Habib S/O Bashir Sheikh And Anr vs State Of Mah. Thr. P.S. Mouda
2017 Latest Caselaw 9096 Bom

                                         1                                       apeal78.10




                 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

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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,

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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

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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

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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.

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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

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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