Gujarat High Court
Astitva S/O Sushil Bhanuram Kachihar ... vs State Of Gujarat on 17 April, 2025
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED
BY SUBORDINATE COURT) NO. 44 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
==================================================
Approved for Reporting Yes No
✔
==================================================
ASTITVA S/O SUSHIL BHANURAM KACHIHAR (PETITION DISPOSED OF
AS WITHDRAWN) & ANR.
Versus
STATE OF GUJARAT & ANR.
==================================================
Appearance:
MR KARTIK V PANDYA(2435) for the Applicant(s) No. 2
PETITION/APPEAL WITHDRAWN/DISMISSED for the Applicant(s) No. 1
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==================================================
CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 17/04/2025
ORAL JUDGMENT
[1] The present revision application is filed under Section 397
read with Section 401 of the Criminal Procedure Code, 1973
(hereinafter referred to as "the Code") assailing the correctness
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
and validity of order dated 03.10.2021 passed by the learned
11th Additional Chief Judicial Magistrate, Gandhinagar
(hereinafter referred to as "the learned Trial Court") in Criminal
Case No.1279 of 2017 below Exhibit '8'.
[2] The brief facts leading to the filing of the present revision
application are that a First Information Report came to be filed
by respondent No.2 (hereinafter referred to as "the
respondent") being C.R.No.I-178 of 2016 for offence punishable
under Sections 354 and 114 of the Indian Penal Code
(hereinafter referred to as "the IPC"). Applicant No.1 is the
brother of applicant No.2. It was alleged that the brother of
applicant No.2, the applicant and the respondent went to watch
a movie. After completion of the movie, all three of them went
to the house of the applicant. It was further alleged that
applicant No.1, who happens to be the brother of the revisionist
- applicant made an attempt to outrage the modesty of the
respondent in front of present revisionist - applicant. Pursuant
to the lodgement of the first information report, applicant No.1
as well as applicant No.2 challenged the validity of the first
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
information report and preferred a quashing petition before this
Court by way of filing Misc. Criminal Application No. 33632 of
2016 under Section 482 of the Code. However, the said petition
was not pressed and was withdrawn with liberty to file a
discharge application before the Trial Court. Pursuant to
withdrawal of the quashing petition on 19.12.2016, the
revisionist - applicant No.2 preferred an anticipatory bail
application under Section 438 of the Code by way of Criminal
Misc. Application No.1034 of 2016, which came to be allowed
on 28.11.2016 by the learned Sessions Judge, Gandhinagar.
[3] Pursuant to the grant of anticipatory bail to the revisionist
- applicant No.2, both the accused, i.e., revisionists - applicant
Nos. 1 and 2 preferred a discharge application under Section
239 below Exhibit '8' in Criminal Case No.1279 of 2017. The
learned Trial Court, by way of impugned order dated
03.10.2021, was pleased to reject the said application filed by
both the applicants, which has resulted into filing of the present
revision application.
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
[4] At the outset, it is pertinent to note that, while preferring
the present revision application, by way of order dated
07.01.2022, the application qua revisionist - applicant No.1, i.e.,
brother of revisionist - applicant No.2 has already been
withdrawn. Therefore, the present controversy now remains
only qua revisionist - applicant No.2, who happens to be the
sister of the main accused and the friend of the respondent.
[5] Heard Mr. Kartik V. Pandya, learned advocate appearing
for the applicant and Mr. Soaham Joshi, learned Additional
Public Prosecutor appearing for the respondent - State. Though
rule is served no one has put appearance for respondent No.2.
[6] It was contended by Mr. Kartik V. Pandya, learned
advocate appearing for the applicant that the main allegations
of committing offence under Section 354 of the IPC are against
the brother of the present revisionist - applicant. The only role
attributed to present applicant is that she was a friend of the
respondent and was present along with the main accused and
the respondent at the time of occurrence of alleged incident.
