Abdul Hafeez Shekh (Dead) Through ... vs The State Of M.P.
2023 Latest Caselaw 14557 MP

                                  1


     IN THE HIGH COURT OF MADHYA PRADESH
                 A T J A BA LPU R
                           BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                ON THE 5th OF SEPTEMBER, 2023
                 CRIMINAL APPEAL No. 2271 of 1998

BETWEEN:-
ABDUL HAFEEZ SHEKH (DEAD)
THROUGH LRS. SMT. RASEEDA
BEE SHEIKH W/O LATE SHRI
ABDUL HAFEEZ SHEIKH, AGED
ABOUT        65     YEARS,
OCCUPATION: HOUSEWIFE, R/O
54-A, B.N.P. ROAD, ADARSH
NAGRA, NEAR POLICE LINE,
DEWAS, DISTRICT DEWAS (M.P.)
                                                         .....APPELLANT
(BY SHRI ASHISH TIWARI - ADVOCATE)

AND
1.    THE STATE OF M.P.
2.    SMT. SHYAMWATI, W/O
      SHYAM NARAYAN, AGED
      ABOUT     32     YEARS,
      RESIDENT OF ULASPUR NO.
      3,   DHANPURI,     DIST
      SHAHDOL (M.P.)
                                                      .....RESPONDENTS

(MS. VINITA SHARMA - PANEL LAWYER FOR RESPONDENT/STATE )

RESERVED ON : 23.08.2023 PRONOUNCED ON : 05.09.2023

This having been heard and reserved for judgment, appeal coming on for pronouncement this day, the court passed the following:

JUDGM ENT

This appeal has been preferred against the judgment passed on 30.09.1998 by the First Additional Sessions Judge, Shahdol in S.T. No.87/1992, whereunder the appellant was convicted for the offence under Section 316 of IPC and was sentenced to R.I. for 5 years and fine of Rs.5000/- with a direction to further undergo S.I. for 5 months in default of payment of fine.

2. This case was initiated on a complaint, which was made by complainant Shyamwati against original appellant Abdul Hafeez Sheikh. According to said complaint, appellant Abdul Hafeez Sheikh was Thana Prabhari of police station Amlai. He arrested Ramkhilawan, the brother of complainant on 09.06.1982 at around 10:00 a.m. and on the same day at around 8:00 p.m. appellant visited the house of complainant alongwith one constable and one jamadar and abused the complainant. He arrested her and asked her to accompany him to the police station. The husband and father-in-law of complainant also accompanied them. Accused of theft namely Kamal Kumar Datta, Ramkhilawan, the brother of complainant and some other persons were present in the police station alongwith the staff thereof. Appellant Abdul Hafeez Sheikh first demanded Rs.2,000/- and then he made a demand of Rs.5,000/- to release the complainant and her brother. The father-in-law of complainant begged him to release these persons asking for some time to arrange the money; this made the appellant angry and he gave a slap to the complainant. The father-in-law informed the appellant that the complainant was in the ninth month of pregnancy hence, no force should

be used on her, but appellant exhorted that he would clean the womb of complainant and kicked the stomach of complainant twice or thrice. Upon this assault, the complainant suffered bleeding and she became unconscious; she recovered consciousness on 12.06.1982 in Shahdol hospital where she was told that she had an abortion. On 19.06.1982 she was discharged from the hospital. The father-in-law of complainant lodged a report in police station Amlai on 11.06.1982. To get the appellant punished, a complaint was filed before the Court, on the basis of which charge under Section 316 of IPC was framed against him and the trial was conducted, after conclusion of which appellant Abdul Hafeez was convicted and sentenced under the impugned judgment.

3. The present appeal was filed by appellant Abdul Hafeez Sheikh, but on account of his death during the pendency of this appeal his wife was brought on record as his legal representative and was allowed to continue and prosecute the appeal on behalf of deceased appellant. The grounds raised in this appeal are that there was a serious error in holding that the appellant assaulted the complainant. The case of the prosecution was that the appellant gave one slap and also kicked the complainant, but even if this version is accepted, it was merely a case of causing simple injury. No case could have been made out under Section 316 of IPC because there was no medical evidence to arrive at a finding that the appellant had caused the death of fetus. Barring complainant no other witness supported the prosecution case. The statements of complainant were contradicted by the medical evidence. The appellant was falsely implicated in the case at the behest of Advocate Shri Kanta Prasad Gautam. The complainant gave birth to a premature still born child and

there was no medical evidence that on account of any act on the part of appellant the delivery was quickened. It is also claimed by the appellant that the complainant had admitted in her testimony that she delivered 5 children prior to this incident and each one of them died either at the time of birth or shortly thereafter. It was, therefore, prayed that the defence of appellant should have been accepted and he should be acquitted in the case.

