apeal.82.00.jud.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.82 OF 2000
Tulsidas Yeshwant Bhusari,
Adult, Accountant working in
Akola Ginning & Pressing Co-Op. Factory Akola,
R/o Kaulkhed Locality Akola,
Tahsil & District Akola. .... Appellant
-- Versus --
State of Maharashtra. .... Respondent
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Shri R.D. Bhuibhar, Advocate for the Appellant.
Ms. T.H. Udeshi, Additional Public Prosecutor for the Respondent/State.
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CORAM : KUM. INDIRA JAIN, J.
DATE : APRIL 6, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and order dated 02/09/1997 passed by the learned Additional Sessions Judge, Akola in Sessions Trial No.35/1997. By the said judgment and order, appellant-accused came to be convicted of the offences punishable under Section 506 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and the ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 2 Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act' for short). He is sentenced as under :
Sections Sentence
506 IPC ---- Fine of Rs.2,000/-, in
default, S.I. for 2 months
3(1)(x) of Imprisonment for 6 + Fine of Rs.1000/- , in
Atrocities Act. months. default, S.I. for 2 months.
02] Being aggrieved with the judgment and order of
conviction, original accused has preferred this appeal. 03] The prosecution case, which can be revealed from the charge-sheet and connecting papers thereto, may be stated, in brief, as under :
i. PW-1 Jagannath Gopnarayan is the complainant. He was serving in Akola Ginning and Pressing Co-
Operative Factory Limited, Akola as a Branch Manager. Accused was working in the same office as Accountant. Complainant claimed himself to be ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 3 belonging to 'Mahar' caste. He received a complaint on 19/02/1994 against the accused that he demanded Rs.500/- from one person and placed the said complaint before the Chairman.
ii. On 22/12/1995, accused entered the Office at 10:00 a.m. Complainant was doing his work. At around 11:00 a.m., accused went to the table of complainant and asked him why did he forward the complaint to Chairman. He abused the complainant on his caste and also threatened that he would see that complainant is terminated from service and he would chop up his hands and legs.
iii. Complainant then went to Police Station Ramdaspeth, Akola and lodged report. Crime No.117/1995 was registered under Sections 294 and 506 of the Indian Penal Code and Section 3(1)(x) of the Atrocities Act against the accused. P.S.I. Zade took over investigation. He recorded spot-panchnama.
Statements of witnesses, who were present at the ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 4 time of occurrence of incident, were recorded. On completing investigation, charge-sheet was submitted to the Court of Judicial Magistrate First Class, Akola, who in turn committed the case for trial to the Court of Sessions.
04] On committal, trial Court framed charge at Exh.2. Accused pleaded not guilty and claimed to be tried. His defence was of total denial and false implication.
05] To substantiate the alleged guilt of accused, prosecution examined in all six witnesses. Accused did not enter the witness box and did not examine any witness in support of his defence. Considering the evidence of prosecution witnesses, trial Court came to the conclusion that offence under Section 294 of the Indian Penal Code is not proved, but the offences under Section 506 of the Indian Penal Code and Section 3(1)(x) of the Atrocities Act have been established against the accused. In consequence thereof, accused came to be convicted as stated in paragraph 1.
::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 5 06] Heard Shri R.D. Bhuibhar, learned Counsel for appellant and Ms. T.H. Udeshi, learned Additional Public Prosecutor for the State. With the assistance of the learned Counsel for the parties, this Court has gone through the evidence of prosecution witnesses. On meticulous evaluation of the testimonies of prosecution witnesses and submissions made on behalf of the parties, this Court for the below mentioned reasons is of the view that prosecution could not prove the guilt of accused beyond reasonable doubt.
07] It is not in dispute that on the report of Jagannath Gopnarayan [PW-1], offences under Sections 294 and 506 of the Indian Penal Code and Section 3(1)(x) of the Atrocities Act were registered against the accused. So far as offence under Section 3(1)(x) of the Atrocities Act is concerned, learned Counsel for appellant vehemently contended that the entire investigation was vitiated, as investigation was not conducted by the competent Officer as prescribed in Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as 'the Atrocities Rules' for short). Referring to Rule 7, learned Counsel for appellant submits that ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 6 investigation ought to have been by the Officer not below the rank of Deputy Superintendent of Police.
