Gujarat High Court
State Of Gujarat vs Bhupatsinh Danubha Jadeja on 1 March, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/68/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 68 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed toYes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of theNo
judgment ?
4 Whether this case involves a substantial question of lawNo
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
BHUPATSINH DANUBHA JADEJA
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Appearance:
MR PRAVIN GONDALIYA for the PETITIONER(s) No. 1
MS MAITHILI MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
PETITIONER(s) No. 1
MR.D K.PUJ WITH MR RUCHIR PATEL ADVOCATE for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 01/03/2018
ORAL JUDGMENT
1. Judgement and order dated 31.05.2005 passed by learned 6th Fast Track Court Judge, Gondal In Sessions Case No. 59 of 2001 recording the acquittal for the respondent for the offences punishable under Sections 306, 352, 506(2), 452 of the Indian Penal Code ( for short 'IPC') is questioned in this appeal under section 378 of the Code of Criminal Procedure ( for short 'Cr.P.C').
2. The respondent was charged with his having broken into the Page 1 of 15 R/CR.A/68/2006 JUDGMENT house of deceased Manjuben while she was alone in the night at 1.30 a.m. 20 days before 16.11.2000, he had held her shoulders and attempted to rape her and threatened her of dire consequences if the incident was disclosed by her. The deceased therefore doused herself in the kerosene and ignited herself at about 8 a.m on 16.11.2000. The respondent was also charged with as having committed, a criminal trespass and assaulted the modesty of the deceased.
3. It is the prosecution case that though the incident had taken place 20 days before 16.11.2000, no immediate FIR came to be filed as the complainant was under the threat of the respondentaccused. It is also the prosecution case that during the said 20 days, the respondent frequently visited the complainant/her husband and threatened them of dire consequences if the incident was disclosed anywhere; however eventually when the harassment by the respondent could not more be borne by the deceased, she consumed her life as indicated above.
4. Her husband PW 5 Hirabhai Narshibhai learnt the incident from two villagers while he was at the field of one Ranchhodbhai in the morning of 16.11.2000. He immediately came home and learnt about the incident from the deceased. He was examined as PW 5 at Exh. 20 and what has been stated by him if translated into English, is thus "Manju was lying in burns in the courtyard. She was alive then and was able to talk. I had an occasion to talk to her. I asked her why did she take such a step? You did not even think of children and me? Thereupon my wife told me that accused Bhupatsinh had come in the house in the night of Diwali at about 1.30. From the gap in the door, he himself unlocked the stopper of the door. He attempted rape. He molested her body. Therefore Manju abused Page 2 of 15 R/CR.A/68/2006 JUDGMENT and drove him away. While leaving, he threatened me that if the incident was revealed to anyone, then my children, husband and me would be done to death and my house would be set ablaze. Thereafter Bhupatsinh ( accusedrespondent) was harassing us in our house frequently and therefore sensing that he would harass my family, I felt that my life is worthless and therefore I have taken this step. Thereafter she was shifted to Government hospital in Rajkot."
5. He has further testified that: "in the night of Diwali, I went to the field of Bhupatsinh about between 9.30 and 10.00. I had gone to water the field. When I went there, Manju was at home. At that point of time, at about 1.30 in the night, Bhupatsinh had gone to my house. I went home at 3 o' clock. When I reached home, Manju was crying. At that point of time Manju told me that Bhupatsinh had come in the night at 1.30 and unlocked the stopper while I was sleeping. He came inside, woke me up, molested me and attempted to rape me. This incident was narrated by her to me while sobbing. I told her that I must reprimand Bhupatsinh in the morning. She advised me not to reprimand him as Bhupatisnh has threatened me not to reveal the incident to anyone. Ignoring her advice I reprimanded Bhupatsinh at his field. I told him that 'Darbar you sent me to the field and then for what purpose you entered my house? Thereupon Bhupatsinh told him that' Kolav, I had asked her not to reveal the incident to anyone and if you reveal, I will set your house ablaze and kill your children. He threatened me like that. Because of his threat, I did not register the police complaint against Bhupatsinh. Manju also registered the complaint only after setting herself ablaze. That complaint has been given by my wife Manju. The complaint was given to the police.......".
Page 3 of 15R/CR.A/68/2006 JUDGMENT He has further testified that, "during Manju's interrogation in the hospital at Rajkot, I was not allowed to be with her. At that point of time, doctor, Manju and Mamlatdar were present. No one else was present.
