Bombay High Court
Vkrant @ Vikki S/O Kashinath ... vs The State Of Maharashtra on 10 August, 2016
Bench: A.I.S. Cheema
Criminal Appeal No836/2015
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.836 OF 2015
1) Vikrant @ Vikki s/o Kashinath Khandare,
Age 28 years, Occu. Nil
2) Mahendra Ganeshrao Devre,
Age 28 years, Occu. Nil
3) Latabai w/o Kashinath Khandare,
Age 45 years, Occu. Labour
4) Ramabai Ganeshrao Devre,
Age 55 years, Occu. Household
5) Sangita @ Samina Basidkhan
Age 28 years, Occu. Household
6) Baby Sitaram Devre,
Age 45 years, Occu. Household,
All R/o Sidharth Nagar, Purna,
Tq. Purna, District Parbhani ... APPELLANTS
VERSUS
The State of Maharashtra
through Police Station Officer,
Purna Police Station, Tq. Purna,
District Parbhani
(Copy served on the Public Prosecutor,
High Court of Judicature
at Bombay, Bench at Aurangabad) ... RESPONDENT
.....
Shri S.K. Chavan, Advocate for appellant Nos.1 and 2
Shri S.S. Pawar, Advocate for appellant Nos.3 to 6
Shri R.V. Dasalkar, A.P.P. for respondent/ State
.....
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Criminal Appeal No836/2015
2
CORAM: A.I.S. CHEEMA, J.
DATED: 10th August, 2016.
Date of reserving judgment : 25th July, 2016
Date of reserving judgment : 10th August, 2016.
JUDGMENT:
1. The appellant Nos.1 to 6 (original accused Nos.1 to 6,
hereinafter referred accordingly) have filed this appeal against
their conviction and sentences passed by Additional Sessions
Judge, Parbhani in Sessions Trial No.74/2012 on 27.10.2015.
The appellants have been convicted under Sections 452, 354,
294, 504, 506, 323, 306 and 143, all read with Section 149 of
the Indian Penal Code, 1860 (I.P.C. in brief). Different sentences
of different terms of imprisonment have been awarded.
2. The case of prosecution in short may be stated to be
as follows :
(a) On 18.4.2012, offence came to be registered at Police
Station, Purna, District Parbhani vide Crime No.52/2012
on the complaint of Ahemadbee Syed Imam (P.W.1).
She reported that, she along with her family was
residing at Sidharth Nagar, Purna, District Parbhani.
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The F.I.R. gives details about family members who were
residing with her including Rizwana, her married
daughter, but who was staying with her since last 8
years, having three children. It was reported that, on
18.4.2012, there was a dispute between Rizwana
(hereinafter referred as victim) with accused No.4
Ramabai, accused No.3 Latabai and Sangita @ Samina,
the daughter of Latabai's aunt from Mumbai, at about
2.30 p.m.
ig These people, it was reported, are always
under intoxication of liquor and do business in liquor.
Because of that, they had trouble. To complain
regarding this, victim had gone to Nagarsevak Deorao
Khandare. Victim returned at about 4.00 p.m. At that
time, accused No.3 Latabai and Vikki (accused No.1),
the son of Latabai, accused No.4 Ramabai Devre,
accused No.6 Baby, elder sister-in-law of accused No.4
Ramabai, accused No.2 Mahendra, the son of Ramabai
and accused No.5 Sangita @ Samina, the daughter of
Latabai's aunt from Mumbai, came and told victim that
by her going and telling Deorao Khandare nothing will
happen to them. They asked as to why she had gone
and told that person. So saying, these people entered
into the house of complainant and they caught hold of
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her daughter victim Rizwana. Accused No.3 Latabai
held victim by her hair and accused No.5 Sangita tore
blouse of victim and all these accused brought out the
victim from the house and beat her by kicks and blows.
