Criminal Appeal No. 120 of 1994

23rd February, 1996

Petitioner Counsel: Shri G.G. MODAK
Respondent Counsel: Shri V.M. DESHPANDE

JUDGMENT

JUDGMENT :- The accused/appellant challenges his conviction for offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as also for the offence under Section 509 of the Indian Penal Code.

2. The accused/appellant who was posed as accused No.1 in the trial was charged along with three other accused persons, namely, Ganesh, Sanjay and Ajab with the aid of Section 34 that he had criminally intimidated one Sau. Kusum Babarao Gawande with intention to insult her modesty. The accused persons were also charged for the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act" for the sake of brevity). It is significant to note that in the charge the time mentioned is 7 A.M. at Sirasgaon. It is significant to note that though the charge is of uttering the abuses in filthy language referring even to the caste of the complainant Kusum, the charge is with the aid of Section 34 and no specific accused has been specifically charged of having uttered the abuses. The trial Court has, however, acquitted the original accused Nos.2,3 & 4 and has chosen to convict only the present appellant holding that it was he who had uttered the said abuses at the time and place mentioned in the charge.

3. Shortly stated, the prosecution story appears to be that while the accused persons along with the present appellant were the residents of village Sirasgaon (Dhanade), the complainant Kusum was posted there as a nurse and was living there in the village along with her husband Babarao PW.3. There does appear to be a rivalry in between the accused persons and the complainant inasmuch as there appear to be some complaints having been made against the complainant. It is the case of the prosecution that Kusum while she was going to fetch water from the water-tap which is situated in the Maternity Home, the accused No.1 Haridas uttered the words :-

(In Marathi Script) " Ya Chamabharnila Char Chuoghat Khechun Nangi Kelyashivay Rahnar Nahi"

According to Kusum, at that time the other accused persons were standing there. This incident took place at 7 O'clock. Thereafter, according to the complainant, at about 8 or 9 when she was passing from the Maternity Home near the gate again all the accused persons were standing and they also repeated the earlier words and asked her to remove her own clothes otherwise they would do the same. Her further case is that these words were heard by her husband who was in the verandah and hearing this her husband questioned the accused persons on which there was an altercation in between the accused on one hand the husband on the other. Her further claim is that she wanted to give a report but was stopped by the accused persons. The case of the prosecution is also that when the husband wanted to go to the nearby outpost at Waigaon, he was stopped and intimidated by the accused persons and, therefore, he hid himself in the house of one Purushottam and managed to send one Kothare to give the intimation to the police outpost at Waigaon. After that intimation was given, the staff at Waigaon outpost reached the village and thereafter the report was got scribed from the complainant at the outpost. Before that, the staff took the statements of the witnesses at Sirasgaon. After the report was collected at outpost at Waigaon, Staff from Deoli Police Station had gone to Waigaon outpost in connection with an investigation which was initiated by the report made by the present accused against the husband of the applicant/complainant. It seems that, that very Head Constable Rajendra was given the report scribed by the present complainant Kusum, he went back and on that basis an offence came to be registered against the accused persons at Deoli Police Station. In support of the prosecution, the main witnesses are the complainant herself and her husband, the others being the police witnesses. The only other independent witness has turned hostile.

4. At the trial, the defence of the accused was that they were on inimical terms with the said complainant and as there were complaints made against her working style by them to the superiors of the complainant on account of which the complainant had an axe to grind against them. They also have suggested in their defence that on the fateful day in fact the husband of the complainant had assaulted the accused No.1 with a lethal weapon and as such, the husband of the complainant was facing a prosecution for an offence under Section 324 of the Indian Penal Code and really that was the cause why a false report was lodged against the accused person probably as a counterblast to the impending prosecution of the husband of the complainant. The defence did not prevail in so far as the accused appellant is concerned though the trial Court came to the conclusion that the substantial part of the prosecution story was not proved. In that view, the trial Court acquitted the original accused nos.2,3 & 4 holding that they had not uttered any words. The trial Court, however, came to the conclusion on the basis of the report scribed by the complainant and her own evidence that it was fully established that the present appellant had uttered the abuses which were intended to an offence under Section 3(1)(x) of the Atrocities Act.

