Bombay High Court

Tulsidas Yeshwant Bhusari vs State Of Maharashtra on 6 April, 2017

Bench: I.K. Jain

apeal.82.00.jud.doc                          1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.82 OF 2000


Tulsidas Yeshwant Bhusari,
Adult, Accountant working in
Akola Ginning & Pressing Co-Op. Factory Akola,
R/o Kaulkhed Locality Akola,
Tahsil & District Akola.                                              .... Appellant
       -- Versus --

State of Maharashtra.                                              .... Respondent

             -------------
Shri R.D. Bhuibhar, Advocate for the Appellant.
Ms. T.H. Udeshi, Additional Public Prosecutor for the Respondent/State.
             -------------


                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : APRIL 6, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 02/09/1997 passed by the learned Additional

Sessions Judge, Akola in Sessions Trial No.35/1997. By the said

judgment and order, appellant-accused came to be convicted of

the offences punishable under Section 506 of the Indian Penal

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

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

referred to as 'the Atrocities Act' for short). He is sentenced as

under :

Sections                Sentence

506 IPC                         ----               Fine of Rs.2,000/-, in
                                                   default, S.I. for 2 months
3(1)(x) of      Imprisonment for 6 + Fine of Rs.1000/- , in
Atrocities Act. months.              default, S.I. for 2 months.




02]             Being aggrieved with the judgment and order of

conviction, original accused has preferred this appeal.

03] The prosecution case, which can be revealed from the

charge-sheet and connecting papers thereto, may be stated, in

brief, as under :

i. PW-1 Jagannath Gopnarayan is the complainant. He

was serving in Akola Ginning and Pressing Co-

Operative Factory Limited, Akola as a Branch

Manager. Accused was working in the same office as

Accountant. Complainant claimed himself to be

belonging to 'Mahar' caste. He received a complaint

on 19/02/1994 against the accused that he demanded

Rs.500/- from one person and placed the said

complaint before the Chairman.

ii. On 22/12/1995, accused entered the Office at 10:00

a.m. Complainant was doing his work. At around

11:00 a.m., accused went to the table of complainant

and asked him why did he forward the complaint to

Chairman. He abused the complainant on his caste

and also threatened that he would see that

complainant is terminated from service and he would

chop up his hands and legs.

iii. Complainant then went to Police Station Ramdaspeth,

Akola and lodged report. Crime No.117/1995 was

registered under Sections 294 and 506 of the Indian

Penal Code and Section 3(1)(x) of the Atrocities Act

against the accused. P.S.I. Zade took over

investigation. He recorded spot-panchnama.

Statements of witnesses, who were present at the

time of occurrence of incident, were recorded. On

completing investigation, charge-sheet was submitted

to the Court of Judicial Magistrate First Class, Akola,

who in turn committed the case for trial to the Court

of Sessions.

04] On committal, trial Court framed charge at Exh.2.

Accused pleaded not guilty and claimed to be tried. His defence

was of total denial and false implication.

05] To substantiate the alleged guilt of accused,

prosecution examined in all six witnesses. Accused did not enter

the witness box and did not examine any witness in support of

his defence. Considering the evidence of prosecution witnesses,

trial Court came to the conclusion that offence under Section

294 of the Indian Penal Code is not proved, but the offences

under Section 506 of the Indian Penal Code and Section 3(1)(x)

of the Atrocities Act have been established against the accused.

In consequence thereof, accused came to be convicted as stated

in paragraph 1.

06] Heard Shri R.D. Bhuibhar, learned Counsel for

appellant and Ms. T.H. Udeshi, learned Additional Public

Prosecutor for the State. With the assistance of the learned

Counsel for the parties, this Court has gone through the

evidence of prosecution witnesses. On meticulous evaluation of

the testimonies of prosecution witnesses and submissions made

on behalf of the parties, this Court for the below mentioned

reasons is of the view that prosecution could not prove the guilt

of accused beyond reasonable doubt.