On the street, the sari of the victim was pushed up and
her modesty was outraged. The victim was calling out
to save her. The complainant, her daughter Shahanabi,
and her husband P.W.2 Syed Imam went to intervene,
but in front of them the accused beat the victim. The
victim managed to get herself released from the grip of
the accused persons and ran inside the house. She ran
inside and closed the house from inside.
(b) The complainant claimed that, they called out to the
victim, but she did not respond. The accused persons
kept waiting outside the house and were giving filthy
abuses and threatening to kill. As there was no
response from victim from inside the house, Maqsood
Khan, the nephew of complainant climbed up and
pushed aside the tin sheet on the house and peeped
inside when he saw that the victim had hanged herself
from the wooden log of the house. He got afraid and
thus, her nephew Hafizkhan (P.W.4) and one Syed Latif
went there. They pushed the tin of roof aside and
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entered the room and opened the latch of the house,
which had been closed from inside.
(c) The complaint claimed that, all of them then went inside
and saw that the victim was hanging and she was dead.
Thus, the F.I.R. was filed claiming that, because of the
incident mentioned above, as the victim was beaten and
her sari was pushed upwards and her modesty had been
outraged, because of such trouble of the accused, the
victim had gone inside the house and hanged herself
and committed suicide. The F.I.R. blamed the accused
persons for the incident and claimed that they had
abetted the suicide.
(d) On registration of the crime, the same was investigated
by P.W.5 Sk. Abdul Gaffar, who was P.S.I. at the Police
Station. He went to the spot and did panchanama
Exh.28. The sari by which the victim committed suicide
was seized. Inquest panchanama (Exh.29) was done.
Post mortem of the victim was got done vide
panchanama Exh.30. The doctor reported that, victim
died due to asphyxia due to hanging. Statements of
witnesses were recorded. The clothes from the body of
the victim were also seized. After investigation, charge
sheet came to be filed.
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2. Before the trial Court, charge was framed for the
Sections referred above and the prosecution brought on record
evidence of 5 witnesses. The accused persons pleaded not
guilty. Their defence is of denial. According to them, the victim
was mentally disturbed and that she had been beaten by P.W.2
Syed Imam as she had quarreled earlier with accused No.5
Sangita and because of that, she committed suicide.
3. The trial Court considered oral and documentary
evidence brought on record by the prosecution and after
considering the evidence, convicted the accused persons for
Sections mentioned above and various sentences for the different
Sections were passed.
4. I have heard Advocate Shri S.C. Chavan for the
appellant Nos.1 and 2 as well as appointed Advocate Shri S.S.
Pawar for appellant Nos.3 to 6 and learned A.P.P. Shri R.V.
Dasalkar for the State. It has been argued by the learned
counsel for appellant Nos.1 and 2 that, the defence brought on
record by the prosecution shows that the accused persons had
grudge as to why victim complained to Deorao Khandare.
According to him, the evidence does not show that the accused
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had any intention that the victim should commit suicide. It is
argued that, although this Deorao Khandare was taken as panch
in the inquest panchanama and although his statement was
recorded, the prosecution did not examine him. It is stated that,
the evidence of P.W.1 read with F.I.R. shows that, she made
improvements in her evidence. The evidence on record disclosed
that the parties did not have any earlier quarrel. The learned
counsel tried to argue that P.W.3 Jubedabee was wife of brother
of the complainant. Referring to the evidence of other witnesses,
it is stated that, the evidence on record suffers from
contradictions and omissions. The prosecution did not examine
independent neighbours whose houses can be seen to be near
the spot in the panchanama Exh.28. It is stated that, as per the
port mortem, the tongue was inside. According to the counsel, if
it was case of hanging, the tongue should have been outside.
5. The learned counsel for appellants - accused Nos.3 to
6 also supported the arguments of the learned counsel for
appellant Nos.1 and 2. It was stated that, in the F.I.R. specific
threat was not recorded. The contradictions and omissions
should have been considered to discard the evidence of the
witnesses. The parties were living peacefully before the incident.
The evidence showed that, although the incident went on for
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some time, nobody went to call police at that time. The victim
suddenly killed herself and the accused did not abet the act.
