Madhya Pradesh High Court
Shahrukh vs Nizam Shah on 29 January, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 29th OF JANUARY, 2025
CRIMINAL APPEAL No. 10852 of 2024
SHAHRUKH S/O MOHAMMAD UMAR
Versus
NIZAM SHAH S/O MUKHTIYAR SHAH AND ANOTHER
Appearance:
Appellant - complainant by Shri Umesh Sharma - Advocate.
Respondent No.1 - accused by Shri Ritu Raj Bhatnagar - Advocate.
Respondent No.2 - State of Madhya Pradesh by Shri Kshitij Vyas -
Government Advocate appearing on behalf of Advocate General.
JUDGMENT
Heard on the question of admission.
Appellant - Shahrukh S/o Mohammad Umar (brother of deceased
Nazmeen) has preferred this appeal under Section 413 of Bhartiya Nagarik
Suraksha Sanhita, 2023 (BNSS) = Section 372 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) against impugned judgment dated 30.08.2024
passed in Sessions Trial No.48 of 2022 by the learned First Additional Judge
to the Court of First Additional Sessions Judge, Jaora, District Ratlam (MP),
whereby respondent No.1 (Nizam Shah S/o Mukhatiyar Shah) - accused has
been acquitted of the charge under Section 306 of Indian Penal Code, 1860
(IPC) = Section 108 of Bhartiya Nyaya Sanhita, 2023.
2. As per prosecution story, sister of appellant (Shahrukh), deceased
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Nazmeen was married to respondent No.1, who committed suicide by
hanging on 24.08.2022. The matter was reported to Police Station, Jaora,
District Ratlam (MP) where a marg was registered at Marg No.20 of 2022.
In marg inquiry, it was found that respondent No.1 (Nizam Shah) and other
co-accused persons Mukhtiyar Shah and Khairun Bee (father-in-law and
mother-in-law of the deceased) harassed the deceased on demand dowry,
therefore, the deceased committed suicide. Hence, offence was registered at
Crime No.306 of 2022 for commission of offence under Section 306 of IPC;
and after investigation, adding offence under Sections 498-A and 494 of IPC,
charge sheet was filed against respondent No.1 (Nizam Shah) and his parents
(Mukhtiyar and Khairun Bee). Co-accused persons Mukhtiyar Shah and
Khairun Bee were discharged vide order dated 27.12.2022 and trial
continued only against respondent No.1 (Nizam Shah).
3. Learned trial Court, vide impugned judgment convicted accused
(respondent No.1) for commission of offence punishable under Section 498-
A of IPC and sentenced to undergo rigorous imprisonment for a term of
three years with fine of Rs.3,000/- with default stipulation, but acquitted him
from offence under Section 306 of IPC.
4. Learned counsel appearing for the appellant submits that there
was ample evidence to prove the complicity of the accused - respondent for
commission of offence punishable under Section 306 of IPC i.e. abetment to
commit suicide to deceased Nazmeen, but the learned trial Court failed to
appreciate the evidence in right perspective and acquitted him of the
aforesaid offence, which is factually and legally incorrect.
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4.1 To bolster his submissions, learned counsel for the appellant has
invited attention of this Court towards statement of father and brother of the
deceased, namely Mohammad Umar (PW-5) and Shahrukh (PW-3). On
these contentions, learned counsel urges the Court for setting aside the
acquittal of the accused - respondent from charge under Section 306 of IPC
and holding him guilty for the aforesaid offence by passing an appropriate
sentence.
5. Learned counsel appearing for accused - respondent No.1 inviting
attention of this Court towards paragraphs No.22, 25, 29, 31, 37, 38 and 39
of the impugned judgment, submits that the learned trial Court has
appreciated the evidence available on record in right perspective and has
reached to the conclusion that an offence of abetment to commit suicide, as
provided under Section 306 of IPC is not made out, hence the accused -
respondent was acquitted of the aforesaid charge under Section 306 of IPC.
