Mohammad Nazim Mohammad Kasim vs State Of Mah
2016 Latest Caselaw 4433 Bom

                                                        Criminal Appeal No.235/2005
                                              1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                               
                                   BENCH AT AURANGABAD




                                                       
                        CRIMINAL APPEAL NO.235 OF 2005




                                                      
     Mohammed Nazim s/o Mohammed Kasim
     Age 34 years, Occ. Photographer,
     R/o Dargah Road, Ghalib Nagar,
     Parbhani                         ...                       APPELLANT
                                                                (Orig. Accused)




                                         
              VERSUS

     The State of Maharashtra
                             
     (Copy served on the Public Prosecutor,
     High Court of Judicature
                            
     at Bombay, Bench at Aurangabad)                   ...      RESPONDENT


                       .....
     Shri Joydeep Chatterji, Advocate for appellant
      

     Mrs. V.N. Patil Jadhav, A.P.P. for respondent/ State
                       .....
   



                                     CORAM:       A.I.S. CHEEMA, J.





                                     DATED:       4th August, 2016.

                      Date of reserving judgment : 21st July, 2016
                      Date of reserving judgment : 4th August, 2016.





     JUDGMENT:

1. The appellant (original accused) was prosecuted

before 2nd Adhoc Additional Sessions Judge, Parbhani in Special

Case No.22/2004 and he came to be convicted on 29.3.2005.

The Additional Sessions Judge convicted the appellant for offence

Criminal Appeal No.235/2005

under Section 3(1)(x) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred

to as the "Atrocities Act" for short) and sentenced him to rigorous

imprisonment for six months and fine of Rs.200/-, in default of

fine, he was directed to suffer rigorous imprisonment for one

week. He was also convicted for offence under Section 353 of

the Indian Penal Code, 1860 and sentenced to rigorous

imprisonment for one month and to pay fine of Rs.200/-, in

default of fine, it was directed that he will suffer rigorous

imprisonment for one week. He has been convicted under

Section 294 of the Indian Penal Code and sentenced to suffer

rigorous imprisonment for one month and fine of Rs.200/-, and in

default, to suffer rigorous imprisonment for one week. He has

also been convicted under Section 323 of the Indian Penal Code

and sentenced to pay a fine of Rs.500/-, and in default, to suffer

rigorous imprisonment for one month. The present appeal is

filed being aggrieved by the said judgment of conviction and

sentence.

2. The case of prosecution in brief is as follows :

(a) Complainant Sambhaji Gaikwad (P.W.1) (hereinafter

referred as "complainant") filed F.I.R. Exh.13 at Police

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Station, New Mondha, Parbhani on 3.3.2004 and Crime

No.55/2004 was registered. The complainant reported

that, he is Mahar by caste and was working as District

Information Officer at Parbhani, since about two years.

On 3.3.2004 there was scheduled visit of the Governor

to Parbhani and he had the job of issuing passes to

journalists. For this purpose, on 2.3.2004, he was

working in his chamber in the administrative building at

Parbhani and time was about 7.30 p.m. The accused, a

photographer at that time came to the office in his

chamber and asked him as to why his pass has not been

made. The accused abused the complainant, calling him

"Mahardya, Dhedgya", asking why his pass has not

been made and why in the list given to Police

Commissioner Office his name had not been put.

(b) The F.I.R. further recorded another dirty abuse adding

that the accused abused complainant calling him

"Mahardya, Dhedgya" and asked him to come out and

that he will be burnt to death by putting kerosene.

Such threat and abuses were given. At that time, in the

office of complainant there were other persons like

P.W.2 Pravin Prabhakarrao Bhanegaonkar, Anil

Pardeshi, P.W.3 Rajesh Labade, Shankar Shelke,

Criminal Appeal No.235/2005

Ramnarayan Daga, Weekly Editor Shri Ulhas Devghare.

It was reported that the accused then went to the office

of Police Commissioner and brought the pass and

declared to the complainant that he has brought the

pass from father of complainant. The accused

threatened the complainant to come out of the office

and he will see him. Complainant reported in the F.I.R.

that he informed this incident to Resident Deputy

Collector ig (R.D.C.) on telephone, who told the

complainant that there is visit of the Governor tomorrow

and thereafter the accused would be called and

explained.

(c) Complainant further informed that, on the next day of

3.3.2004, there was visit of Governor to the Technology

Centre of Agricultural University and after the

programme, when he came out from the said

Technology Centre at about 3.30 p.m. and was about to

enter his car and proceed, the accused came near the

Car and giving an abuse, he boxed the complainant on

his mouth. At that time, in the car there was employee

P.W.3 Rajesh Labade and Driver Shamrao Suryawanshi.

