Madhya Pradesh High Court
Desiya Bhuriya vs Mahesh on 14 August, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 4363 of 2022
DESIYA BHURIYA
Versus
MAHESH AND OTHERS
Appearance:
Shri Aviral Vikas Khare, learned counsel for the petitioner.
Shri Tarang Chelawat, learned counsel for the respondent.
Heard on : 20.07.2024
Pronounced on : 14.08.2024
This criminal revision having been heard and reserved for order,
coming on for pronouncement this day, the court passing the following :
ORDER
1. This criminal revision under Section 102 of the Juvenile Justice Act, 2015 read with Section 397 of the Code of Criminal Procedure, 1973 has been filed by the petitioner being aggrieved by Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM the judgment dated 29.08.2022, passed by the learned Principal Magistrate of the Juvenile Justice Board, District Jhabua (hereinafter referred to as 'J.J. Board') in C.C. No.227/2017, wherein respondent has been acquitted from the charge under Section 305 of IPC.
2. Succinctly, the case of the prosecution is that the victim Rajni was 14 years of age studying in Class 8th at Eklavya Avasiya School, Jhabua (M.P.) and was residing in the boarding house of the said school. On 12.08.2017 when the petitioner, the father of the victim visited, she informed her father that the respondent No. 1 / Mahesh molested and assaulted her subjected her to grave insult in front of other students at the hostel where she was residing. Afterthat, on 14.08.2017, the respondent criminally intimidated the victim by threatening to kill her. Further, on 14.08.2017, the victim committed suicide by hanging herself on a tree. Initially, case for unnatural death was registered by Police Station Ranapur, Jhabua. Thereafter, FIR bearing Crime No. 390/2017 was registered against the respondent for the offence punishable under Section 305 of IPC and Section 17 of POCSO Act.
3. During investigation, spot map was prepared, and statements of the witnesses were recorded. After completion of investigation, charge-sheet was filed. As the respondent No. 1, at the time of incident, was below 18 years of age, thus, the case was committed to the J.J. Board.
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM4. The prosecution has examined as many as 11 witnesses namely Dr. G.S. Chouhan, Medical Officer (PW-1), Desiya Bhuriya, father of the victim (PW-2), Jalamsingh (PW-3), Sumitra, mother of the victim (PW-4), Vipul, Sister of the victim (PW-5), Mittu (PW-6), Poonamsingh (PW-7), Kailash, Peon of the hospital (PW-8) and Vinod Solanki, ASI (PW-9), Kailash Chouhan, SHO (PW-10) and Lakhansingh Bhari, ASI (PW-11) and 02 witnesses namely Sanjay Baberiya (DW-1) and Ajeet Baberiya (DW-2) have been examined in support of the defence by the respondent.
5. The learned J.J. Board having relied upon the testimonies of the prosecution witnesses, defence witnesses and other documents like FIR, acquitted the respondent No. 1 from the offence as mentioned in para-1 of this judgment.
6. Learned counsel for the petitioner submitted that the learned J.J. Board has not properly appreciated the evidence available on record. There is connecting evidence to prove the fact that respondent No. 1 committed offence of molestation due to which the deceased committed suicide. He further submitted that the respondent was of the age of 17 years i.e. almost a major at the time of commission of said offence and was aware of the act done by him. In fact, the act of respondent was repeatedly done by him on multiple occasions to harass the victim and abet her to commit suicide. Thus, it establishes the guilty intention of the accused person as he is capable to understand the consequences of his act.
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM7. Further, it is contended that the offence punishable under Section 305 of IPC and Sections 16 & 17 of the POCSO Act are categorized as heinous offences. However, the preliminary assessment of the accused was not carried out by the learned J.J. Board in terms of Section 15 of the Juvenile Justice Act, which was mandatory. It provides for assessment of the accused with regard to the mental and physical capacity of the accused to commit the said offence. The accused was tried before the J.J. Board as a minor.
8. It is also submitted that the victim had opportunity to approach the authorities against the accused, but looking the age as well as circumstances, she neither had courage nor the knowledge that she could report the same to the authorities and save herself from the harassment. In the statement of Desiya Bhuriya, father of the deceased (PW-1), he has stated that the deceased told him about the incident happened on 12.08.2017 and 14.08.2017 regarding slapping and threatening her. Likewise, prosecution witness Jalamsingh (PW-
3) and Sumitra, mother of the victim (PW-4) have supported the prosecution case.
