Madhya Pradesh High Court
Sheikh Akhtar (Died) Smt. Jameela vs The State Of Madhya Pradesh on 25 April, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 25 th OF APRIL, 2024
CRIMINAL APPEAL No. 888 of 2007
BETWEEN:-
1. SHEIKH AKHTAR (DIED) SMT. JAMEELA W/O
LATE SHEIKH AKHTAR, AGED ABOUT 51 YEARS,
DHARAMPURA WARD NO. 39 DAMOH (MADHYA
PRADESH)
2. AMREEN KHAN W/O LATE SHEIKH AKHTAR,
AGED ABOUT 29 YEARS, DHARAMPURA WARD
NO. 39 DAMOH (MADHYA PRADESH)
3. NAAZ KHAN D/O LATE SHEIKH AKHTAR, AGED
ABOUT 26 YEARS, DHARAMPURA WARD NO. 39
DAMOH (MADHYA PRADESH)
4. AFTAB S/O LATE SHEIKH AKHTAR, AGED ABOUT
22 YEARS, DHARAMPURA WARD NO. 39 DAMOH
(MADHYA PRADESH)
5. SHREEN KHAN D/O LATE SHEIKH AKHTAR, AGED
ABOUT 24 YEARS, DHARAMPURA WARD NO. 39
DAMOH (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI AJAY KUMAR JAIN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THR. P.S. PATEN
DISTT. JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI L.A.S. BAGHEL - GOVERNMENT ADVOCATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-05-2024 17:30:18 2 Appellant- Sheikh Akhtar has preferred this appeal under Section 374(2) of the Code of Criminal Procedure against the judgment dated 28.03.2007 in S . T. No.378/2005 passed by XIIth Additional Sessions Judge (Fast Track Court), Jabalpur (MP) whereby the appellant has been convicted under Sections 305, 506-(B) of the IPC and sentenced to undergo R.I. for ten years and R.I. for two years with fine of Rs.2,000/- and Rs.1000/- along with default stipulations with direction that sentence will run concurrently.
2. According to prosecution story, one Ritu @ Premlata is said to have burnt herself on 19.02.1999 and due to burn injury received by her, she died on 23.02.1999. Deceased is said to have lodged an FIR against appellant under Section 354 of the IPC. When deceased along with her mother namely Gomti Bai (PW-4) was going to Court for recording her deposition they were stopped by accused Akhtar, Munna, Babu, Bhadde, Mamu Gudda and pressurized them for doing compromise in the pending case. Mother left daughter in Court and went to her shop. Deceased was again threatened by appellant. Case was adjourned on said date and deceased went to her house. She was disturbed and being alone she burnt herself and died. Before her death two dying declarations were recorded. Mother and sister of deceased stated that deceased was threatened to do compromise otherwise she and her father will be killed by the accused. Deceased being minor with tender mind was disturbed and committed suicide. Police registered offence under Sections 305 and 506-B of the IPC. Trial Court has relied on the deposition of mother of deceased (PW-4), Sister of deceased (PW-3), Kallo Bai (PW-5), Executive Magistrate (PW-2), Dying Declaration (Ex.P/18), J.S. Sehgal (PW-14), evidence of age of deceased i.e. progress report (Ex.P/8), deposition of Assistant Sub-Inspector (PW-17), Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-05-2024 17:30:18 3 certificate (Ex.P/11), deposition of In-charge Principal (PW-15), believed the date of birth of deceased to be 05.10.1983 and held accused person to be guilty for committing of offence under Section 305 read with Section 506-B of the IPC.
3. Learned counsel appearing for the appellant had argued that offence under Section 305 of the IPC is not made out as prosecution failed to establish that deceased was below 18 years of age on 19.02.1999. It was argued that no offence under Section 305 of the IPC is made out as there was no abetment made by the appellant. There was no overt act or positive act inducing deceased to commit suicide nor there was any omission or conspiracy on the part of appellant along with other co-accused persons due to which deceased has committed suicide. It is submitted that no offence under Section 305 of the IPC is made out.
4. Learned Government Advocate appearing for the State submitted that trial Court had not committed any error in convicting appellant under Section 305 read with Section 506-B of the IPC. It is submitted that dying declaration was found to be reliable and mother of deceased was eye witness of threatening given by appellant and other co-accused persons to kill her and her father, if case is not compromised. Pendency of criminal case under Section 354 of the IPC was also proved before the criminal Court. Deceased was less than 18 years with a tender age and being perturbed by threatening has committed suicide, therefore, it cannot be said that abetment of offence of suicide is not done by appellant. Appellant also cannot be given benefit under Section 360 of the Cr.P.C. as sentence is of ten years and fine. Benefit can only be granted in cases where imprisonment is for a term of seven year or less or where person under 21 years of age or woman is convicted for such offence which is not Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-05-2024 17:30:18 4 punishable with death or imprisonment for life or imprisonment for a term not extending ten year with fine. In these circumstances, appeal may be dismissed.
