Smt. Usha Pandurang Tanpure vs The State Of Maharashtra
2017 Latest Caselaw 1015 Bom

                                                               PM-1-APPEAL-82-2001.doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.82 OF 2001

 SMT.USHA PANDURANG TANPURE                                  )...APPELLANT

          V/s.

 THE STATE OF MAHARASHTRA                                    )...RESPONDENT


 Ms.Pracheta   Rathod   a/w.   Mr.Arun   Rajput   i/b.   Ms.Anjali   Patil, 
 Advocate for the Appellant.

 Ms.A.A.Takalkar, APP for the Respondent - State.


                                CORAM         :      A. M. BADAR, J.

                                DATE          :      24th MARCH 2017


 ORAL JUDGMENT :



 1                By   this   appeal,   the   appellant   /   original   accused   is 

challenging the judgment and order dated 15 th January 2001

passed by the learned Additional Sessions Judge, Pune, in Special

Case No. 8 of 1998 thereby convicting the appellant / accused of

the offence punishable under Section 3(1)(x) of the Scheduled

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Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

and sentencing her to suffer simple imprisonment for 6 months

apart from payment of fine of Rs.500/-, in default, to undergo

further simple imprisonment for fifteen days. The appellant /

accused was, however, acquitted of the offence punishable under

Section 504 of the IPC.

2 Heard Ms.Pracheta Rathod, the learned advocate

appearing for the appellant / accused. She argued that evidence

of prosecution witnesses is totally inconsistent and they are

disclosing different places of incident. Though Informant PW1

Mahadeo Gaikwad has stated that the incident took place at the

door of the Accounts Branch of the office, other witness - PW2

Manohar Gaikwad examined by the prosecution is stating that the

incident took place at the platform of the verandah of the office.

The learned advocate for the appellant / accused further argued

that there is variance in the evidence of prosecution witnesses

regarding alleged casteist abuses. In submission of the learned

advocate for the appellant / accused, the evidence of prosecution

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witnesses demonstrate that there was motive for false implication

of the appellant / accused because of her complaint to the

Executive Engineer against the Police Sub-Inspector of the local

police station. She relied on version of PW4 Rajan Shah,

Executive Engineer to buttress this contention. It is further argued

that there is inordinate delay in lodging the FIR apart from

deliberate delay in recording statements of prosecution witnesses.

Reliance is also placed on the fact that initially no offence under

the provisions of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, was registered, but

subsequently, it was added to the case diary of the crime in

question. For this purpose, evidence of PW6 Manish Ajinkya,

Deputy Superintendent of Police, is relied by the learned advocate

appearing for the appellant / accused. The learned advocate for

the appellant drew my attention to court questions to several

prosecution witnesses by the learned trial court and argued that

serious prejudice is caused to the appellant / accused as the

learned court has assumed the role of the prosecutor.

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 3                The   learned   APP   opposed   the   appeal   and   supported 

the impugned judgment and order of conviction by arguing that

evidence of prosecution witnesses is consistent in material

particulars, and therefore, the offence alleged against the

appellant / accused is made out by the prosecution.

4 I have carefully considered rival submissions and also

perused the record and proceedings including depositions of

prosecution witnesses, so also documentary evidence placed on

record.

5 The charge against the appellant / accused is for the

offence punishable under Section 3(1)(x) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This

section reads thus :

"3. Punishments for offences of atrocities - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

(i) .....

(ii)....

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                      (iii)....
                      (iv)....
                      (v).....
                      (vi).....
                      (vii)....
                      (viii)....
                      (ix)....

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."

Perusal of this section shows that intentional insult or intimidation

with intent to humiliate a member of a Scheduled Caste or a

Scheduled Tribe in any place within public view is made

punishable with imprisonment for a term which shall not be less

than six months and which can extend up to five years with fine.

Intentional insult or intimidation with intent to humiliate a

member of a Scheduled Caste or a Scheduled Tribe within a public

view is essential ingredient of this offence and the same is

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required to be proved by adducing clear and cogent evidence on

this aspect by the prosecution. Let us, therefore, examine

evidence of the prosecution in order to ascertain whether the

prosecution is successful in bringing home the guilt to the

accused.

6 Some undisputed facts which are emerging on record

are to the effect that informant PW1 Mahadeo Gaikwad and the

appellant / accused Usha Tanpure are both employees of Neera

Devdhar Project Division, Sangvi, in Pune district. Informant PW1

Mahadeo Gaikwad and appellant / accused Ushal Tanpure were

working as peon with the said office. It is not disputed by the

defence that PW1 Mahadeo Gaikwad is belonging to the

Scheduled Caste - Mange. With this, let us now examine what

PW1 Mahadeo Gaikwad says about the incident in question.

7 It is in evidence of PW1 Mahadeo Gaikwad that 10th

April 1998 was a holiday, but still he along with other employees

were called to the office on that day. Therefore, he himself,

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D.T.Gaikwad - Senior Clerk, PW3 Maruti Kale - Senior Clerk and

PW2 Manohar Gaikwad - Junior Clerk came to the office and they

were present in the office, when at about 10.00 a.m., the

appellant / accused came in the office wearing a night gown.

PW1 Mahadeo Gaikwad further deposed that he then questioned

the appellant / accused as to why she came in the office wearing a

night gown when Executive Engineer PW4 Rajan Shah was to visit

the office on that day. Upon that, as per evidence of PW1

Mahadeo Gaikwad, following were the utterances of the

appellant / accused to him -

"Me maji aai ghalayla ale. Tu kay maje shete upatnar. Ja re mangdya sarkarne ghanitle kide kashe bharti kele"

If translated freely in English language, this utterances are to the

effect that -

"I came to office to get my mother fucked. Are you going to uproot my pubic hair. Go away Mangdya. How the government has recruited the germs from the dirt."

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 8                According  to  PW1 Mahadeo  Gaikwad  at  the  time  of 

these utterances by the appellant / accused, PW2 Manohar

Gaikwad and PW3 Maruti Kale were present and this incident

took place not at the verandah of the office but at the door of the

Accounts Branch. PW1 Mahadeo Gaikwad has stated that a clerk

named Kulkarni (DW1 Sudhir Kulkarni) was sitting in the Typing

branch at the time of the incident in question.

9 PW1 Mahadeo Gaikwad further deposed that he had

given written complaint about this incident to Executive Engineer

PW4 Rajan Shah but the Executive Engineer had asked him to

wait for two days and as no action was taken by the Executive

Engineer, he lodged the report of the incident on 12 th April 1998.

In cross-examination, this witness has accepted the fact that

employees named Kale and Gaikwad came near the door hearing

their talks and other employees Mr. and Mrs.Kulkarni came there

subsequently.

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 10               The FIR lodged by this witness on 12 th April 1998 is at 

Exhibit 10 and on the basis of this FIR, it is seen that initially

Crime No.3007 of 1998 punishable under Section 7(1)(d) of

Protection of Civil Rights Act so also under Sections 504 and 506

of the IPC came to be registered against the appellant / accused.

Provisions of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, were not invoked at the time

of registration of the FIR on 12th April 1998.

11 Considering the fact that parties involved in the instant

case are co-employees working in the same office and keeping in

mind nature of the crime in question, one will have to put on

record that it is very easy to make allegations in respect of such

offence and once made, it is very difficult to dislodge them.

Hence, the court is required to test veracity of averments made in

such offence by close scrutiny of the evidence of the prosecution

and possible arena of such scrutiny can be other evidence adduced

by the prosecution on record. With this, let us examine whether

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version of the informant PW1 Mahadeo Gaikwad is truthful and

trustworthy and whether the same is gaining corroboration from

other evidence on record. One will have to also ascertain whether

PW1 Mahadeo Gaikwad is a witness of truth in order to base

conviction.

12 PW1 Mahadeo Gaikwad has not disclosed that at the

time of the incident, there was quarrel between him and the

appellant / accused. Tone and tenor of his evidence goes to show

that he just questioned the appellant / accused as to why she

came in the office wearing a night gown and thereupon the

appellant / accused used abusive words and made utterances in

order to insult him in order to humiliate him, a member of the

Scheduled Caste, within the public place. PW1 Mahadeo Gaikwad

has not disclosed any overt act on his part in the incident. As

against this, if we consider evidence of PW2 Manohar Gaikwad,

who was undisputedly present on the spot even as per version of

PW1 Mahadeo Gaikwad, then, it reveals that infact at the time of

the incident, PW1 Mahadeo Gaikwad and the appellant / accused

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Usha were quarreling with each other. In chief-examination itself,

PW2 Manohar Gaikwad has deposed that PW1 Mahadeo Gaikwad

and the appellant / accused Usha were quarreling and abusing

each other at the time of the incident in question. PW3 Maruti

Kale - another co-employee of the office and eyewitness to the

incident has also deposed that at the time of the incident, the

appellant / accused Usha and PW1 Mahadeo Gaikwad were

engaged in hot talks. This witness deposed that, therefore, he

intervened and advised both of them not to quarrel. It is, thus,

clear that the incident in question took place not in a mode and

manner as disclosed by PW1 Mahadeo Gaikwad. Infact, it has an

origin in the quarrel erupted between him and the appellant /

accused. One will have to keep in mind that eruption of quarrel

gives a motive to quarreling parties to falsely implicate each other

by adding embellishments to their version. Enmity is a double

edged weapon and in such cases the court is required to adopt the

strict scrutiny and closest circumspection while appreciating the

evidence.

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 13               At this stage it is necessary to quote the other motive 

to implicate the appellant / accused falsely in the crime in

question is reflected from the admissions given by PW4 Rajan

Shah, Executive Engineer of the Irrigation Department. This

witness has candidly accepted the fact that the appellant / accused

had approached him and made complaint against local Police Sub-

Inspector named Ashok Jagdale about sexual harassment to her by

said Ashok Jagdale. Evidence of PW4 Rajan Shah, Executive

Engineer, shows that thereupon, he had sought explanation of

P.S.I. Ashok Jagdale and also asked said Ashok Jagdale not to visit

the house of the staff member without seeking his permission.

This fact assumes importance in the wake of initial registration of

the crime under Section 7(d) of the Protection of Civil Rights Act

and then subsequently adding Section 3(1)(x) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

to the case diary of the crime in question.

14 On this factual backdrop let us further see what PW2

Manohar Gaikwad says about the actual utterances attributed to

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the appellant / accused and the place of the incident. As per his

version, the incident in question took place when the appellant /

accused was sitting on the platform of the verandah of the office.

This witness stated that when PW1 Mahadeo Gaikwad questioned

her, they both started quarreling and abusing each other. In that

process, as per evidence of PW2 Manohar Gaikwad following were

the utterances of the appellant / accused :

"Me maji aai ghalayla ale. Koun maje shate upatnar ahe. Mangdyachi bharti koni keli."

This witness has also confirmed the fact that the appellant /

accused had on earlier occasion made complaint of her sexual

harassment by local P.S.I. named Jagdale to PW4 Rajan Shah,

Executive Engineer.

15 It is seen from the evidence of PW2 Manohar Gaikwad

that utterances attributing to the caste of PW1 Mahadeo Gaikwad

disclosed by this witness are not the same or similar as are

disclosed by PW1 Mahadeo Gaikwad. The place of the incident as

stated by this witness is also totally different.

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 16               So far as version of PW3 Maruti Kale  is concerned, the 

incident happened near the door of the Accounts section when

this witness was handing over some papers to co-employee named

Kulkarni (DW1 Sudhir Kulkarni). This witness claims that there

were hot talks between the appellant / accused and PW1

Mahadeo Gaikwad and therefore, he advised them not to quarrel.

PW3 Maruti Kale claimed that following were the utterances of

the appellant / accused to the first informant PW1 Mahadeo

Gaikwad :

"Tu kai malak ahe. Tu koun vicharnar. Tu maje kay wakde karnar. Ja re mangdya tula kay karaiche te kar"

If freely translated in English, these utterances are to the effect

that - whether you are the employer, who are you to ask, what

harm you can cause to me, go away mangdya do whatever you

can do.

17 Utterances of two alleged eye witnesses as well as the

informant PW1 Mahadeo Gaikwad - alleged victim of the crime in

question, as narrated in foregoing paragraphs, as such, are not

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consistent. On the contrary, there is divergence in material

particulars in respect of those utterances. The spot of alleged

incident is also not the same as stated by PW1 Mahadeo Gaikwad,

as seen from their version. These discrepancies may on the face of

it appear to be not of much significance but if we recapitulate the

fact situation in which the alleged incident took place, these

discrepancies can definitely be said to assume grate value and

importance in casting a shadow of doubt on the prosecution case.

18 PW1 Mahadeo Gaikwad claimed that at the time of

incident in question, employee by name Kulkarni was at the

Typing branch whereas PW3 Maruti Kale has disclosed that the

incident happened in presence of co-employee by name Kulkarni

and particularly when this witness was handing over papers to

said Kulkarni. This employee named Sudhir Kulkarni is examined

as DW1 by the defence. It is well settled that defence witnesses

are also entitled for same treatment as is given to witnesses for the

prosecuting agency. Evidence of PW1 Mahadeo Gaikwad and PW3

Maruti Kale is showing presence of this defence witness in the

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office at the time of the incident. Rather, PW3 Maruti Kale is

claiming that the incident happened in presence of this DW1

Sudhir Kulkarni. On this factual background, if evidence of DW1

Sudhir Kulkarni is perused, then it is seen that the actual incident

which took place was only questioning by PW1 Mahadeo Gaikwad

to the appellant / accused and asking her to go back to her home

and her consequent refusal to go back to her home. This witness

has not spoken about any alleged insult with an intent of causing

humiliation of PW1 Mahadeo Gaikwad by the appellant / accused

to PW1 Mahadeo Gaikwad.

19 Evidence of PW4 Rajan Shah, Executive Engineer,

categorically goes to show that PW1 Mahadeo Gaikwad never

made any written complaint about the alleged incident to him at

any point of time. Evidence of PW4 Rajan Shah does not show

that PW1 Mahadeo Gaikwad had approached him immediately on

the next day of the incident and had disclosed about utterances of

the appellant / accused to him which were pointing out

intentional insult or intimidation with the intent to humiliate PW1

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Mahadeo Gaikwad, he being a member of the Scheduled Caste. If

really PW1 Mahadeo Gaikwad was subjected to casteist abuses

with requisite intention by the appellant / accused, in the wake of

the fact that PW4 Rajan Shah was head of the Division where PW1

Mahadeo Gaikwad was working, then in ordinary course PW1

Mahadeo Gaikwad would have narrated casteist abuses and

remarks allegedly addressed to him by the appellant / accused, to

PW4 Rajan Shah. This did not happen. A lurking doubt arose as

to whether actually there were utterances indicating intentional

insult with intent to humiliate the first informant PW1 Mahadeo

Gaikwad - who is a person belonging to the Scheduled Caste.

20 The incident took place on 10th April 1998 as per case

of the prosecution. Undisputedly, the FIR for the same came to be

lodged on 12th April 1998. It is not in dispute that at the time of

registration of the FIR offence punishable under the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

was not invoked. Evidence of PW6 Manish Ajinkya, Investigating

Officer shows that those were added subsequently. His evidence

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further shows statements of prosecution witnesses were recorded

on 30th May 1998 i.e. after about one and a half month from the

incident in question. First informant PW1 Mahadeo Gaikwad and

the appellant / accused were at loggerheads and the incident in

question is a fall out of the quarrel between them. The appellant /

accused, in past, had complained about indecent behaviour of the

local P.S.I. named Jagdale to her superior officer who had taken

cognizance thereby seeking explanation of that local P.S.I.

Evidence coming on record from the mouth of prosecution

witnesses is inconsistent and infirm. There is variance in respect

of the spot of the incident. On this factual backdrop, unexplained

or rather the delay which is sought to be explained with a false

reason assumes importance. The First Informant tried to explain

the delay by stating that he made written complaint to PW4 Rajan

Shah, the Executive Engineer, who asked him to wait, but as PW4

Rajan Shah did not take any action, he lodged the FIR whereas

PW4 Rajan Shah has candidly stated that the First Informant

never made any written complaint to him. PW4 Rajan Shah has

not stated that he asked the First Informant to wait or not to lodge

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the FIR. Belated recording of statements of prosecution witnesses

gives rise to possibility of bolstering up the prosecution case. It

indicates that the Investigator might be thinking of the shape to be

given to the prosecution case. There is no evidence to the effect

that the delay in recording statements of witnesses caused for the

reason that prosecution witnesses were not available. Ultimately,

they were employees of Irrigation Department working at Sangvi

and very much available to the Investigator. In this backdrop,

equally plausible view that the appellant / accused might have

been falsely implicated in the crime in question because of her

inimical terms with PW1 Mahadeo Gaikwad, is possible. It is seen

that eye witnesses have come up with a version which is

significantly different from the prosecution case. Their evidence

indicates variance so far as the spot of alleged incident is

concerned. There is every possibility of cooking up a story during

long and unexplained delay or delay sought to be supported by

false explanation, coupled with inordinate delay in recording

statements of prosecution witnesses. For these reasons, the

appellant / accused is certainly entitled to the benefit of doubt.

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 21               There is one more angle by which the prosecution case 

and the resultant trial can be looked into. After cross-examination

of PW2 Manohar Gaikwad, the trial Judge chose to put court

questions to him. By questioning him, the trial court elicited from

him that his evidence in the chief-examination to the effect that

informant PW1 Mahadeo Gaikwad had also abused the appellant /

accused is coming on record by way of omission. By putting court

questions to PW3 Maruti Kale, the learned trial Judge brought on

record that the appellant / accused had uttered "Me maji aai

ghalayla ali ahe" which this witness had omitted to state in the

chief-examination. By questioning PW6 Manish Ajinkya, Deputy

Superintendent of Police, after his cross-examination was over, the

learned trial Judge has elicited from him the fact that after

rejection of anticipatory bail application filed by the appellant /

accused, Section 3(1)(x) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989, was added to the case

diary of the crime. In the similar manner, learned trial Judge put

court questions to defence witness Sudhir Kulkarni after his cross-

examination came to be concluded and elicited from him what he

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has stated before the police in his statement under Section 161 of

the Code of Criminal Procedure. Thus, court questions were put

up by the learned trial Judge to all material witnesses examined

by the prosecution in this case apparently for curing the lacuna in

their evidence. This was done after completion of the cross-

examination by the defence. The record does not reveal that after

putting court questions to these witnesses by invoking provisions

of Section 165 of the Evidence Act, the learned trial Judge had

granted liberty to the defence to further cross-examine those

witnesses. Section 165 of the Evidence Act indeed gives right to

the trial Judge to ask any questions he pleases and in any form.

This provision is enacted ultimately in order to see that the justice

is done and is in aid of the quest for the truth. However, though

the court is invested with such wide, unrestricted and unbridled

powers, the trial Judge is also required to keep in mind that

witnesses are not accustomed to proceedings in the court. They

are likely to be overawed by aura of the court. If the trial Judge

starts assuming the role of the prosecutor, then, the parties may

begin to think that the Judge is not holding the scale of justice

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quite evenly. It needs to be noted that under Section 165 of the

Evidence Act, though the court has vast and unlimited powers to

ask any question he pleases at any time, to any party or any

witness, such power is to be exercised in order to discover or to

obtain proper proof of relevant facts. Improper or capricious

exercise of this power can lead to undesirable results. The

discretion conferred by Section 165 of the Evidence Act is required

to be exercised judicially and not capriciously or arbitrarily. The

object for use of such discretion must be - discovery of relevant

facts or obtaining proper proof of such facts. Though the Judge is

not expected to be a mute spectator, referee or umpire in the

criminal trial, he is also not expected to assume the role of the

prosecutor or as the case may be, that of the defence lawyer. In

the matter of Ram Chander vs. The State of Haryana 1 the

Hon'ble Apex Court has cautioned that though the trial Judge is

not expected to assume the role of a referee or an umpire and that

he must become a participant in the trial by evincing intelligent

active interest by putting questions to witnesses in order to

ascertain the truth, but while doing so, he must not unduly 1 AIR 1981 Supreme Court 1036

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trespass upon the function of the public prosecutor and the

defence counsel. The Hon'ble Supreme Court has further stated

that this has to be done without any hint of partisanship and

without appearing to frighten or bully witnesses. Be that as it

may, when material adverse to the appellant / accused was

elicited by the learned trial Judge by putting court questions to all

relevant witnesses, then it was incumbent on his part to accord an

opportunity to the defence of further cross-examination to such

witnesses. This does not seem to have been done, and as such, for

want of an opportunity to the defence to further cross-examine the

witnesses after court questions, such evidence obtained through

court questions cannot be used against the appellant / accused.

22 In the ultimate analysis, for the reasons stated in the

foregoing paragraphs, it cannot be said that the prosecution is

successful in proving the offence punishable under Section 3(1)(x)

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, and the appellant / accused is certainly

entitled to benefit of doubt. On reviewing the entire evidence on

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record, it is seen that there are compelling and substantial reasons

for interference in the case in hand because of total unreasonable

view taken by the trial court in convicting the appellant / accused.

Therefore the order :

i) The appeal is allowed.

ii) The impugned judgment and order of conviction

of the appellant / accused of the offence

punishable under Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, and the

resultant sentence is quashed and set aside.

iii)The appellant / accused is acquitted of the

offence punishable under Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989.

iv)Fine amount, if any, paid by the appellant /

accused be refunded to her.

                                               (A. M. BADAR, J.)


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