4. Learned counsel for the State has opposed the present appeal on the ground that the judgment passed by the trial Court is based upon the reliable evidence available on record and there is no reason to doubt the prosecution case, therefore, it is prayed that the appeal be dismissed.

5. Counsel for both the parties have been heard, impugned judgment and record of the trial Court have been perused.

6. To prove its case the prosecution has relied upon the testimony of Shyam Narayan (PW1), who is the husband of victim Shyamwati, Adaram (PW2), Jhuri (PW3), victim Shyamwati (PW4), Dr. Smt. Vidya Jataar (PW5) and Ramnath (PW6) who is the father-in-law of victim. Adaram was examined as an eyewitness, but he disclosed in his testimony that he only heard about the incident that too in the morning and did not personally see the alleged incident. Jhuri (PW3) was also an independent witness, who did not support the prosecution case, therefore, there are only the victim Shyamwati, her husband Shyamnarayan and her father-in- law Ramnath, whose testimonies are available in support of prosecution case, but they being close relatives, their testimonies need closer scrutiny.

7. The charge for which the appellant was tried for was of Section 316 of IPC for causing the death of the unborn child of Shyamwati by

assaulting her. According to prosecution, Shyamwati was summoned in the police station by the appellant, who was the In-charge of that police station. The purpose was alleged to be that Shyamwati was wanted in a criminal case alongwith her brother. It is mentioned in the complaint that the brother of Shyamwati namely Ramkhilawan was already arrested by the appellant and he was in the police station. Strangely Ramkhilawan in whose presence the alleged incident occurred has not been examined in the case.

8. Shyamwati has disclosed in her statements that she was taken to the police station at around 8:00 p.m. in the night by two police personnel, who came to her house and asked her to accompany them. It is admitted by Shyamwati in her examination-in-chief itself that she was taken to the police station on a bicycle by those two police personnel. According to Shyamwati, she was interrogated by appellant in the police station on the question of theft and she was given two slaps; one on the backside of her head and the second on her back. It is further claimed that when her father-in-law, who accompanied her to the police station asked the appellant not to hit the victim who was pregnant, the appellant got furious and gave a kick on the stomach of Shyamwati, on account of which she fell down and started bleeding. It is further claimed by her that this made her unconscious and when she gained consciousness she was in the hospital and had suffered miscarriage. These facts claim that the process of miscarriage had started at the police station itself where she became unconscious and gained consciousness in the hospital, meaning thereby that she was taken to the hospital in an unconscious state.

9. Dr. Smt. Vidya Jataar (PW5) has stated in her statement that Shyamwati was admitted in the maternity ward on 11.06.1982 and it was mentioned in the OPD register that she gave birth to a stillborn child in her house in a premature delivery. These details reflect the fact that the child was born to the victim at her house and she was not taken to the hospital directly from the police station.

10. Ramnath (PW6), who is the father-in-law of victim has stated in his court testimony that he went to the police station at around 6:00 p.m. on the evening previous to the date of incident where he saw the appellant was torturing the brother of victim namely Ramkhilawan and he demanded Rs.2,000/- from the witness for the release of Ramkhilawan. It is further revealed by him that on next date he got the bail order of Ramkhilawan and handed over that order to the appellant on the date of incident. According to him, on the same day at around 7:00 p.m. two police personnel came to his house and took away Shyamwati on their cycle to the police station, upon which he also accompanied her. According to him, the appellant caused injury on the stomach of Shyamwati with the boot in his leg, on account of which she started bleeding. It is disclosed by this witness that two police personnel, who brought Shyamwati to the police station, took her back home on the same bicycle and dropped her there, where Shyamwati delivered a child in the night, who was stillborn. According to him, Shyamwati was unconscious during the process of delivery and she gained consciousness next day at around 12:00 in the noon when she was brought to the police station Amlai.

11. The statements of this witness disclose that Shyamwati was taken to the house where she delivered a child and in the next afternoon she was taken to the police station Amlai where she gained the consciousness. It is also disclosed by this witness that the delivered child was sent for postmortem by the appellant and the victim Shyamwati was sent to the hospital by none other than the appellant himself. These facts contradict the statements of Shyamwati who has claimed that she remained unconscious throughout the episode and gained consciousness only in the hospital. Further, had she lost consciousness in the police station itself, it would not have been possible to carry her home back on the bicycle as admitted by her father-in-law. These facts reveal that victim Shyamwati has tried to conceal material facts and has improved upon the truth only to implicate the appellant.

