Bombay High Court

The State Of Maharashtra vs Bhagwan Maruti Mane @ Kamble & Ors on 1 June, 2017

Bench: Anoop V. Mohta

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELATE JURISDICTION

                          CRIMINAL APPEAL NO.483 OF 2003

      State of Maharashtra                                        ..Appellant.

                      V/s.

      1.     Bhagwan Maruti Mane @ Kamble,
             Age: 45 yrs., Occu; Labour, R/o. Kerli,
             Taluka Karvir, District Kolhapur

      2.     Ravindra @ Balu Vasantrao Patil,
             Age: 36 yrs., Occu; Labour,, R/o. 714,
             Award, Rajaram Chowk, Timber
             Market, Kolhapur.

      3.     Nandkumar Ramchandra Mane,
             Age: 52 yrs., Occu; Contractor & Editor,
             R/o.2656, B Ward, Mangalwar Peth,
             Kolhapur.                                            ..Respondents.


      Mrs.Sharmkla Kaushik, APP for the appellant - State.

      None for the Respondents.


                                          CORAM : ANOOP V. MOHTA, J.

DATE : 1st JUNE, 2017

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ORAL JUDGMENT:

INTRODUCTION :

1] This is an appeal under section 378(1) of the

Criminal Procedure Code, 1973, against the order of acquittal

dated 28th October, 2002, passed by the IV Ad-hoc Assistant

Sessions Judge, Kolhapur, in Sessions Case No.26/2002,

whereby accused Nos.1 to 3 have been acquitted. They were

charged for the offences punishable under section 3(1)(v)(x) of

the Schedule Castes and Schedule Tribe (Prevention of

Atrocities) Act, 1989 (The Atrocities Act), section 7(1)(d) of the

Protection of Civil Rights Act (The Civil Rights Act), under

sections 384, 347, 504, 506 and 323 read with 34 of the Indian

Penal Code (IPC) and sections 5 and 33 of the Bombay Money

Lenders Act, 1947 (The Money Lenders Act).

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PROSECUTION CASE IN SHORT :


2]              The complainant PW1 (Vasant) (a cobbler) (Marathi

meaning Chamar or Chambhar) took a loan of Rs.14,000/- and

borrowed 10,000 bricks in the month of June, 2000 for

construction of his house from accused No.3 (Mane). There

was no regular repayment. There was an issue with regard to the

repayment. As stated, in view of the threats given, the

complainant, on 15 August, 2000, made a part payment of

Rs.4,000/-. There was a regular demand of interest on the

amount. The allegations were made of extractions of money from

the complainant by accused No.3. Two accused, out of three,

are from Maratha community. The complainant and one accused

belong to scheduled caste / tribe community. As stated, on 4th

September, 2001, at about 11.00 p.m., all the accused visited the

complainant's house and demanded the balance and threatened to

set on fire the complainant's house. On 5th September,

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2001, between 9.00 to 9.30 a.m., all the accused again came in

Maruti car. The complainant's wife came out first. Accused

inquired about the complainant. The complainant came out of

the house. The accused abused the complainant as

"Chambardya Tu Gharatach Aahes, Baher Ka Ala Nahis".

The accused manhandled and tried to push the complainant in

the car. The complainant escaped from the clutches of the

accused and ran away. At the time of incident, as stated, about

25 to 30 people were present. The complainant thereafter came

to Karvir police station and lodged the complaint at night 9-30

p.m. After investigation, a delayed charge-sheet came to be

filed. The learned trial Judge framed the charges. As there

was denial, the trial proceeded. The prosecution has examined

11 witnesses. There was no defence witness examined.

The learned judge, after hearing the parties, by the reasoned

order, has passed the order of acquittal.

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THE STATE APPEAL - SCOPE :


3]              The State has preferred this appeal. There is no

appeal and / or application filed by the complainant. Therefore,

considering the scope of appeal against the order of acquittal

and keeping in mind the provisions of law to interfere and / or

not to interfere with, when there is no perversity, illegality or

material irregularity in the findings arrived at by the learned

trial Judge, I am proceeding ahead.

