Bombay High Court

Madhukar Nanaji Dandge vs Ku.Shanta D/O Wasudeorao Mankar on 19 April, 2017

Bench: I.K. Jain

apeal.54.02.jud.doc                        1


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


                     CRIMINAL APPEAL NO.54 OF 2002


Madhukar Nanaji Dandge,
Aged about 40 years,
Occupation : Agricultural,
R/o Mangsawangi, Tahsil Babhulgaon,
District Yavatmal.                                                  .... Appellant
       -- Versus --

01]    Ku. Shanta d/o Wasudeorao Mankar,
       Aged about 25 years,
       Occupation : Household,
       R/o Babhulgaon, Tahsil Babhulgaon,
       District Yavatmal.


02]    The State of Maharashtra                                .... Respondents


Shri N.R. Gaikwad, Advocate for the Appellant.
Ms. T.H. Udeshi, Additional Public Prosecutor for Respondent No.2-State.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : APRIL 19, 2017.


ORAL JUDGMENT :-

Being aggrieved by the judgment and order dated

27/12/2001 in Special Complaint Case No.45/1997 convicting the

accused-appellant of the offences punishable under Section 500

of the Indian Penal Code and Section 3(1)(ix) of the Scheduled

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

1989 (hereinafter referred to as 'the Atrocities Act' for short) and

sentencing him to suffer simple imprisonment for six months and

fine of Rs.500/-, in default, simple imprisonment for one month

for the offence punishable under Section 500 of the Indian Penal

Code and simple imprisonment for nine months with fine of

Rs.500/-, in default, simple imprisonment for one month, original

accused-appellant has preferred this appeal.

02] Learned Additional Sessions directed both the

substantive sentences of imprisonment to run concurrently.

03] For the sake of convenience, appellant is referred in

his original status as accused, as he was referred before the Trial

Court.

04] Prosecution case, which can be revealed from the

complaint and connecting papers thereto, may be stated in brief

as under :

i. Complainant Shantabai d/o Wasudeorao Mankar was

resident of Babhulgaon, District Yavatmal. Accused-

Madhukar was resident of Mangsawangi in Tahsil

Babhulgaon, District Yavatmal. On 07/07/1996,

Madhukar lodged report with Police Station

Babhulgaon as he wanted to verify the accounts of

crops in the field, which were with Shantabai w/o

Wasudeo Mankar. Inquiry of the complaint was

entrusted to Head Constable Vishnu Pise attached to

Babhulgaon Police Station. On 17/09/1996, statement

of Madhukar was recorded. In the said statement, he

made certain allegations against Head Constable

Vishnu Pise and expressed his distrust on him. He

requested the higher authority of police that

investigation into his complaint should not be with

Head Constable Vishnu Pise. The statement refers to

contents of application submitted by him on

24/04/1996 against Head Constable Vishnu Pise. The

relevant contents are -

"He has illicit relations with Smt. Shantabai Wasudeo Mankar. He goes to her house at odd hours of night, stays there over night and maintains illicit relations with her. It can be

proved from two persons (1) Shri Girdharsingh Yewtikar and (2) Shri Mahekar (whose name and father's name are not known). Both are residents of Babhulgaon and have complete information in this respect."

ii. In view of the above allegations made in application

dated 24/04/1996, complainant filed a private

complaint before the learned Judicial Magistrate First

Class, Babhulgaon alleging the offence of defamation

and under the Atrocities Act. She submitted that

allegations are absolutely false and by giving such

false report, reputation of complainant has been

lowered down in public and society. She claims

herself to be belonging to Mana community,

recognized as Scheduled Tribe.

iii. In pursuance to the complaint and verification

statement of complainant, Trial Court issued summons

to the accused. Accused appeared and then the case

was committed to the Court of Sessions.

05] On committal, Trial Court framed charge vide Exh.30

against the accused. He pleaded not guilty and claimed to be

tried. His defence was of total denial and false implication.

06] Complainant examined herself and two other

witnesses in support of her case. Considering the evidence of

complainant and other witnesses, Trial Court came to the

conclusion that charge against the accused has been proved and

in consequence thereof accused was convicted as stated in

paragraph 1 above. Hence, this appeal.

07] Heard at length Shri N.A. Gaikwad, learned Counsel

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

Prosecutor for the State. Perused the evidence of complainant

and her witnesses. On the close scrutiny of the evidence and

taking into consideration the submissions made on behalf of the

parties, this Court, for the below mentioned reasons, is of the

view that guilt of the accused is not proved beyond reasonable

doubt and accused ought to have been acquitted by the Trial

Court.

08] It is not in dispute that on the report of complainant-

Shantabai, offence under Section 500 of the Indian Penal Code

and Section 3(1)(ix) of the Atrocities Act came to be registered

against the accused. So far as the offence under Section 3(1)(ix)

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.