6. He has further stated that "Manju burnt herself because of harassment to her by Bhupatsinh. She did not complaint against harassment by Bhupatsinh as she was afraid of him. After Manju died i.e. before about one and half year of this date, Bhupatsinh attacked my house and in that regard complaint was given by me to Lodhika police station with regard to the incident concerning Manju, police recorded my statement......".
7. From the testimony of P.W. 5Hirabhai Narshibhai, it appears that respondent was known to him as he was working in his field in the year 2000. He has also identified the respondent in the open court.
8. In addition to above evidence of PW 5 Hirabhai Narshibhai (Exh.20), dying declaration Exh. 16 recorded by Executive Magistrate, oral testimony of the Executive Magistrate P.W. 3 Chandulal Tulsidas( Exh. 14), P.W. 9 Dr. Narendrakumar Tapubhai Nakum( Exh.24), P.W. 11 Ramnik Lakhtariya, ASI ( Exh. 28), order of Investigation (Exh. 29), FIR Exh. 30, Indoor and outdoor case papers(Exh. 25), Station diary (Exh. 36) inter alia constitute evidence.
9. Having perused the paper book and considered the rival submissions, it is required to be appreciated whether the evidence on record warrants acquittal of the respondent.
10. So far as the offence under section 306 of IPC is concerned, the evidence on record indicates that the deceased committed suicide after Page 4 of 15 R/CR.A/68/2006 JUDGMENT 20 days of the first incident. During the said period of 20 days, the evidence on record more particularly that of P.W.5Hirabhai Narshibhai( Exh. 20) who is the husband of the deceased indicates that the respondent used to frequently visit his house and threatened the couple of dire consequences in the event of revelation of the incident. The persistent threat by respondent was perceived and made a cause for commission of suicide by deceased. The question is whether under these set of facts, section 306 read with section 107 of IPC would be attracted. In absence of allegation of conspiracy and intentional aiding the suicide by respondent, the clauses "secondly" and "thirdly" of section 107 would not be attracted. The clause (1) of section 107 of IPC defines abetment by instigation. Instigating a person to do a thing desired by culprit would amount to the offence of abetment by instigation. The expression 'instigate' fell for consideration in Kishori Lal vs. State of M.P. 2007(10)) SCC 797, Sanju Alias Sanjay Singh Sengar versus State of M.P. 2002 (5) SCC 371, Chitresh Kumar Chopra versus State ( Government of NCT of Delhi) 2009(16) SCC 605, Sonti Rama Krishna versus Sonti Shanti Sree and another 2009(1) SCC 554 and Ramesh Kumar vs. State of Chhattisgarh - 2001 (9) SCC 618. The judicial pronouncements would show that the instigation denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. The presence of mens rea, therefore is a necessary concomitant of instigation. The instigation must be shown to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward", to sustain the plea of instigation.
11. In the instant case according to the prosecution, the act of suicide was instigated by the accused. The submission made by the learned Page 5 of 15 R/CR.A/68/2006 JUDGMENT APP is that since the respondent entered in the house of the deceased who was alone in the midnight at 1.30, molested her and attempted to rape her, she being worried about her reputation, has committed suicide and thus her act of suicide was instigated by accused. This court finds no merits in such submission for the simple reason that to establish the offence by instigation, as indicated above mens rea is a crucial ingredient and the offence would be made out if it is shown that the accused had in his mind the idea that the deceased or its victim would commit suicide or harm herself etc. on his instigating her. No such facts are brought on record and therefore the acquittal for the offence under section 306 was rightly recorded by the court below requiring no interference by this court.
12. So far as offences punishable under sections 452 and 354 of IPC are concerned, the trial court was in serious error in ignoring the facts and evidence pointing to the guilt of the accused. No findings worth the name have been given by the trial court in this regard. It only concentrated on section 306 and recorded acquittal for the respondent even for sections 452 and 354 of IPC.