6. Against this, the learned A.P.P. submitted that, the
judgment of the trial Court is properly reasoned and is required
to be maintained. According to the A.P.P., all the accused
persons had entered into the house of the complainant and
dragged the victim outside. In the process, the blouse of the
victim was torn and there was also act of trying to push the sari
of the victim upwards and her modesty was outraged. The post
mortem showed that, the victim had ante mortem injuries, which
goes to show that the incident, as stated by the witnesses, did
occur and the evidence that the accused persons committed
criminal house-trespass and abused, threatened and dragged out
the victim and outraged her modesty and caused hurt to her,
was established. According to the learned A.P.P., the conviction
needs to be maintained.
7. In reply, both the learned counsel for the appellants
submitted that, if the conviction is maintained, lenient view may
be taken looking to the fact that the incident occurred on the
spur of moment.
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8. I have gone through the evidence. There is evidence
of P.W.1 complainant Ahemadibee, P.W.2 Syed Imam (her
husband), P.W.3 Jubedabee Rajjakkhan (residing in the
neighbourhood) and there is evidence of P.W.4 Hafizkhan
Rajjakkhan, who had climbed the roof and seen the victim
hanging. If the evidence of these witnesses is perused, all of
them deposed about the presence of these six accused on the
spot at the time of incident. The evidence of P.W.1 Ahemadibee
shows that, on the day of incident, her daughter victim Rizwana
had gone to leader Deorao Khandare and when she came back,
the incident took place. Her F.I.R. Exh.30 is that, the accused
Nos.3 to 5 were in the business of liquor and used to be under
intoxication and because of their trouble, the victim had gone to
complain to Deorao Khandare. The evidence of P.W.2 Syed
Imam also shows that, the victim had gone to complain to
Deorao Khandare and when she came back, the accused persons
picked up quarrel with her. Similar is the evidence of P.W.3
Jubedabee, who deposed that the accused persons are living in
the neighbourhood and they used to sell liquor unauthorisedly.
She deposed that, the victim Rizwana had gone to Khandare
complaining regarding selling of liquor as there was nuisance in
the lane regarding liquor. Her evidence also shows that, when
the victim returned home, the accused went and beat her.
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9. The cross-examination of P.W.2 Syed Imam shows
that, on the day of incident, earlier at about 11.00 a.m. there
was quarrel between accused No.5 Sangita and the victim. In
the F.I.R. Exh.35, the complainant had reported that, at about
2.30 p.m. there was a dispute which arose between accused
Nos.3 to 5 with the victim and because of the trouble of business
of liquor of the accused, victim had gone to complain to Deorao
Khandare. In the evidence, no doubt the complainant P.W.1 did
not depose about that part of the incident. In the cross-
examination, she was put question in this regard, but did not
understand the question. The Court does not appear to have
tried to explain the question to the witness nor the cross-
examiner pursued the same. What appears from record is that,
the witnesses had trouble from the accused due to unauthorised
sale of liquor in the vicinity and the victim appears to have gone
and complained about this to some leader Deorao Khandare and
this infuriated the accused persons. The prosecution proved this
to be the cause of incident. Said Mr. Khandare is not examined.
But it is not material. Point is that, on that day, earlier there was
some dispute between victim and accused Nos.3 to 5 and when
victim went and came back, accused were agitated as their
information was that she had gone and complained to Mr.
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Khandare.
10. Regarding the actual incident, P.W.1 complainant
Ahemadibee deposed that the victim had gone to Deorao
Khandare and had just come home when the accused persons
reached there. In her evidence, she referred to the accused
Nos.1 to 6 and then deposed that all these persons came and
entered in her house and asked the victim what she had told to
the said leader.
ig P.W.2 Syed Imam has also deposed that, the
accused persons came and asked the victim if she had gone to
lodge complaint to Deorao Khandare. His evidence is that, the
accused were saying that what can she do and what can Deorao
Khandare do. P.W.2 Syed Imam has also deposed that the
accused persons had entered their house. P.W.3 Jubedabee has
also corroborated P.Ws.1 and 2 as well as P.W.4 Hafizkhan. The
evidence of these witnesses shows that the accused persons
entered the house of complainant so as to pick up quarrel with
the victim. The evidence of these witnesses goes to establish
house-trespass on the part of accused persons to commit offence
punishable with imprisonment.