9. The learned J.J. Board committed grave error of law and facts both in not properly appreciating the material brought on record by the prosecution specially a suicide note was also found on the body of the victim. In fact, the statements of witnesses recorded before the J.J. Board have not been properly considered by the learned J.J. Board. The prosecution has clearly established the chain of events and corroborated it with the evidence produced therein and the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM statements of the witnesses recorded before the J.J. Board. Thus, the case of the prosecution was proved beyond the reasonable doubt before the J.J. Board. On these grounds, Hence, prays for setting aside the impugned order and prays for conviction of the respondent No.1.
10. In addition to that, learned counsel for the petitioner has filed an application under Section 391 of Cr.P.C. for taking documents on record. In course of argument, it is submitted that since in para 5 of the impugned order, the learned J.J. Board has stated that due to non furnishing of documents, the prosecutrix cannot be assumed to be of less than 18 years, then these documents are necessary for ascertaining the age of victim. Accordingly, they are required to be taken on record.
11. On the other hand, learned counsel for the respondent No.1 has opposed the prayer made by counsel for the petitioner and submitted that the learned J.J. Board has well appreciated the evidence available on record and acquitted respondent No.1 after considering each and every aspect of the case. There is no material against respondent available on record. None of the ingredient of Section 305 IPC is attracted in the case in hand. On the basis of statements of some of the witnesses, it cannot be presumed that respondent No. 1 committed abetment or instigation to the deceased to commit suicide. The J.J. Board has rightly acquitted the respondent for the aforementioned offence under section 305 of IPC. In support of his contention learned counsel has placed reliance upon judgments of the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM Hon'ble Supreme Court in the cases of Rajesh Vs. State of Haryana, (2020) 15 SCC 359 and State of West Bengal Vs. Indrajit Kundu, (2019) 10 SCC 188 and also placed reliance upon the judgments of the High Court of M.P., Jabalpur in the cases of Sunil Kumar Sen Vs. State of Madhya Pradesh passed in W.P. No. 11763/2018, Jalil Khan Vs. State of Madhya Pradesh passed in Cr.R. No. 2436/2020 and Sitamram Yadav Vs. State of Madhya Pradesh passed in W.P. 21097/2023, Sunil Kumar Sen Vs. State of Madhya Pradesh decided in M.Cr.C. No. 1038/2021, judgment of Allahabad High Court in the case of Melvin Saldanha Vs. State of U.P. decided in Cr.R. No. 604/2019 and Bombay High Court, Bench at Nagpur in the case of Ramrao Kisan Rathore Vs. State of Maharashtra, (2020) 2 AIR Bom R (Cri) 417. Hence, no interference is called for and present petition is liable to be dismissed.
12. Having considered the rival submissions, I have gone through the record. Now, the question for determination in the present revision is as to whether the findings of the learned J.J. Board regarding acquittal of respondent for the offence punishable under Section 305 of IPC is incorrect in the eyes of law and facts ?
13. At the outset, an application filed by the petitioner under Section 391 of Cr.P.C. is required to be ruminated. Certainly, the learned trial Court has given some obnoxious and unnecessary findings in para 5 of the judgment wherein it has been stated that since no documents have been filed regarding the age of prosecutrix, she cannot be assumed as minor girl.
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM14. In view of that findings, the documents filed by the petitioner are required to be taken on record. Certainly, having gone through these documents, it is clarified that the date of birth of the prosecutrix/victim is 04.06.2004 because it had been mentioned in her mark-sheets of 4th and 7th Class. Similarly, as per Aadhar Card, the birth year of the prosecutrix had been mentioned as 2004.
15. In view of above, the findings in para 5 of the learned J.J. Board, are found incorrect. As such, at the time of incident i.e. 14.08.2017, the age of the prosecutrix would be ascertained as only 13 years and two months.
16. Before dwelling upon the point of victim's age, it is pertinent to mention that the learned J.J. Board / learned trial Court has assumed the age of prosecutrix less than 18 years and considered the offence under Section 305 of IPC rather than Section 306 of IPC. As such, the findings given in para 5 of the impugned judgment are as of no avail and no discussion is further required regarding the age of victim accordingly.
17. Now, the question is as to whether the offence punishable under Section 305 of IPC is made out against the petitioner. Before dwelling upon the point, the provisions of Sections 305 & 107 of IPC is required to be predicated here as under :-
"305. Abetment of suicide of child or insane person.--
If any person under eighteen years of age, any insane person, any delirious person, any Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM 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."
Further, section 107 of the IPC provides thus:-
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.
Explanation 1 -- A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM done, is said to instigate the doing of that thing.
