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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
n
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 65 OF 2012
Mohanlal s/o Tarachand Paradhi,
Aged about 45 years,
Occupation - Decoration Business,
R/o Jyotiba Fule Chowk, Shiwaji
Ward, Sakoli, Tahsil - Sakoli,
District - Bhandara. .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Sakoli, Tahsil Sakoli,
District Bhandara. .... RESPONDENT
______________________________________________________________
Mrs. Prachi Joshi, Advocate h/f. Shri G.N. Khanzode, Advocate for the
appellant,
Ms. Ritu Kaliya, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 7
DECEMBER, 2017
th
ORAL JUDGMENT :
The appellant is aggrieved by the judgment and order dated 12-1-2012 in Special Case 12/2010 delivered by the learned Special Judge, Bhandara, by and under which the appellant is ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 2 apeal65.12 convicted for offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") and is sentenced to suffer simple imprisonment for six months and to payment of fine of Rs.1,000/-, for offences punishable under Sections 341 and 294 of the Indian Penal Code and is sentenced to payment of fine of Rs.500/- for each of the offences respectively.
2. Heard Mrs. Prachi Joshi, learned Advocate for the appellant-accused and Ms. Ritu Kaliya, learned Additional Public Prosecutor for the respondent.
3. Mrs. Prachi Joshi, learned Advocate for the accused submits that the judgment and order impugned is manifestly erroneous. The prosecution has miserably failed to establish the ingredients of offence punishable under Section 3(1)(x) of the Atrocities Act, is the submission. The learned Advocate would submit, that firstly the prosecution has not proved, muchless beyond reasonable doubt, that the accused does not belong to either Scheduled Caste or Scheduled Tribe community, secondly the prosecution has not established that the utterances attributed to the accused were calculated to humiliate the ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 3 apeal65.12 complainant since he belongs to the Mahar community and finally even if the evidence is accepted at face value, the prosecution has not established that the abuses were hurled in "public view".
4. Mrs. Prachi Joshi, learned Advocate for the accused would submit that the conviction of the accused for offences punishable under Sections 294 and 341 of the Indian Penal Code is equally flawed.
5. Per contra, Ms. Ritu Kaliya, learned Additional Public Prosecutor would submit that in response to a question put in the statement recorded under Section 313 of the Criminal Procedure Code, the accused has admitted that he belongs to the Powar community. The complainant has also deposed that the accused belongs to Powar community. The burden of proving that the accused did belong either to the Scheduled Caste or to the Scheduled Tribe is on the accused, is the submission. Reliance is placed on a Full Bench decision of this Court in Mrs. Pushpa Vijay Bonde etc. vs. The State of Maharashtra reported in 2009 Cri.L.J. 3204. The learned Additional Public Prosecutor would then submit that the utterances, holistically understood, can lead to only one inference which is that the accused intended to humiliate the complainant since the complainant belongs ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 4 apeal65.12 to the Mahar Scheduled Caste. The utterances were in public view, inasmuch as P.W.7 Sachin Rangari is an independent witness who is neither a relative nor a friend nor a business associate nor otherwise connected with or interested in the accused, is the submission.
6. The gist of the prosecution case, as is unfolded during the course of trial, is that at 5.30 p.m. on 24-11-2010 when the complainant was returning to his residence from office, he was accosted by the accused who restrained the complainant by obstructing the two wheeler near the borewell situated in close proximity to Mahatma Fule Square, Sakoli, District Bhandara. The accused uttered "lkY;k egk&;k eknjpksn] rsjs ekW cgu dks pksnw ". The complainant protested and asked the accused as to why abuses with reference to caste are being heaped. The response of the accused was that because of the complainant there was a quarrel in his house. The accused then threatened the complainant with bodily harm. The complainant parked the motorcycle near the place of the incident, went to his residence and narrated the incident to his wife and then lodged the police report. The police report is marked Exhibit 10 in the record and proceedings.