5.1 To bolster his submissions, learned counsel has invited attention
of this Court towards Sections 306 and 107 of IPC and also placed on a
judgment delivered by the Apex Court in case of Sanju alias Sanjay Singh
Sengar v. State of Madhya Pradesh reported in AIR 2002 SC 1998 (para 9 to
13).
6. Heard learned counsel for the parties and perused the record.
7. In light of judgment cited by learned counsel for accused -
respondent, on scrutiny of evidence available on record in its entirety, the
crux of the matter is that the accused - respondent in life time of the
deceased has married to another woman and was not willing to keep the
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deceased as his wife, which is apparent from the testimonies of father and
brother of the deceased, namely Mohammad Umar (PW-5) and Shahrukh
(PW-3). On 24.08.2022, when deceased Nazmeen insisted to go with
accused - respondent, he refused to take her with him. On this, the deceased
threatened to commit suicide and the accused - respondent replied if she
wants to die, she may die and after this, the deceased committed suicide on
the same day.
8. Learned trial Court has dealt with the evidence available on
record in this regard elaborately from paragraphs No.22 to 44 and in
paragraph No.45 of the impugned judgment, concluded that the prosecution
has failed to prove beyond reasonable doubt that the accused - respondent
abetted the deceased to commit suicide.
9. In case of Sanju alias Sanjay Singh Sengar (supra) under similar
factual matrix, the Apex Court has held that mere words uttered by the
accused to the deceased "to go and die" were not prima facie enough to
instigate the deceased to commit suicide. Paragraphs No.9 to 13 of the
aforesaid judgment which are relevant for understanding the controversy and
the law pronounced in that case are extracted hereunder: -
"9. In Swamy Prahaladdas v. State of M.P. & Anr. ,
1995 Supp. (3) SCC 438, the appellant was charged for
an offence under Section 306 I.P.C. on the ground that
the appellant during the quarrel is said to have remarked
the deceased 'to go and die' . This Court was of the view
that mere words uttered by the accused to the deceased
'to go and die' were not even prima facie enough to
instigate the deceased to commit suicide.
10. In Mahendra Singh v. State of M.P., 1995 Supp.(3)
SCC 731, the appellant was charged for an offence
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under Section 306 I.P.C basically based upon the dying
declaration of the deceased, which reads as under: -
"My mother-in-law and husband
and sister-in-law (husband's elder
brother's wife) harassed me. They
beat me and abused me. My
husband Mahendra wants to marry
a second time. He has illicit
connections with my sister-in-law.
Because of these reasons and being
harassed I want to die by burning."
11. This Court, considering the definition of 'abetment'
under Section 107 I.P.C., found that the charge and
conviction of the appellant for an offence under Section
306 is not sustainable merely on the allegation of
harassment to the deceased. This Court further held that
neither of the ingredients of abetment are attracted on
the statement of the deceased.
12. In Ramesh Kumar V. State of Chhattisgarh (2001)
9 SCC 618, this Court while considering the charge
framed and the conviction for an offence under Section
306 I.P.C. on the basis of dying declaration recorded by
an Executive Magistrate , in which she had stated that
previously there had been quarrel between the deceased
and her husband and on the day of occurrence she had a
quarrel with her husband who had said that she could go
wherever she wanted to go and that thereafter she had
poured kerosene on herself and had set fire. Acquitting
the accused this Court said:
"A word uttered in a fit of anger or
emotion without intending the
consequences to actually follow
cannot be said to be instigation. If
it transpires to the court that a
victim committing suicide was
hypersensitive to ordinary
petulance, discord and differences
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in domestic life quite common to
the society to which the victim
belonged and such petulance,
discord and differences were not
expected to induce a similarly
circumstanced individual in a
given society to commit suicide,
the conscience of the court should
not be satisfied for basing a finding
that the accused charged for
abetting the offence of suicide
should be found guilty."