12. The conduct of appellant has reflection on his compassion as he summoned the pregnant victim through two police personnel on their bicycle and he ensured that she be again escorted to her house in the company of police personnel and that too on their bicycle. The incident is of the period of 1982 when bicycle and cycle rickshaw were the common mode of transport. Further Shyamwati was sent to the hospital for medical assistance by none other than the appellant himself.

13. Ramnath (PW6), the father-in-law of Shyamwati has admitted in his cross-examination that prior to this incident Shyamwati already had two episodes of miscarriage and in both these episodes her children did not survive. According to him, this episode of miscarriage occurred 3-4 hours after they had arrived home from the police station and despite there

being a claim that victim had started bleeding in the police station, this witness admits that he did not call the midwife in his house.

14. The only Medical Officer examined in this case is Dr. Smt. Vidya Jataar (PW5) and her testimony does not reveal that she found any injury mark on the person of victim. The postmortem report of stillborn child would have been relevant in this case but that too has not been produced in evidence. Thus, there is no medical evidence to support the claim that victim Shyamwati suffered abortion on account of attack on her.

15. Shyam Narayan (PW1), the husband of victim has further improved upon the prosecution story by claiming that on account of assault Shyamwati vomited, but no other witness including the victim has made any such claim. According to this witness, next day they took Shyamwati not to the hospital but to the Police Control Room and staged a protest and after it they took Shyamwati to the Shahdol Hospital in a dumper. Here again he admits that a policeman accompanied them to the Shahdol Hospital. This witness has also admitted the fact that police personnel, who brought Shyamwati to the hospital had also taken her home, thus compassionate behaviour of appellant is established even from the statement of this witness.

16. This witness has further admitted that there was a report lodged against his wife Shyamwati and his brother-in-law Ramkhilawan regarding theft, which was made by one Pyarelal Singh and on the basis of said report Ramkhilawan and Shyamwati were taken to the police station. This witness has also admitted that after the incident a Magisterial enquiry was conducted, in which he too gave statements and according to him no adverse inference was given in that enquiry report

against the appellant as he was even promoted after the conclusion of enquiry despite the fact that as many as 45 persons had given affidavits in that enquiry.

17. Shyam Narayan (PW1) has also admitted the fact that prior to this incident of abortion, there were two other episodes of miscarriage suffered by Shyamwati, which were occurred in natural course and even after this incident Shyamwati again conceived and gave birth to a healthy child.

18. Adaram (PW2) is the person who is claimed to have been present in the police station at the time of incident. According to him, he was in the lock up alongwith Bhodu, Mehra, Chhotu, Lalla and Guchna, but he did not claim in his testimony that he saw any incident of assault. The other persons present in the lock-up have not been examined in the case. As discussed earlier, the other eyewitness Jhuri (PW3) has also not supported the prosecution story.

19. On the basis of above discussion, this Court is of the opinion that there was an FIR registered against Shyamwati in the police station of which appellant was the Thana Prabhari and within his rights to interrogate the alleged offender he had legal right to call her in the police station. His conduct shows that he paid respect and displayed compassion when summoning the alleged offender directing the police personnel to bring the pregnant woman (victim) on their bicycle and he also ensured to send her back in safe escort on a bicycle. Though it is claimed that the victim was summoned to the police station late at night, but there is variation and contradiction in the statements of witnesses regarding the time of summoning. Further the alleged assault on victim Shyamwati has not been proved by any medical evidence. Moreover, there is a medical

history of victim available on record which reveals that she conceived twice prior to this incident and on both the occasions she suffered miscarriage in the natural course of things. There is substantial contradiction in the statements of witnesses, which have been highlighted in the above discussion. On the basis of this comprehensive analysis, it is not established that appellant Abdul Hafeez Sheikh assaulted victim Shyamwati and no action on his part resulted in the abortion to Shyamwati.

20. On the basis of above conclusion, original appellant Abdul Hafeez Sheikh is acquitted of the charge of Section 316 of IPC. This appeal, which is contested by legal representative of original appellant, is accordingly, allowed. The fine amount, if any, deposited before the Court below shall be refunded to the legal representative Raseeda Bee Sheikh, W/o deceased appellant Abdul Hafeez Sheikh.

21. Let a copy of this judgment alongwith the record be sent to the trial Court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE

rv Digitally signed by REENA HIMANSHU SHARMA Date: 2023.09.06 19:11:58 +05'30'