5. Shri G.G.Modak, the learned Counsel for the appellant/accused, pointed out that the learned trial Court has faltered in appreciating the evidence and has not used the restraint and caution which it was expected to use in view of the strained relationship between the appellant and the complainant. He pointed out that it was an admitted position that there were complaints made against the complainant by the accused persons which went on to ultimately affect the career of the complainant. He also pointed out that in fact this incident at the water-tap was a cooked-up affair in view of the further incident which took place between the husband of the complainant Baburao and the accused persons wherein Baburao had injured the present accused and on that count Baburao was also facing a prosecution under Section 324 of the Indian Penal Code. He, therefore, suggests that in order to shield his activities and in order to counter-blast the said prosecution, probably a belated report was made by the complainant wherein the offending words were attributed to the present accused. Shri Modak also attacked the mode in which the charge has been framed. He contended that the accused have been prejudiced on account of the faulty, defective and the vague charge.

6. Shri V.M.Deshpande, the learned Additional Public Prosecutor, supported the prosecution and contended that the prosecution had brought home the guilt beyond any reasonable doubt. He also contended that the evidence of the complainant as also of her husband was extremely reliable and was rightly accepted by the trial Court.

7. Taking the second point of the learned Counsel for the defence first, let us consider the charge. Very strangely enough, though the charge is of an individual action of utterences of the abuses, it is not specified in the charge as to which of the accused persons has really uttered the offending words. On the other hand, the charge under Section 509 of the Indian Penal Code as also under Section 3(1)(x) of the Atrocities Act has been framed with the aid of Section 34 of the Indian Penal Code. Both the offences, i.e. under Section 509 and under Section 3(1)(x) are of such a nature which are individualistic. The essence of both the charges is the utterence of the filthy language on the part of the accused. Without this specific charge against the specific accused having uttered the particular offending words, the charge would really be a vague charge. In short, no accused has been given a notice of the allegation and the accused would not be in a position to know as to which of them has really uttered the offending words. The framing of the charge with the aid of Section 34 was entirely incorrect and the charge should have been framed substantively against the accused who was alleged to have uttered the offending words.

8. That apart, the charge goes on to suggest that the incident had taken place at 7 A.M. at Sirasgaon. Now considering the prosecution story that there were two incidents which took place one at the water-tap at 7 O'clock in the morning and the other near the Maternity Home at 9 O'clock in the morning, the charge again should have been specific. The charge has been framed in roundabout manner and it is clear that it is only in resect of the incident which took place at 7 A.M. there being no mention of any other incident having taken place or the accused having taken part in any such incident.

9. On this backdrop, it will be better to appreciate the evidence of the two witnesses, namely, PW.1 Kusum and PW.2 Babarao. In her evidence, the complainant PW.1 has first referred to the incident near the water tap and contended that when she was proceeding to take water, the four accused persons were there and at that time the present appellant uttered the words :-

(In Marathi Script) " Ya Chamabharnila Char Chuoghat Khechun Nangi Kelyashivay Rahnar Nahi"

She took an exception to this but nothing further took place at that time and she sent back and it was again at about 9 A.M. when she was proceeding to Maternity Home for work, near the gate all the accused persons came there and they again told her to remove her clothes and demonstrated that if she did not do that they would remove her clothes. She further goes on to depose that her husband who was in verandah heard these insulting words and raised an objection on which there was a physical altercation inasmuch as accused Haridas gave a slap to her husband and Ganesh and Sanjay also slapped her husband and her husband was dragged by the accused. She further suggested that one Manoharrao Gode came there on the spot and rescued her husband and took him near the maternity home. She further confirmed that she wanted to give the report of the incident but the accused persons restrained her. Therefore, she want to the house of one Sheshrao Kakde. She submits that a report was then lodged by one Nana Kothare at the police output upon which the police came to Sirasgaon and took them to Waigaon where she wrote a report. She had confirmed that she had written Exh. 19 at the Waigaon outpost. In her cross-examination, she had admitted that she had gone to the house of the present appellant for the delivery of his wife. It was tried to be suggested in the cross-examination that on 14-6-1991 though she was called by the mother of this accused as the wife of the accused was having some trouble, she refused to visit the house. It was suggested that on that Haridas present accused made a complaint in the Gram Panchayat against the complainant. She also refuted the suggestion that on the complaint of the present accused a resolution came to be passed by the Gram Panchayat demanding the transfer of the complainant. From the cross-examination, it becomes clear that the relations between this complainant and the accused/appellant were certainly strained. She had to admit that Sarpanch of the village had made a grievance that she did not give medicines to the patients. Her further cross-examination goes on to show that the present appellant and one Manikrao Ughade had made reports against her in the month of August & September, 1991. There thus appears to be a clear animosity existing between the witness and the appellant. Ordinarily, such animosity would be of no avail as such. However, in the proceedings such as these the said animosity would certainly play a major role. Afterall it is very easy to make an allegation that the accused person had uttered certain words. Ordinarily, therefore, in the matters where very little evidence is required, the Court will seek corroboration particularly when the relations between the complainant and the accused are strained such as in this case. It is strange that though the incident took place at 7 A.M. in the broad day light, yet there should have been no witness to corroborate the version of the complainant. Afterall a water-tap in the village is a place where ordinarily the people are expected to be present. Strangely enough, there is not a single witness made available by the prosecution to support the version of the complainant.

