Madhya Pradesh High Court
Anees Khan vs The State Of Madhya Pradesh on 23 January, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 23rd OF JANUARY, 2025
CRIMINAL APPEAL No. 9644 of 2022
ANEES KHAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Asif Ali Khan - Advocate for the appellant.
Ms. Hemlata Kshatriya - Panel Lawyer for respondent/State.
JUDGMENT
This appeal has been filed being dissatisfied and aggrieved by the
judgment dated 27.09.2022 passed by First Additional Sessions Judge,
Harda in S.T.No.75/2018, by which the appellant has been convicted for
the offence punishable under Sections 366, 376 and 306 of the Indian
Penal Code and sentenced to undergo R.I. for 10 years and fine amount
of Rs.3,000/-, R.I. for 10 years and fine amount of Rs.3,000/- and R.I.
for 10 years and fine amount of Rs.3,000/- with default stipulation
additional 6 months R.I. for each default.
2. In nutshell, the prosecution case before the trial Court was that
on 21.04.2018 at evening time, the deceased/victim was in her maternal
grand mother's home. At 03:00 to 03:30 AM, the appellant came and
abducted the victim on car and brought her in Paracity Colony, Harda
and committed rape upon the victim and left the victim in her home. The
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victim by pouring kerosene over her set herself ablaze and on the same
day, i.e. on 21.04.2018 at 07:40 PM, the deceased victim was brought to
District Hospital, Harda where after providing primary treatment, her
dying declaration was recorded by Police Officer and by the Tahsildar-
Anurag Uikey (PW-9) and a Crime No.323/2018 for the offence
punishable under Sections 366, 376 of the Indian Penal Code was
registered against the appellant. The victim was referred to higher center
and she was brought to Sultania Female Hospital, Bhopal. The victim
was examined by Dr. Deepshikha Sahu (PW-12) and taken a sample of
urine for pregnancy test that was negative and also preserved pubic hair,
vaginal swab, valval swab, vaginal smear and urethral swab. During
treatment, she died on 26.04.2018. A merg was registered in the
concerned police station, Bhopal and from there merg was transferred
and was registered as Merg No.23/2018 in Police Station - Harda (M.P.).
Postmortem was conducted over the dead body of the deceased at
Medicolegal Institute, Bhopal by Dr. Geetarani Gupta (PW-10). The
samples were sent for forensic Science Laboratory, Sagar and after
completion of investigation, charge - sheet was submitted before the
CJM, Harda. On commitment, case was sent to Sessions Judge and on
transfer the case was submitted for trial before the trial Court.
3. The trial Court framed the charges under Sections 366, 376 (1)
and 306 of the Indian Penal Code. The appellant denied the charges and
prayed for trial.
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4. The trial Court examined the prosecution witnesses and
examined the appellant. The appellant has taken the defence that he has
been falsely implicated. The victim has also lodged an FIR regarding
rape but she compromised the matter and on that basis, the appellant has
been acquitted by the trial Court.
5. After hearing both the parties, the trial Court passed the
impugned judgment. Hence, this appeal.
6. Learned counsel for appellant has submitted that the appellant
has falsely been implicated in the case. He has not committed any
offence. No rape was committed upon the victim and he has been falsely
implicated in the case and to support this fact, learned counsel for
appellant has submitted an I.A.No.1733/2025 along with copy of the
judgment dated 04.07.2022 passed in S.C.No.27/2018 by which the
appellant has been acquitted from the charges under Sections 366 (A),
376(2)(n) of IPC and Section 5(L)/6 of POCSO Act, 2012.
7. Learned counsel for appellant has submitted that the victim was
in the habit of filing false police reports and in the previous case, the
appellant has been acquitted and the dying declaration recorded by the
Tahsildar- Anurag Uikey (PW-9) cannot be believed as the dying
declaration is not signed by the victim and it also does not bear the
thumb impression of the victim, there is no certificate regarding that at
the time of dying declaration, the victim was in fit mental status. The
police officer Shraddha Uikey (PW-8) has also not taken certificate of
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doctor while recording the dying declaration when she was brought to
Sultaniya Female Hospital Bhopal, the victim as per the medical
evidence was 90% burnt and in that situation, she was not in a position
to record her statement but trial Court has not considered all these
facts. Learned counsel for the appellant has further submitted that from
their statement, it is clear that no offence under Section 366, 376 and
306 of IPC is made out.
8. Learned counsel has further submitted that there was not
intention on the part of the appellant to abate the victim to commit
suicide and to constitute offence under Section 306, abatement is
necessary ingredient and mens rea is essential condition to held the
appellant guilty and he has relied in the judgement of Hon'ble the Apex
Court passed in SLP (Crl.) No.1073/2023 (Prakash and others vs. The
State of Maharashtra and another) and argued that the appellant was not
having any intention to abate the victim to commit suicide.