7. On the basis of the oral report Exhibit 10 and the printed ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 5 apeal65.12 report Exhibit 14, Lahanu Mane, Assistant Police Inspector registered offence punishable under Sections 3(1)(x) of the Atrocities Act, 294, 341 and 506 of the Indian Penal Code against the accused. Culmination of investigation led to submission of charge-sheet before the Special Court. The Special Court framed charge at Exhibit 6 under Section 3(1)(x) of the Atrocities Act and Sections 294, 341, 506 of the Indian Penal Code. The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused, as is discernible from the trend and tenor of the cross-examination and the statement recorded under Section 313 of the Criminal Procedure Code is of total denial and false implication. The defence is that relations between the accused Mohanlal Pardhi and the brother of the accused Rajesh Pardhi were strained and that the complainant acting at the behest of the estranged brother of the accused conspired to falsely implicate the accused. Be it noted, although the prosecution examined Rajesh Pardhi, the brother of the accused as P.W.3, he did not support the prosecution, pursuant to permission granted by the Court under Section 154 of the Indian Evidence Act questions in the nature of cross- examination were put to P.W.3 by the learned Additional Public Prosecutor, however, nothing is elicited in the cross-examination to assist the prosecution.
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8. Mrs. Prachi Joshi, learned Advocate for the accused is justified in submitting that the evidence on record is grossly inadequate to prove, muchless beyond a reasonable doubt, offence under Section 3(1)(x) of the Atrocities Act. The prosecution has not made any serious attempt to prove that the accused did not belong to either the Scheduled Caste or the Scheduled Tribe. The complainant Ramesh Ramteke, who is examined as P.W.1, does state in the examination-in- chief that the accused belongs to Powar community, a question is also put to the accused in the examination under Section 313 of the Criminal Procedure Code that it has come in the evidence that the accused belongs to the Power community. Be it noted, that although P.W.1 states in the evidence that Powar is Other Backward Class, thereby implying that the accused did not belong either to the Scheduled Caste or the Scheduled Tribe community, this incriminating circumstance was not put to the accused in the statement recorded under Section 313 of the Criminal Procedure Code and the only question put to the accused is that it has come on record that the accused belongs to the Powar community. Be that as it may, the prosecution did produce on record alongwith the charge-sheet the caste certificate of the accused. But for reasons inexplicable and best known to the prosecution the said certificate was not proved. The reliance ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 7 apeal65.12 placed by the learned Additional Public Prosecutor on the Full Bench decision of this Court (supra) is clearly misplaced. The question which fell for consideration before the Full Bench was whether it is a mandate of Section 3 of the Atrocities Act that the complainant should disclose the caste of the accused in the complaint itself and if there is no such mention whether it could be a ground for quashing the complaint. The Full Bench, relying on the judgment of the Hon'ble Apex Court in Ashabai Machindra Adhagale vs. State of Maharashtra and others reported in (2009) 3 AIR Bom. R. 119, observes thus :
"8. From bare perusal of the judgment of the Supreme Court in Ashabai Adhagale's case, (2009) 3 AIR Bom. R. 119 it is clear that the question referred to the Full Bench is no longer res-intergra and stands squarely answered. Thus, we hold that merely because the caste of the accused is not mentioned in the FIR stating whether he belongs to Scheduled Caste or Scheduled Tribe, it cannot be a ground for quashing the complaint. After ascertaining the facts during the course of investigation it is always open to the Investigating Officer to record that the accused either belongs to or does not belongs to Scheduled Caste or Scheduled Tribe. After final opinion is formed, it is open to the Court to either accept the same or take cognizance. Even if the charge-sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the Court that the materials do not show that the accused does not belong to Scheduled Caste or Scheduled Tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe as observed in Ashabai Machindra Adhagale's case.::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 :::
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9. In the result we hold that it is not a requirement under Section 3 of the Atrocities Act that the complainant should disclose the caste of the accused in the complaint. In other words if there is no mention of the caste of the accused in the FIR, that cannot be a ground for either not registering the offence under Section 3 of the Atrocities Act or for quashing such complaint. Thus, the law laid down in Anant Vasantlal Sambre and Manohar Martandrao Kulkarni's cases is no more a good law to that extent."