10. Again the subsequent event which is deposed to by the witness which took place at about 9 A.M. would put the Court on guard. It is an admitted position that the place of that incident is common with the incident involved in Crime No.109 in which none else but the husband of the complainant is an accused and is facing the prosecution under Section 324. Therefore, that incident would be such as would require the appreciation of evidence which would fix the responsibility of the accused or as the case may be the complainant. In the Crime No.109 the complainant's husband is facing a prosecution for having assaulted this very accused with a lethal weapon. Therefore, there was all the more possibility of the complainant setting up some defence mechanism in shape of a report against the present accused. Indeed, if we see the events it becomes clear that the accused has lodged his report at 3 O,clock at Deoli Police Station while till that time no report was placed or lodged by the complainant or as the case may be her husband. It seems that it is only after 3 O'clock that the complainant went to the police outpost at Waigaon and there for the first time she scribed a report and submitted the same to the police personnel who were present. Thus, it is clear that the report was made quite belatedly. The only reason given for explaining this delay is that the accused themselves had stopped the complainant from reporting the matter and had intimidated her husband who had taken shelter in the house of the Purushottam. There is indeed no evidence on record to support this version of the prosecution or the complainant as the case may be. True it is that the person at outpost at Waigaon were informed by one Kothare. However, under what circumstances that person has informed the police have not been explained. It would have been better if Kothare had been examined as a witness. The failure on the part of the prosecution to examine Kothare who was enthusiastic enough to reach the version of the complainant to the police outpost at Waigaon speaks volumes. His non-examination has thus created a doubt as to why the report of an incident was not given earlier when police outpost was barely a few kilometers away from the village. The learned Special Judge has not highlighted this aspect of the prosecution case. He has also not viewed this delay on the part of the complainant to lodge a report nor has he commented upon the same. The evidence of PW.3 is of no consequence because PW.3 has merely referred to the incident at 9 O'clock near the maternity home and that is not the subject matter of the charge. As regards the earlier incident, he only suggests that his wife had told him about the abuses. What his wife told him has been reproduced by the witness in paragraph 1 which does not tally with either the evidence of PW.1 or even her first version in Exh.19.

11. In the matter of an offence under Section 3(1)(x) as also under Section 509. where the prosecution rests on certain words uttered by the accused, what exactly those words were would be of paramount importance. Those words would suggest as to whether the accused intended to insult the modesty of such member. When we find a serious difference in the versions regarding those words, the prosecution case becomes rather suspicious. It is not as if the words are to be proved verbatim. However, at least the prosecution must bring home what was really uttered and whether what was really uttered was with the idea to hurl insult in the name of caste. I am afraid, in the present case such thing is conspicuously absent. The version of PW.3 Babarao regarding the words uttered by accused as reported to him by his wife is entirely different from the version of PW.1 Kusum herself and if there is a doubt, the benefit of the same must go to the accused. From his cross-examination, it is seen that the witness had omitted to state in his statement regarding the incident at 7 O'clock having been reported to him by his wife. This would be a major omission. At least his version then would be of no consequence muchless to corroborate the version of PW.1. This omission would, therefore, have the effect of brining his own testimony into serious doubt about his wife having told him about the abuses allegedly hurled by the present appellant. If the evidence of this witness is left out of consideration for the reasons stated above, then that would leave in the arena only the evidence of PW.1 which is shown to be an interested version or at any rate, a version tained with the feeling of animosity. Added to this animosity is the delay caused in making the report which delay has remained unexplained. All these factors have not been given their due weight by the learned Special Judge while appreciating the evidence. The finding of the learned Trial Court on this issue has, therefore, to be dubbed as erroneous.

12. In the result, the benefit of doubt has to go to the accused and the appeal has to succeed. Hence the following order :-

The appeal is allowed. The conviction and sentence order by the trial Court are set aside. The accused is acquitted of all the charges. Fine if any paid by him be refunded. His bail bounds be cancelled.

Appeal allowed.