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2012 DIGILAW 566 (MP)

Akbar Hussain v. State of M. P.

2012-06-19

N.K.GUPTA

body2012
JUDGMENT 1. The appellant has preferred the present appeal against the judgment dated 5.7.1996 passed by Additional Sessions Judge, Burhanpur in S.T. No.56/1995, whereby the appellant was convicted for offence punishable under section 306 of IPC and sentenced to rigorous imprisonment for 5 years with fine of Rs.1,000/-. In default of payment of fine, he was to undergo for 3 months rigorous imprisonment in addition to the jail sentence. 2. Prosecution’s case, in short, is that, on 13.4.1994, at about 2:45 p.m., the deceased Jamana Bai set herself on fire. She was admitted in hospital in a serious condition. Executive Magistrate/Naib Tahsildar Shri T.R. Verma (PW10) had recorded her dying declaration, Ex.P-14, in which she had stated that the appellant was harassing her in last 15 days unnecessarily. The appellant threatened her that he would throw her out from Burhanpur. After sometime, Jamana Bai expired. Dr. Rajesh Jain (PW1) did post-mortem on her body with help of Dr. Nanawati and gave report, Ex.P-2. After due investigation, police had submitted the charge-sheet before concerned Magistrate, which was duly committed to the Sessions Court. 3. The appellant abjured his guilt. He took a plea that he was not threatening the deceased in any manner and therefore, he was not responsible for her death. No defence evidence was adduced from the side of the appellant. 4. Learned Additional Sessions Judge after considering the prosecution’s evidence, convicted the appellant for offence punishable under section 306 of IPC and imposed the sentence as mentioned above. 5. Heard the learned counsel for the parties. 6. It is almost admitted that death of the deceased was suicidal. It is contended by learned counsel for the appellant that in dying declaration, Ex.P-14 identity of the appellant was not established and if the dying declaration is considered as such then, no ingredient of section 107 of IPC is established in that dying declaration. Therefore, no offence punishable under section 306 of IPC is made out against the appellant. Learned counsel for the appellant placed his reliance upon the order passed by this Court in case of State of M.P. v. Roop Singh [1992(1) Vidhi Bhasvar 212=1992 MPLJ p.196]. 7. On the other hand learned Panel Lawyer has submitted that offence punishable under section 306 of IPC is duly constituted. 8. There are only two points to be decided in the present appeal. 7. On the other hand learned Panel Lawyer has submitted that offence punishable under section 306 of IPC is duly constituted. 8. There are only two points to be decided in the present appeal. Firstly, that whether the identity of the appellant was established in the dying declaration and secondly, that the overt-act of the appellant which is established by the prosecution comes within the purview of ingredients of section 107 of IPC? It is almost admitted that death of the deceased was suicidal one. Executive Magistrate/Naib Tahsildar Shri T.R. Verma (PW10) has proved the dying declaration, Ex.P-14. In that dying declaration, it is established that doctor gave a certificate before and after recording of that evidence that the deceased was in a condition to give the statement. In the statement, Ex.P-14, the deceased has informed that she had illicit relations with Akbar, 2-3 years ago from the incident. In last 8 to 15 days of her life, the same Akbar came to her house and tried to have illicit relations with her. It was also mentioned in that statement that house of the appellant was situated near the house of one Banno Bai in the same locality. Under such circumstances, identity of the appellant was duly established by the deceased in her dying declaration. 9. It is a peculiar case in which remaining witnesses relating to circumstantial evidence are turned hostile. For example, Shobha (PW2), Billoo Bai (PW3), Baba Shah (PW4), Sunita (PW5) etc. were turned hostile. They did not support the prosecution story in any manner. They could not say about the relations between the deceased and the appellant. Under such circumstances, overt-act of the appellant can be assessed with help of dying declaration given by the deceased to the concerned Magistrate. 10. If dying declaration given by the deceased is considered in totality then, it would be apparent from the dying declaration that she did not inform the name of her husband to the concerned Magistrate. She had informed that she was 30 years old woman having two children with her. She had also accepted that she was carrying out the profession of prostitution in general. She had illicit relations with the appellant for a longer period, 2-3 years prior to her death but, thereafter, she did not have any relation with the appellant. She had informed that she was 30 years old woman having two children with her. She had also accepted that she was carrying out the profession of prostitution in general. She had illicit relations with the appellant for a longer period, 2-3 years prior to her death but, thereafter, she did not have any relation with the appellant. It is also apparent from the dying declaration that in last 15 days, the appellant came once to her house to enjoy with her but, since the appellant was in a drunken condition, she refused his offer and thereafter, the appellant threatened her that he would throw the deceased from Burhanpur city. 11. It is apparent from the dying declaration given by the deceased that the appellant was in a drunken condition, she refused for cohabitation with the appellant because he was in a drunken condition.She could not give the specific date about that incident. She had an opportunity to inform the police etc. about the threatening of the appellant. If a drunken person gives a threat to a prostitute that he will throw her out from that particular city then, by such threat, no ingredient of section 107 of IPC is attracted. Learned Additional Sessions Judge in his judgment did not consider this aspect. It is also apparent that there was no relation of the appellant with the deceased so that presumption under section 113A of Evidence Act could apply and therefore, for commission of offence punishable under section 306 of IPC, ingredients of section 107 of IPC were to be established against the appellant. 12. Under such circumstances, if totality of dying declaration is considered then, overt-act of the appellant does not come in the category of abetment to commit suicide. The over-act of the appellant does not fall within the purview of ingredients of section 107of IPC. After getting threat from the appellant, it cannot be said that the deceased had no option except to commit suicide. It is no where mentioned that the appellant repeated his act again and again. On the contrary, it is mentioned that within 15-20 days prior to her death, once upon a time the appellant came to her house. The other witnesses did not corroborate that the appellant was giving such a threat on each and every day to the deceased. It is no where mentioned that the appellant repeated his act again and again. On the contrary, it is mentioned that within 15-20 days prior to her death, once upon a time the appellant came to her house. The other witnesses did not corroborate that the appellant was giving such a threat on each and every day to the deceased. Under such circumstances, it appears that there is some other reason by which the deceased committed suicide or she committed suicide due to her own sentiments. Since the overt-act of the appellant does not fall within the purview of section 107 of IPC, he could not be convicted for offence punishable under section 306 of IPC. Learned Additional Sessions Judge erred in convicting the appellant for offence punishable under section 306 of IPC. 13. On the basis of aforesaid discussion, the present appeal filed by the appellant is hereby allowed. Conviction as well as sentence directed against the appellant vide judgment dated 5.7.1996 passed by Additional Sessions Judge, Burhanpur is hereby set aside. The appellant is acquitted from the charges of offence punishable under section 306 of IPC. The appellant would be entitled to get the fine amount back from the trial Court, if he has deposited the same. 14. Copy of the judgment be sent to the trial Court with its case file for information and compliance. 15. Presence of the appellant is no more required before this Court, therefore, it is directed that his bail bonds shall stand discharged. .............