The complainant, however, waited for the programme of

the Governor to be over and after the programme, he

Criminal Appeal No.235/2005

finished his work and thereafter had come to the police

station to file the complaint (Exh.13).

(d) The offence was registered and S.D.P.O., Parbhani

P.W.4 Navinchandra Reddy investigated the offence. He

went to the spot, which was the office of the

complainant and recorded panchanama Exh.21. He

asked the complainant and accused to produce their

caste certificates. Complainant produced his caste

certificate Exh.14 showing that he was Mahar by caste.

The accused produced his caste certificate Exh.22

showing that he was Chhaparband. Statements of

witnesses were recorded and charge sheet came to be

filed.

(e) Charge was framed against the accused. He pleaded

not guilty. His defence is of denial. Prosecution

examined four witnesses. Trial Court considered the

oral and documentary evidence and the defence, and

convicted the accused with sentences passed, as

mentioned above.

3. In this appeal, I have heard learned counsel for the

appellant-accused. He contended that, although the complainant

P.W.1 and another employee P.W.3 Rajesh Labade deposed

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about the abuses which were stated to be given, P.W.2

Prabhakar only mentioned that abuses were given without

specifying what were the abuses. According to the counsel, it is

surprising that there were other employees in the office and they

did not intervene to stop the accused from the behaviour in the

cabin of the complainant. It is argued that, the caste certificate

produced of the complainant was certified copy of the caste

certificate and original had not been produced. According to the

counsel, the accused should have been acquitted of the offence

under the Atrocities Act. The police prepared spot panchanama

only of the office of the complainant and did not prepare the spot

panchanama of the place where in the University,it is alleged, the

the accused boxed the complainant. It is argued that, P.Ws.2

and 3 are subordinate employees of the complainant and thus,

should have been disbelieved. The Driver of the Car was not

examined for the second part of the incident, which is dated

3.3.2014. There was delay in filing of F.I.R., as the complainant

did not tell the police available at the time of programme of

Governor. Although it was deposed that he informed the incident

on 2.3.2004 to the R.D.C., the R.D.C. was not examined. Police

did not record the statement of R.D.C. also. He went to Police

Station only on the next day. Thus, according to the counsel, for

these reasons the accused should have been acquitted.

Criminal Appeal No.235/2005

4. The learned A.P.P. opposed the arguments of the

learned counsel for the appellant-accused. According to the

learned A.P.P., there is evidence of P.Ws.1, 2 and 3, which goes

to prove the incident. P.Ws.1 and 3 deposed regarding the

incident which took place on 2.3.2004 as well as on 3.3.2004.

The complainant was senior officer, who was busy with the

programme of the Hon'ble Governor and could not leave his job

midway to go and file report to the police station. According to

the A.P.P., there is nothing wrong in this and delay should be

treated as properly explained. In evidence, there is no denial of

the fact that the complainant was Mahar by caste. The appeal

deserves to be dismissed.

5. I have gone through the evidence as well as the

judgment of the trial Court and the reasons recorded for

conviction and sentence. The evidence of the complainant P.W.1

Sambhaji Gaikwad shows that, on 2.3.2004 he had the additional

charge of District Information officer. There was visit scheduled

of the Hon'ble Governor on 3.3.2004 in Parbhani district. His

evidence is that, with the help of police, his office was

distributing passes to newspaper correspondents and

photographers and media persons. He deposed that, he was

Criminal Appeal No.235/2005

doing the work of distributing passes in his chamber, which is

situated in the administrative building. Spot panchanama of the

said place has been proved at Exh.21 by P.W.4 S.D.P.O. The

evidence of complainant is that, the time was about 7.30 p.m.

when the accused, who is a press photographer, came to his

office and entered his chamber. According to complainant,

without asking anything, the accused started abusing the

complainant in filthy language and the accused started asking as

to why his name has not been sent to the Police Department.

The evidence of complainant records dirty abuse given by the

accused which the complainant has referred in his F.I.R. also.

The complainant further added that the accused abused him

saying "Dhedgya" and threatened him to come out of the office

and he will burn the complainant by pouring kerosene on him.

Evidence of complainant is that, he requested the accused to

show his identification and told him that he will ask the police

officer including the Superintendent of Police to provide pass to

him. The evidence is that, the editors sent the names of

reporters and photographers to the office of complainant for

issuing passes and as the name of accused was not there, pass

had not been issued to him. Complainant has deposed that,

although he offered the accused to show his identification and

that he will get the pass issued, the accused banged on the table

Criminal Appeal No.235/2005

of the complainant in loud voice. P.W.2 Pravin and P.W.3 Rajesh

Labade were there and there was also one Anil Pardeshi as well

as others in the office. Complainant deposed that, after such

behaviour, accused departed from there giving threats to the

complainant. The evidence is that, he came back in an hour

showing the complainant a pass, saying that he had got it from

his father. Complainant deposed that, after the accused left, he

telephonically informed the R.D.C. about the behaviour of the

accused and requested that, for tomorrow's programme they will

have to be cautious. Contents of the F.I.R. Exh.13 are

substantially proved by oral evidence in this regard.