11. The evidence of complainant is that, when the
accused persons had entered her house and started questioning
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the victim, accused No.3 Latabai caught the victim by hair,
accused No.5 caught the victim from her blouse and accused
No.4 Ramabai caught-hold of the sari of the victim and they
pulled out to victim from her house on to the road. According to
P.W.1, the accused were saying that the victim should be made
naked and to put chilly. In the F.I.R. Exh.35, complainant had
reported that, accused No.3 Latabai had held the victim by hair
and accused No.5 had held her from her blouse and pulled and
tore the blouse and that all the accused persons had taken the
victim outside the house and beaten her by kicks and blows.
P.W.2 Syed Imam, father of victim corroborated his wife
deposing that accused No.3 held the victim by hair and accused
No.5 tore the blouse of victim and accused No.4 was saying to
push up the sari of victim and that they will put chilly. (See
Marathi version of the evidence.)
12. P.W.3 Jubedabee deposed that, when the victim
came back, the accused persons beat her on account of she
complaining to Khandare. Her evidence is that, she and one
Zakira tried to intervene in the quarrel, but they were told not to
come in the quarrel and that the accused threatened to kill them
and so they kept themselves on one side. However, P.W.3 has
also deposed that, in the course of incident, accused No.3 Latabai
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caught the hair of victim and accused No.5 Sangita tore her
blouse and accused No.4 Ramabai and accused No.6 Baby had
caught hold of the victim by her legs and brought her outside the
house by pulling. P.W.3 has also deposed that, the accused were
saying that chilly should be put in the anus of the victim. P.W.3
Jubedabee has referred to specific abuses given by the accused.
P.W.3 Jubedabee has deposed that, when they were outside the
house, at that time, accused No.1 Vikki and accused No.2
Mahendra told them that they should not come in between the
quarrel otherwise they will be killed. As far as regards the
evidence of P.W.4 Hafizkhan, he has deposed that, on day of
incident there was quarrel between the accused and the victim
and that the accused pulled out Rizwana from the house. His
evidence is that, out of the accused, one caught hold of the hair
of victim, one caught hold of her blouse and one pushed sari of
victim upwards saying that they will put chilly. (In English
version, the words used are that, one removed sari of victim on
upper side, however, this is not correctly recorded as the Marathi
version shows that, what was deposed was that one accused
pushed sari upwards.) Thus, P.W.4 Hafizkhan did not specifically
name the concerned persons with the specific acts he has
deposed about. However, the evidence of P.Ws.1 to 4 read
together, makes it clear that all these six accused entered the
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house and while accused Nos.3 to 5 actively caught hold of the
victim and dragged her outside the house, accused No.6 Baby
also assisted. Accused Nos.1 and 2 also appear to have
committed criminal trespass and the evidence of these witnesses
shows that they had threatened the neighbouring people not to
intervene.
13. The evidence of P.Ws.1 to 4 shows that, the victim
was assaulted inside the house and forcibly dragged outside and
she was also beaten at the time of incident. The inquest
panchanama Exh.29 in para 4 recorded that there were abrasions
to the chest as well as to the hand of the victim. In the post
moretm report Exh.30 also the doctor recorded ante mortem
abrasions on the person of the victim. Thus, the oral evidence of
the witnesses gets corroboration from the inquest panchanama
as well as post mortem report showing that the victim had
suffered abrasions in the incident.