9. Learned counsel for appellant has further submitted that the
victim was having love affair with the boy of her relation and this fact
has been brought in the cross-examination of Naseem Bano (PW-5) and
the family members of the victim were not ready for their marriage and
by this reason, the victim has committed suicide. The appellant cannot be
held liable for abatement of suicide. Hence, the appellant be acquitted.
10. Learned counsel for State, Miss Hemlata Kshatriya, Panel
Lawyer has submitted that the victim has given statement to the police
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officer, Doctor and Executive Magistrate and she was in fit mental
condition and the offence of rape was committed upon her and this was a
second offence done by the appellant. The appellant had left no alternate
to victim except to die. Hence, no interference is required in the well
reasoned judgment of the trial Court.
11. Heard the learned counsel or the parties and perused the
record.
12. Considered the I.A.No.1733/2025.
13. The previous judgment being relevant in the case, as the
appellant has taken defence of that, hence the IA. No.1733/2025 is
allowed and the document (Annexure D-1) is taken on record that shall
also be attached with record of the trial Court as Ex.D-3.
14. I have gone through the statement of (PW-1), maternal aunt of
the deceased. She has stated that she is acquainted with the appellant.
Deceased was her relative. The deceased poured kerosene over her body
and put herself ablaze. Elder sister of the deceased brought her to the
hospital. She was was admitted in the hospital and Police reached there.
(PW-2) mother of the deceased stated that she was acquainted with the
appellant. The deceased was her daughter. She has 6 children. The
deceased was her second number daughter. She was residing along with
her maternal grand mother (PW-4). On 21.04.2018, at 07:00 PM, she
was cooking food. Her younger daughter came running to her and
informed that deceased pouring kerosene over her and set herself on fire.
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When she visited the house of her mother (PW-4) with whom the victim
was residing, she was informed that the victim was carried to the District
Hospital, Harda. She reached there and saw that the lady police officer
and staff members of the hospital were present. The victim was fully
burnt. She was referred to Hamidiya Hospital, Bhopal. The doctors
examined the victim and told her that she was 90% burnt. When asked
her daughter why she has set herself on fire, the deceased told that the
appellant was harassing her and on 21.04.2018, the appellant called the
deceased and asked her to come out and as the victim came out from her
home, the appellant forcibly put her in the car and brought the victim to
Paracity Colony and forcibly taken out memory card and recording on
mobile and committed rape upon her and left the victim in her resident.
On the date of incident, the appellant's wife time and again called the
deceased and on that the victim poured kerosene and set herself on fire
and deceased has expired on 26.04.2018 at Hamidiya Hospital, Bhopal.
15. This witness has admitted in the cross-examination that she
has left her first husband. The deceased and her sister born through first
husband were residing in house of her maternal grand mother (Nani) and
there are material contradiction on the point that the appellant time and
again called her and raped her.
16. Her maternal grand mother (PW-4) with whom the deceased
was residing had stated that she brought up the deceased from her
childhood. On the date of incident, the deceased was sitting after cooking
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in her home. The appellant came there and talk with the victim. At 12:00
AM night, the appellant called her and the victim came out of her home
talking on the mobile. The appellant has snatched victim's mobile and
when she asked to return the mobile, the appellant caught hold her and
put her in the Jeep. When she heard the noise, she came out. The
deceased return home at 04:00 AM and this witness has asked to
deceased where she has gone, the victim told the story. In evening after
pouring kerosene on her she herself put on fire and she was brought to
District Hospital, Harda and from there she was sent to Hamidiya
Hospital, Bhopal.
17. This witness in the cross-examination by the prosecution has
clearly stated that on 21.04.2018, Anis committed rape on the victim. In
the cross-examination of the defence, this witness has stated that victim
was depressed from the conduct of her mother but on the point that the
appellant has committed rape upon the victim, no direct question has
been asked.
18. The PW-5 Naseem Bano is a hearsay witness as from her
cross-examination, she has admitted that she came to know the incident
from the relatives when she came from Khalwa to Harda.
19. Thus, from the statements of the maternal grand mother of
the deceased (PW-4) and the mother of the deceased (PW-2), it is clear
that on 21.04.2018, the deceased poured kerosene over herself and put
herself on fire and it is also brought on record that there was dispute
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between the victim and the appellant and it has also proved that on
21.04.2018 at night, the victim left her home and after 3 hours, she
returned to her home but from the statement of the witnesses, beyond
doubt it cannot be inferred that the appellant has abducted her or
committed rape upon her.
