Shaikh Shabbir Sk Osman vs The State Of Maharashtra
2017 Latest Caselaw 4515 Bom

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO. 132 OF 2002


Shaikh Shabbir s/o Shaikh Osman,
Age : 40 years, Occu.: Agricultural,
R/o.: Sonkheda, Tq. Khultabad,
District : Aurangabad                                      APPELLANT

       VERSUS

The State of Maharashtra                                   RESPONDENT

                         ----
Mr. Satej S. Jadhav, Advocate for the Appellant
Smt.R.P. Gaur, A.G.P. for respondent/State
                         ----

                                    CORAM :   SANGITRAO S. PATIL, J.

                                    DATE  : 14th JULY, 2017

JUDGMENT : 

Heard the learned counsel for the appellant

and the learned A.P.P.

2. The appellant (original accused No.1) has

challenged his conviction and sentence for the offence

punishable under Section 306 of the Indian Penal Code

("IPC", for short), recorded in Sessions Case No. 142

of 2000 on 15th March, 2002 by the learned II

Additional Adhoc Sessions Judge, Aurangabad.

2 criapl132-2002

3. The deceased Gausyabi was the wife of accused

No.2 namely Sk. Ahmed. Their marriage had taken place

prior to about 5 to 6 years of the date of the incident.

The appellant is the brother of accused No. 2. Accused

Nos. 3 to 5 are the inlaws of the deceased Gausyabi.

The deceased Gausyabi was the sister of the informant

namely Sk. Afzal (PW2).

4. It is the case of the prosecution that the

appellant and accused Nos.2 to 5 were illtreating the

deceased Gausyabi by suspecting her character. Accused

No.2, the husband of Gausyabi, used to beat her on the

say of the other accused persons. Such torture was being

meted out to the deceased Gausyabi since before two

years of the incident. Ultimately, being fed up with

that torture, she committed suicide by consuming poison

on 16th August, 1999. Sk. Afzal (PW2) lodged FIR against

the accused persons in Police Station, Khultabad on the

same day. Crime No.I-116 of l999 came to be registered

against them for the offence punishable under Section

306 read with Section 34 of the IPC. The investigation

followed. The statements of the witnesses were recorded.

After completion of the investigation, accused Nos.1 to

5 came to be chargesheeted for the above mentioned

3 criapl132-2002

offence.

5. After evaluating the evidence on record, the

learned Trial Judge did not find accused Nos.2 to 5

guilty of the above mentioned offence. He, therefore,

acquitted them. However, he found sufficient evidence

to hold the appellant guilty for the said offence. He,

therefore, convicted him for that offence and sentenced

him to suffer rigorous imprisonment for three years and

to pay a fine of Rs. 5000/-, in default to suffer

rigorous imprisonment for one year. This conviction and

sentence has been challenged by the appellant in the

present appeal.

6. To connect the appellant with the alleged

offence, the prosecution relied on the evidence of the

informant, Sk. Afzal (PW2) (Exh-13), Sk. Ahmed (PW3)

(Exh-15), the another brother of the deceased Gausyabi,

and Kamrubi (PW4) (Exh-16), the mother of the deceased

Gausyabi. It has come in their evidence that two years

after the marriage, the appellant had given a false

message that the deceased Gausyabi had plunged into a

well. All of these witnesses went to the matrimonial

home of the deceased Gausyabi and found her alive. On

being asked by them as to why he had given false message

4 criapl132-2002

in respect of the deceased Gausyabi, the appellant

threatened them. Thereafter, the deceased Gausyabi was

taken away by these witnesses with them to their house.

7. It may be noted that no report was lodged

against the appellant for illtreating the deceased

Gausyabi and giving false message about her plunging

into a well. The evidence of these witnesses in respect

of that incident is very vague and general. The evidence

of these witnesses about the events those took place at

that time also is not consistent. Sk. Afzal (PW2)

states that when he asked about that message to the

appellant, the appellant was inside the sugarcane crop.

He threatened that he would not allow this witness to go

beyond the boundary of the field. Thereafter, he took

Gausyabi with him to Takali. He does not state that at

that time, Sk. Ahmed (PW3) and Kamrubi (PW4) were with

him. However, Sk. Ahmed (PW3) states that he enquired

with accused No. 1 (appellant) as to why false message

was given by him in respect of the deceased Gausyabi.

At that time, the appellant started beating him. His

other family members and himself then went back to their

house. After about 4 to 8 days, the appellant again

threatened the deceased Gausyabi, whereon she came to

5 criapl132-2002

her maternal home. The informant and Kamrubi (PW4) do

not state that Sk. Ahmed (PW3) was beaten by the

appellant at that time. This witness does not state that

the deceased Gausyabi was taken by him to his house at

that time. Kamrubi (PW4) has a totally different story

to tell. She states that after going to the house of

the deceased Gausyabi after receiving the false message,

the appellant rushed towards her with a stick to beat

her. She states that the appellant was having evil eye

on the deceased Gausyabi. Nothing of that sort has been

stated by Sk. Afzal (PW2) and Sk. Ahmed (PW3). With

this inconsistent evidence of these three witnesses, a

strong doubt is created whether they actually received

false message from the appellant and visited the house

of the deceased Gausyabi after receiving that message.