07] It is not in dispute that on the report of Jagannath

Gopnarayan [PW-1], offences under Sections 294 and 506 of the

Indian Penal Code and Section 3(1)(x) of the Atrocities Act were

registered against the accused. So far as offence under Section

3(1)(x) of the Atrocities Act is concerned, learned Counsel for

appellant vehemently contended that the entire investigation

was vitiated, as investigation was not conducted by the

competent Officer as prescribed in Rule 7 of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Rules,

1995 (hereinafter referred to as 'the Atrocities Rules' for short).

Referring to Rule 7, learned Counsel for appellant submits that

investigation ought to have been by the Officer not below the

rank of Deputy Superintendent of Police.

08] In the case in hand, admittedly investigation was by

the Officer of the rank of Police Sub-Inspector, who was not

authorized to conduct the investigation. On this sole ground, it is

submitted that conviction under Section 3(1)(x) of the Atrocities

Act needs to be set aside. In support of his submission, reliance

is placed on the decision of the Hon'ble Supreme Court in State

of A.P. vs. Viswanadula Chetti Babu - [2011 ALL MR (Cri)

660 (S.C.)] and the decision of this Court in Mansingh

Baburao Garud vs. State of Maharashtra - [2011 ALL MR

(Cri) 1610]. In the case before the Supreme Court,

investigation into the offence under the Atrocities Act was by the

Officer below the rank of Deputy Superintendent of Police and

the Hon'ble Supreme Court in paragraph 4 observed thus :

"4. We are, therefore, of the opinion that in view of the clear mandate of the Rules, it was only a specified Deputy Superintendent of Police who could investigate an offence under the Act. An investigation done by any officer below the rank and not specified as per Rule7 would not be entitled to investigate any

such offence. In the present matter, the investigation has been made by an officer of the rank of an Assistant Sub-Inspector of Police. This was not permissible. We endorse the judgment of the High Court in this respect."

Similar view is expressed by this Court in the case of

Mansingh Garud (supra).

09] Needless to state that Atrocities Rules came into force

on 31st March, 1995. Incident in the present case occurred in

December, 1995 . As investigation was carried out by an Officer

below the rank of Deputy Superintendent of Police, on this count

alone, conviction of appellant for the offence under Section 3(1)

(x) of the Atrocities Act needs to be set aside.

10] So far as offence under Section 506 of the Indian

Penal Code is concerned, it is stated by Jagannath Gopnarayan

[PW-1] in his evidence that accused threatened him uttering that

he would not be in service and he would be terminated from the

service. He also threatened that he would chop up hands and

legs of complainant. So far as threats relating to chopping up

legs and hands are concerned, trial Court has excluded the

evidence of complainant for want of corroboration as Puran

[PW-2] and Dharmpal [PW-3] have not supported the evidence of

complainant to that extent. However, relying upon the evidence

of complainant on alleged threats of terminating the complainant

from service, being corroborated by evidence of other witnesses,

it was held that offence under Section 506 of the Indian Penal

Code has been established against the accused.

11] For constituting an offence under Section 506 of the

Indian Penal Code, it would be essential to look at the definition

of criminal intimidation under Section 503 of the Indian Penal

Code. It reads thus :

"503. Criminal Intimidation - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."

12] On careful reading of the provisions of Sections 503

and 506 of the Indian Penal Code, one thing is certain and it is

the intention to cause alarm to the victim which plays a vital

role. In the case on hand, evidence of complainant and

allegations in F.I.R. would indicate that accused went to the table

of complainant and threatened him that he would not be in

service and he would be terminated from the service. There is

no evidence to indicate that complainant was alarmed by such

threats, which is an essential requirement of Section 503 of the

Indian Penal Code. It means in the absence of an element of

mens rea and particularly intention to raise alarm in the mind of

complainant, it cannot be said that offence under Section 506 as