Kerala High Court

P.M.Soman vs State Of Kerala on 3 June, 2022

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
      FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                       CRL.A NO. 1078 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 346/2004 ON THE FILES OF SESSIONS
                       COURT, WAYANAD,KALPETTA
APPELLANT/ACCUSED:

            P.M.SOMAN
            S/O.MADHAVAN, PUTHAN VELIYIL HOUSE,, THONDERNADU AMSOM,
            NEELOM.

            BY ADVS.
            SRI.V.RAJENDRAN
            SRI.P.SAMSUDIN



RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REP. BY THE SUB INSPECTOR OF POLICE,, VELLAMUNDA,
            THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
            ERNAKULAM.




            DEEPA NARAYANAN, SR.PP




     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1078 of 2006

                                  2

                   P.V.KUNHIKRISHNAN
               ---------------------
                   CRL.A.No.1078 of 2006
            ---------------------------
              Dated this the 3rd day of June, 2022

                            JUDGMENT

This is an appeal pending before this court for the last 16

years. Eventhough it was filed in the year 2006 and sentence

was suspended on 05.06.2006, the appeal was listed for final

hearing for the first time only on 17.07.2019. Thereafter it was

adjourned for one reason or other. In other words, the appellant

was facing the threat of conviction and sentence for the last 16

years. The appellant is the accused in SC No.346/2004 on the

files of Sessions Court, Wayanad. The case is charge sheeted

against the appellant alleging offence punishable under Section

3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention

of Atrocities) Act, 1989, (for short "SC/ST (PA) Act).

2. The prosecution case is like this: PW6 Ravi belongs to

Pulaya community, which is a schedule tribe community.

Accused belongs to Thiyya community. It is alleged that, on

31.03.2004 at about 5.30 p.m at a place in front of the shop of

PW8 situated at Neelom in Thondernadu Amsom, the accused CRL.A.No.1078 of 2006

insulted and humiliated PW6 Ravi calling him by his caste name

within public view, when he was near the road in front of his

house.

3. To substantiate the case, the prosecution examined

PW1 to PW11. Exts.P1 to P5 are the exhibits. Ext.C1 was marked

as court exhibit and Ext.D1 was marked on the side of the

defence. After going through the evidence and documents, the

Trial court found that the accused committed the offences under

Section 3(1)(x) of the SC/ST(PA) Act. He was sentenced to

undergo simple imprisonment for six months and to pay a fine of

Rs.1,000/- and in default to pay the fine, to undergo simple

imprisonment for one month. Aggrieved by the conviction

sentence, this criminal appeal is filed.

4. Heard the learned counsel appearing for the appellant

and the learned Senior Public Pleader.

5. The learned counsel for the appellant submitted that

even if the entire prosecution case is accepted in toto, the

offence under Section 3(1)(x) of the SCST(PA) Act is not

attracted. The counsel takes me through Section 3(1)(x) of the

SCST(PA) Act. The counsel also submitted that the prosecution

case is that there was a wordy quarrel between PW8 and the CRL.A.No.1078 of 2006

accused in front of the shop of PW8. Thereafter, the appellant

saw PW6 and he used filthy language against PW6. According to

the counsel, even if the said case is accepted, the offence under

Section 3(1)(x) of the SCST(PA) Act is not attracted. The counsel

also submitted that the alleged incident happened on

31.05.2004. The complaint was filed only on 03.06.2004. The

counsel submitted that, there is no explanation from the

prosecution about the delay in lodging the complaint.

6. The learned Public Prosecutor on the other hand

supported the conviction sentence imposed on the appellant.

The Public Prosecutor submitted that there is oral evidence to

support the prosecution case. The Public Prosecutor takes me

through the evidence of PW6 and the eye witness. The Public

Prosecutor submitted that they uniformly deposed that the

appellant used the word "പ ലയ" in public view. The witnesses in

this case are the shop owner and another person who witnessed

the incident and they are natural witnesses. The Public

Prosecutor submitted that there is nothing to interfere with the

conviction sentence imposed by the Trial court.