13. According to the learned counsel for the respondent, the evidence in so far as offence under Sections 354 and 452 are concerned, is deficient owing to material contradiction and omission in the evidence on record. The learned counsel submitted that in the police yadi (Exh. 25) and station diary (Exh. 36), neither the complainant/ deceased nor any of the witnesses propounded the story that the respondent had broken into the house of the deceased at about 1.30 in the night 20 days before 16.11.2000. He would submit that the above referred evidence as fortified by the doctor and police witnesses Page 6 of 15 R/CR.A/68/2006 JUDGMENT indicates that infact the deceased got accidental fire from the stove while preparing meals. As against this, learned APP invited attention of this Court to the dying declaration Exh. 16, and would contend that a consistent plea of the witnesses has been that the accused broke open into the house of the victim on the date of the incident, molested her and attempted rape on her. She also invited the attention of this Court to the testimony of P.W. 6 Jayaben Keshubhai with the submission that the witnesses have explained before the police that brother of the accused was present and therefore being afraid of the accused and his brother, they gave incorrect version in the hospital and elsewhere that the deceased suffered accidental burns out of fire triggered by kerosene stove. Learned APP invited attention of this court to the inquest panchnama and would contend that neither the stove nor the remains of food articles were found at the scene of the offence belying the story of accidental death of the deceased.
14. In the FIR, the deceased has inter alia made the following statement. " The cause of the incident is the entrance of Bhupatsinh in the night in my house; I felt about it so I poured kerosene on myself from the valve of the primus and set myself ablaze. Nobody has ignited me. There is no other reason. Presently I am fully conscious."
15. In the medical papers Exh. 25, it is stated thus: "PT............today, in Rataiya village, she got burns at her house while cooking the food by primus." PW 9 Dr. Narendrakumar Tapubhai Nakum has stated that when the deceased was asked about the cause of incident, she was fully conscious and stated that she got burns from primus while cooking in her house at Rataiya village.
Page 7 of 15R/CR.A/68/2006 JUDGMENT
16. In the station diary at Exh. 36, it has been stated that when the deceased was alone at her house, the accused entered, caught hold of her shoulders, molested her and attempted rape on her and threatened her that if she reveals the incident, she would be done to death and therefore being depressed, she poured kerosene on herself and died during the treatment in the hospital. The learned counsel for the respondent however relied upon the entry no.15 made at 15.50 hours in the station diary Exh. 36 which reads as under: " at this point of time in charge of R.R., HC Maganbhai has telephonically informed that Manju, native of Rataiya village wife of Hirabhai Narshibhai aged 35 years of Lodhika got burns while preparing the meals on the primus in her house and she has been presently admitted to the hospital at Rajkot......"
17. The version that the accused broke into the house of the deceased at 1.30 a.m. in the night on the date of the incident and attempted to rape the deceased and molested her is borne out from the following sources: (1) PW 5 her husband, who claims that she made revelation of the incident in question as detailed out hereinabove. (2) PW.6 Jayaben Keshubhai sisterinlaw of the deceased Exh. 21, P.W. 7 Keshubhai Narshibhai (Exh.22). These witnesses claim to have learnt from the deceased the facts detailed out hereinabove. (3) P.W. 5 Hirabhai Narshibhai (Exh. 20) and P.W. 6Jayaben w/o Keshubhai have explained that it is only owing to the presence and fear of the brother of the respondent that they made the statement before the doctor and in documents referred to hereinabove that the deceased received accidental injuries while preparing the food on primus. This explanation is required to be tested in the light of sequence of events and the oral testimony of above referred witnesses.
Page 8 of 15R/CR.A/68/2006 JUDGMENT
18. P.W. 5 Hirabhai Narshibhai is the husband of the deceased. He was informed about the incident by two villagers when he was at the field of Ranchhodbhai. He was informed about the burns sustained by his wife when he was on the field of Ranchhodbhai. He immediately came to the house and asked the deceased the cause for her attempting suicide. As detailed hereinabove, he was the first person who came in contact with the deceased after the said incident and the revelation made by the deceased to him was not that she sustained the accidental burns. It is required to be borne in mind that the deceased was depressed by the conduct of the respondent who was frequently visiting the house of the deceased and her husband with threat to dissuade them revealing the incident to any other person. Thus the threat to them was persistent and looking to such conduct of the respondent, their explanation that it was only on account of threat by the respondent either in person or through the presence of his brother that the statement was made that the deceased got accidental fire is required to be considered. There is nothing on record indicating the motive of the deceased or P.W. 5 to falsely implicate the respondent. Furthermore no primus or remains of food articles were recovered from the scene of offence. Though in the FIR, the statement is made by the deceased that she sourced the kerosene from the valve of stove that would not mean that she was using the stove for preparing the food.
