of alleged

abusing and threatening dated 19th May 2004 and

alleged assault dated 20th May 2004 are stated to

be the cause why the victim committed suicide. It

can be seen from the evidence of various witnesses

brought on record that those incidents were dated

19th May 2004 and 20th May 2004. Thereafter the

victim along-with his wife complainant Sunita, had

gone to the place of her parents and stayed there.

They started to return on 22th May 2004. The

evidence is that on the way, the victim asked his

wife to go ahead home and he will come later. The

evidence is that he then reached home and declared

that he had consumed poison. Although, there is

evidence that he attributed the reason for

consuming poison, to the quarrel and beating which

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occurred on 19th May 2004 and 20th May 2004, I do

not find that the said acts of the accused could

be treated as abetment to commit suicide by the

victim. There was not only time gap but also that

only because some quarrel takes place attracting

Section 323 of I.P.C., it can not be said that the

intention of the accused persons was that the

victim should commit suicide. There is no material

to establish mens rea of the accused to bring

about such situation that Victim has no other

option left than to commit suicide. There is no

evidence of act of goading, encouraging, assisting

victim to commit suicide. It cannot be said that

abetment to commit suicide was established.

11. Thus, I do not find any substance in this

Appeal. The Appeal stands dismissed. The Bail

Bonds of the Appellants - accused are cancelled.

[A.I.S. CHEEMA, J.] asb/AUG16