Gujarat High Court
Ajaybhai vs State on 12 May, 2010
Gujarat High Court Case Information System
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CR.RA/170/2003 10/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 170 of 2003
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
AJAYBHAI
DATTARAYA GAJJAR & 2 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance :
MR
JB PARDIWALA with MR AB MUNSHI
for Applicant(s) : 1 -
3.
MR KL PANDYA, ADDL. PUBLIC PROSECUTOR for
Respondent
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 12/05/2010
ORAL
JUDGMENT
This revision application is directed against the judgement and order dated 29th March, 2003 made by the learned Additional Sessions Judge, Bharuch, Camp at Rajpipla, in Criminal Appeal No.5 of 2001, confirming the conviction of the applicants for the offences under section 452, 323 and 114 of the Indian Penal Code (IPC). The applicants were convicted vide order dated 14th March, 2001 made by the learned Judicial Magistrate First Class, Rajpipla, and were sentenced to undergo simple imprisonment for two years as well as fine of Rs.1,500/- and in default, to undergo further imprisonment for two months.
The facts giving rise to the present case are that a first information report being Rajpipla Police Station I C.R. No.146/1998 came to be registered against the present applicants and one Shakuben, wife of Sureshbhai Chimanbhai alleging commission of the offences under sections 452, 323 and 114 of the IPC.
Pursuant to the said first information report, charge-sheet came to be submitted and trial came to be conducted by the learned Judicial Magistrate First Class, Rajpipla, which culminated into conviction of the applicants herein for the offences punishable under sections 452, 323 and 114 of the IPC and they came to be sentenced as referred to hereinabove, whereas the fourth accused was given the benefit of probation.
Being aggrieved, all the accused preferred appeal before the learned Sessions Judge, Bharuch, who vide the impugned judgement and order dated 29th March 2003, confirmed the order of conviction and sentence made by the learned Judicial Magistrate First Class, Rajpipla. Being aggrieved, the applicants have moved the present revision application.
Mr. J. B. Pardiwala, learned advocate with Mr. A. B. Munshi, learned advocate for the applicants has at the outset invited attention to the provisions of section 452 IPC to submit that, to constitute an offence under that section two requirements are required to be satisfied, firstly that the accused must make preparation for causing hurt etc. to any person and secondly after making such preparation he must commit a house trespass. Thus, there must be evidence to substantiate both the aforesaid requirements. Referring to the facts of the present case, it is urged there is no evidence to even remotely suggest that there was any preparation to cause hurt etc. to any person as contemplated under section 452 IPC. It is submitting that this is where both the Courts below have erred inasmuch as neither of the Courts below have considered one of the most important ingredient for constituting the offence under section 452, that is, preparation to cause hurt etc., is missing. It is, accordingly, submitted that even if house trespass is believed, at best, the provisions of section 448 would be attracted, but in no case, would the provisions of section 452 IPC be applicable on the facts of the present case. In the circumstances, the applicants can be held to be guilty only for the offence under section 448 and section 323 IPC and as such, the conviction as well as sentence awarded by the trial Court, as confirmed by the appellate Court, is required to be altered.
Next, it is submitted that, having regard to the facts of the case and more particularly in the case of the applicant No.3 herein, who is a public servant and a Branch Manager in a reputed bank, the plea for probation under the provisions of the Probation of Offenders Act, 1958 may be considered in the interest of justice.
The learned advocate has invited attention to the provisions of sections 323 and 448 of the IPC, to submit that the offences under the said sections are punishable with imprisonment for a term of one year, or fine, or with both. It is submitted that, in the facts of the present case, considering the nature of offence as well as the fact that a period of 12 years has elapsed since the commission of the offence, it would be in the interest of justice, if instead of sentencing the applicants to imprisonment, the amount of fine is enhanced, part of which may be paid to the complainant.
