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2013 DIGILAW 209 (KAR)

Gurulingappa v. Prashanth

2013-02-20

ANAND BYRAREDDY

body2013
Judgment :- (This Criminal Revision Petition is filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 praying to impose the maximum sentence as prescribed for the offences punishable under Sections 354 and 306 IPC, with heavy fine on the accused/first respondent by suitably modifying the order of sentence dated 7.5.2010 passed by the Presiding Officer, Fast Track Court-2, at Bidar in S.C.No.59/2009.) This Criminal Appeal is filed under Section 374 (2) of the Criminal Procedure Code, 1973 praying to set-aside the order of conviction passed by the Presiding Officer, FTCII, Bidar, in S.C.No.59/2009 dated 7.5.2010, convicting the appellant/accused for the offences punishable under Sections 354 and 306 of the IPC and the accused is sentenced to undergo simple imprisonment for six months for the offence punishable under Section 354 of the IPC and the accused is sentenced to undergo simple imprisonment for four years and shall pay a fine of Rs.5,000/- in default of payment of fine, he shall undergo simple imprisonment for one year for the offence punishable under Section 306 IPC.) 1. This revision petition and the appeal are in respect of the very same judgment. The revision petition is filed by the complainant questioning the quantum of punishment and the appeal is filed by the accused challenging the judgment of the trial court. 2. The facts leading up to this petition and the appeal are as follows:- The complainant Gurlingappa was the father of one Bhagyasheela. It is claimed that on 17.10.2008, the complainant, as usual, went to his land and at about 4 p.m., his daughter had carried tea for him to the land and after serving tea, she returned home. It is claimed that the complainant also returned home at about 5.15 p.m. and he learnt from CW.11 and 12, PWs - 5 and 6, respectively, that when his daughter was returning home, near the land of one Shivaraj Patil, it transpires that the appellant - accused was seen catching hold of her hand and much against her protest, was trying to lead her towards a nearby field, possibly with ill intentions and on noticing that PWs -5 and 6 were also observing them, he had run away from the spot. In the meanwhile, it is stated that Bhagyashree was so consumed with shame on account of the act of the accused, she had rushed to a nearby open well and had jumped into it. Therefore, PWs -5 and 6 brought this information to the complainant. The complainant had rushed to the well, but could not see his daughter, but he had found her chappals lying near the well. It is his case that the accused was clearly responsible for his daughter having jumped into the well. Since she could not be found in the well inspite of his best efforts, the complainant had lodged a case with the jurisdictional police, which was registered as Crime NO.177/2008 against the accused for offences punishable under Sections 354 and 306 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) and after further investigation, a charge sheet had been filed against the accused. The case was committed to the Sessions court and thereafter to the Fast-track Court-II, Bidar, who in turn, framed charges against the accused. And since the accused pleaded not guilty and claimed to have been tried, the prosecution examined PWs.1 to 12 and marked Exhibits Ex.P-1 to P-9 and material objects Mos.1 to 3. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity) and after hearing the arguments, the court below framed the following points for consideration:- 1. Whether the prosecution proves that on 17.10.2008, at about 17.50 hours near the land of Shivraj Patil at Kuntegaon, Taluk Bhalki, the accused with intent to outrage the modesty of Kum. Bhagyasheela, and accused forcibly dragged her and hugged her, against her will and outraged her modesty beyond all reasonable doubt? 2. Whether the prosecution proves that on the above said date, time and place due to the act of the accused, Kum. Bhagyasheela committed suicide by jumping into a well of Kuntegaon village, and the said accused abetted its commission by outraging her modesty and the said accused is responsible for the death of the deceased Bhagyasheela, beyond all reasonable doubt? The court below has answered the above points in the affirmative. 3. Bhagyasheela committed suicide by jumping into a well of Kuntegaon village, and the said accused abetted its commission by outraging her modesty and the said accused is responsible for the death of the deceased Bhagyasheela, beyond all reasonable doubt? The court below has answered the above points in the affirmative. 