The State Of Maharashtra vs Shivaji Nanasaheb Bhojane
2017 Latest Caselaw 3668 Bom

YBG                                                                                1
                                                                    226-apeal-1274-02




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION
                CRIMINAL APPEAL NO.1274 OF 2002

State of Maharashtra                              ..      Appellant
       Versus
Shivji Nanasaheb Bhojane
age 46 years, Occupation service
R/at Patan, Taluka Maval,
Dist. Pune                                        ..      Respondent

Mr. P.H.Gaikwad, APP for Appellant/ State
None for respondent.

                         CORAM      :   N.M.JAMDAR, J.

                         DATE       :   28th June 2017.

ORAL JUDGEMENT:-

The State has filed this appeal against the acquittal

challenging the judgement and order passed by the Additional

Sessions Judge, Pune dated 4th July 2002 acquitting the respondent

of the offences punishable under section 323, 504 of Indian Penal

Code and under section 3(1)(x) of the Scheduled Castes and

Scheduled Tribes (Prevention of Attrocities) Act, 1989.

2] The complainant was residing with her husband and children

at Chetana Estate, Saste Nagar, Hadapsar, Pune. They had

constructed a bungalow in the said society. Husband of the

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respondent used to go for work in the morning and used to return in

night. The respondent - accused had purchased a plot adjacent to

the bungalow of the complainant and was carrying out construction.

According to the prosecution, quarrels took in respect of the

construction which led to the incident of 19 th October 2001.

According to the prosecution, on that date, when the complainant

accosted the accused and questioned him regarding the work

carried out by his labourers, the accused abused the complainant

using words which were derogatory and denigrating the caste status

of the complainant. According to the prosecution, the respondent

also physically harmed the complainant. An offence was registered

vide Crime No.3342 of 2001. Investigation was carried out.

Thereafter, the case was tried out by the Additional Sessions Judge,

Pune. The learned Judge held that there was breach of Rules

framed under the Act of 1989 while carrying out the investigation

and that the prosecution has failed to prove that the offence under

section 323 and 504 of the Indian Penal Code were committed by

the respondent. The Additional Sessions Judge, after considering

the material on record acquitted the respondent by judgement and

order dated 4th July 2002. Against the said decision and acquital of

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the accused, the present appeal has been filed.

3] Heard Mr. Gaikwad, learned APP for the State. None appears

for the respondent.

4] Firstly, to take up the charge under section 3(1)(x) of the

Atrocities Act, 1989. The said section makes an act with intention to

insult, intimadate with intent to humiliate a member of scheduled

caste/ scheduled tribe in any place within public view, a punishable

offence. Under the Act of 1989, Scheduled Caste and Scheduled

Tribe Rules, 1995 have been framed which also govern the

investigation and appointment of officers for that purpose. Rule 7 of

the Rules of 1995 refers to appointment of investigating officer and

mandates that an offence committed under the Act shall be

investigated by police officers not below the rank of Deputy

Superintendent of Police (Dy.SP), who shall be appointed by the

Government taking into account his past experience. In the present

case, a finding has been recorded by the learned Sessions Judge

that the investigation has been carried out by P.S.I. Mukhtar

Shaikh.Though some part of the investigation appears to have been

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carried out by the Assistant Commissioner of Police, the learned

Sessions Judge has recorded a finding that it was only a miniscule

part and the main and major investigation has been carried out by

the PSI Mukhtar Shaikh, who is not an officer under Rule 7 of 1995

Rules. PSI, Mukhtar Shaikh as the record bears is not a Deputy

Superintendent of Police or above. The learned Sessions Judge

considered the law laid down in the decision of (i) D. Ramalinga

Reddy @ D.Babu Vs. State of A.P., reported in 1999 Cri. L.J.

2918, (ii) 2000 Cri.L.J. 1891 (Patna HC) between Mohan

Choudhary Vs. State of Bihar & Ors., (iii) 2001 Cri. L.J. NOC 10

(Andhra Pradesh) between E.Seshaiah Vs. State of A.P., (iv)

2000 Cri. L.J. 956 (Madras HC) between Chinnasamy Vs. The

State and has proceeded to hold that there is non compliance with

Rule 7 of the Rules of 1995 and the trial on that count is vitiated.

Nothing is shown that the P.S.I. Shaikh is of the rank of Deputy

Superintendent of Police or above. Neither any position of law is

shown that rule 7 is merely directory in nature. In view of this

position, the view taken by the learned Sessions Judge cannot be

faulted with.

4] That brings to the charges in respect of Sections 323 and 504

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of Indian Penal Code. For section 323 which deals with punishment

for voluntarily causing hurt, there has to be an evidence that hurt

was caused as defined under section 319 of the IPC. The learned

Sessions Judge after considering the material on record, has held

that the evidence led by the prosecution in this regard is

contradictory and not trust worthy. I have perused the evidence of

the complainant and that of Mrs. Kusum Tukaram Badade, who was

examined as an eye witness. There is considerable variance as

regards the actions of respondent. According to complainant, the

respondent caused hurt by catching hold of her hair and giving blow

on her shoulder, resultantly, she fell down. The eye witness Kusum

has not stated regarding giving blow and has only stated that the

respondent pushed the complainant down because of which she fell

down. It is not the case of the complainant that merely because she

was pushed that she was "hurt" but it is her specific case that she

was given a blow because of which she suffered hurt. This is not

supported by the version of P.W.2. Apart from this position, the

learned Sessions Judge has also taken note of the fact that the

complainant was not referred to any Medical Officer and she herself

had given different versions of the incident in her complaint as well

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as in her application. Considering these contradictions, if the

learned Sessions Judge has given benefit to the respondent No.1, it

cannot be said that any perversity is committed.

5] As regards, section 504 of the IPC is concerned, Mr. Gaikwad,

the learned APP submitted that the incident took place on public

road and therefore section 504 is attracted. As rightly held by the

learned Sessions Judge that it is not mere insult or provocation that

will attract section 504 but an insult or provocation with an intent and

knowledge that such provocation will breach public peace or lead to

commit any other offence. There is hardly any evidence to convict

the respondent under section 504 of IPC. What has ensued at the

most was a private quarrel between the respondent and the

complainant and nothing has been shown that it was with an

intention to breach public peace.

6] Considering these circumstances, no case is made out for

reversing the order of acquittal. The appeal is dismissed.

( N.M.JAMDAR, J.)