19. There are more than one dying declarations; the first being the oral dying declaration with her husband P.W. 5 as also P.W. 6 her sisterinlaw. P.W.3 Executive Magistrate has also testified and corroborated the version of the deceased about the respondent breaking open the house of P.W.5 obtaining entry and therein attempting the rape on her and molesting her. The Executive Magistrate Page 9 of 15 R/CR.A/68/2006 JUDGMENT is an independent witness and there is nothing on record by which his testimony can be discarded. Furthermore the learned trial judge was in serious error in discarding the testimonies of P.W. 5 and P.W.6 solely on the ground that the two witnesses were related to the deceased and thus are interested witnesses. The learned trial judge ought to have informed himself the legal position that the evidence of interested witnesses is also reliable but the court would scrutinize it closely so as to rule out the exaggeration and improvements, etc. Thus the dying declaration was made by the deceased also in presence of P.W. 5 and P.W. 6 and there is no reason to discard their version.
20. Although as indicated above, the charge under 306 is not sustainable, having regard to the above evidence it cannot be said that the deceased did not come out with the case against the respondent that he broke open into her house at 1.30.a.m. 20 days before 16.11.2000 and attempted to rape her and molested her. The offence therefore under sections 354 and 452 against the respondent is made out. At the cost of repetition, it may be reiterated that the trial court totally ignored the evidence qua sections 452, 354 and did not whisper even the word for acquitting the accused for the said offence anywhere in the body of the judgement. It is only in the operative part of the judgement it has been recorded that the accused is acquitted of the said offence as well. Thus the judgement of the trial judge in that regard suffers from non application of mind and cannot be sustained.
21. So far as the offence under section 506 is concerned, it is rightly contended by learned APP that the only intent of a person breaking into the house of a lonely woman in the late night hours at about 1.30 a.m. could be to injure her reputation or cause any other offence against her.
Page 10 of 15R/CR.A/68/2006 JUDGMENT In Indian traditional society entry of a male other than family member or close relatives, in the midnight or in the late hours is more often than not considered to be bringing disrepute to the victim woman. The society would look at her with suspicion. The accused was merely the employer or master of the husband of the victim and not her family member or close relative and thus had no right to break open her house at 1.30 a.m. when she was all alone. Such act of the accused was rightly perceived as act bringing disrepute to her and in fact the victim committed suicide with the said perception though, as indicated above the case under section 306 has not been made out. The offence under section 506 is independent than section 306 of IPC.
22. However, the charge against the accused for the punishment under Part II of Section 506 is not sustainable. To make out an offence in Part II of Section 506 of the IPC, the criminal intimidation as defined in Section 503 of IPC must be established. Depending upon the gravity of the criminal intimidation, two sets of punishment are contemplated in Section 506. For the punishment in Part II of the said provision, incriminating circumstances graver than those in Part I must be brought by evidence on record; inasmuch as; punishment under Part II is higher than the one in the Part I and threat of grave nature has been specified in the Part II for the higher punishment. Therefore, the Court would be guided in its discretion, for the imposition of the sentence, by incriminating circumstances borne out in the evidence. While the utterances using threatening words coupled with the circumstances demonstrating the intention of the accused to cause alarm or compulsion as indicated in Section 503, may be sufficient for the punishment in Part I of Section 506, that may not be true for the punishment under Part II of Section 506 of IPC. For the punishment in Page 11 of 15 R/CR.A/68/2006 JUDGMENT Part II of Section 506, it must be demonstrated by incriminating circumstances that the threat was to cause the graver offence. The grave circumstances wherefrom the targeted person may perceive the alarm that in absence of compliance with the desire of an accused, the accused would commit the graver offence and is in a position to commit such graver offence as contemplated in Part II of Section 506 must be borne out in evidence. This Court may hasten to add that a mere oral threat by an accused with history of the serious offences or being a headstrong or dangerous person may bring the case within four corners of Part II of Section 506; inasmuch as; the alarm intended by such an accused may be perceived by the targeted person as a potential threat in the context of the criminal background of the accused. However, in absence of such a background, mere utterances coupled with the intended alarm or compulsion by the accused to targeted person, would not bring the case within four corners of Part II of Section 506. For the punishment in Part II of Section 506, the evidence must indicate that the threat was not an empty threat; but there was a potent in it; reflected in the incriminating circumstances borne out in the evidence. Thus, in the opinion of this Court, the evidence fetching the punishment in the Part I of Section 506 would not be good evidence for the punishment in part II of the said provision.