3. In assessing the evidence of the prosecution, the court below has recorded the gist of the evidence tendered by each of the witnesses from Paragraphs - 12 to 21 and thereafter recorded the contentions of the respective parties and the reasoning can be found from Paragraph - 24 onwards. It is the finding of the court below that the case of the prosecution rests on the evidence of three witnesses PWs.5,6 and 10. It is noticed by the Court below that PWs.5 and 6, who are treated as hostile witnesses, as they tendered evidence inconsistent with the statements made in the first instance, had denied any overt acts on the part of the accused. The court below, however, has observed that though they were treated as hostile witnesses to the extent that the said witnesses had seen the deceased returning home from the land, coupled with the evidence of PW.1, where it was elicited from the said witness, though he had not volunteered the information that about 5 to 6 months prior to the incident, the accused was bothering his daughter by coming near their house on his vehicle and sounding its horn continuously to draw her attention, which had irritated her and she had even complained to her father, PW.1, who in turn, had complained to the father of the accused and this was an instance to indicate that the accused was in the habit of constantly harassing the deceased. Further, the court below has observed that PW.10 -Sunitha was the other witness, who has spoken about the incident and she had categorically stated that she had seen the accused trying to molest the deceased and that she had protested and immediately jumped into the well on account of the said act of the accused. The court below has held that though PWs.5 and 6 had turned hostile, the evidence of Sunitha was certainly in support of the case of the prosecution and has held that there was no reason to negate the said evidence. The court below has held that though PWs.5 and 6 had turned hostile, the evidence of Sunitha was certainly in support of the case of the prosecution and has held that there was no reason to negate the said evidence. This is the brief reasoning, on the basis of which, the court below has arrived at a conclusion that the accused was guilty of the offences punishable under Sections 354 and 306 of the IPC. It is that which is under challenge in the present appeal. 4. Since the court below has sentenced the accused to undergo simple imprisonment for 6 months for the offence punishable under Section 354 of the IPC and simple imprisonment for 4 years and a fine of Rs.5,000/-for the offence punishable under Section 306 of the IPC, the revision petition has been filed by the complainant seeking enhancement of the sentence. 5. The learned Counsel for the appellant would contend that given the facts and circumstances, even if the entire case of the prosecution is to be accepted, the same cannot be sustained on the basis of the evidence tendered by the complainant, who was not an eye witness to the alleged incident. PWs.5 and 6, who were cited as the star witnesses insofar as they having witnessed the incident, have been treated as hostile witnesses. Therefore, their evidence would have to be completely eschewed. The court below, even though they were treated as hostile witnesses, seeking to read between the lines of their testimony is impermissible. The very presence of the accused was not an affirmation by the said witnesses. Therefore, the said evidence being relied upon to hold that the charges have been proved against the accused is a perverse reasoning. Insofar as PW.10 is concerned, this was an improvement by the prosecution as there was no indication of her presence at the spot at all in the complaint nor had PWs.5 and 6 indicated her presence. The sudden appearance of PW.10 as a witness for the prosecution is, therefore, a concoction, only to implicate the accused. The very manner in which the deceased is said to have killed herself by jumping into a well and the reason for the same is wholly unnatural. The sudden appearance of PW.10 as a witness for the prosecution is, therefore, a concoction, only to implicate the accused. The very manner in which the deceased is said to have killed herself by jumping into a well and the reason for the same is wholly unnatural. It was not the case of the prosecution that he had molested her in such a manner and in the presence of PWs.5 and 6 or others as to cause shame of such a degree that she should immediately commit suicide. The very allegation is unacceptable. On the other hand, it is on record that PW.10 Sunita herself has indicated that though she saw the deceased jumped into a well soon after the accused tried to drag her by her hand, the accused himself had jumped into the well to save her and since the water was murky, he was not in a position to find her in water and had given up inspite of repeated attempts and the deceased had therefore drowned by the same and that she could not be saved. This would indicate that there was no overt act on the part of the accused which could be characterised as giving cause for the deceased taking the extreme step of committing suicide. In any event, he would point out that Section 306 of the IPC, that is invoked, for which he has been mulcted with a severe punishment of simple imprisonment for 4 years apart from fine, is not at all attracted. Even assuming that Bhagyasheela had committed suicide, the appellant having abetted the commission of suicide, cannot be discerned from the case of the prosecution. 