08] In the case in hand, admittedly investigation was by the Officer of the rank of Police Sub-Inspector, who was not authorized to conduct the investigation. On this sole ground, it is submitted that conviction under Section 3(1)(x) of the Atrocities Act needs to be set aside. In support of his submission, reliance is placed on the decision of the Hon'ble Supreme Court in State of A.P. vs. Viswanadula Chetti Babu - [2011 ALL MR (Cri) 660 (S.C.)] and the decision of this Court in Mansingh Baburao Garud vs. State of Maharashtra - [2011 ALL MR (Cri) 1610]. In the case before the Supreme Court, investigation into the offence under the Atrocities Act was by the Officer below the rank of Deputy Superintendent of Police and the Hon'ble Supreme Court in paragraph 4 observed thus :
"4. We are, therefore, of the opinion that in view of the clear mandate of the Rules, it was only a specified Deputy Superintendent of Police who could investigate an offence under the Act. An investigation done by any officer below the rank and not specified as per Rule7 would not be entitled to investigate any ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 7 such offence. In the present matter, the investigation has been made by an officer of the rank of an Assistant Sub-Inspector of Police. This was not permissible. We endorse the judgment of the High Court in this respect."
Similar view is expressed by this Court in the case of Mansingh Garud (supra).
09] Needless to state that Atrocities Rules came into force on 31st March, 1995. Incident in the present case occurred in December, 1995 . As investigation was carried out by an Officer below the rank of Deputy Superintendent of Police, on this count alone, conviction of appellant for the offence under Section 3(1)
(x) of the Atrocities Act needs to be set aside. 10] So far as offence under Section 506 of the Indian Penal Code is concerned, it is stated by Jagannath Gopnarayan [PW-1] in his evidence that accused threatened him uttering that he would not be in service and he would be terminated from the service. He also threatened that he would chop up hands and legs of complainant. So far as threats relating to chopping up ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 8 legs and hands are concerned, trial Court has excluded the evidence of complainant for want of corroboration as Puran [PW-2] and Dharmpal [PW-3] have not supported the evidence of complainant to that extent. However, relying upon the evidence of complainant on alleged threats of terminating the complainant from service, being corroborated by evidence of other witnesses, it was held that offence under Section 506 of the Indian Penal Code has been established against the accused. 11] For constituting an offence under Section 506 of the Indian Penal Code, it would be essential to look at the definition of criminal intimidation under Section 503 of the Indian Penal Code. It reads thus :
"503. Criminal Intimidation - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 9
12] On careful reading of the provisions of Sections 503 and 506 of the Indian Penal Code, one thing is certain and it is the intention to cause alarm to the victim which plays a vital role. In the case on hand, evidence of complainant and allegations in F.I.R. would indicate that accused went to the table of complainant and threatened him that he would not be in service and he would be terminated from the service. There is no evidence to indicate that complainant was alarmed by such threats, which is an essential requirement of Section 503 of the Indian Penal Code. It means in the absence of an element of mens rea and particularly intention to raise alarm in the mind of complainant, it cannot be said that offence under Section 506 as defined under Section 503 of the Indian Penal Code is made out. 13] In the above premise, conviction of appellant under Section 506 of the Indian Penal Code and Section 3(1)(x) of the Atrocities Act is unsustainable. Hence, the following order :
ORDER [i] Criminal Appeal No.82/2000 is allowed.
[ii] Impugned judgment and order of conviction dated ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 ::: apeal.82.00.jud.doc 10 02/09/1997 passed by the learned Additional Sessions Judge, Akola is set aside.
[iii] Bail bonds of accused stand cancelled.
[iv] Fine, if paid, shall be refunded to the accused.
[v] No costs.
(Kum. Indira Jain, J.) *sdw ::: Uploaded on - 12/04/2017 ::: Downloaded on - 14/04/2017 00:15:03 :::