18. In view of the aforesaid law, this Court is going to consider the evidence of the prosecution furnished before the learned J.J. Board. Desiya Bhuriya (PW-2) specifically stated in his examination-in- chief that when he has taken his daughter from hostel to his home, she was crying. When he asked her as to why she was weeping, she replied that respondent Mahesh slapped her twice and in this way, insulted her in front of others. Further, petitioner Desiya Bhuriya narrates that his daughter told him that Mahesh has threatened her to kill. This statement finds support from the statements of Jalamsingh (PW-3), Sumitra Bhuriya (PW- ), Vipul (PW-5) in different ways.
19. Now, the crux of the matter is as to whether such type of slapping and threatening by the respondent is amounting to an act of abetment for committing suicide. On this aspect, learned counsel for respondent has drawn the attention of this Court towards the law laid down by Hon'ble Apex Court in the case of Rajesh Vs. State of Haryana, reported in (2020) 15 SCC 359 which is condign to quote here :-
"We are of the opinion that the evidence on record does not warrant conviction of the appellant under Section 306 IPC. There is no proximity between the Panchayat held in September 2001 and the suicide committed by Arvind on 23.02.2002. The incident of slapping by Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM the appellant in September 2001 cannot be the sole ground to hold him responsible for instigating the deceased to commit suicide......."
20. In the case at hand, the said slapping was occurred on 12.08.2017 but the victim committed suicide on 14.08.2016. As such, no proximity is available between the act of slapping and commitment of suicide.
21. So far as the the word 'abetment for committing offence under Section 305' is concerned, there should be availability of means rea in the offence. On this aspect, the law laid down by Hon'ble the Apex Court in the case of S.S. Chheena Vs. Vijay Kumar Mahajan reported in 2010 (12) SCC 190, in which it has been observed that :-
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 of IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
22. Similarly, in the case of M. Mohan Vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238, the Hon'ble Apex Court has observed as under :-
45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.
Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.
23. In upshot of the aforesaid law, in the case at hand, the question arises as to whether only on the basis of slapping and threatening by the respondent, it can be ascertained that the respondent has committed abetment to deceased for committing suicide. Actually, in Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM view of the aforesaid law, these facts fail to satisfy the ingredients of Section 305 of the IPC because the reason to commit suicide and abetment to commit suicide cannot be equated for the purpose of Section 305 of IPC. It may be possible that the deceased committed suicide due to the alleged slapping and threat, but it is not enough to convict a person for offence under Section 305 of IPC unless the ingredients of Section 107 of the IPC is to be satisfied.
24. That part, it is well settled that if learned J.J. Board has passed the judgment of acquittal in favour of accused persons on the ground of proper appreciation of evidence, hence, there is no requirement of interference by the Appellate Court/Revisional Court, even when higher Court has another conclusion. It is also well established proposition of law that when two views are possible, then view taken by learned trial Court should be accepted. In the case of M.S. Narayan Menon vs State of Kerala, (2006) 6 SCC 39, Hon'ble Apex Court has held that where two views possible, appellate Court should not interfere with finding of acquittal recorded by Court below. Likewise, in the citation of Budh Singh v. State of U.P. (2006) 9 SCC 731, it was again held by Hon'ble Supreme Court that the view of the trial Court having regard to the fact and circumstances of the case was a possible view, which should not have been interfered with by the High Court.
25. Also, the principle laid down by Hon'ble Supreme Court in another case law of Gopal Singh and others vs State of M.P., (2010) 6 SCC 407, in same context, is also worth referable as under;-
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM"It is now well settled that if the trial court's judgment is well based on the evidence and the conclusion drawn in favour of the accused was possible thereof, the High Court would not be justified in interfering on the premise that a different view could also be taken and though the High Court was entitled to reappraise the evidence there should be substantial and compelling reasons for setting aside an acquittal order and making one of conviction."
26. In light of aforesaid ratio decidendi and so also considering that the testimony of petitioner /complainant as well as all witnesses have not properly supported the prosecution case and nothing came on record about causing annoyance and criminal intimidation before the J.J. Board which amounts to the act of committing abetment for suicide. Actually, there is no evidence with regard to provocation, incitement or encouragement against the respondent No. 1 for committment of suicide by the deceased. Hence, acquittal of the respondent No.1 under Section 305 of I.P.C. is entitled to be affirmed and impugned judgment does not warrant any interference accordingly.
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM27. In view of the aforesaid analysis in entirety, this Criminal Revision No.4363/2022, being devoid of merits, is dismissed and impugned order passed by the learned J.J. Board is hereby affirmed.
(PREM NARAYAN SINGH) JUDGE Vindesh Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/14/2024 4:53:04 PM