20. Dr. G.S. Kushwah (PW-3) has stated that on 21.04.2018, the
victim was brought in the District Hospital, Harda by Constable Lalita
No.107. On examination, he found that smell of kerosene was coming
from her whole body. Her whole upper face and neck was burnt. Back
portion was burnt. Both upper limbs were burnt. Both lower limbs were
burnt. Blood pressure was 110/60. About 75% to 80% of the victim's
body surface area was burnt. He has submitted MLC report (Ex.P-1).
This witness clearly stated that deceased was referred to higher center
within 15 minutes from the treatment and has admitted that the victim
has not given any case history to him.
21. When she brought District Hospital, Harda, Anurag Uike (PW-
9) has stated that on 21.04.2018, he was posted as Naib Tahsildar in
Harda. On the oral instruction of the Tahsildar, Harda, he went to Burn
Ward, District Hospital, Harda. He recorded the dying declaration of the
deceased. The victim has told him that she had burnt herself by pouring
kerosene and putting herself on fire. The appellant has committed the
rape. On this reason, she has put herself on fire. She has further sated
that the appellant was harassing her and this witness has exhibited the
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dying declaration as Exhibit P-16.
22. The material point that has been asked from this witness that
he has not taken the certificate from the treating doctor and the thumb
impression/signature of the victim, he has not been taken on the form of
dying declaration (Ex. P-16). On this point, this witness has replied that
the doctors were present in the hospital when her statement were
recorded also stated that the deceased's both hands were burnt so he has
not taken her signature or thumb impression.
23. Smt. Shraddha Uikey (PW-8), Sub-inspector and Investigating
Officer of this case has stated that on 21.04.2018, she was posted in the
Police Station, Harda as Sub-Inspector and she received Dehati Nalsi
and on that basis, she has recorded Crime No.323/2018 (Ex.P-8) and
during the investigation, she recorded the statement of the victim.
24. Dr. Deepshikha Sahu (PW-12), the doctor who has examined
the victim in Sultaniya Medical Hospital attached with the Gandhi
Medical College, Bhopal. This witness has stated that on 23.04.2018 at
12:05, she examined the victim, in which the victim has stated her date
of birth 02.04.2000. The victim was brought by Anita Sharma, Head
Constable No.35 before her she was examined. The victim was fully
conscious. Her 75% body was burnt. The consent was taken. She was
examined and she has stated that she had been menstruating since she
was 12 years old and her last period came on 02.03.2018. She has also
told to the doctor that she has not changed her clothes that she was
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wearing at the time of offence. She has also stated that she was knowing
the appellant Anish Khan for last one year. Previously, the appellant has
committed rape upon her and he was also sent to jail for three months
and after coming out from the jail, the appellant reached in her house on
21.04.2018 at 03:00 AM and forcibly took her and committed rape upon
her and on that date i.e. on 21.04.2018, she poured kerosene and put
herself on fire. The appellant has committed rape in car in Paracity
Colony, Harda. Sonography was conducted. Blood sample for HIV.
Determination of group were taken. In internal examination of private
part of the victim, she has stated that her hymen was torn and victim has
stated that sexual exploitation was conducted over her. Pubic hairs, two
vaginal swab, two valval swab, vaginal smears and urethral swab were
collected and sent for examination to forensic laboratory, Sagar. Medical
report (Ex.P-7) was prepared, which bears her signature at B to B.
25. This witness has stated that the victim has stated regarding
Anis Khan. She has not taken the signature of the victim or her mother
but denied the suggestion that the victim was not in position to give the
history and has clearly stated that the victim was in condition to speak
and on her own words the history was recorded.
26. Thus, from the four dying declaration, first by her mother.
Secondly, recorded by Executive Magistrate Anurag Uikey (PW-9).
Thirdly, Miss Shraddha Uikey, Police Officer (PW-8) and fourthly
treating doctor, Medical Officer Dr. Deepshikha Sahu (PW-12).
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27. Executive Magistrate has clearly stated that treating doctors
were present on the spot. Hence, he has not taken certificate from the
doctor. If this fact looked in the report of the treating doctor (PW-3) who
firstly attended the deceased while she reached in the hospital. Dr. G.S.
Kushwah had clearly stated that blood pressure was 100 to 60 and pulse
rate was 100 per minute and the doctor has nowhere mentioned that the
victim was unconscious or having any problem in orientation or she was
not in position to talk.
28. Dehati Nalsi was recorded by the Constable Shraddha Uike
(PW-8), though it is not mentioned where this Dehati Nalsi was recorded
but as per the FIR (Ex.P-8) was recorded on 21.04.2018 at 22:44 hours.