6. This evidence of complainant is corroborated by

P.W.2 Pravin Bhanegaonkar. He was working as Clerk on that

day in the concerned office of complainant. He has also deposed

that, the complainant was Incharge District Information Officer at

that time. His evidence is that, the complainant is Mahar by

caste. In this regard, even the complainant has deposed saying

that he is Mahar by caste and has supplied his caste certificate to

the police. He proved his caste certificate at Exh.14. P.W.2

deposed that, the incident took place on 2.3.2004 in the office of

District Information Officer at 7.30 p.m. The work in respect of

tour of the Hon'ble Governor was in progress. The accused

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reached the office and started abusing complainant Sambhaji,

who was in his cabin. According to him, he was present at that

time. P.W.2 deposed that, accused was giving filthy abuses and

after such incident, departed from the office and again came

back later to the office with pass. In the cross-examination, this

witness was asked and stated that, there were 5-7 staff

members working in the office, but they did not try to resist or

try to convince the accused or to inform the police. The learned

counsel for the ig accused has expressed surprise on such

behaviour of these employees. However, I do not find anything

surprising in this as the accused, a press photographer, had

come there and was quarreling with senior officer. If Clerks like

P.W.2 Pravin and P.W.3 Rajesh Labade did not have the courage

to interfere, that by itself is not a conduct of which the accused

should get benefit. Although dirty abuses were being given

including abuses on caste, as can be seen from the evidence of

complainant and the evidence of P.W.3, it is not a case where

physical assault started in the office which would require physical

interference. The employees may be confused as to how they

should react. This is possible as Government employees many

times try to keep restraint as much as possible and when it is

matter of superior they may wait for instructions, or at least a

signal from the superior.

Criminal Appeal No.235/2005

7. It is true that, the evidence of P.W.2 does not give

details of the alleged abuses, but the fact remains that, his

evidence also shows that the accused came in the office giving

abuses to the complainant. The complainant gets corroboration

from P.W.3 Rajesh Labade, who deposed that, they were

preparing security passes in the office and he was sitting in the

cabin of the complainant and at about 7.30 p.m., accused came

there and started asking the complainant as to why his name is

not incorporated in the list of security passes. P.W.3 deposed

that, the accused started giving abuses in filthy language. Even

this witness has referred to the specific dirty abuses recorded by

the complainant in the F.I.R. and in his evidence also. P.W.3

corroborated complainant that accused addressed the

complainant calling him out as "Mahardya" and threatening that

the complainant should come out of the office and he will see

him. The evidence of P.W.3 corroborates the complainant that

after some time the accused came back brandishing a pass to the

complainant, saying that his father had given him the pass. So

saying, the accused had left.

8. The evidence regarding part of the incident dated

2.3.2004 is thus sufficiently corroborated. There is no reason

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why P.Ws.1 to 3 should speak against the accused. There is no

material to show if they had any axe to grind against the

accused. They appeared to have been doing their job in ordinary

course of business and suddenly the accused appears to have

gone to the office and misbehaved, giving dirty abuses as well

as abusing complainant on the basis of caste. The evidence of

complainant in cross-examination shows that, he was knowing

the accused to be a press photographer of a daily newspaper and

that the accused used to visit office of the complainant. The

cross-examiner brought on record that, prior to the incident the

relations between the accused and the complainant were cordial.

Thus, it appears that, the accused was knowing the complainant

since before. The evidence shows that, he got agitated when he

did not find his name in the list of eligible media persons for the

purpose of pass and vent his anger on the complainant. In the

process, the accused intentionally insulted the complainant on

the basis of caste. He gave threats to the complainant to cause

harm to him and humiliated the complainant in his own office.

9. Although the learned counsel for the accused has

argued that the complainant should have produced his original

caste certificate, the record shows that the certified true copy of

the caste certificate was proved in the trial Court. Although the

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complainant was asked regarding where the original is, the basic

evidence of complainant that he is Mahar by caste is not denied.

The evidence of P.W.2 also that the complainant is Mahar by

caste, is not denied in cross-examination.

In the matter of "Kailas & others V/s State of

Maharashtra" reported in A.I.R. 2011 S.C. 598, the Hon'ble

Supreme Court, in para 10 of the judgment, expressed surprise

when acquittal under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 was recorded because Caste

Certificate was not produced. It was observed that, such ground

was hyper technical ground. In present matter, apart from

certified copy, there is oral evidence which is not denied.