13. Reverting to the facts of the case, both the courts
below have erroneously accepted the prosecution story
that the suicide by the deceased is the direct result of the
quarrel that had taken place on 25th July, 1998 wherein
it is alleged that the appellant had used abusive
language and had reportedly told the deceased 'to go
and die'. For this, the courts relied on a statement of
Shashi Bhushan, brother of the deceased, made under
Section 161 Cr.P.C. when reportedly the deceased, after
coming back from the house of the appellant, told him
that the appellant had humiliated him and abused him
with filthy words. The statement of Shashi Bhushan,
recorded under Section 161 Cr.P.C. is annexed as
annexure P-3 to this appeal and going through the
statement, we find that he has not stated that the
deceased had told him that the appellant had asked him
'to go and die'. Even if we accept the prosecution story
that the appellant did tell the deceased 'to go and die',
that itself does not constitute the ingredient of
'instigation'. The word 'instigate' denotes incitement or
urging to do some drastic or unadvisable action or to
stimulate or incite. Presence of mens rea, therefore, is
the necessary concomitant of instigation. It is common
knowledge that the words uttered in a quarrel or in a
spur of the moment cannot be taken to be uttered with
mens rea. It is in a fit of anger and emotional. Secondly,
the alleged abusive words, said to have been told to the
deceased were on 25th July, 1998 ensued by quarrel.
The deceased was found hanging on 27th July, 1998.
Assuming that the deceased had taken the abusive
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language seriously, he had enough time in between to
think over and reflect and, therefore, it cannot be said
that the abusive language, which had been used by the
appellant on 25th July, 1998 drived the deceased to
commit suicide. Suicide by the deceased on 27th July,
1998 is not proximate to the abusive language uttered
by the appellant on 25th July, 1998. The fact that the
deceased committed suicide on 27th July, 1998 would
itself clearly pointed out that it is not the direct result of
the quarrel taken place on 25th July, 1998 when it is
alleged that the appellant had used the abusive language
and also told the deceased to go and die. This fact had
escaped notice of the courts below."
10. In the instant case also, the accused - respondent (husband of
the deceased), as he had married to other woman, refused to take the
deceased with him, therefore, some altercations took place wherein the
words as mentioned herein above were uttered by the respondent and
thereafter the deceased committed suicide, which cannot be taken as
instigation by the accused - respondent. In view of the aforesaid, acquittal
of the respondent from charge under Section 306 of IPC cannot be found
fault with.
11. It is undisputed that if two views are possible, the one which is
in favour of the accused should be adopted. The Apex Court in catena of
judgments has given important guidelines for dealing with the appeals
against acquittal. It is golden rule of criminal jurisprudence that an accused
unless convicted after fair trial is presumed to be innocent. The judgment of
acquittal passed after trial gives total presumption in favour of the accused,
therefore in rare circumstances where finding of acquittal recorded are
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perverse and against the evidence on record can be interfered into by way of
appeal against acquittal. In the case of Arulvelu v. State, (2009) 10 SCC 206 ,
the Apex Court has laid down the following principles: -
"34. In Ghurey Lal v. State of Uttar Pradesh, (2008)
10 SCC 450 a two Judge Bench of this Court of which
one of us (Bhandari, J.)was a member had an occasion
to deal with most of the cases referred in this judgment.
This Court provided guidelines for the Appellate Court
in dealing with the cases in which the trial courts have
acquitted the accused. The following principles emerge
from the cases above:
1. The accused is presumed to be
innocent until proven guilty. The accused
possessed this presumption when he was
before the trial court. The trial court's
acquittal bolsters the presumption that he is
innocent.
2. The power of reviewing evidence is wide
and the appellate court can re-appreciate the
entire evidence on record. It can review the
trial court's conclusion with respect to both
facts and law, but the Appellate Court must
give due weight and consideration to the
decision of the trial court.
3. The appellate court should always keep
in mind that the trial court had the distinct
advantage of watching the demeanour of the
witnesses. The trial court is in a better
position to evaluate the credibility of the
witnesses.
4. The appellate court may only overrule or
otherwise disturb the trial court's acquittal if
it has "very substantial and compelling
reasons" for doing so.
5. If two reasonable or possible views can
be reached one that leads to acquittal, the
other to conviction the High Courts/appellate
courts must rule in favour of the accused."