8. Sk. Afzal (PW2) states that after staying for 4

to 8 days, the deceased Gausyabi went to her husband's

house saying that she had no quarrel with her husband,

but after about 5 to 6 days, she again came back to his

house. This fact is not stated either by Sk. Ahmed (PW3)

or Kamrubi (PW4). Sk. Afzal (PW2) and Kamrubi (PW4)

state that the appellant had quarrelled with the

deceased Gausyabi and therefore, she had come to their

6 criapl132-2002

house. At that time, she informed that the appellant

had threatened to kill her. Sk. Afzal (PW2) states that

on the same day, he sent the deceased Gausyabi to her

husband's house with Sk. Ahmed (PW3) and on the same

day, he also went there with his maternal uncle namely

Ishaq. At that time, he questioned the appellant as to

why he was harassing Gausyabi, whereon the appellant

told that he would finish the deceased Gausyabi within

eight days. Sk. Ahmed (PW3) also states in the same

lines. However, the Investigating Officer, who recorded

the statement of this witness, states that the said

facts were not stated by this witness before him. Thus,

these are a material omissions in the evidence of Sk.

Afzal (PW2). Sk. Ahmed (PW3) also has not stated about

his visit to the matrimonial house of the deceased

Gausyabi to reach her and about the threat extended by

the appellant to finish her within eight days.

Consequently, the evidence of these witnesses on the

point of extending threat to finish Gausyabi, cannot be

believed.

9. It has come in the evidence of the above

mentioned three witnesses, who are close relations of

the deceased Gausyabi, that they received a message from

7 criapl132-2002

one Sk. Salim that Gausyabi had consumed poison and she

was admitted in Ghati Hospital. When they went to see

her, they found that she was no more.

10. Dr. Jagpal Yeotikar (PW7) (Exh-21), who

conducted post-mortem of the body of the deceased

Gausyabi, deposes that he did not find any external

injuries on the body of the deceased Gansyabi. He found

that all the internal organs were congested and stomach

contained a thick paste like grayish white smelling of

poisonous substance. He opined that the death of

Gausyabi was due to cardio-respiratory arrest secondary

to poisoning. He preserved viscera. That was sent to

Chemical Analyst for analysis and report. However, no

Chemical Analyst's report is produced on record. In the

absence of Chemical Analyst's report, it cannot be said

with certainty that Gausyabi died of any particular

poisonous substance.

11. As seen from the evidence of Sk. Afzal (PW2),

the deceased Gausyabi had begotton two sons from accused

No. 2, who were aged about five years and three years at

the time of the incident. Gausyabi had gone to her

husband's house on the say that she had no quarrel with

her husband. There is material omission in the evidence

8 criapl132-2002

of Kamrubi (PW4) about the alleged immoral/evil eye of

the appellant against the deceased Gausyabi. It has

come in the evidence of Sk. Ahmed (PW3) that after two

years of the marriage of the deceased Gausyabi with

accused No. 2, the appellant and accused No. 2 started

residing separate from each other. These circumstances

make it difficult for one to accept that the appellant

would illtreat the deceased Gausyabi on any count

Accused No. 2 would not have allowed the appellant to

raise any finger against the deceased Gausyabi, more

particularly when he was residing with the deceased

Gausyabi separate from the appellant and the deceased

Gausyabi had no dispute with him. Thus, the very motive

behind the alleged offence of abetting the deceased

Gausyabi to commit suicide is absent in this case.

12. The evidence of the above named three close

relations of the deceased Gausyabi about the alleged

illtreatment meted out by the appellants to the deceased

Gausyabi is not consistent, natural and believable.

There was no reason for the appellant to harass the

deceased Gausyabi. The learned Trial Judge attached

undue importance to the version of Kamrubi (PW4) that

the appellant had an evil eye on the deceased Gausyabi

9 criapl132-2002

though the said fact was stated by her for the first

time before the Court and it was not supported by the

other two witnesses, namely Sk. Afzal (PW2) and Sk.

Ahmed (PW3). The learned Trial Judge seems to have

swayed away by the sentiments, observing that Kamrubi

(PW4) was deposing before the Court with excitement.

The finding of the learned Trial Judge holding the

appellant guilty is more based on surmises and

conjectures than the evidence on record. The learned

Trial Judge has not appreciated the evidence correctly

and properly and wrongly hold the appellant guilty for

abetting the deceased Gausyabi to commit suicide.

13. In the above circumstances, the impugned

judgment convicting the appellant for the offence

punishable under Section 306 of the IPC cannot be

upheld. It is liable to be quashed and set aside. The

sentence passed against the appellant will have to be

set aside. In the result, I pass the following order:-

O R D E R

(i) The Criminal Appeal is allowed.

(ii) The impugned judgment of conviction and order

of sentence passed against the appellant for

10 criapl132-2002

the offence punishable under Section 306 of the

Indian Penal code is quashed and set aside.

(iii) The appellant is acquitted of the offence

punishable under Section 306 of the Indian

Penal Code.

(iv) The amount of Rs. 5000/-, deposited by the

appellant towards fine, be refunded to him.

(v) The bail bonds of the appellant stand

cancelled. He is set at liberty.

(vi) The appeal is disposed of accordingly.

[SANGITRAO S. PATIL] JUDGE

npj/criapl132-2002