The trial Court has considered the certificate of the

accused Exh.22, which recorded that he was Chhaparband

(Vimukta Jatis). Considering the provisions provisions of the

Atrocities Act, the trial Court found the accused guilty under

Section 3(1)(x) of the Atrocities Act, as it then stood. I find no

reason to disturb the conviction and sentence on this count.

10. Then there is evidence of P.W.1 complainant

Sambhaji as well as the evidence of P.W.3 Rajesh Labade, which

Criminal Appeal No.235/2005

shows that, on 3.3.2004, the Hon'ble Governor of Maharashtra

visited the Information Technology Centre. The evidence of

complainant is that, the said function took place at about 5.30

p.m. His evidence is that, after the Hon'ble Governor entered

the Centre, the police closed the entry for persons who had

remained out and thus, the accused could not enter the Centre.

His evidence is that, he was in the Centre when the Governor

had visited. After the departure of the Hon'ble Governor, he also

departed from the Centre behind the Governor. According to

him, he was about to enter his vehicle and at that time, the

accused came there running and gave fist blow to his left cheek.

Complainant stated that, at that time, his driver Suryawanshi

was in the vehicle and Clerk Rajesh Labade was also there. This

evidence of the complainant is corroborated by P.W.3 Rajesh

Labade who has also deposed that there was programme of the

Governor at the Agricultural University, Parbhani and after

visiting the Information Technology Centre, they had come out

and he was in the jeep of the complainant, at which time the

accused came there and abused and dealt fist blow to the cheek

of complainant.

11. The evidence of complainant and P.W.3 both show

that, in spite of such incident they, however, completed the

Criminal Appeal No.235/2005

programme of Hon'ble Governor and thereafter came back to

their office. The evidence of complainant is that, coming back to

the office he completed his work which required him to send

information of the tour of the Governor to newspapers. He

deposed that, only thereafter he went to the police station and

filed the F.I.R. Exh.13. The evidence of complainant is

corroborated by P.W.3 and there is no reason to disbelieve the

evidence on this count. The accused brought on record details

that there were police officials available who could have been

informed incidents and the F.I.R. was not filed from the evening

of 2.3.2004 till the next day till after the visit of Hon'ble Governor

was over. It has been argued that even after the Hon'ble

Governor left, the complainant did not go directly to the police

station when he was caused hurt, but went only subsequently

after completing the work in the office. Perusal of the F.I.R.

shows that, these reasons were recorded even in the F.I.R. As a

responsible senior officer, complainant had a job to do when the

Hon'ble Governor was about to depart and when the visit of

Hon'ble Governor was being executed, he had to ensure that the

things went right. Even the R.D.C. appears to have told him to

let the Hon'ble Governor's programme be first over. This is

mentioned in the F.I.R. Even after the Hon'ble Governor left, as

District Information Officer, complainant had the responsibility to

Criminal Appeal No.235/2005

first ensure that the information reaches the right quarters. Had

there been failure, may be he would have suffered more if the

visit of the Hon'ble Governor had not received appropriate

publicity and information. Thus, the complainant first completed

his job and then filed the F.I.R. Delay is properly explained and

there is no reason to doubt the complainant on this count. There

is no substance in the arguments in this regard.

12.

The argument that, P.Ws.2 and 3 were subordinates

of the complainant and so they speak in favour of the

complainant has no substance. In the statement of P.W.3, some

contradictions are proved, however, they are not material

contradictions. P.W.3 did not agree to the Portion A that he had

accompanied the complainant to the police station. He did not

agree to Portion B in the statement Exh.23 that he had also gone

inside the Information Technology Centre and then returned to

the jeep. Material is that, when the accused did assault the

complainant, this witness was there in the jeep. Regarding that

part, there are no contradictions or omissions.

13. For such reasons, I do not find substance in the

submissions of the learned counsel for the appellant-accused.

Even as regards argument that spot panchanama of the

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Information Technology Centre was not prepared, that by itself

does not mean that the evidence of P.Ws.1 and 3 regarding

accused assaulting should be discarded. The trial Court has

discussed all the evidence and arguments which were raised, and

going through the judgment of the trial Court, I do not find any

reason to interfere. The trial Court has rather been very lenient

in its sentence. Although much time has passed since the

incident, the sentence needs to be maintained looking to the

gravity of the offence where an honest and sincere official like

P.W.1, for whom his work was more important than personal

insult and assault, was assaulted to deter him from discharging

his duty, abused on caste, given other dirty abuses and was also

caused hurt.

14. There is no substance in the Criminal Appeal. The

Criminal Appeal is dismissed. Appellant - accused to surrender to

his Bail Bonds. Trial Court shall ensure execution of the

sentence.

(A.I.S. CHEEMA, J.)