12. In para-13 of judgment in Sidhartha Vashisht @ Manu Sharma v.
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State (N.C.T. of Delhi) [AIR 2010 SC 2352 ] the apex court has given the
following principles which have to be kept in mind by the Appellate Court
while dealing with appeals, particularly, against the order of acquittal: -
"(i) There is no limitation on the part of the Appellate
Court to review the evidence upon which the order of
acquittal is found.
(ii) The Appellate Court in an appeal against acquittal
can review the entire evidence and come to its own
conclusions.
(iii) The Appellate Court can also review the Trial
Court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the
State, it is the duty of the Appellate Court to marshal
the entire evidence on record and by giving cogent and
adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when
there are "compelling and substantial reasons" for doing
so. If the order is "clearly unreasonable", it is a
compelling reason for interference.
( v i ) While sitting in judgment over an acquittal the
Appellate Court is first required to seek an answer to
the question whether finding of the Trial Court are
palpably wrong, manifestly, erroneous or de-monstrably
unsustainable. If the Appellate Court answers the above
question in the negative the order of acquittal is not to
be disturbed. Conversely, if the Appellate Court holds,
for reasons to be recorded, that the order of acquittal
cannot at all be sustained in view of any of the above
infirmities, it can reappraise the evidence to arrive at its
own conclusion.
(vii) When the Trial Court has ignored the evidence
or misread the material evidence or has ignored material
documents like dying declaration/report of Ballistic
Experts etc., the Appellate Court is competent to
reverse the decision of the Trial Court depending on the
materials placed."
13. Similar view has been taken in the case of Murugesan and others
v . State, [AIR 2013 SC 274 ]. The legal proposition as enunciated in
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paragraph 21 of the said ruling, as quoted hereunder, was noted: -
"A concise statement of the law on the issue that had
emerged after over half a century of evolution since
SheoSwarup is to be found in para 39 of the Report in
Chandrappa v. State of Karnataka, AIR 2007 SC
(Supp.) 111. The same may, therefore, be usefully
noticed below:
"From the above decisions, in our
considered view, the following
general principles regarding
powers of the appellate court while
dealing with an appeal against an
order of acquittal emerge:
(i) An appellate court has full
power to review, re-appreciate and
reconsider the evidence upon
which the order of acquittal is
founded.
(ii) The Code of Criminal
Procedure, 1973 puts no limitation,
restriction or condition on exercise
of such power and an appellate
court on the evidence before it may
reach its own conclusion, both on
questions of fact and of law.
(iii) Various expressions, such
as, 'substantial and compelling
reasons', 'good and sufficient
grounds', 'very strong
circumstances', 'distorted
conclusions', 'glaring mistakes',
etc. are not intended to curtail
extensive powers of an appellate
court in an appeal against
acquittal. Such phraseologies are
more in the nature of 'flourishes of
language' to emphasise the
reluctance of an appellate court to
interfere with acquittal than to
curtail the power of the court to
review the evidence and to come
to its own conclusion.
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(iv) An appellate court,
however, must bear in mind that in
case of acquittal, there is double
presumption in favour of the
accused. Firstly, the presumption
of innocence is available to him
under the fundamental principle of
criminal jurisprudence that every
person shall be presumed to be
innocent unless he is proved guilty
by a competent court of law.
Secondly, the accused having
secured his acquittal, the
presumption of his innocence is
further reinforced, reaffirmed and
strengthened by the trial court.
(v) If two reasonable
conclusions are possible on the
basis of the evidence on record, the
appellate court should not disturb
the finding of acquittal recorded by
the trial court."
14. In light of the aforesaid discussion, in considered view of this
Court, no factual or legal error has been committed by the learned trial Court
in acquitting the respondent from charge under Section 306 of IPC.
15. Resultantly, this appeal against acquittal filed on behalf of
complainant Shahrukh fails and is hereby dismissed being devoid of any
substance by affirming the judgment of acquittal passed by the learned trial
Court.
(BINOD KUMAR DWIVEDI)
JUDGE
rcp
