Bombay High Court
Sitaram vs Unknown on 29 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL REVISION APPLICATION NO. 20/ 2006
Sitaram s/o Mahadu Dhadve,
Aged about 37 years
Occu: cultivator
R/o Tondgaon, Tq. & Dist.Washim... ..APPLICANT
v e r s u s
1) The State of Maharashtra
Through PSO Washim.
2) Sopan s/o Daryaji Gote
Aged about 55 years
3) Uttam s/o Daryaji Gote
Aged about 61 years
4) Govinda s/o Daryaji Gote
Aged about 48 years
5) Vitthal s/o Dnyanba Gote
Aged about 29 years
All by occu: Agriculturist,
R/o Tondgaon Tq. & Dist. Washim
(Police Station Washim) ..... NON-APPLICANTS
RESPONDENTS
::: Downloaded on - 09/06/2013 17:57:55 :::
2
............................................................................................................................
Mr. S U Nemade, Advocate for the applicant
Mr. P D Kothari, APP for Respondent no.1
Mr. M.S.Sambare,Adv.h/for Shri C.,A. Joshi Adv. For Res.2 to 5
.......................................................................................................................
CORAM: A.P.BHANGALE , J.
DATED : 29 November, 2011
th
ORAL JUDGMENT :
The present Revision Application is directed against the judgment
and order dated 17th September, 2005 delivered by learned 3rd Ad-hoc
Assistant Sessions Judge, Washim in Atrocity Case No. 18/2004 prosecuted
by the State of Maharashtra. The Revision-applicant who is the original first
informant in respect of the alleged incident, challenged the judgment and
order of acquittal on the ground that it is unjust, improper and contrary to
the settled principles of law. According to learned Advocate for the revision-
applicant there was sufficient clinching evidence before the trial Court which
was discarded.
2. The facts which appear from the record and proceedings are as
under :
FIR No. 3045/2004 was reported at Washim Police Station on
17.7.2004 by Sitaram Mahadu Dhadve (first informant and revision applicant
herein). The first informant contended that he belongs to "Chambhar"
Scheduled Caste and is residing at Tondgaon, cultivating agricultural land
ad-measuring 5 acres. According to him, adjacent agricultural land in Gut
No. 235 ad-measuring about 3 acres is owned by Sopan Daryaji Gote.
It is stated that on 10.7.2004 at about 111.00 a.m. when first informant
visited his agricultural land, at that time, Sopan was pouring soil in the
boundary that was dug out. On following day i.e. on 11.7.2004, he took
Panchas from the village, namely, Narayan Tukaram Gote, Ramdas Narayan
Gote, Narayan Kisan Gote, Govindrao Shankar Gote and Laxman Kisan Kate
in the field of Sopan Gote to show them the dug out boundary. At that time
Sopan Daryaji Gote, Uttam Daryaji Gote, Vithal Dnaynba Gote, Vinayak
Govinda Gote, all R/o Tondgaon were also present in the field. Panchas had
seen the dug out boundary and opined that the boundary ought to have
been dug out jointly by both the owners. It is alleged that at that time Sopan
Gote questioned the first informant as follows:-
...........................................................................................................................
...........................................................................................................................
............................................................................................................................
...........................................................................................................................
...........................................................................................................................
The words were attributed jointly in evidence to Uttam Gote, Govinda Gote
and Vithal Gote. Thereafter, on 16.7.2004 at about 6.00 p.m. when first
informant returned home, at that time, Sopan Gote, Govinda, Vithal Gote
again abused on the basis of caste as ".........................................................."
and threatened to kill him. The threat was attributed to all the accused.
3. Complaint in respect of the incident which occurred on 11.7.2004
at about 10.00 a.m. on 16.7.2004 at about 6.00 p.m. was lodged at 15.00
hours on 17.7.2004 at the Washim Police Station which was recorded as FIR
No.3045/2004 on 17.7.2004. The investigation followed. Thereafter, as the
spot panchanama was drawn on the same day at about 8.00 p.m. and on
the following day, statements of certain witnesses were recorded by the
Police.
4. After completion of investigation, the accused were charge-
sheeted under section 3(i) (x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 ( henceforth "the Atrocity Act" in short)
and Sections 506 read with section 34 of the IPC.
5. It appears that the case was committed by the learned Judicial
Magistrate, First Class, Washim to the Sessions Court, Washim, which was
registered as Atrocity Case No.18/2004. The charge was framed on
6.1.2005 against as many as four accused namely, Sopan, Uttam,
Govinda and Vitthal Gote under sections 3 (i)(x) of the Atrocity Act as also
under section 506 Part II read with section 34 of the Indian Penal Code. After
the accused pleaded not guilty and claimed to be tried, the evidence was
led.