'Abetment', as defined under Section 107 of the IPC, requires that one who abets doing of a thing should instigate a person, who do that thing or engage with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or a person abetting should intentionally aid, by any act or illegal omission, the doing of that thing. This is not forthcoming. Therefore, it could not be said that the accused had aided the commission of suicide nor had he stood by and has omitted illegally to do anything and thereby causing her death. This is not forthcoming. Therefore, it could not be said that the accused had aided the commission of suicide nor had he stood by and has omitted illegally to do anything and thereby causing her death. On the other hand, he had desperately tried to save Bhagyasheela, who had jumped into a well, even according to the evidence of Sunitha, which the court below has accepted entirely. Therefore, the question of abetment of suicide, which is punishable in terms of Section 306 of the IPC, could not have been cited against the appellant at all, as no such offence is made out. 6. Further insofar as Section 354 of the IPC is concerned, which provides for punishment in respect of an offence where the accused assaults or uses criminal force to any woman intending to outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. He would point out that there is no allegation of assault or use of criminal force though the expression that the accused "dragged" by her hand is not use of criminal force by any standard and that the accused had never intended to outrage or knowing it to be likely that he will thereby outrage her modesty. Apart from the accusation that he held her by hand and pulled her, there was no other overt act attributed to him, as touching any other physical parts of her body and thereby seeking to outrage her modesty. Therefore, in this light of the matter, the allegations would not make out a case either punishable under Section 306 or 354 of the IPC and with the vague evidence that is tendered in support of the prosecution, no case at all is made out against the accused. 7. On the other hand, the learned Counsel for the petitioner -complainant in Criminal Revision Petition No.2620/2010 would vehemently contend that abetment is of several dimensions and the IPC itself has provided for abetment, which is enumerated from Section 108A onwards in Chapter -V of the IPC. Therefore, the learned Counsel for the appellant seeking to read Section 107 and limiting the scope of such abetment is self-serving. Therefore, the learned Counsel for the appellant seeking to read Section 107 and limiting the scope of such abetment is self-serving. When it is established by the prosecution that it is on account of the accused having constantly harassed her over time and also having dragged her by her hand in public place, which was witnessed by others, that the deceased committed suicide, there was abetment in the true sense of the term and not necessarily restricted to the definition under Section 107 and seeks to draw sustenance from other provisions such as Sections 110 and 113 and illustrations thereof with considerable force, while seeking to justify the judgment of the court below insofar as the merits of the case are concerned. The learned Counsel would further contend that the court below has not imposed the punishment commensurate with the nature of the offence or the gravity of the offence. The act of the accused has resulted in the death of the daughter of the complainant and the girl having died at the young age of 18 has left void in the complainant's life and is not capable of being reconciled without the accused being punished appropriately and would submit that the punishment prescribed for the offences ought to be inflicted on the accused in full measure and seeks that both the imprisonment and fine be enhanced substantially. 8. The learned Government Pleader, on the other hand, would seek to justify the judgment of the court below. 9. In the light of the above rival contentions and from the examination of the record, it is evident that even according to the court below, the testimony of PWs - 5,6 and 10 is the only source of information as to the actual occurrence of the incident. Insofar as the evidence of PWs.5 and 6 are concerned, that has been watered down as those witnesses had turned hostile. Therefore, the court was left with the only evidence of PW.10, who claimed to have witnessed the incident and the court has drawn inferences on the basis of the hearsay evidence of the complainant. Assuming that the entire evidence of PW.10 could be acted upon, the question then would be whether the offence punishable under Section 306 and the offence punishable under Section 354 were made out. Assuming that the entire evidence of PW.10 could be acted upon, the question then would be whether the offence punishable under Section 306 and the offence punishable under Section 354 were made out. From a reading of the definition of 'abetment', the accused is sought to be charged with the offence punishable under Section 306 of the IPC, it would have to be seen that whether there was abetment of suicide on the part of the accused. 'Abetment', as pointed out by the learned Counsel for the appellant, is defined under Section 107. The same reads as follows:- "107. Abetment of a thing.--A person abets the doing of a thing, who- First.-Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." 10. If the section in its several parts is applied to the facts of the case, and if examined as to whether the accused is said to have acted in consonance with any of those requirements, the answer is no. It is not possible to hold that the accused had abetted the commission of suicide by the deceased. Even if it could be contended that the accused having held her by her hand and having pulled her would constitute abetment of suicide, which followed immediately thereafter, it cannot be said that it was so. 11. The counsel for the petitioner -complainant seeks to draw sustenance from Section 111 of the IPC, with illustrations, which reads as follows:- "111. Even if it could be contended that the accused having held her by her hand and having pulled her would constitute abetment of suicide, which followed immediately thereafter, it cannot be said that it was so. 11. The counsel for the petitioner -complainant seeks to draw sustenance from Section 111 of the IPC, with illustrations, which reads as follows:- "111. Liability of abettor when one act abetted and different act done.