NO CASE IS MADE OUT :

4] Heard the learned A.P.P. for the State, who read and

referred to the evidence and the reasons given by the learned

Judge while acquitting the accused of the crime; that on 5th

September, 2001, accused No.3 insulted and humiliated the

complainant by abusing and threatening and thereby committed

offences punishable under the Atrocity Act, the

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Protection of Civil Rights Act and the IPC. Point by point

reasons are given by the learned trial Judge based upon the

materials and the judgments. By keeping in mind the basic

principles and scope of appeal against the acquittal, I have also

noted that there is no case of perversity and / or illegality. There

is no contra material to interfere with the reasoned order so

passed. I am inclined to dismiss the appeal filed by the State

also for the following reasons.

5] In reference to point No.1, it is necessary for the

prosecution under the Atrocities Act to prove the caste of the

complainant. There is no contra material or data placed on

record to disprove the caste of the accused. Accused no.1

belongs to scheduled caste / tribe. Accused No.2 Balaso Patil

and No.3 Nanda Mane belong to Maratha community.

The complainant belongs to cobbler caste.

Specific charges, though made against accused No.3, referred to

the accusations, but the witnesses, including the

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complainant's wife and other witnesses PW2 (Sangare) and

PW5 (Nangare), failed to prove it. As recorded even by the

learned trial Judge, who had, out of three, specifically insulted

and humiliated the complainant remained unproved. All these

witnesses in their evidence stated that the accusation was by all

the accused. The alleged offences under the Atrocity Act

have serious consequences, therefore, that cannot be vague and /

or unclear. I am also of the view that prosecution has failed to

prove the charges specifically so raised revolving around the

Atrocities Act and/or the Civil Rights Act. In the present case,

after going through the evidence of the complainant and the

supporting witnesses, referred to above, about the accusations, I

have also noted the material contradictions and veracity in the

evidence and the statements. There was uncertainty in the

statements that accused No.3 only had abused the

complainant.

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6]              The incident is stated to have lasted for 10 to 15

minutes in presence of other 25 to 30 persons. No other

evidence and / or witness supported the case that all the accused

abused or threatened the complainant. This is specifically in

the background that monetary transaction was entered into

between the complainant and accused No.3, including the

liability of the complainant to repay the same.

7] The prosecution witness PW5 (Mahipati) has not

supported the case of abuse by accused No.3. The said witness was

declared hostile. It is recorded that the story narrated by this witness

was not the case of the complainant. The name of this witness

did not figure in the complaint. The presence of PW5 (Mahipati)

was itself, as rightly noted, in doubt, on the day of the incident

and at the relevant time. He was unable to give detailed

description of the persons, who were wearing white shirt and

pant. There was no identification parade conducted. There

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is nothing wrong, therefore, in observing that this evidence cannot

be accepted to lend support to the version of the complainant.

Even if the case of manhandling is taken note of, the accusation

by the specific accused, is not made out. Evidence of PW6

(Shelke) was not supporting the case so mentioned in the F.I.R.

8] PW7 (Akkatai), wife of the complainant PW1

(Vasant) is another witness, who failed to support the case that

accused No.3 only abused. On the contrary, she also stated that

all the accused abused the complainant. The learned trial Judge

has recorded that this evidence cannot be accepted. There is

material variance in her evidence and allegations in the

complaint. The prosecution case that on 5th September, 2001,

accused No.3 abused the complainant was not supported even

by this material witness when she stated that all the accused

abused her.

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9]              The evidence PW8 (Vitthal), a nephew of the

complainant, who met the complainant on the same day, was

also insufficient to accept prosecution case. The complainant

never disclosed the abuse given to him by the accused and

specifically by which accused. He was not a direct witness to

the incident. Therefore, taking overall view of the matter, I am

of the view that the prosecution has failed to prove accusations

by accused No.3 or any other accused. Therefore, the findings

given by the learned trial Judge, referring to all the points,

including 1 to 8, cannot be stated to be perverse, illegal or

contrary to law. The findings are well within the law and the

record.

