Gujarat High Court
The State Of Gujarat vs Kanabhai Ambabhai on 28 February, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/2213/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2213 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI SD/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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THE STATE OF GUJARAT
Versus
KANABHAI AMBABHAI & ORS
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Appearance:
MR H K PATEL APP for the Appellant.
ADVOCATE NAME DELETED for the RESPONDENT(s) No.
1,10,2,3,4,5,6,7,8,9
MR TUSHAR CHAUDHARY for the RESPONDENT(s) No.
1,10,2,3,4,5,6,7,8,9
MR.DIPEN F CHAUDHARI for the RESPONDENT(s) No. 1,10,2,3,4,5,6,7,8,9
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 28/02/2018
ORAL JUDGMENT
By this appeal under Section 378 of the Code of Criminal Procedure (for short Cr.PC), the judgment and order dated 24/02/2006 passed by the learned Page 1 of 10 R/CR.A/2213/2006 JUDGMENT Additional Sessions Judge, 5th Fast Track Court, Deodar in Special Case No.149 of 2005 recording acquittal of the respondents for the offences punishable under Sections 143, 147, 504, 323, 506(2) and 149 of the Indian Penal Code and under Sections 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 3(a) of the Protection of Civil Right Act, 1955 is questioned.
2. Having perused the evidence on record, impugned judgment and order and having considered the rival contentions, this Court finds itself in agreement with the Court below and confirms the acquittal of all other accused except, accused-Jethabhai Dhanabhai for the following reasons:
2.1 The complainant has referred to occurrence of three incidents connected with each other on 21/07/2005 in the FIR. According to the contents of the FIR, 10 accused were present at the temple when complainant intended entry into it. He was stopped and obstructed by accusedJetha who pushed him away and when the complainant requested that it is the God's temple and he should be permitted to go inside, all the accused persons got up, abused him, derogated his caste and stated that this temple has been constructed by them and he cannot insist an entry into it. They told him to go away; else he would be done to death. At that point of time, according to him, accusedJetha gave him two slaps and drove him Page 2 of 10 R/CR.A/2213/2006 JUDGMENT away. The complainant then met his fellow caste members, including Gangarambhai Ragnathbhai (PW 2) and Govindbhai Jagabhai (PW 4), apprised them with the incident in question, they accompanied him to the temple to reprimand the accused. According to him, the accused were reprimanded upon which they promised that they would not harass the complainant henceforth. However, it is his case that at the same time, they also threatened him of dire consequence if he ventured to file a complaint against them. The complainant, therefore, went back to home with Pirabhai Hemrajbhai (PW 3). He then intended to visit Shamlaji temple at Dhima village. Both of them therefore came to the busstand to hire a vehicle and found Jetha with his jeep being boarded by the passengers. He alongwith Pirabhai (PW 3) got into the jeep and then immediately Jetha came there and scolded him, derogated his caste, abused him and gave him two slaps. Pira (PW 3) was also abused and both of them were asked to leave the jeep. They went back, consulted their fellowmen and upon advise of Nanji Trikambhai, initially the complainant abstained filing the complaint since in the previous occurrence, according to said Nanji, the Police had connived with accused persons. After pondering for two days, he decided to lodge a complaint. It is his case that he was afraid of the accused and therefore went to the Police Station, in hiding.
3. In his testimony (Exh.16) the complainant (PW 1) though names the accused and attributes to them the Page 3 of 10 R/CR.A/2213/2006 JUDGMENT abuses, as also attributes to them the utterances "Dheda""Koda" does not specify what abuses were hurled by the accused on him. A mere say that he was abused would not bring the case under Section 504 of the IPC; inasmuch as, for Section 504 to operate intentional insult with provocation to the victim with the knowledge or intention that such provocation is likely to drive the victim to cause the breach of public peace or to commit any other offence must be pleaded and established in evidence. Mere insult would not suffice; but the degree of the insult intended must be potential enough to provoke the victim to act or abstain from acting as desired by the culprit. For the said provision to operate, it would be necessary to prove that the conduct of the accused obtained the desired result. Thus, the mens rea of the person desiring or provoking the victim to commit breach of peace or other offence, is relevant.
It is not as if that a person would get provoked by every utterance accused makes. It would be relevant to demonstrate that the words used by the accused were sufficient to provoke a prudent man. It cannot there be said that by mere abuses, in absence of its specification, the accused provoked the complainant. Also in absence of the nature or degree of abuses, it cannot be said that the intended provocation was such as was likely to drive the victim to commit breach of public peace or to commit other offence. No such evidence is forthcoming and thus the accused cannot be convicted for the offence under Section 504 of the IPC.
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4. PW 1 has attributed assault to accused-Jetha in the FIR but in his oral testimony the said act is attributed to accused Kanabhai Ababhai. This contradiction is material contradiction as one accused is replaced for other and thus even the case of assault insofar as the first incident is concerned, is not made out.