In support of his submissions, the learned advocate has placed reliance upon the decision of the Patna High Court in Chandra Bhusan Dubey and another v. The State of Bihar, 1965(2) Cr.L.J. 841, and more particularly to the contents of paragraph 6 thereof as well as the decision of the Rajasthan High Court in Dal Chand v. The State, 1996 Cr.L.J. 236, with emphasis on the contents of paragraphs 14 and 15 thereof. The learned advocate has also placed reliance on the decision of the Supreme Court in Sitaram Paswan v. State of Bihar, AIR 2005 SC 3534, for the proposition that the powers under section 4 of the Probation of Offenders Act, 1958, vest with the Court when any person is found guilty of having committed an offence not punishable with death or imprisonment of life. This power can be exercised by the Court while finding the person guilty and if the Court thinks that having regard to the facts and circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the court even at the appellate or revisional stage and also by the Supreme Court while hearing an appeal under Article 136 of the Constitution of India.
On the other hand, Mr. K. L. Pandya, learned Additional Public Prosecutor, has opposed the application. It is submitted that in the facts of the present case, the offence under section 452 IPC is clearly made out and as such, there is no warrant for interference.
A perusal of the record of the case indicates that the prosecution case against the applicants, as emerging from the evidence of the complainant as well as the other witnesses is to the effect that, on 4th April 1998, in the evening at about 07:00 p.m., the complainant was at her residence. Her two children were playing outside when all the four accused came where her children and Dakshaben s , (wife of her nephew), children were playing. At that time Shakuben, accused No.4 said where has the black goat gone, and where has the fair goat gone . Since her nephew s wife was rather dark complexioned, Shakuben had passed such remarks. Upon Shakuben saying so, the complainant came outside and asked Shakuben as to whom she was saying so. Thereafter there was an altercation between them pursuant to which, all the four accused started hurling abuses and entered her house. The applicant No.1 gave fisticuffs on her chest and broke here gold chain, whereas Shakuben, threw a brick at her. The applicant No.2 Sureshbhai had caught hold of both her hands and had beaten her and that the applicant No.3 had also beaten her. On hearing her shouts, Dakshaben, who was residing next door, came running and tried to rescue her, whereupon the applicant No.1 had torn the maxi that she was wearing. Thereafter, all the accused had gone away and she had gone to the police station to lodge her complaint. Witness, Dakshaben has more or less reiterated the say of the complainant.
The prosecution case is therefore, required to be examined in the light of the submissions made by the learned advocate for the applicants. It would therefore be germane to refer to the provisions of section 452 IPC which makes provision for House-trespass after preparation of hurt, assault or wrongful restraint :
452.
Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
On a plain reading of the aforesaid provision it is apparent that for the purpose of invoking section 452 IPC two requirements are required to be cumulatively satisfied, firstly that the accused must have made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint and secondly he must commit house trespass. If either of the two requirements is not satisfied section 452 would not be attracted.
Examining the facts of the case in the light of the aforesaid statutory provision, considering the evidence of the complainant as well as the witnesses, even if the depositions of the witnesses are accepted as absolutely true and correct in their entirety, it is apparent that the case against the accused is to the effect that firstly on account of certain remarks uttered by the fourth accused, a quarrel ensued, pursuant to which, all the accused entered the house of the complainant and had assaulted her. There is not even an iota of evidence indicate that the accused had entered the house after having made preparation for causing hurt, or for assaulting, or for wrongfully restraining the complainant or other witnesses, or for putting the complainant or other witnesses in fear of hurt, or of assault, or of wrongful restraint as envisaged under section 452. The evidence on record indicates that an altercation took place all of a sudden, when the complainant protested against the remarks made by the accused No.4, which resulted in the accused assaulting the complainant and Dakshaben. The quarrel having taken place all of a sudden, it is not possible to infer that the accused had made preparation for causing hurt to the complainant and Dakshaben. As noted hereinabove, for the purpose of invoking section 452, the both the requirements noted hereinabove are required to be satisfied. In the facts of the present case though the accused can be said to have committed house trespass, the other requirement regarding preparation to cause hurt is not satisfied. In the circumstances, in absence of the basic requirements of section 452 being satisfied, the conviction of the applicants under section 452 IPC cannot be sustained. This view finds support in the decision of the Patna High Court in Chandra Bhushan Dubey (supra) wherein it has been held that section 452 contemplates house trespass with previous preparation made for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint and not otherwise. It is the dominant intention which is the determining factor of the offence and unless the dominant intention was to cause hurt or wrongful restraint or any fear of either, the provisions of the section would not be attracted, even if some hurt is actually caused during the course of executing any other purpose, for which trespass was committed. The mischief of the section can be attracted only when it is established that the trespass was committed in order to cause hurt or to assault or to wrongfully confine any person after having made preparations for that purpose.