The submission of the learned Additional Public Prosecutor Ms. Ritu Kaliya that the burden to prove that the accused belongs to the Scheduled Caste or Scheduled Tribe is on the accused, is noted only for rejection. The observation of the Full Bench that it is open to the accused to bring to the notice of the court that the materials do not show that the accused did not belong to Scheduled Caste or Scheduled Tribe, cannot by any stretch of imagination be construed as laying down that it is the burden on the accused to place material on record to prove that he belongs to the caste of Scheduled Caste or Scheduled Tribe.
9. The submission of the learned Advocate Mrs. Prachi Joshi that mere utterances of offending words do not ipso facto constitute an offence under the Atrocities Act in the absence of intention or mens rea ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 9 apeal65.12 to humiliate the members of Scheduled Caste in public view also deserves acceptance. Even if the evidence of the complainant is accepted at face value, the genesis of the altercation lay in the perception of the accused that the complainant is responsible for the domestic or family strife. The altercation did not have any caste angle or contours. Even if it is assumed arguendo that the accused did utter the words attributed by the complainant, it is difficult to come to a conclusion that the words were uttered with the intention that a member of the Scheduled Caste is humiliated in public view.
It is too well settled to warrant an extended debate, that unless the utterances are in public view, an offence under Section 3(1)
(x) of the Atrocities Act is made out. "Public view" is consistently interpreted to mean in the view of persons who are independent and are neither the relatives nor friends nor business associates nor otherwise connected with or interested in the complainant.
10. The prosecution has examined the complainant Ramesh Ramteke as P.W.1, Sarita Ramteke, the wife of the complainant as P.W.2 and one Sachin Rangari as an ostensible independent witness as P.W.7. Sachin Rangari also belongs to the Mahar community and claims to be a neighbour of the complainant. It is extracted in the ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 10 apeal65.12 cross-examination that Sachin Rangari and the complainant are not only residents of the same locality, but had relations with each other. I have closely scrutinized the evidence of Sachin Rangari on the anvil of caution since the propensity to exaggerate and over implicate, is obvious. P.W.7 claims to be a witness to the entire chain of incident including the alleged abuses given by the accused to the wife of the complainant. The deposition of P.W.7 Sachin Rangari that he witnessed a quarrel between the accused and P.W.3, the wife of the complainant was standing in her courtyard, the accused abused the wife of the complainant on caste and thereafter restrained the motorcycle of the complainant Ramesh near the borewell situated in Mahatma Fule Square, is extremely suspect. The deposition is inconsistent with the evidence of P.W.1 and P.W.2 and the spot panchanama. Be it noted, that it is not even the evidence of P.W.1 that the accused told him that because of him there is quarrel between the two brothers and all that is deposed by the complainant is that the accused declared that because of the complainant there was quarrel in the house. Sachin Rangari could not have witnessed, muchless heard the inter se conversation between the accused and the complainant, if the spot panchanama is to be believed. The evidence of Sachin Rangari is not at all confidence inspiring and the possibility that Sachin Rangari is introduced as a ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 ::: 11 apeal65.12 witness to make out a case under Section 3(1)(x) of the Atrocities Act cannot be excluded.
11. I have no hesitation in discarding the evidence of P.W.7 Sachin Rangari, and having done so, I would be constrained to acquit the accused of offence punishable under Sections 3(1)(x) of the Atrocities Act since the utterances attributed have not been proved to be in public view.
12. The conviction of the accused under Section 3(1)(x) of the Atrocities Act is, however, unexceptionable. The evidence which attributes the utterances, which are undoubtedly obscene, is implicitly reliable and confidence inspiring. Nothing is brought out in the searching cross-examination of P.W.1 to dent the credibility of the evidence. The evidence that the accused wrongly restrained the complainant by obstructing the two wheeler at the spot of the incident is again free from embellishments and is trustworthy.
13. In light of the discussion supra, the conviction of the accused under Section 3(1)(x) of the Atrocities Act is set aside. ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 :::
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14. The conviction under Sections 294 and 341 of the Indian Penal Code and the imposition of sentence of fine is maintained.
15. The appeal is partly allowed in the above terms.
JUDGE adgokar ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:33 :::