09] In the case on 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)(ix) of the Atrocities

Act needs to be set aside. In support of 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 decisions of this Court in Mansingh Baburao

Garud vs. State of Maharashtra - [2011 ALL MR (Cri)

1610] and Tulsidas Yeshwant Bhusari vs. State of

Maharashtra in Criminal Appeal No.82/2000, decided on

06/04/2017. 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 and in Tulsidas Bhusari (supra).

10] Needless to state that Atrocities Rules came into force

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

24/04/1996. 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)(ix) of

the Atrocities Act needs to be set aside.

11] So far as offence under Section 500 of the Indian

Penal Code is concerned, it would be necessary to look into the

provisions of Section 499 of the Indian Penal Code. The essential

ingredients of the offence punishable under Section 499 of the

Indian Penal Code are that the imputation should have been

made or published with intention of causing harm or with the

knowledge or with reasons to believe that the imputation will

harm the reputation of such person. A publication is also

essential part of the cause of action.

12] Prime question in the present case is whether

appellant-accused made defamatory remarks against

complainant- Shantabai in the communication dated 24/04/1996.

It is for the complainant to show that accused intended or knew

or had reason to believe that imputation made by accused would

harm the reputation of complainant.

13] Section 44 of the Indian Penal Code defines "injury".

It denotes any harm whatever illegally caused to any person, in

body, mind, reputation or property. The word "injury" includes

harm caused to the reputation of any person. It also takes into

account the harm caused to person's body and mind. Section

499 of the Indian Penal Code defines defamation. It provides for

harm caused to the reputation of a person i.e. the complainant.

14] For the sake of convenience, it would be appropriate

to extract the relevant portion from the statement of accused

[Exh.50], which runs as under :

ßvkrk eyk iks y hl vf/k{kd ;orekG ;ka p s dMw u eh fnuka d 24-08-96 jks t h ikBfoys y k teknkj fo".kq fils ;kps fo#/nkr fnys y k vtZ nk[kfoyk rks vtZ ehp ikBfoys y k vlw u R;koj ds y s y h ejkBhr ek>hp lgh vkgs - R;k vtkZ e/;s eh tek- fo".kq fils cn~ n y vls fygys vkgs dh] R;kpk Jherh 'kka r kckbZ oklw n s o ekudj ghps l h vuS r hd la c a / k vkgs - o rs jk=h cs j k=h R;ka p s dMs ;s Å u eq d ke djrkr- o vuS r hd la c a / k Bs s Å u vkgs - ;k la n HkkZ r ekÖ;kdMs nks u iq j kos vkgs 1- xhj/kjfla x ;s o rhdj

rls p ,d es g j ukokpk ¿uko o ofMykps uko ekghr ukghÀ nks U gh jk- ckHkq G xka o gs vkgs R;ka u k ;k la n HkkZ r iw . kZ ekghr vkgs - Þ

15] PW-3 PSI Sayyad had recorded the statement of

accused. The evidence of PSI Sayyad shows that in his

statement, accused admitted that he moved an application to

Deputy Superintendent of Police, Yavatmal and levelled

allegations against complainant Shantabai Wasudeo Mankar

having illicit relations with Head Constable Vishnu Pise. In the

present case, complainant is Shanta d/o Wasudeo Mankar. At

the time of presenting complaint, she stated her age as 25

years. Her evidence was recorded in the Court on 23/06/1999.

That time, she stated her age as 27 years. She has specifically

mentioned in the compliant and in her evidence that she is

unmarried. If report lodged by accused on 24/08/1996 and

statement dated 17/09/1996 are minutely looked into, it is

apparent that name appears as Smt. Shantabai w/o Wasudeo

Mankar and accused candidly referred that Smt. Shantabai has a

daughter aged about 20-22 years, who is in full-fledged of her

youth, with whom the Head Constable has close illicit

relationship. It means, Shantabai referred in the communication

is a married lady having daughter aged about 20-22 years. She

is not unmarried and not aged about 25 or 27 years as stated in

the complaint and the evidence by the complainant. This makes

the very identity of complainant doubtful. There is no whisper in

the entire evidence that except complainant Shantabai, no other

lady of the same name is in the village. In view of this anomaly

and confusion, this Court finds that even offence under Section

500 of the Indian Penal Code cannot be said to be made out

against the accused.

16] In the above premise and considering the inherent

deficiencies in the communication and evidence, this Court is of

the view that complainant could not establish the charge against

the accused. As such, the judgment and order of conviction and

sentence is unsustainable in law. Hence, the following order :

ORDER

i. Criminal Appeal No.54/2002 is allowed.

ii. Impugned judgment and order of conviction and

sentence of the appellant-accused passed by the

learned Additional Sessions Judge, Yavatmal, dated

27/12/2001 is set aside.