Furthermore, when the victim was brought to Hospital, Bhopal on
22.04.2018 at 02:15 AM and on 23.04.2018 she was examined by Dr.
Deepshikha Sahu (PW-12). The consent was taken from her mother
(PW-2). Her pulse was found 124 per minute and blood pressure was
90/60 and regarding pupils it has been stated that it was reactive to light.
Burn was suicidle. Regards to functioning of Central Nervous System it
has been mentioned that oriented to time, place and person and history
of survival is written, in which it has been clearly mentioned that the
victim was acquainted with the appellant and previously the appellant
has also committed the rape upon her and the appellant was sent to jail
for three months for that and after coming out from the jail on
21.04.2018 at 03:00 AM carried the victim by force in Car and
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committed rape upon her.
29. Thus, in the time and again her statements were recorded by
the different persons/doctors/Executive Magistrate and she has stated her
situation and the reason behind the suicide. There is consistency in her
statement. The dying declaration of the victim is relevant and fully
reliable.
30. On the point that the Anurag Uikey, Executive Magistrate
(PW-9) has not got the certificate from the doctor and dying declaration
was signed by the victim, these are the precautions to ensure truthfulness
of dying declaration. There is no straight jacket formula that in all cases,
it is necessary that recording the dying declaration of the victim, the
certificate of the treating doctor is compulsory and the signature of the
victim is mandatory and the witness has clearly stated that treating
doctor and the medical staff were present on the spot, this fact is further
supported by the medical conditions reported by the Dr. G.S. Kushwah
(PW-3) and her pulse rate and blood pressure were near about normal
and she was in position to talk and react the questions and hence this
witness was brought to Hamidiya Hospital, Bhopal on that date also she
was in position to give the history to the doctor and on that basis Dr.
Deepshikha Sahu (PW-12) has recorded the dying declaration.
31. Thus, the dying declaration are fully reliable and from it, it is
clear that on 21.04.2018 at night, the appellant called the victim and
when she came out from her resident, the appellant caught hold her and
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putting her in car committed rape upon the victim near Paracity Colony,
Harda and after committed rape left the victim to her resident.
32. I have considered the point raised by the learned counsel that
previously also the victim has lodged FIR and in that case she has filed a
compromise and on that basis appellant was acquitted.
33. Perused Annexure D-1 as per that on 24.05.2017 and
13.12.2017 at 08:00 PM the appellant kidnapped the victim and on the
FIR of the victim offence was registered in Police Station - Harda
against the appellant and again this offence was committed on
21.04.2018. In the previous case, the appellant was arrested and was
released on bail. In that circumstance, the statement of the victim that
previously she has filed FIR and the appellant was arrested is supported
on the material point that he was sent to judicial custody but when he
came out, he has committed rape again.
34. On the point that she was having friendly relations with the
appellant and the victim herself has gone with the appellant cannot be
believed as first offence was committed on 24.05.2017 and 13.12.2017
and committed rape. If she was as consenting party, she would have not
lodge the FIR and at the time the first offence, she was minor and then
the appellant was acquitted on the ground that the complainant has died.
Thus, the victim has never compromised the matter with the
appellant. Thus, it is clear that the appellant has also violated privacy of
the victim prior to this incident two times and on that the victim lodged
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FIR and the appellant was arrested and sent to judicial custody and when
he released on bail, he again committed the offence violating her
privacy.
35. At the time of incident, no document has submitted that the
victim was minor and Dr. Deepshikha Sahu (PW-12) has stated that she
told her date of birth as 02.04.2000 and the incident had taken place on
21.04.2018. Thus, at the time of offence she was major but she was not a
consenting party as per conduct of the victim after the incident.
36. Dr. Geetarani Gupta (PW-10) conducted the post-mortem and
stated that the deceased died due to burn injury suffered by her.
37. From the above evidence, it is also clear that after the incident
of rape committed in the morning and she committed suicide pouring
kerosene on her and putting herself on fire. As a result, she died on
26.04.2018. Thus, it is clear that the appellant has forcibly took the
victim and committed rape upon her.
38. On the point of suicide, learned counsel for appellant has
submitted that the appellant has not instigated or conspired or held the
victim for committing rape. Hence, the appellant is not liable for the
suicide and in the judgment of Prakashchandra (supra) in Para-13 and 14
Hon'ble the Apex Court has clearly held that to convict a person under
306 of the IPC, two basic ingredients have to be fulfilled. First, an act of
suicide by one person and second the abatement of said act by another
person. In order to sustain a charge under Section 306 of IPC, it must
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necessary to prove that the accused person has contributed to the suicide
by deceased by some direct or indirect act and act must be in close
proximity to commission of suicide by the deceased. The instigation or
incitement reveal a clear mens rea to abate the commission of suicide
and should put the victim in such a position that he/she would have not
other option but to commit suicide. Without mens rea on the part of the
accused person being apparent on the face of the record, a charge for the
offence under Section 306 of IPC cannot be sustained and further held
that there should be intention to provoke, incite or encourage doing of an
act by the person instigated.