6. The prosecution chose to rely upon the evidence of first informant
Sitaram, examined as PW 1, Narayan @ Balaji Tukaram Gote, Narayan
Kisan Gote, Ramdas Narayan, Ramesh Narayanswami and the Investigating
Officer - U J Jadhav ( PW 7).
7.
The learned trial Judge who heard the evidence and recorded
statements of accused under section 313 of the Criminal Procedure Code
acquitted the accused by the impugned judgment and order of all offences
with which the accused were charged. The acquittal appears mainly on the
ground that the learned trial Judge posed question to himself as to
whether in the presence of influential person like Sarpanch of Tondgaon
who was also Chairman of APMC, Washim for 15 years, the accused Sopan
would have dared to hurl vulgar vituperative and swearwords and insult
Sitaram. The learned trial Judge expressed his opinion that no sane man
from the village could indulge in the act of hurling abuses as alleged and
give threat of life and limb to Sitaram in the immediate presence of Narayan
Tukaram (PW 3), who was admittedly a very influential person in the
village for last 15 years, working as Chairman of APMC Washim and he
was also the Sarpanch heading Gram Panchayat, Tondgaon during the
period between 1971 and 1977. Furthermore, the learned trial Judge noted
that the accused had no previous antecedent of crime as against them and
they would have a natural sense of fear while facing Sitaram in presence
and supported by three influential persons from the village acting as Panchas.
The incident, according to the learned trial Judge was, therefore, inherently
improbable. The learned trial Judge, therefore, found that the evidence of
witnesses was not cogent and convincing as Sitaram alleged that the incident
had happened on 11.7.2004 and considering that he was supported by
influential persons from the village; his conduct is unexplained as to why
he kept quite for a about six days for lodging the first information report.
Sitaram also alleged one more incident stating that it happened on
16.7.2004 but no witness nobody referred to that incident in the course of
evidence. That being so, the learned trial Judge felt that delay of six days in
lodging FIR casts a serious doubt on the authenticity of the incident.
Furthermore, there was a dispute of immovable property as regards field
between first informant Sitaram and accused Sopan. Under these
circumstances, Sitaram would have immediately lodged a complaint instead
of waiting long for about 6 days. Thus, the learned trial Judge found it
difficult to believe the incident of alleged abuse on the ground of caste and
threat as stated by the first informant - Sitaram in his evidence. The learned
trial Judge concluded that apart from unbelievable evidence of Sitaram and
PW 3, 4 and 5 who were examined as independent and impartial
witnesses. The delay in lodging the FIR was fatal to the prosecution case
and it is difficult to accept the prosecution case as true in respect of the
alleged incident. The learned trial Judge also felt that accusation of criminal
intimidation did not inspire confidence.
8. The learned Advocate for the revision-applicant argued that the
learned trial Judge was swayed by the factum of delay in lodging the FIR
so as to disbelieve the prosecution case and evidence of eye witnesses to the
incident was unreasonably discarded. He prayed that the case may be
remanded back to the learned trial Judge for to re-appreciate the evidence
and decide the case afresh in accordance with law. The learned APP, on the
other hand, submitted that the State did not prefer to challenge the
impugned judgment and order as it appears a well-reasoned order in
accordance with law.
9. The learned Advocate for the respondent/accused submitted that
the delay in lodging FIR was rightly considered as fatal to the prosecution
case in the facts and circumstances of the case when there was village rivalry
and petty politics at village Tondgoan. It was crystal clear from the
admissions elicited from alleged eye witnesses. It was also crystal clear that
the first informant and the accused - Sopan were neighbouring owner of
agricultural lands in the limits of village Tondgaon and they had dispute
over the boundary of their agricultural field. Under these circumstances it is
plausible that when first informant Sitaram had support of influential persons
in the village nobody from the accused persons would have ventured to abuse
Sitaram on the ground of his caste and also give threat to his life and limb
under the circumstances. My attention is invited to the vital omission in the
evidence of Narayan Tukaram Gote who admitted that the words allegedly
uttered by accused Sopan addressing Sitaram as
"..................................................? did not appear in his police statement in
the cross of cross-examination. He also admitted the groupism in the village
and his cordial and good relations with first informant-Sitaram. Thus,
considering that there are three groups in the village he admitted that Dr,
Bhagwan's group is in existence since long. Considering the evidence
referred as above in the light of defence of the accused that they are falsely
implicated on the ground that there are three groups in the village and the
accused belong to Dr. Bhagwan's group which was a rival group than the
group of Narayan Tukaram Gote who was annoyed because accused did not
participate in the canvassing of Narayan at the time of election the accused
apprehended that false case was filed.