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
The ingredient of Section 354 of the IPC, which pertain to an
attempt to outrage the modesty of a woman is absent qua the
present applicant. She has not assaulted or used any criminal
force against any woman. Apart from that, she has not
intimidated the respondent. Mere presence at the scene of
offence cannot bring her within the parameters of Sections 354
and 114 of the IPC. In view of the same, it was submitted by
Mr. Pandya, learned advocate appearing for the applicant that
the order passed by the learned trial court dismissing the
discharge application qua applicant No.2 is bad in law and
against said parameters.
[7] Per contra, Mr. Soaham Joshi, learned Additional Public
Prosecutor appearing for the respondent - State has submitted
that present applicant was present at the alleged scene of
offence. She was a friend of respondent and sister of applicant
No.1, who is alleged to be involved for offence under Section
354 of the IPC. Therefore, the present revisionist - applicant
was the link for occurrence of the offence and when the offence
took place, she was merely a mute spectator. She had not made
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
any attempt to stop the incident and therefore, the trial qua the
applicant No.2 for offence under Section 114 of the IPC would
be necessarily and her innocence can be provided only by
leading of evidence. In wake of such submissions, it was prayed
by Mr. Soaham Joshi, learned Additional Public Prosecutor
appearing for the respondent - State to reject the present
revision application.
[8] Having gone through the impugned order and the
statements shown by Mr. Soaham Joshi, learned Additional
Public Prosecutor appearing for the respondent - State, it is not
in dispute that applicant No.2 was not involved in the alleged
incident. The role attributed to her is that she was a friend of
respondent and sister of the main accused. Further allegation
against her is that she remained present when the incident
occurred and she helped her brother in the incident which had
taken place. Even, according to learned advocate for both the
sides, present revisionist - application No.2 has not played any
active role in the alleged offence under Section 354 of the IPC is
concerned. Therefore, it would be necessary to see the role of
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
the present applicant for being a mute spectator and abettor to
the alleged crime in question. For the same, the testimony of
two witnesses being Dushyant Brahmin and Shekhar Dharma
are very necessary. It is alleged that after 2:00 p.m., all three
people, i.e., applicant Nos. 1, 2 and the respondent went to
house of the revisionist - applicant where the alleged offence
had occurred. Thereafter, respondent called her friend
Dushyant Brahmin and went back with him after narrating the
incident. This fact can be corroborated from the statement
given by Dushyant Brahmin. However, looking the the
statement of Dushyant Brahmin, it categorically transpires that
when the respondent narrated the incident to her friend, i.e.,
Dushyant Brahmin, she did not make a single allegations against
present applicant No.2. If the revisionist - applicant was an
abettor to the alleged crime then the respondent would have
been aggrieved by her and would have narrated the same to his
friend who was called by the respondent after the incident.
Further, the observation made in the impugned order is that the
applicant was a mute spectator. However, merely being a mute
spectator would not in any way entail her for becoming an
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
abettor. A bare perusal of Section 354 of the IPC, reveals that
for it to apply, the offence must be committed against a woman;
criminal force must be applied against her; and such application
of force must be with the intent to outrage her modesty.
Definitely such ingredients are lacking in the statement making
allegation made qua applicant No.2. Moreover, the statements
and testimonies of the witness would reveal that present
applicant has not transpired or conspired against the
respondent and helped her brother and became an abettor to
the crime. The record is silent with respect to the use of any
force or any act of abatement of crime qua the present applicant
No.2. Therefore, keeping in view the contents of the first
information report, the statement in the final report of the
Investigating Officer and the sum total of the circumstances,
this Court is of the considered view that they do not point to
revisionist - applicant No.2 of having committed any offence
against the respondent.
[9] In view of the same, the impugned order dated 03.10.2021
passed by the learned 11th Additional Chief Judicial Magistrate,
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
undefined
Gandhinagar in Criminal Case No.1279 of 2017 below Exhibit '8'
qua present revisionist - applicant No.2 is hereby quashed and
set aside. The revisionist - applicant No.2 is discharged from
the offence being C.R.No.I-178 of 2016 for offence punishable
under Sections 354 and 114 of the IPC. Present revision
application is allowed. Rule is made absolute qua applicant
No.2.
Sd/-
(PRANAV TRIVEDI, J.)
DHARMENDRA KUMAR
