apeal443.12.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.443 OF 2012
State of Maharashtra through
Police Station Officer,
Police Station Mohadi,
District Bhandara. ....... APPELLANT
...V E R S U S...
Deoram s/o Dashrath Bandhate
Aged about 40 years,
Occ: Cultivation,
Resident of Khamari (Buz),
Tahsil Mohadi, District Bhandara. ....... RESPONDENT
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Ms. T.H. Udeshi, APP for Appellant/State.
Shri K.S. Motwani, Advocate for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: st
1 NOVEMBER, 2017.
ORAL JUDGMENT
1] The State is in appeal challenging the judgment and
order dated 25.08.2011 in Special Criminal Case 6/2010 delivered by the Special Judge, Bhandara, by and under which, the respondent-accused is acquitted of offence punishable under sections 294, 323 and 506 of the Indian Penal Code and of offence ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:14 ::: apeal443.12.J.odt 2 punishable under section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2] Heard the learned Additional Public Prosecutor Ms. T.H. Udeshi for the appellant-State and the learned counsel Shri K.S. Motwani for the respondent-accused. 3] The case of the prosecution, as can be culled out from the oral report lodged by the complainant on 28.06.2010 (Exh.11) on the basis of which the offence came to be registered against the accused, is thus:
The complainant Manohar Babulkar is a member of the Scheduled Caste and is the Proprietor of a grocery shop situated in a village Khamari. The said shop is jointly managed by the complainant Manohar and his wife Dewangana. The complainant states in the oral report that on 20.06.2010 the accused Deoram visited the grocery shop to purchase grocery on credit, the complainant refused to oblige and the accused left but not before threatening the complainant. The complainant further states in the oral report that on 27.06.2010 when he and his wife were in the grocery shop, at 04:00 p.m. or thereabout the accused ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:14 ::: apeal443.12.J.odt 3 came to the shop and again sought to purchase grocery on credit and on the refusal of the complainant to extend credit, abused the complainant. The oral report states that abuses with reference to the caste of the complainant were also hurled. The complainant told the accused that he would lodge a report and was about to leave on his motorcycle when the accused pushed the motorcycle. The complainant fell down and hurt the thumb of right foot. It is further alleged in the oral report that on 28.06.2010 at 10:00 a.m. the accused again visited the shop and abused the complainant in the filthy language.
4] On the basis of the said oral report, offence punishable under sections 294, 323 and 506 of the Indian Penal Code and under section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was registered. The learned Special Judge, has recorded a finding that the investigation of the offence punishable under the provisions of the section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was not conducted by an authorized officer as envisaged under Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (Rules for ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:14 ::: apeal443.12.J.odt 4 short). That the provisions of section 9 of the Act and rule 7 of the Rules are mandatory is a settled position of law. The offence under the Act is investigated by P.W.8 Pankaj Dahane who has admitted that nothing is produced on record to suggest that he is authorized to investigate the offence under the Act. The learned Special Judge has held that in view of the violation of mandatory provisions of section 9 of the Act and rule 7 of the Rules, the charge under the provisions of the Atrocities Act must necessarily fail. The learned Additional Public Prosecutor, in all fairness has not seriously challenged the said finding of the learned Special Judge. 5] The learned A.P.P. however, submits that the finding of the learned Special Judge that the offence punishable under the provisions of the Indian Penal Code are not established, is manifestly erroneous.
6] The learned Special Judge, in paragraph 11 of the judgment, has observed that the prosecution case entirely hinges upon the evidence of the complainant Manohar and his wife Dewangana. On a holistic appreciation of evidence of the complainant (P.W.1) and Dewangana (P.W.3) the learned Special ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:14 ::: apeal443.12.J.odt 5 Judge has recorded a finding that the evidence of P.W.1 and P.W.3 is marred by too many omissions and contradictions and cannot be relied upon to convict the accused under section 294, 323 and 506 of IPC. The learned Special Judge, has noted that P.W.2 Rajendra Damahe did not support the prosecution and nothing is elicited in the cross-examination to assist the prosecution. P.W.5 Gopichand Nagpure and P.W.6 Subhash Bagade have also been declared hostile since they did not support the prosecution. 7] It is brought out in the cross-examination of the complainant P.W.4 Devanand Santape that the statement of the complainant that the accused insulted him by saying that he was impotent, the statement that the accused visited the shop of the complainant on 26.06.2010, the statement that the accused demanded that he be given grocery on credit and that the amount shall be paid as and when the accused desired, are omissions. It is also proved through the evidence of the P.W.4 Devanand Santape that the statement that the accused pushed the two wheeler due to which the complainant sustained injury on left leg, is an omission. The statement of the complainant that at the time of opening of shop, the accused heaped abuses with reference to caste, is a ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:14 ::: apeal443.12.J.odt 6 proved omission. The statement in the evidence of complainant that four persons named were present at the spot, is again a proved omission. Similar and other omissions are proved through the evidence of P.W.8 Pankaj Dahane.
The learned Special Judge is justified in recording a finding that there is a serious inconsistency between the evidence of P.W.1 Manohar Babulkar and his wife P.W.3 Dewangana on significant aspects. Illustratively, the version of P.W.3 Dewangana as regards the accused having pushed to the two wheeler is quite different from that of the complainant P.W.1.
8] I have given my anxious consideration to the evidence on record in view of the submission of the learned A.P.P. that the reasoning of the learned Special Judge is perverse. However, I do not find any perversity in the reasoning of the learned Special Judge. Au contraire, the view taken by the learned Special Judge is a possible view. I am not inclined to interfere in the judgment of acquittal in the absence of any perversity in the judgment impugned.
9] The appeal is sans merit and is rejected. ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:14 ::: apeal443.12.J.odt 7 10] The bail bond of the accused shall stands cancelled. 11] Order accordingly. JUDGE NSN ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:14 :::