7. This Court considered the contentions of the appellant

and the prosecution. The point to be decided in this case is CRL.A.No.1078 of 2006

whether the appellant committed the offence under Section 3(1)

(x) of the SCST(PA) Act and whether the evidence of PW1 to

PW11 and exhibits produced by the prosecution are reliable.

8. It is an admitted fact that the alleged incident

happened on 31.05.2004 at 5.30 pm. Admittedly, the first

information statement was given by PW6 only on 03.06.2004 at

8.00 pm. Absolutely, no explanation is given by PW6 in his

evidence. In Ext.P2(a) first information statement, PW6 stated

that he was afraid of the appellant and that is why the delay in

filing the complaint. But such a case is not there to PW6 while he

was giving evidence before the court. In such circumstances, the

delay in lodging complaint and the non explanation of the same

will go to the route of the prosecution case.

9. Moreover, the offence alleged against the appellant is

under Section 3(1)(x) of the SCST(PA) Act. It will be better to

extract Section 3(1)(x) of the SCST(PA) Act.

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

(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 CRL.A.No.1078 of 2006

shall not be less than six months but which may extend to five years and with fine."

10. To attract the offence under Section 3(1)(x) of the

SCST(PA) Act, the prosecution has to establish that the accused

intentionally insults or intimidates with intent to humiliate a

member of a Schedule Caste and Schedule Tribe in any place

within the public view. It is an admitted fact that the incident

start in front of the shop of PW8. There was a wordy quarrel

between the appellant and PW8. It is also an admitted fact that

PW8 and the appellant were the office bearers of a committee

constituted in connection with the digging of a public well. The

quarrel between the appellant and PW8 was in connection with

that committee's activities. Thereafter, the appellant saw PW6,

who was standing in front of his house. Then, in continuation of

the wordy quarrel with PW8, the appellant raised abusive

language against PW6 also. It is true that there is version from

all the witnesses including PW6 that the appellant used the word

'Pulaya'. But, the intention of using the words should be to

insults or intimidates with intent to humiliate a member of a

Schedule Caste and Schedule Tribe. Here is a case where the CRL.A.No.1078 of 2006

intention of the appellant from the evidence available shows that

it is a wordy quarrel in connection with a dispute with PW8 and

PW6 who are the office bearers of a committee constituted for

digging a public well. Hence the abusive words used by the

appellant against PW6 cannot be taken independently. It is a

continuation of the wordy quarrel happened with PW8 and

thereafter, the appellant used the same language to PW6. In

such circumstances, the offence under Section 3(1)(x) of the

SCST(PA) Act may not attract, but other offence may be

attracted for using filthy languages. For that purpose, there is no

charge against the appellant. In such circumstances, Section

3(1)(x) of the SCST(PA) Act is not, prima facie, attracted even if

the prosecution is accepted.

11. Moreover, it is bounden duty of the prosecution to

prove the caste of PW6. To prove the same, the prosecution

marked Ext.P5 admission extract through PW9 who was the

Headmistress of the school in which PW6 studied. But she

deposed before the court that, at the admission time of the

appellant in the school, she was not working in the school.

Thereafter, Ext.C1, the caste certificate of PW6 was marked

through PW11 investigating officer. Ext.C1 is a certificate issued CRL.A.No.1078 of 2006

by the Tahsildar, Mananthavady. Without examining the

Tahsildar, Mananthavady, Ext.C1 is not admissible. Moreover, the

caste status of PW6 is seriously disputed by the accused during

the cross examination. In such circumstances, it is the duty of

the prosecution to prove the caste status of PW6 beyond

reasonable doubt. Here is a case where the prosecution is not

able to examine the Tahsildar, who issued Ext.C1. That will also

affect the prosecution case.

12. Therefore, from the above discussion, the accused is

entitled the benefit of doubt. Therefore, this criminal appeal is

allowed in the following manner:-

I) The conviction sentence imposed on the appellant as per judgment dated 09.05.2006 in S.C.No.346/2004 on the files of the Sessions Court, Wayanad is set aside.