39. I have gone through the above judgment, in Para -19, Hon'ble
the Apex Court has cited the judgment of Ramesh Kumar vs. State of
Chhattisgarh reported in (2001) 9 SCC 618 and has held as under:-
"20. Instigation is to goad, urge forward,
provoke. incite or encourage to do "an act". To
satisfy the requirement of instigation though it is
not necessary that actual words must be used to that
effect or what constitutes instigation must
necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite
the consequence must be capable of being spelt out.
The present one is not a case where the accused had
by his acts or omission or by a continued course of
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conduct created such circumstances that the
deceased was left with no other option except to
commit suicide in which case an instigation may
have been inferred. A word uttered in the fit of
anger or emotion without intending the
consequences to actually follow cannot be said to
be instigation."
40. In the case of Ude Singh and Others v. Sate of Haryana
reported in (2019) 17 SCC 301, Hon'ble the Supreme Court in Para
No.21 has cited in Para 16.1, which is as under:-
"16.1. For the purpose of finding out if a
person has abetted commission of suicide by
another, the consideration would be if the accused is
guilty of the act of instigation of the act of suicide.
As explained and reiterated by this Court in the
decisions above referred, instigation means to goad,
urge forward, provoke, incite or encourage to do an
act. If the persons who committed suicide had been
hypersensitive and the action of the accused is
otherwise not ordinarily expected to induce a
similarly circumstanced person to commit suicide,
it may not be safe to hold the accused guilty of
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abetment of suicide. But, on the other hand, if the
accused by his acts and by his continuous course of
conduct creates a situation which leads the deceased
perceiving no other option except to commit
suicide, the case may fall within the four corners of
Section 306 IPC. If the accused plays an active role
in tarnishing the self-esteem and self-respect of the
victim, which eventually draws the victim to
commit suicide, the accused may be held guilty of
abetment of suicide The question of mens rea on the
part of the accused in such cases would be
examined with reference to the actual acts and
deeds of the accused and if the acts and deeds are
only of such nature where the accused intended
nothing more than harassment or snap show of
anger, a particular case may fall short of the offence
of abetment of suicide. However, if the accused
kept on irritating or annoying the deceased by
words or deeds until the deceased reacted or was
provoked, a particular case may be that of abetment
of suicide. Such being the matter of delicate
analysis of human behaviour, each case is required
to be examined on its own facts, while taking note
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of all the surrounding factors having bearing on the
actions and psyche of the accused and the
deceased."
41. From above, it is clear that there must be an intention on the
part of the appellant to abate the crime and ingredient of Section 107 of
IPC be proved by the prosecution to convict a person for the offence
punishable under Section 306 of IPC but Hon'ble the Apex Court has
also held that in the cases where the act of the accused/appellant is such a
nature where no alternate option except committing suicide is available
to the victim in that cases also the appellant will be liable for abatement
of the suicide of the victim.
42. In this case, it is clear that the appellant has violated the
privacy of the victim on 24.05.2017 and 13.12.2017 and he was sent to
jail and when he was released on bail he again committed the offence of
rape. The victim was unmarried girl. Her father has already deserted her
mother and the victim. Her mother has solemnized another marriage and
was residing separately with the children from the second husband and
she was not have good terms with her mother and was residing from
childhood with her maternal grand mother and the appellant repeatedly
committed rape upon her that is a violation of dignity of a woman. No
one was with her to save her from the act of the appellant, hence the
victim has committed suicide.
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43. The appellant was the resident Harda and he was knowing the
victim well and after that he has committed offence though he was
married person. Thus, the deceased has no alternate option but to commit
suicide. In this situation, the appellant is liable as per judgment of
Hon'ble Apex Court cited above for abetment of suicide of the victim.
44. Thus, the trial Court has committed no error in convicting the
appellant for the offence punishable under Section 366, 376(1) and 306
of the IPC. Hence, conviction and sentence of the appellant are hereby
affirmed by this Court.
45. The appeal being devoid of merit is dismissed.
46. Let the copy of this judgment along with the record of trial
Court be returned back.
47. The case property be disposed of as per the order of the trial
Court.
(DEVNARAYAN MISHRA)
JUDGE
VB*
