Bombay High Court
Sheikh Hanif @ Babbu S/O Sheikh ... vs State Of Maharashtra on 26 July, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.182/2003
Sheikh Hanif @ Babbu s/o Sheikh Tajmal,
aged 26 years, Occ. Auto Rickshaw driver,
r/o Deurwada, Tq. Arvi, Dist. Wardha. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Officer, Police Station
Arvi, Dist. Wardha. ...RESPONDENT
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None for the appellant.
Ms T. Udeshi, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 26.07.2017
ORAL JUDGMENT
1. The appellant is before this Court since he is aggrieved
by the judgment and order of conviction passed by learned 2 nd
Additional Sessions Judge, Wardha in Sessions Trial No.114/1999
on 15.02.2003.
By the impugned judgment and order of conviction, the
appellant is convicted for an offence punishable under Section 306
of the Indian Penal Code and on that count, he is directed to suffer
rigorous imprisonment for 7 years and to pay a fine of Rs.1,000/-
and in default of payment of fine to undergo rigorous
imprisonment for 6 months.
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He is also convicted for the offence punishable under
Section 452 of the IPC and on that count he is sentenced to suffer
rigorous imprisonment for 5 years and to pay a fine of Rs.1,000/-,
in default to undergo rigorous imprisonment for 6 months.
He is also convicted for the offence punishable under
Section 354 of the IPC and on that count he is sentenced to suffer
rigorous imprisonment for 1 year and to pay a fine of Rs.500/-.
He is also convicted for an offence punishable under
Section 342 of the IPC and on that count his punishment is
rigorous imprisonment for 1 year and payment of fine of Rs.500/-
and in default to suffer rigorous imprisonment for 3 months.
2. When this matter was called out for final hearing, the
learned counsel for the appellant chose to remain absent. The
State is represented by the learned A.P.P. in this appeal. She has
supported the impugned judgment. With her able assistance I
have gone through the record and proceedings and also evidence.
3. The deceased is Vinita. According to the prosecution,
she has consumed poison and committed suicide. The post
mortem report is available on record at Exh.-33. The autopsy
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surgeon opined that the cause of death is asphyxia due to chemical
poison. Viscera was preserved. It was sent by the investigating
officer Sopan (PW6) to the Chemical Analyzer. The CA report is
available on record at Exh.-45. The CA report shows detection of
Organochloro Insecticide Endosulfan. Thus, it is crystal clear that
Vinita met with an unnatural death.
4. The question this Court is required to determine is as to
whether the appellant could be held responsible that he has
abeted Vinita to commit suicide.
5. There is no dispute as could be seen from the version of
the prosecution witness that the incident of committing suicide
occurred on the day of Rangapanchami i.e. day of playing colours.
6. The evidence of Kishori (PW5) cousin of Vinita who
also resides adjacent to the house of the deceased shows that the
Rangapanchami festival was celebrated by entire village. Bharat
(PW1) father of the deceased and the first informant also admits
that the persons from different castes and creed enjoy
Rangapanchami. Sunanda (PW3) also corroborates said aspect.
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7. As per the evidence of Kishori (PW5), she noticed that
the appellant was inside the house of the deceased and he was
putting colours on her face. Therefore, she rushed to the
agricultural field where Bharat, father of the deceased was
thrashing the agricultural produce. She informed the appellant
about the incident. Therefore, Bharat came to his house. At that
time, as per the evidence of Bharat (PW1) and as per the FIR,
Exh.-21, the appellant ran away from the rear door and when
Bharat tried to catch hold he failed to do so. When he came back
that time he noticed that his daughter has consumed the poison.
8. In order to bring out an offence under Section 306 of
the IPC, specific abetment as contemplated by Section 107 of the
IPC on the part of the accused with an intention to bring about the
suicide of the person concerned as a result of the abetment is
required. The intention of the accused to aid or to instigate or to
abet the deceased to commit suicide is a must for the offence
punishable under Section 306 of the IPC, is a settled law in view of
the various decisions of the Hon'ble Apex Court.
According to the prosecution, the appellant has abeted
the deceased to commit suicide. It is an admitted position that on
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the day of incident, the entire village was enjoying
Rangapanchamai and on the said occasion, appellant entered into
the house and put colour on the face of the deceased. In my view,
on the touchstone of established principles of law, the said act of
putting colour on the face of the deceased cannot be termed as
abetment to the deceased to commit suicide. Therefore, in my
view, the conviction and sentence imposed upon the appellant for
the offence punishable under Section 306 of the IPC cannot stand
to the scrutiny of law.
9. So far as conviction under Sections 354, 442 and 342
of the IPC is concerned, the evidence of Kishori (PW5) establishes
the presence of the appellant inside the house of the deceased in
absence of her parents. Not only that, the evidence of Bharat
(PW1) shows that the appellant ran away from the rear door of
the house. In view of the clinching version from the witness box
by Kishori, the conviction as recorded by the Court below for the
said offence cannot be questioned.
10. The appellant was taken into custody on 15.02.2003.
This Court granted him bail on 20.06.2003. Thus he was in jail for
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four months. Looking to the nature of incident and the fact that
the incident has occurred in the year 1999, some leniency can be
shown to the appellant.
In that view of the matter, following order is passed.
ORDER
(i) Criminal Appeal No.182/2003 is partly
allowed.
(ii) Judgment and order of conviction passed by
2nd Additional Sessions Judge, Wardha in Sessions Trial
No.114/1999 on 15.02.2003, so far as it convicts the
appellant for an offence punishable under Section 306
of the IPC, is set aside.
(iii) The judgment so far as it convicts the
appellant for an offence punishable under Sections
452, 354 and 342 of the IPC is concerned, it is
maintained. However, the substantive sentences of
term imprisonments are modified and substituted by
the sentences of imprisonments for these offences for
the terms running concurrently for such a period as is
equivalent to the period of detention already
undergone by the appellant.
JUDGE
kahale