14. The evidence of P.W.1 has been criticised by the
counsel for accused, claiming that, in her F.I.R. she had not
stated that accused No.4 Ramabai had held the sari of the victim
and stated that they will make her naked and put chilly. Even if
this was to be said so, still there is evidence of P.W.2 Syed
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Imam, who has also deposed that, accused No.4 Ramabai was
saying that the sari of the victim should be pushed up and to put
chilly. P.W.2 Syed Imam was cross-examined, but there are no
contradictions and omissions proved in his evidence so as to
disbelieve him on this count. P.W.3 Jubedabee has also deposed
that, accused No.4 Ramabai had caught the victim from her legs
and the victim was forcibly brought outside the house by pulling
and it was being said that, chilly should be put in her anus. In
the evidence of P.W.3 Jubedabee, in cross-examination read with
the evidence of investigating officer P.W.5 Shaikh Abdul Gaffar,
the only omissions claimed were that, P.W.3 had not stated in
her statement that, "During the period of two hours Vikrant and
Mahendra restrained from entering into the house to the
informant and witnesses, and threatened to kill them." The other
omission tried to be shown was that, she had not stated that,
"Rizwana was inside the house and accused abetted her suicide."
The reason why I am saying that these portions in inverted
commas are tried to be shown as omission is that, P.W.3 was not
asked about these portions in this manner. What was asked in
the cross-examination of P.W.3 was not put to the investigating
officer in that manner. Thus, these acts of the accused persons
of forcibly dragging out the victim and in the process tearing her
blouse and in the quarrel trying to push up her sari are proved in
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the evidence of these witnesses. Reading the evidence of P.Ws.1
to 4 along with the F.I.R., the witnesses cannot be said to be
shattered regarding the crux of the incident that these accused
persons committed house-trespass in the house of the
complainant and abused, threatened and dragged the victim
outside the house and in the process, beat her and also caused
outrage of her modesty. The trial Court has discussed all this
evidence and recorded reasons why the same should be
accepted. Going through the judgment of the trial Court, I find
myself concurring with the trial Judge in this regard.
15. In the cross-examination of P.Ws.1 and 2, it has been
tried to show that the victim was a person who was mentally
disturbed and it was tried to claim that, because of such mental
condition, the husband of the victim had left her. However, the
suggestions were denied by the witnesses and there is no
material to show that the victim was mentally disturbed person.
The argument that P.W.3 was related to complainant
has no basis as no such suggestion was put to the witness.
16. Coming to the evidence of the victim committing
suicide, the evidence of P.Ws.1 to 4 shows that, when such
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incident as mentioned above was taking place, the victim
managed to free herself and ran inside the house and bolted it
from inside. The evidence is that, the accused persons continued
to remain there and were saying that they will see as to how the
victim will come out of the house. Thus, although the victim had
run away inside the house, the accused persons continued to be
there and were giving threats, as per the witnesses. The
evidence further shows that, as the victim was not responding
from inside, P.W.4 Hafizkhan climbed on the house, and pushing
aside the tin sheet, noticed the victim to be hanging. He claimed
that, he brought down the dead body on the ground. In the
evidence of P.W.1, she had claimed that, the incident went on for
about two hours. P.W.3 deposed that, it went on for about half
an hour and P.W.4 deposed that, it went on for about 30 - 35
minutes. The time sense of P.W.1, an illiterate lady cannot be
much relevant. Point is that, for some time quarrel was going on
and when the victim went inside, the accused continued to be
there and were giving threats, and after some time when there
was no movement from inside, P.W.4 Hafizkhan appears to have
climbed the house and noticed that the victim had hung herself.
It appears that, the victim was taken to the hospital and when it
was found that she was dead, inquest panchanama Exh.29 was
done and post mortem was also got done. Post mortem showed
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that, she died of asphyxia due to hanging. The evidence that
the victim did in fact die due to hanging is not in dispute if the
evidence in the trial Court is perused. At the time of appeal,
however, the learned counsel for the appellants tried to argue
that there was no evidence that the tongue of the victim was
outside. The argument is that, if death is by hanging, the tongue
should be outside. In Modi's "Medical Jurisprudence and
Toxicology", Twenty-third Edition, Chapter 18 dealing with death
due to asphyxia under the heading "Other signs", the author has
recorded with reference to hanging that, "In such matters the
tongue is drawn in, or caught between the teeth, or protruded
and bitten. In the present post mortem report, in para 13, it is
recorded that, the tongue was inside oral cavity, partially caught
between teeth. There is no substance in the argument that in
case of hanging necessarily the tongue should be protruding
outside.
