State Of Maharashtra Thr. Police ... vs Deoram S/O Dashrath Bandhate
2017 Latest Caselaw 8312 Bom

 apeal443.12.J.odt                         1




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

                     CRIMINAL APPEAL NO.443 OF 2012

          State of Maharashtra through
          Police Station Officer,
          Police Station Mohadi,
          District Bhandara.                                 ....... APPELLANT

                                   ...V E R S U S...

          Deoram s/o Dashrath Bandhate
          Aged about 40 years,
          Occ: Cultivation,
          Resident of Khamari (Buz),
          Tahsil Mohadi, District Bhandara.                  ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Ms. T.H. Udeshi, APP for Appellant/State.
          Shri K.S. Motwani, Advocate for Respondent.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:               st
                            1    NOVEMBER, 2017.


 ORAL JUDGMENT



 1]               The State is in appeal challenging the judgment and

order dated 25.08.2011 in Special Criminal Case 6/2010 delivered

by the Special Judge, Bhandara, by and under which, the

respondent-accused is acquitted of offence punishable under

sections 294, 323 and 506 of the Indian Penal Code and of offence

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

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2] Heard the learned Additional Public Prosecutor

Ms. T.H. Udeshi for the appellant-State and the learned counsel

Shri K.S. Motwani for the respondent-accused.

3] The case of the prosecution, as can be culled out from

the oral report lodged by the complainant on 28.06.2010 (Exh.11)

on the basis of which the offence came to be registered against the

accused, is thus:

The complainant Manohar Babulkar is a member of

the Scheduled Caste and is the Proprietor of a grocery shop

situated in a village Khamari. The said shop is jointly managed by

the complainant Manohar and his wife Dewangana.

The complainant states in the oral report that on 20.06.2010 the

accused Deoram visited the grocery shop to purchase grocery on

credit, the complainant refused to oblige and the accused left but

not before threatening the complainant. The complainant further

states in the oral report that on 27.06.2010 when he and his wife

were in the grocery shop, at 04:00 p.m. or thereabout the accused

came to the shop and again sought to purchase grocery on credit

and on the refusal of the complainant to extend credit, abused the

complainant. The oral report states that abuses with reference to

the caste of the complainant were also hurled. The complainant

told the accused that he would lodge a report and was about to

leave on his motorcycle when the accused pushed the motorcycle.

The complainant fell down and hurt the thumb of right foot. It is

further alleged in the oral report that on 28.06.2010 at 10:00 a.m.

the accused again visited the shop and abused the complainant in

the filthy language.

4] On the basis of the said oral report, offence

punishable under sections 294, 323 and 506 of the Indian Penal

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

Scheduled Tribes (Prevention of Atrocities) Act was registered.

The learned Special Judge, has recorded a finding that the

investigation of the offence punishable under the provisions of the

section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act was not conducted by an authorized

officer as envisaged under Rule 7 of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (Rules for

short). That the provisions of section 9 of the Act and rule 7 of the

Rules are mandatory is a settled position of law. The offence under

the Act is investigated by P.W.8 Pankaj Dahane who has admitted

that nothing is produced on record to suggest that he is authorized

to investigate the offence under the Act. The learned Special Judge

has held that in view of the violation of mandatory provisions of

section 9 of the Act and rule 7 of the Rules, the charge under the

provisions of the Atrocities Act must necessarily fail. The learned

Additional Public Prosecutor, in all fairness has not seriously

challenged the said finding of the learned Special Judge.

5] The learned A.P.P. however, submits that the finding

of the learned Special Judge that the offence punishable under the

provisions of the Indian Penal Code are not established, is

manifestly erroneous.

6] The learned Special Judge, in paragraph 11 of the

judgment, has observed that the prosecution case entirely hinges

upon the evidence of the complainant Manohar and his wife

Dewangana. On a holistic appreciation of evidence of the

complainant (P.W.1) and Dewangana (P.W.3) the learned Special

Judge has recorded a finding that the evidence of P.W.1 and P.W.3

is marred by too many omissions and contradictions and cannot be

relied upon to convict the accused under section 294, 323 and 506

of IPC. The learned Special Judge, has noted that P.W.2 Rajendra

Damahe did not support the prosecution and nothing is elicited in

the cross-examination to assist the prosecution. P.W.5 Gopichand

Nagpure and P.W.6 Subhash Bagade have also been declared

hostile since they did not support the prosecution.

7] It is brought out in the cross-examination of the

complainant P.W.4 Devanand Santape that the statement of the

complainant that the accused insulted him by saying that he was

impotent, the statement that the accused visited the shop of the

complainant on 26.06.2010, the statement that the accused

demanded that he be given grocery on credit and that the amount

shall be paid as and when the accused desired, are omissions. It is

also proved through the evidence of the P.W.4 Devanand Santape

that the statement that the accused pushed the two wheeler due to

which the complainant sustained injury on left leg, is an omission.

The statement of the complainant that at the time of opening of

shop, the accused heaped abuses with reference to caste, is a

proved omission. The statement in the evidence of complainant

that four persons named were present at the spot, is again a

proved omission. Similar and other omissions are proved through

the evidence of P.W.8 Pankaj Dahane.

The learned Special Judge is justified in recording a

finding that there is a serious inconsistency between the evidence

of P.W.1 Manohar Babulkar and his wife P.W.3 Dewangana on

significant aspects. Illustratively, the version of P.W.3 Dewangana

as regards the accused having pushed to the two wheeler is quite

different from that of the complainant P.W.1.

8] I have given my anxious consideration to the evidence

on record in view of the submission of the learned A.P.P. that the

reasoning of the learned Special Judge is perverse. However, I do

not find any perversity in the reasoning of the learned Special

Judge. Au contraire, the view taken by the learned Special Judge

is a possible view. I am not inclined to interfere in the judgment of

acquittal in the absence of any perversity in the judgment

impugned.

 9]               The appeal is sans merit and is rejected.









  10]              The bail bond of the accused shall stands cancelled.



  11]              Order accordingly.



                                                  JUDGE



NSN