However, on the facts of the case, the requirements of house trespass as envisaged under section 442 IPC stand duly satisfied, hence, the offence punishable under section 448 IPC which provides for punishment of for house-trespass is clearly made out. In the circumstances, the conviction of the applicants under section 452 IPC is required to be altered to one under section 448 IPC.
Insofar as the conviction of the applicants for the offences punishable under section 323 read with section 114 of the IPC is concerned, both the Courts below have upon appreciation of the evidence on record, recorded concurrent findings of fact which indicate that the prosecution has successfully established its case against the applicants in so far as the said offence is concerned. The learned advocate for the applicants is not in a position to dislodge the concurrent findings of fact recorded by both the Courts below. In the circumstances, it is not possible to state that the courts below have committed any error in convicting the applicants for the offence under section 323 read with section 114 IPC. The same is, therefore, required to be sustained.
Insofar as the plea for reduction of sentence is concerned, the offence under section 323 IPC is punishable with imprisonment for a term which may extend to one year, or with fine, which may extend to Rs.1,000/-, or with both; and the offence under section 448 IPC is also punishable with imprisonment for a term which may extend to one year, or with fine which may extend to Rs.1,000/-, or with both. In the circumstances, having regard to the fact that the conviction of the applicants is required to be altered as from conviction under section 452 IPC to one under section 448 IPC, the sentence imposed by the trial Court as confirmed by the appellate Court, is also required to be reduced. In the circumstances, keeping in view the fact that for an offence under section 323 as well as section 448 IPC, sentence can also be only by way of fine, the nature of the offence; the fact that the offence came to be committed on the spur of the moment; a period of 13 years has elapsed since the commission of the offence in question; the applicants herein do not have any criminal antecedents, it would be in the interest of justice if the sentence imposed upon the applicants No.1 and 2 is altered to one of fine only, as, at this stage, no useful purpose would be served if the applicants No.1 and 2 are required to undergo imprisonment.
The plea for considering grant of probation under the provisions of the Probation of Offenders Act has been pressed only qua the applicant No.3. On a perusal of the evidence on record it is apparent that insofar as the applicant No.3 is concerned, the allegations against him are general in nature and no specific role has been attributed to him. In the circumstances, in the light of the aforesaid facts as well as considering the fact that the applicant No.3 is a public servant and a Branch Manager in a reputed bank who has no criminal antecedents, the plea for grant of probation merits acceptance.
For the foregoing reasons, the application partly succeeds and is allowed to the following extent. While maintaining the conviction of the applicants under section 323 read with section 114 IPC, the conviction under section 452 IPC is altered to one under section 448 IPC. Accordingly, in the peculiar facts and circumstances of the case, insofar as the applicants No. 1 and 2 are concerned, the sentence imposed by the learned Judicial Magistrate First Class, Rajpipla as confirmed by the learned Additional Sessions Judge, is altered to one from simple imprisonment of two years to fine of Rs.10,000/- each, in addition to the fine imposed by the learned Judicial Magistrate First Class, Rajpipla. The additional amount of fine shall be paid to the complainant Sudhaben Arvindbhai by way of compensation. The applicant No.3 shall be given the benefit of probation and he shall be released on probation on his entering into a bond for Rs.10,000/- before the Executive Magistrate, Rajpipla for keeping peace and good behaviour, within a period of three weeks from the date of receipt of a copy of this order.
[HARSHA DEVANI, J.] parmar* Top