19. It has been argued by the learned counsel for
appellant Nos.1 and 2, relying on the case of State of Haryana
Vs. Chandvir & others, reported in (1996) 8 SCC 678 to
submit that, liability of each accused is required to be considered
independently. Reliance was also placed on the case of
Haramant Laxmappa Kukkadi Vs. State of Karnataka
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reported in 1994 AIR (SC) 1546 to submit that merely by going
in a body of unlawful assembly would not be decisive factor
regarding common object. I have gone through the concerned
judgments. They are based on their own facts. In the present
matter, the appellant Nos.1 and 2 had committed criminal
trespass in the house of the complainant with the other accused
who were ladies and further actively participated in the incident
by threatening others so that they do not intervene. They gave
the women accused protective umbrella to execute the common
object ensuring that there is no intervention. The common
object is clearly established that they also wanted the victim to
be threatened, abused, dragged and beaten, and in the process,
participated in outraging of the modesty of a woman (the victim).
There is no substance in the arguments of counsel for accused
Nos.1 and 2 on this count.
18. Looking to the clear evidence available that the victim
ran inside and committed suicide, the question before me is
whether it could be said that the prosecution proved abetment to
commit suicide.
19. In this regard, the learned counsel for the appellant
referred to the case of M. Mohan Vs. State Represented by
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the Deputy Superintendent of Police, reported in AIR 2011
SC 1238 to submit that, for abetment to commit suicide, there
has to be a clear mens rea to commit the offence of abetting the
victim to commit suicide. Reliance was also placed on the
judgment in the matter of Gangula Mohan Reddy Vs. State of
A.P. reported in AIR 2010 SC 327 and it has been argued that,
for abetment, instigating or intentional aiding the person to
commit the act of suicide has to be established. Paras 18, 20
and 21 of the judgment need to be reproduced.
"18. In the instant case, the deceased was
undoubtedly hypersensitive to ordinary
petulance, discord and differences which happen
in our day-to-day life. Human sensitivity of
each individual differs from the other. Different
people behave differently in the same situation.
.....
20. Abetment involves a mental process of
instigating a person or intentionally aiding a
person in doing of a thing. Without a positive
act on the part of the accused to instigate or aid
in committing suicide, conviction cannot be
sustained.
21. The intention of the Legislature and the
ratio of the cases decided by this Court is clear
that in order to convict a person under Section
306, IPC there has to be a clear mens rea to
commit the offence. It also requires an active
act or direct act which led the deceased to
commit suicide seeing no option and this act
must have been intended to push the deceased
into such a position that he committed suicide."