--When an Act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it: Proviso.--Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. Illustrations (a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z. Here if the child was acting under the influence of A's instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of Y. (b) A instigates B to burn Z's house. B sets fire to the house and at the same time commits theft of property there. A, though guilty of abetting the burning of the house, is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning. (c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery, and provides them with arms for that purpose. B and C break into the house, and being resisted by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the abetment, A is liable to the punishment provided for murder." And Section 113 of the IPC, with illustrations, which reads as follows:- "113. Liability of abettor for an effect caused by the act abetted different from that intended by the abettor. Liability of abettor for an effect caused by the act abetted different from that intended by the abettor. -When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, caused a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. Illustration A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder." 12. From the tenor of the above, it cannot be said that the accused had abetted the commission of suicide and no sustenance could be drawn from the language of Section 111 or Section 113. The same are not relevant and would not apply to the fact situation. Hence, the court below having found that the accused was guilty of having committed the offence punishable under Section 306 of the IPC was misconceived and cannot be sustained. The same is set aside. To that extent, the appeal succeeds and is allowed in part. 13. Insofar as the offence alleged under Section 354 of the IPC is concerned, the argument canvassed by the appellant, to the effect that the allegation was of the accused having held the deceased by her hand and having pulled her and nothing more, and therefore, it could not be said that there was assault or criminal force used on the deceased and that the Section would not be attracted nor could it be said that he had tried to outrage her modesty by pulling her hand, is a contention which cannot be accepted. Modesty is not a concept, which can be measured with mathematical precision. Modesty in a woman will differ from case to case. It would depend on the social, economical and other factors and the background from which the woman comes and mores of the community, in which she resides. Modesty is not a concept, which can be measured with mathematical precision. Modesty in a woman will differ from case to case. It would depend on the social, economical and other factors and the background from which the woman comes and mores of the community, in which she resides. Therefore, to say that holding one's hand and pulling her, does not amount to outraging the modesty of a woman and that he should do something more, like trying to hold her arm or other parts of her body. Even by looks or by signs, modesty of a woman can be outraged. Therefore, the court below having taken a lenient view insofar as the offence punishable under Section 354 of the IPC, when there was positive evidence that the accused had held the deceased by her hand and had pulled her, which had caused so much shame and pain in the deceased that she immediately jumped into a nearby open well, would indicate that her sense of modesty was so acute that it was sufficient for her to commit suicide. In that view of the matter, the act of the accused would have to be viewed with more seriousness. Accordingly, the punishment imposed by the trial court is minimal and ought to be enhanced substantially. The maximum punishment prescribed under Section 354 of the IPC is 2 years or with fine or both. In that view of the matter, since the punishment imposed under Section 306 of the IPC has been set aside in entirety, it would be in the fitness of things to modify the sentence imposed, for the offence punishable under Section 354 IPC and to hold that the appellant is held guilty for the offence punishable under Section 354 of the IPC. Therefore, the appellant shall be punished with simple imprisonment for a period of one year and shall also be liable to pay a fine of Rs.10,000/-, out of which Rs.9,000/-shall be paid as compensation to the complainant-petitioner under Section 352 of the Cr.PC. Since the accused has deposited a sum of Rs.5,000/-, the same shall be adjusted towards the fine now ordered to be payable under Section 354 of the IPC and the accused shall pay the balance. The bail bond executed by the appellant and the surety shall stand cancelled, immediately after the deposit of the balance amount of fine by the accused. The bail bond executed by the appellant and the surety shall stand cancelled, immediately after the deposit of the balance amount of fine by the accused. Any period spent in custody by the appellant shall be set-off against the punishment now imposed. Hence, the Criminal Revision Petition is allowed in part.