Bombay High Court

Arbaz Mehmood Pathan And Anr vs State Of Maharashtra on 12 August, 2024

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2024:BHC-AS:32731

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

INTERIM APPLICATION NO.995 OF 2024
IN
CRIMINAL APPEAL NO.245 OF 2024

1. Arbaz Mehmood Pathan, &
2. Mumtaz Mehmood Pathan .... Applicants
Versus
1. The State of Maharashtra, &
2. Sirajuddin Mehboob Sayyed. .... Respondents

______
Ms. Neha R.Kokare, Advocate for the Applicants.
Mr. S.H. Yadav, APP for the Respondent No.1-State.
Mr. Vivek Arote, Advocate (appointed) for the Respondent
No.2.
______

CORAM : SARANG V. KOTWAL, J.

DATE : 12th AUGUST, 2024

P.C. :

1. This is an Application for bail pending Appeal.

The Applicants were convicted and sentenced as follows :

i. They were convicted for the offence punishable under

Section 304-B read with 34 of IPC and were sentenced

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Deshmane(PS)

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to suffer RI for ten years and to pay fine of Rs.10,000/-

and in default to suffer RI for three months;

ii. They were convicted for the offence punishable under

Section 498-A read with 34 of IPC and were sentenced

to suffer RI for one year and to pay fine of Rs.5,000/-

and in default to suffer SI for one month;

iii. They were convicted for the offence punishable under

Section 306 read with 34 of IPC and were sentenced to

suffer RI for three years and to pay fine of Rs.10,000/-

and in default to suffer RI for three months; and

iv. They were convicted for the offence punishable under

Section 323 read with 34 of IPC and were sentenced to

suffer RI for three months and to pay fine of Rs.1,000/-

and in default to suffer SI for ten days;

2. Heard Ms. Neha Kokare, learned counsel for the

Applicants, Mr. S.H. Yadav, learned APP for the Respondent

No.1-State and Mr. Vivek Arote, learned appointed counsel for

the Respondent No.2.

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3. The Applicants were the accused Nos.1 & 2 in

Sessions Case No.13/2021 before the Additional Sessions

Judge, Baramati. The learned Judge, vide the judgment and

order dated 14.2.2024 convicted and sentenced the

Applicants. Besides the Applicants, there were two other

accused i.e. accused Nos.3 & 4. Accused No.4 was acquitted of

all the charges and accused No.3 was convicted only under

Section 323 read with 34 of IPC and was sentenced to suffer SI

three months and to pay fine of Rs.1,000/- and in default to

suffer SI for ten days.

4. The prosecution case is that the FIR was lodged by

one Sirajuddin Sayyed, who was examined as PW-1 during

trial. His younger daughter Karishma got married with the

Applicant No.1 on 5.1.2020. The Applicant No.2 is the

mother of the Applicant No.1. According to the first

informant, during marriage he gave three tola gold ornaments,

Rs.1 Lakh cash and other household articles as dowry. After

marriage Karishma started residing with both the Applicants.

The cohabitation was peaceful for a period of one month after

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the marriage. After that, the Applicant No.2 told Karishma to

see whether she could get some financial help from her

parents because they had incurred debts from various people.

When Karishma enquired with PW-1, he told Karishma that

he did not have money as he had spent for expenses during

the marriage. In February 2020, when Karishma had gone to

her parents' house, the Applicants told her to bring

Rs.50,000/- to repay the loan. PW-1 somehow could manage

to pay Rs.4,000/- with the help of his friend but inspite of that

Karishma was harassed and ill-treated by both the Applicants.

Karishma was telling PW-1 about it. It is further alleged by

PW-1 that Karishma had told her brother that the Applicant

No.1 was having illicit relations with their neighbour and

because of that he used to abuse and beat her. There were

other allegations that the Applicant No.2 had married the

original accused No.3 who was addicted to liquor. He also

used to abuse and harass Karishma. Ultimately on 28.5.2020

Karishma called PW-1 telephonically and told him that the

Applicants and the Accused No.3 had assaulted her and that

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she had decided to commit suicide. She hanged herself and

committed suicide. The informant went to the hospital where

Karishma's body was kept. According to him there were signs

of injuries on her body. On these allegations, the FIR is lodged.

5. Learned counsel for the Applicants submitted that

the offence could not be that under Section 304-B of IPC. She

relied on the judgment of the Hon'ble Supreme Court in the

case of Modinsab Kasimsab Kanchagar Vs. State of Karnataka and

another as reported in (2013) 4 SCC 551. It was observed that if

the payment of money was not towards dowry but for

payment of a society loan; in that situation, the conviction

under Section 498-A of IPC could be upheld but the offence

under Section 304-B of IPC would not be attracted as the

payment was not made in connection with the marriage.

Learned counsel for the Applicants relied on these

observations.

6. Learned counsel further submitted that the

neighbours have not really supported the prosecution case.

The maximum sentence imposed for the offence under Section
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306 of IPC was for three years. If the conviction under Section

304-B of IPC is set aside then the maximum sentence would be

for three years. The Applicants were on bail during trial.

They have not misused that liberty. There are allegations of

the Applicant No.1's extra marital relations. This itself shows

that there were other possible reasons for her to commit

suicide. There was a specific role attributed to the Accused

Nos.3 & 4 who were acquitted of the main charges.

7. Learned APP as well as learned counsel for the first

informant submitted that the conviction under Section 304-B

of IPC is properly recorded. The marriage had taken place on

5.1.2020 and within five months she committed suicide on

28.5.2020. There is a presumption under Section 113-B of the

Evidence Act against the present Applicants.

8. I have considered these submissions. As far as the

allegations that the deceased was assaulted before her death

are concerned, the postmortem notes do not show any injuries

on her dead body. The only one injury mentioned in the

postmortem notes is the ligature mark. The death was caused
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due to asphyxia due to hanging. Therefore, there is serious

doubt about the assault on the deceased before her suicide.

9. There are allegations that the Applicant No.1 was

having illicit relations with the neighbour. However, there is

no such evidence brought on record by the prosecution. There

is substance in the submission of the learned counsel for the

Applicants that the observations of the Hon'ble Supreme Court

in the aforesaid case of Modinsab Kanchagar (supra) would

apply to this case. However, this will have to be tested at the

final hearing stage. The major punishment awarded to the

Applicants was under Section 304-B of IPC for ten years.

Otherwise, the other major punishment was for three years for

commission of the offence punishable under Section 306 of

IPC. The Applicants were on bail during trial. There are no

allegations that the Applicants had misused that liberty.

10. In this view of the matter, I am inclined to grant

bail to the Applicants during pendency of their Appeal. Hence,

the following order :

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ORDER

(i) During pendency and final disposal of the Criminal Appeal No.245/2024, the Applicants are directed to be released on bail on their executing P.R. bonds in the sum of Rs.30,000/- each (Rupees Thirty Thousand Only) with one or two sureties each in the like amount.

(ii) Interim Application is disposed of accordingly.

(SARANG V. KOTWAL, J.)

Deshmane (PS)

PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date: