IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
CRL.A NO. 1078 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 346/2004 ON THE FILES OF SESSIONS
COURT, WAYANAD,KALPETTA
APPELLANT/ACCUSED:
P.M.SOMAN
S/O.MADHAVAN, PUTHAN VELIYIL HOUSE,, THONDERNADU AMSOM,
NEELOM.
BY ADVS.
SRI.V.RAJENDRAN
SRI.P.SAMSUDIN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE SUB INSPECTOR OF POLICE,, VELLAMUNDA,
THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
DEEPA NARAYANAN, SR.PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1078 of 2006
2
P.V.KUNHIKRISHNAN
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CRL.A.No.1078 of 2006
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Dated this the 3rd day of June, 2022
JUDGMENT
This is an appeal pending before this court for the last 16 years. Eventhough it was filed in the year 2006 and sentence was suspended on 05.06.2006, the appeal was listed for final hearing for the first time only on 17.07.2019. Thereafter it was adjourned for one reason or other. In other words, the appellant was facing the threat of conviction and sentence for the last 16 years. The appellant is the accused in SC No.346/2004 on the files of Sessions Court, Wayanad. The case is charge sheeted against the appellant alleging offence punishable under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, (for short "SC/ST (PA) Act).
2. The prosecution case is like this: PW6 Ravi belongs to Pulaya community, which is a schedule tribe community. Accused belongs to Thiyya community. It is alleged that, on 31.03.2004 at about 5.30 p.m at a place in front of the shop of PW8 situated at Neelom in Thondernadu Amsom, the accused CRL.A.No.1078 of 2006 3 insulted and humiliated PW6 Ravi calling him by his caste name within public view, when he was near the road in front of his house.
3. To substantiate the case, the prosecution examined PW1 to PW11. Exts.P1 to P5 are the exhibits. Ext.C1 was marked as court exhibit and Ext.D1 was marked on the side of the defence. After going through the evidence and documents, the Trial court found that the accused committed the offences under Section 3(1)(x) of the SC/ST(PA) Act. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default to pay the fine, to undergo simple imprisonment for one month. Aggrieved by the conviction sentence, this criminal appeal is filed.
4. Heard the learned counsel appearing for the appellant and the learned Senior Public Pleader.
5. The learned counsel for the appellant submitted that even if the entire prosecution case is accepted in toto, the offence under Section 3(1)(x) of the SCST(PA) Act is not attracted. The counsel takes me through Section 3(1)(x) of the SCST(PA) Act. The counsel also submitted that the prosecution case is that there was a wordy quarrel between PW8 and the CRL.A.No.1078 of 2006 4 accused in front of the shop of PW8. Thereafter, the appellant saw PW6 and he used filthy language against PW6. According to the counsel, even if the said case is accepted, the offence under Section 3(1)(x) of the SCST(PA) Act is not attracted. The counsel also submitted that the alleged incident happened on 31.05.2004. The complaint was filed only on 03.06.2004. The counsel submitted that, there is no explanation from the prosecution about the delay in lodging the complaint.
6. The learned Public Prosecutor on the other hand supported the conviction sentence imposed on the appellant. The Public Prosecutor submitted that there is oral evidence to support the prosecution case. The Public Prosecutor takes me through the evidence of PW6 and the eye witness. The Public Prosecutor submitted that they uniformly deposed that the appellant used the word "പ ലയ" in public view. The witnesses in this case are the shop owner and another person who witnessed the incident and they are natural witnesses. The Public Prosecutor submitted that there is nothing to interfere with the conviction sentence imposed by the Trial court.
7. This Court considered the contentions of the appellant and the prosecution. The point to be decided in this case is CRL.A.No.1078 of 2006 5 whether the appellant committed the offence under Section 3(1)
(x) of the SCST(PA) Act and whether the evidence of PW1 to PW11 and exhibits produced by the prosecution are reliable.
8. It is an admitted fact that the alleged incident happened on 31.05.2004 at 5.30 pm. Admittedly, the first information statement was given by PW6 only on 03.06.2004 at 8.00 pm. Absolutely, no explanation is given by PW6 in his evidence. In Ext.P2(a) first information statement, PW6 stated that he was afraid of the appellant and that is why the delay in filing the complaint. But such a case is not there to PW6 while he was giving evidence before the court. In such circumstances, the delay in lodging complaint and the non explanation of the same will go to the route of the prosecution case.
9. Moreover, the offence alleged against the appellant is under Section 3(1)(x) of the SCST(PA) Act. It will be better to extract Section 3(1)(x) of the SCST(PA) Act.
"3. Punishments for offences of atrocities-(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.
Shall be punishable with imprisonment for a term which CRL.A.No.1078 of 2006 6 shall not be less than six months but which may extend to five years and with fine."
10. To attract the offence under Section 3(1)(x) of the SCST(PA) Act, the prosecution has to establish that the accused intentionally insults or intimidates with intent to humiliate a member of a Schedule Caste and Schedule Tribe in any place within the public view. It is an admitted fact that the incident start in front of the shop of PW8. There was a wordy quarrel between the appellant and PW8. It is also an admitted fact that PW8 and the appellant were the office bearers of a committee constituted in connection with the digging of a public well. The quarrel between the appellant and PW8 was in connection with that committee's activities. Thereafter, the appellant saw PW6, who was standing in front of his house. Then, in continuation of the wordy quarrel with PW8, the appellant raised abusive language against PW6 also. It is true that there is version from all the witnesses including PW6 that the appellant used the word 'Pulaya'. But, the intention of using the words should be to insults or intimidates with intent to humiliate a member of a Schedule Caste and Schedule Tribe. Here is a case where the CRL.A.No.1078 of 2006 7 intention of the appellant from the evidence available shows that it is a wordy quarrel in connection with a dispute with PW8 and PW6 who are the office bearers of a committee constituted for digging a public well. Hence the abusive words used by the appellant against PW6 cannot be taken independently. It is a continuation of the wordy quarrel happened with PW8 and thereafter, the appellant used the same language to PW6. In such circumstances, the offence under Section 3(1)(x) of the SCST(PA) Act may not attract, but other offence may be attracted for using filthy languages. For that purpose, there is no charge against the appellant. In such circumstances, Section 3(1)(x) of the SCST(PA) Act is not, prima facie, attracted even if the prosecution is accepted.
11. Moreover, it is bounden duty of the prosecution to prove the caste of PW6. To prove the same, the prosecution marked Ext.P5 admission extract through PW9 who was the Headmistress of the school in which PW6 studied. But she deposed before the court that, at the admission time of the appellant in the school, she was not working in the school. Thereafter, Ext.C1, the caste certificate of PW6 was marked through PW11 investigating officer. Ext.C1 is a certificate issued CRL.A.No.1078 of 2006 8 by the Tahsildar, Mananthavady. Without examining the Tahsildar, Mananthavady, Ext.C1 is not admissible. Moreover, the caste status of PW6 is seriously disputed by the accused during the cross examination. In such circumstances, it is the duty of the prosecution to prove the caste status of PW6 beyond reasonable doubt. Here is a case where the prosecution is not able to examine the Tahsildar, who issued Ext.C1. That will also affect the prosecution case.
12. Therefore, from the above discussion, the accused is entitled the benefit of doubt. Therefore, this criminal appeal is allowed in the following manner:-
I) The conviction sentence imposed on the appellant as per judgment dated 09.05.2006 in S.C.No.346/2004 on the files of the Sessions Court, Wayanad is set aside.
II) The appellant is set at liberty and the bail bond, if any, executed by the appellant stands cancelled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE bng