10] Another aspect is that, though the complainant stated in

his evidence that after the scuffle, he immediately escaped from

the clutches of the accused and ran away and lodged complaint.

The complaint was filed after 12 hours, as recorded by the

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trial Judge in para 29. The positive averments about the constant

harassment and torture by the accused, for alleged demand of

interest and penalty were since 2000 to 2001. There was no

complaint lodged by the complainant to anyone. Even there was

no complaint to the nearest police station at the relevant time,

immediately after the incident of such nature, if any. Therefore,

doubts expressed about the prosecution case by the learned trial

Judge cannot be overlooked, in the background of commercial

relations between the parties about the transaction and the

liability of the complainant.

11] Under the Atrocities Act, the investigation is

required to be carried out by the specifically empowered officer.

The observation made by the learned trial Judge based on the

judgment of this Court in 1Ramnath Sadashiv Kolhatkar V/s.

The State of Maharashtra that issuance of the order by the

1 1999 All (MR) (CRI) 839

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Superintendent of Police was not sufficient as no other person

below the rank of Deputy Superintendent of Police and / or

empowered by the State Government to investigate the offences,

just cannot be overlooked. Further, the Apex Court in 2State of

M.P. v. Chunnilal @ Chunni Singh mandated that the entire

investigation is required to be conducted by the officer not

below the rank of Deputy Superintendent of Police having past

experience and sense of ability to perceive the implication of

the case. In the present case also, the investigating officer was

not above the rank of Deputy Superintendent of Police and / or

by the Deputy Superintendent of Police.

12] The case that the accused had obtained the

signatures of the complainant on blank papers; and he was

under threat for so many months and that he was charging

interest contrary to the provisions, is

2 2009 AIR SCW 5335

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unacceptable. The prosecution failed to prove the same because

of serious contradictions, omissions and unsupported evidence.

The monetary recovery claim in such civil dispute, itself cannot

be the reason to convict the accused for the offences so charged.

13] The order of acquittal so passed after considering the

evidence and the material placed on record, need no

interference. The complainant / prosecution failed to prove who

assaulted and accused when and at what time. The complainant

even failed to prove the incident of 4th September, 2001, except

vague allegations as specifically recorded by the trial Judge in

paragraph 21.

THE ATROCITY ACT PROVISIONS NEED TO BE INVOKED CAUTIOUSLY AND CAREFULLY -

ADDITIONAL FACTOR :

14] The Atrocities Act is framed to prevent the

atrocities against the members of the scheduled castes and

scheduled tribes to provide for relief and

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rehabilitation of the victims of such offences and the matter

connected thereof. Section 3 deals with the offences of

atrocities. 3National Campaign on Dalit Human Rights &

others v. Union of India & others. The complainant was a

cobbler. The dictionary meaning of cobbler is "Chambhar"

(Mochi), a person who makes or repairs shoes. In the present

facts and circumstances, the utterance of that word itself

cannot be treated as an act of atrocity as sought to be

contended by the prosecution. In 4Swaran Singh & others v.

State through Standing Counsel & another, the Apex Court in

paragraph no.24 observed as under:

"24. In our opinion, calling a member of the Scheduled Caste 'Chamar' with intent to insult or humiliate him in a place within public view is certainly an offence under section 3(1)(x) of the Act.

Whether there was intent to insult or humiliate by | using the word 'Chamar" will of course depend on the|

3 (2017) 2 SCC 432) 4 (2008) 12 SCR 132

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context in which it was used." | (emphasis added)

15] The protection of civil rights provision prescribes

punishment for practising the untouchablity. No case under the

Money Lenders Act is specifically made out and proved. In all,

no case of other sections of the Indian Peal Code is also made

out for the reasons stated above. Therefore, the said appeal

requires to be dismissed.

16] It is clear, considering the provisions of the these

provisions, intentional insults or intimidation with intent to