23. In the instant case, except the oral statements attributed to the deceased that he will cause death of the family members of the deceased or would destroy their property by fire, no evidence establishing the capability of the accused to translate the oral statement into action forms the record of the case. Thus the respondent cannot be convicted for the offence punishable under section 506(2) of IPC but he deserves to be found guilty, for the offences punishable under section Page 12 of 15 R/CR.A/68/2006 JUDGMENT 506(1) as also under sections 354, 452 of Indian Penal Code.
24. For the foregoing reasons, the impugned judgement and order recording acquittal for the respondent for the offence punishable under sections 452, 354, 506(1) of IPC is not sustainable and therefore quashed and set aside. The accused is ordered to be convicted for the offence punishable under sections 354 and 452 of IPC.
(G.R.UDHWANIJ.) FURTHER ORDER DATE 20.03.2018
25. After the judgement was pronounced by this court on 01.03.2018 following orders were passed on 07.03.2018, 12.03.2018 and 16.03.2018.
ORDER DATE : 07.03.2018 "After hearing learned advocate Mr. Ruchir Patel for Mr. D.K.Puj the learned counsel appearing for the respondent as also the learned APP, the respondent has been ordered to be convicted by an order in this appeal passed on 01.03.2018. At the time of pronouncement of the order, the learned counsel submitted that accused shall remain present on 05.03.2018 for hearing on sentence. However on that day neither accused nor the learned counsel was present. The matter also was not listed on board but that would not have made any difference since it was in the knowledge of the learned counsel that the accused is required to be kept present on the above mentioned date. Therefore, there could not have been excuse with the learned counsel to remain absent on that day. Be that as it may, the matter was posted today for hearing the accused for sentence. The learned counsel Mr. Ruchir Patel seeks an adjournment on the ground that learned counsel Mr. D.K. Puj has filed the leave note. The request as such cannot be accepted for the simple reason that it is the learned counsel Mr. Ruchir Patel 15who has argued the matter and leave note of Mr. Puj would therefore be immaterial. Under Rule 132(ii) of the Gujarat High Court Rules, 1993, the sicknote or leavenote would not inter alia apply to criminal cases.
Page 13 of 15R/CR.A/68/2006 JUDGMENT In the above circumstances, the learned counsel Mr. Ruchir Patel insisted for adjournment to 12.03.2018 to enable him to keep the respondent present on that day for hearing him on sentence. As a last chance S.O. to 12.03.2018."
ORDER DATE : 12.03.2018 "As a last chance, S.O. to 16.03.2018."
ORDER DATE: 16.03.2018 "Learned counsel for the respondent Mr. DK Puj has been partly heard for sentence under section 235(2) of Criminal Procedure Code. For further hearing on sentence, S.O. to 20.03.2018."
26. Eventually the learned counsel for the respondent accused has been heard on sentence. In his submission long gap between the incident in question and the date of judgement in this appeal as also in absence of untoward incident against the respondent during his period of anticipatory bail so far and his age of 64 years may be considered as the mitigating circumstances warranting the minimum sentence contemplated under sections 354 and 452 of the Indian Penal Code. The learned counsel would also urge for probation of the accused under section 4 of the Probation of Offenders Act.
27. The accused is found to have broke open house of the deceased after sending her husband who was working under him, to his field, in the night hours i.e. 1.30 a.m. when she was all alone. In Indian traditional society such an act would put the character and chastity of a woman under the cloud of suspicion. The act of the accused has caused injury to the reputation of the victim. It is therefore not pardonable.
28. The discretion under section 4 of the Probation of Offenders Act can be exercised in suitable cases. The words ".........nature of the Page 14 of 15 R/CR.A/68/2006 JUDGMENT offence ....." is sufficient guide for the court to select the offences for probation, cautiously. As indicated above the nature of offence under section 354 of IPC is serious as it touches the reputation of a woman more particularity when it is committed in the late night hours by obtaining forcible entry into the house of a lonely woman. Therefore, this court is not inclined to exercise the power, under the Probation of Offenders Act qua section 354 of IPC. Consequently there can be no question of considering the case under the Probation of Offenders Act qua section 452 of IPC.
29. Having regard to the overall circumstances of the case, following order is passed:
Respondent accused Bhupatsinh Danubha Jadeja is ordered to suffer rigorous imprisonment for one year with fine of Rs. 1000/ (Rupees One Thousand Only) and in default thereof, he is sentenced to three months simple imprisonment, for each of the offences punishable under sections 354 and 452 of IPC. Both the sentence shall run concurrently.
30. For the foregoing reasons the appeal partly succeeds.
(G.R.UDHWANIJ.) niru* Page 15 of 15