10. Learned Advocate for the revision-applicant sought to rely upon
the ruling in Tara Singh vs. State of Punjab: (AIR 1991 SC 63) in order to
submit that the Apex Court in paragraph 4 of the ruling made reference to
the settled principle of law that the delay in giving the FIR by itself cannot be
a ground to doubt the prosecution case. Knowing the Indian conditions as they
are we cannot expect the villagers to rush to the Police station immediately
after the occurrence. Human nature as it is. the kith and kin who have
witnessed the occurrence cannot be expected to act mechanically with all
the promptitude in giving the report to the police. At time because of the
calamity it may not immediately occur to them that they should give a
report. After all it is but natural in these circumstances for them to take
some time to go to the police station for giving the report. Of course in cases
arising out of acute factions there may be a tendency to implicate persons
belonging to the opposite faction falsely. In order to avert the danger of
convicting such innocent persons the Courts should be cautious to scrutinise
the evidence of such interested witnesses with greater care and caution by
adopting process to separate grain from the chaff after subjecting the
evidence to a closer scrutiny and in doing so the contents of the FIR also will
have to be scrutinized carefully. These observations by the Apex Court are
depending upon the facts and circumstances of each case as made clear by the
Apex Court. The observations were made with reference to an incident of
murder punishable under section 302 read with section 34 IPC, particularly
when the Apex Court thought that there was no ground to doubt the presence
of eye witnesses at the scene of occurrence. To my mind, the observations
made by the Apex Court are required to be considered in the light of the
facts and circumstances revealed from each case. In the present case, the
accusation is mainly under section 3 (i) (x) of the Atrocities Act. It may be
possible that due to groupism in village there may be rivalry between
different persons from different grounds false accusations cannot be ruled out
particularly when in a case first informant for unexplained and obscure
reason, waited for days to lodge a complaint/ FIR in respect of alleged
offence punishable under Atrocities Act. Section 3(i) (x) of the Act
punishes intentional insult or intimidation from a person who is not a
member of the Scheduled Castes or Scheduled Tribes when such insult or
intimidation was given at any place within the public view to a member
of a Scheduled Castes or Schedule Tribes. Thus, insult or abuse on the
ground of Scheduled Castes or Scheduled Tribe must be with intention to
insult or humiliate a member of a Scheduled Caste or Scheduled Tribe in any
place within the public view. Mere imputation of name of the caste while
addressing the complainant cannot make out an offence punishable under
section 3 (i) (x) of the Act because simply addressing a person by his caste
without intention to insult or intimidate does not constitute an offence
under the said Section. Therefore, there must be acceptable evidence
beyond reasonable doubts in respect of intentional insult or intimidation for
humiliating a member of a Scheduled Caste or Scheduled Tribe in a any
place within the public view. Considering the circumstances disclosed in the
present case that delay of six days in order to lodge FIR in respect of the
incident which allegedly happened on 11.7.2004 at about 10.00 a.m. FIR
came to be lodged at about 15.00 hours on 17.7.2004. The accusation
made as to the second incident which alleged occurred on 16.7.2004 at
about 6.00 p.m. was also be doubted as there is a human tendency in a
village in which the number of groups are formed due to village rivalry or
politics to involve members of the opposite group in false criminal case.
Under these circumstances, delay in lodging FIR ought to have been
explained properly to the satisfaction of the trial Judge. That was not
done in this case. Therefore, the conclusion by the learned trial Judge that
the delay was fatal to the prosecution case cannot be assailed as faulty. In
another ruling in the case of Pappu Singh vs. State of U.P. : 2002 Cri.L.J.
1251 (Allahabad High Court), it was observed in connection with Section
3 (i) (x) of the Atrocity Act that the offences under the Section is said to have
been made out if a person not being a member of Scheduled Castes or
Scheduled Tribes intentionally insults or intimidates with intent to humiliate
a member of Scheduled Caste and Scheduled Tribes in any place within the
public view. All these ingredients ought to be established beyond reasonable
doubt to the satisfaction of the learned trial Judge even apart from delay in
lodging the FIR. Looking to the facts and circumstances revealed from the
evidence, the evidence did not inspire confidence in the judicial mind. That
being so one cannot find fault with the reasonings arrived at by the learned
trial Judge in a proceedings where the judgment and order of acquittal is
questioned by a private party in Criminal Revision. As already observed, the
State did not find it necessary and proper to challenge the impugned
judgment and order. Considering the fact that the reasons mentioned and
conclusions arrived at by the learned trial Judge in the impugned judgment
and order were based on record of the case including the evidence led before
it, I do not find any substantial or compelling reason to upset the same as it
cannot be assailed as manifestly unjust or unreasonable or patently illegal.
The evidence was appreciated on merits. No fault can be found with the
approach of the learned trial Judge.
11. In the result, no acceptable ground is made out so as to interfere
in the impugned judgment and order of acquittal. Revision being sans merit
deserve dismissal, which I direct.
ig JUDGE
sahare