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20. Keeping the above observations of the Hon'ble
Supreme Court in view, it would be now necessary to see
whether in the present matter abetment to commit suicide could
be said to be established. In the present matter, no doubt there
is evidence that the victim was assaulted and dragged outside
the house and there was attempt to push up her sari and there
was outrage of modesty. However, question is whether by such
act it could be said that the acts amounted to abetment to
commit suicide. No doubt there is also evidence that when the
victim ran inside and closed the door, the accused persons
continued to be there giving threat. But then, the evidence of
P.Ws.2 and 3 shows that, before the present incident there was
no quarrel between the parties and their relations were not
strained. The cross-examination of P.W.2 Syed Imam shows that
the relations between them and accused were cordial prior to the
incident and they never quarreled. P.W.3 Jubedabee stated that
the relations between her, P.W.2 Syed Imam and the accused
were cordial and that it was true that before the incident there
was no quarrel between the complainant and the accused. Thus,
although there is evidence that these prosecution witnesses had
trouble due to the liquor business of the accused persons and the
victim had even complained to one Deorao Khandare, before the
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incident there were no strained relations as such. Thus, merely
because the incident of house-trespass, assault and outraging
modesty took place, that by itself cannot be calculated as
abetment to commit suicide. There is no material to show that
the intention of the accused persons was that the victim should
commit suicide. There is no material to show that they instigated
her to commit suicide or assisted or helped her. It was also not
a situation where circumstances were so created that the victim
had no other option than to commit suicide. It appears that, the
victim was over sensitive and at the spur of moment reacted in a
manner which may not have been expected by anybody. The
evidence shows that, even after the victim went inside, for some
time the accused were there outside, and the family could not
enter. It shows that, the victim had not, even while rushing
inside the house, indicated anything that she will commit such
act. Had that been so, the family would have made a hue and
cry and reacted faster.
21. I have gone through the judgment of the trial Court
for holding abetment to commit suicide. The trial Court picked
up the meaning of the word "instigation" from Oxford Dictionary
to mean that, it amounts to encourage someone to do something
bad. This act, the trial Court appears to have read with the
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incident of assault which took place. The trial Court lost sight of
the fact that what the law required is to goad, urge forward,
provoke, incite or encourage to do 'an act', which would be act in
the nature of committing suicide. Illegal act which by itself
cannot be stated to be instigation to commit suicide as such,
cannot be said to be included. For such reasons, I am unable to
agree with the trial Court that offence under section 306 of the
Indian Penal Code was established.
22. The trial Court convicted the accused under Section
452 of the Indian Penal Code, which relates to house-trespass
after "preparation" for hurt, assault or wrongful restraint. In the
present matter, although the accused persons entered the house
so as to assault the victim and hurt the victim, there is no
material to show that they had made some preparation for
causing of such hurt. It is not that they carried any instruments
or articles to execute the act of assault, to tie the victim, etc.
Thus, according to me, Section 452 was wrongly applied and the
correct Section is Section 451, which relates to house-trespass in
order to commit an offence punishable with imprisonment,
punishment for which may extend to two years and fine in the
present set of facts.
Criminal Appeal No836/2015
Trial Court imposed sentence of rigorous
imprisonment for 3 years under Section 354; rigorous
imprisonment for 1 month under Section 294, rigorous
imprisonment for 1 year under Section 504, rigorous
imprisonment for 1 year under Section 506; rigorous
imprisonment for 6 months under Section 323; rigorous
imprisonment for 3 months under Section 143, all read with
Section 149 against each of the accused persons. For these
Sections, in addition there was direction for payment of fine of
Rs.500/- each and in default to suffer simple imprisonment for 1
month under each of the head against all accused. This needs to
be maintained. For reasons already recorded, sentence under
Section 306 read with Section 149 of the Indian Penal Code,
1860 would required to be set aside.
I thus pass the following order :
ORDER
(A) For above reasons, the appeal is partly allowed. In
the impugned judgment of the trial Court, the conviction under
Section 452 read with Section 149 of the Indian Penal Code,
1860 is converted into conviction and sentence under Section
451 read with Section 149 of the Indian Penal Code, 1860 and
the accused are sentenced to suffer rigorous imprisonment for
Criminal Appeal No836/2015
two years each and to pay fine of Rs.500/- (Rupees five hundred)
each, and in default of payment of fine, the defaulting accused
shall further suffer simple imprisonment for one month.
(B) In the impugned judgment, the conviction and
sentence imposed under Section 306 read with Section 149 of
the Indian Penal Code is quashed and set aside.
(C) Rest of the judgment of conviction and sentence as
passed by the trial Court is maintained.
(D)
Appellant No.3 Latabai Kashinath Khandare shall
surrender to her Bail Bonds. Trial Court to ensure execution of
sentence.
(A.I.S. CHEEMA, J.)
fmp/cri836.15