5. Heard the counsel for the parties.
6. On going through the record of the case, it is found that there is overwhelming evidence against the appellant. Mother of deceased (PW-4) has deposed regarding the threatening. When deceased burnt herself, fire was doused by one Kallo Bai (PW-5). At that time, Gomti Bai/mother (PW-4), Sarita/Sister (PW-5) were present. Incident occurred on 19.02.1999 and death took place on 23.02.1999. Before her death dying declaration was recorded by Executive Magistrate (PW-2). There is no reason to disbelief on said dying declaration. Doctor has proved that she died due to third degree burn injury. Burnt cloths, match sticks were found on spot. Police has seized progress report and certificate from school which shows date of birth of deceased to be below 18 years. Deposition of Gomti (PW-4), Subhash Tiwari, S.I. (PW-17), mother (PW-4), In-charge Principal were recorded. No reason to discredit the said depositions and statements, therefore, it cannot be said that prosecution has failed to proved that deceased was below 18 years of age. There is no reason to disbelief that her date of birth is not 05.10.1983 and she was over 18 years of age. Document relied upon is admission register of year 1994-95 much before the date of incident. At the time of death, deceased was aged about 15 years 04 months and 40 days.
7. Only question which arises for consideration before this Court whether offence of abetment under Section 305 of the IPC is made out against the appellants or not.
8. Sections 107 and 305 of the IPC are quoted as under:-
Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-05-2024 17:30:18 5"Section 107. Abetment of a thing-
A person abets the doing of a thing, who- (First)- Instigates any person to do that thing; or (Secondly)- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing."
" Section 305. Abetment of suicide of child or insane person-
If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine."
9. Offence under Section 305 of the IPC will be made out against the appellant if prosecution is successful to prove that appellant had abeted suicide of a minor girl.
10. On going through the facts of the case, it is clear that appellant had threatened the deceased to do compromise in pending criminal cases otherwise he will kill her and her father. There was no positive act, conspiracy or instigation by the appellant to the deceased for committing suicide. In these circumstances, appellant cannot be held guilty for committing offence under Signature Not Verified Section 305 of the IPC but from the facts which are available on record, it is Signed by: SHABANA ANSARI Signing time: 08-05-2024 17:30:18 6 clear that appellant had threatened the deceased to do compromise in the case or he will kill her and her father. Said act of appellant falls within the definition of Section 195-A of the IPC. Appellant along with others threatened injury to body of deceased and her relative with intent to cause that person to give false evidence that appellant is not involved in offence under Section 354 of the IPC. Offence under Section 195-A of the IPC is made out against the appellant. Said offence is punishable with imprisonment up to seven years with fine or with both. In this case, no charges were framed under Section 195-A of the IPC.
11. As per Section 221 (2) of the Cr.P.C., in case accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under provision of Sub Section (1), he may be convicted for the offence which is shown to have committed, although, he was not charged with it. In this case, facts of the case revealed that appellant had threatened the deceased for compromise of case and was coercing her to give false evidence in Court. Said act of appellant amounts to offence under Section 195-A of the IPC. Section 195-A of the IPC is lesser offence comparable to Section 305 of the IPC All the facts constituting offence under Section 195-A of the IPC is available on record and appellant was also aware of prosecution story and facts that they had threatened the deceased to turn hostile or to do compromise in a pending criminal case, therefore, this Court deems it appropriate to alter conviction of appellant from Section 305 of the IPC to Section 195-A of the IPC.
12. Prayer is made by learned counsel appearing for the appellant to grant benefit of Section 360 of the Code of Criminal Procedure to appellant and he may be acquitted.
Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-05-2024 17:30:18 713. From aforesaid discussion, it is clear that appellant- Sheikh Akhtar had committed offence under Section 195-A of the IPC. Offence is serious in nature that too for a Government servant. In these circumstances, no benefit of Probation of Offenders Act or under Section 360 of the Cr.P.C. can be granted to the appellant.
14. In view of aforesaid circumstances, finding of case and judgement dated 28.03.2007, conviction and sentence of appellant under Section 305 of the IPC is set aside and in the alternate he is convicted under Section 195-A of the IPC along with Section 506-B of the IPC. Conviction and sentence under Section 506-B of the IPC is upheld. Sentence under Section 195-A of the IPC and Section 506-B of the IPC will run concurrently.
15. Appeal is disposed off.
(VISHAL DHAGAT) JUDGE $A Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-05-2024 17:30:18