5. The accused, insofar as the first incident is concerned, are attributed having derogated the complainant by caste name and also with the utterances indicating that complainant's entry into the temple, would malign it. Apart from the fact that such attribution is lacking in the complaint, what is crucial is the lack of relevant averments in the complaint, attracting Section 3 of the SC&ST Act. In Gorige Pentaiah vs. State of Andhra Pradesh & Ors., [(2008) 12 SCC 531], the FIR bereft the averment therein that the accused were not the members of SC & ST came to be quashed with the following observations in paragraph No.6:
"In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accusedappellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accusedappellant was not a member of the Page 5 of 10 R/CR.A/2213/2006 JUDGMENT Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
Thus, in absence of such averments in the FIR, the case under the SC&ST Act failed at the threshold.
6. Similarly, Section 3(a) of the Protection of City Right Act 1955 is invoked which prescribes the punishment for enforcing religious disabilities. For the said provision to operate, it must be inter alia shown that the victim was prevented entering the place of public worship open to other persons, professing the same religion, etc., on the ground of "untouchability". Therefore, it must be borne out from evidence that the victim was treated untouchable. In the complaint, the victim has stated that he was addressed as "Sala Dheda" and was prevented entering the temple and deposed that he was told that if he enters the temple, it will get maligned. In the crossexamination, the victim admitted that adjoining the temple in question, there is another temple of God Hanuman and he often visited it without obstruction from the accused. Thus, it appears that accused being possessive of the temple in question obstructed his entry into it, but he was not treated as untouchable, since he could freely visit the adjoining temple.
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7. The second incident is stated to have occurred at busstop when the complainant boarded the jeep of accused-Jetha as indicated above. It is borne out from the testimony of PW 1 and PW 3 who were together that complainant was given two slaps by accusedJetha while asking him to disembark the jeep. To establish such an offence, medical evidence is immaterial if the statement by the witnesses on oath are acceptable. Thus, by oral unimpeachable testimony of PW 1 and PW 3, the offence against accusedJetha was made out.
8. During the third incident, except the attribution that the accused told the complainant and other witnesses to go away else they would meet with the same fate as the complainant, no other serious attributions are made to the accused persons and as discussed herein above, no ingredients attracting Section 504 are borne out from the said third incident.
9. 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 Page 7 of 10 R/CR.A/2213/2006 JUDGMENT 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 mere threatening utterances coupled with the circumstances elucidating the intention of the accused, having no serious antecedents or not being dangerous or head strong person etc., 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 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 his 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 Page 8 of 10 R/CR.A/2213/2006 JUDGMENT 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.
10. In the instant case, no evidence, much less, the evidence attracting the punishment under Section 506 of IPC is adduced. The threatening words quoted in the mouth of accusedJetha do not represent the intent of the accused to cause alarm to the complainant. PW 1 has quoted accusedJetha inter alia saying that if he comes back to hire his vehicle, he would cause his death by knocking him down by the vehicle. Thus, it is not the prosecution case that engine of the accused's vehicle was on and that he was seated on the driving seat and that he demonstrated that he was ready to drive the vehicle on the complainant. It is not borne out how the accused made his intention clear to cause alarm in the mind of the complainant. The accused merely refused to take him for hire in his vehicle. Except scaring the complainant away, no other compulsive circumstances as indicated above are shown to exist. Thus, in the opinion of this Court, no offence under Section 506 of IPC is made out.
11. Having regard to the above discussion, in the Page 9 of 10 R/CR.A/2213/2006 JUDGMENT opinion of this Court, the offence qua accused- Jethabhai punishable under Section 323 of the IPC is made out and to that extent the impugned judgment and order of acquittal is required to be interfered with. Thus, the impugned judgment and order is modified qua accused-Jethabhai Dhanabhai and he is held guilty for the offence punishable under Section 323 of the IPC.
12. Learned Counsel Mr.Dipen Chaudhary under the instructions submits that accusedJethabhai Dhanabhai has authorized him to submit on sentence and therefore learned Counsel on behalf of the said accused is heard for sentence. He would submit that except the present offence, the accused has no antecedents and that offence for which he is found guilty by this Court is of trivial nature and therefore instead of sentencing him to imprisonment, learned Counsel submitted that the fine contemplated under the said provision be imposed upon him.
13. Having regard to the submissions made by learned Counsel for the said convictaccusedJethabhai Dhanabhai, the sentence of fine of Rs.1,000/ (Rupees One Thousand Only) is imposed; which shall be paid by him within a month henceforth and in default he must undergo one month rigorous imprisonment. So far as rest of the accused are concerned, the appeal fails and is dismissed.
(G.R.UDHWANI, J) SOMPURA Page 10 of 10