Criminal Appeal No.328 of 1995

30th August, 2006

Petitioner Counsel: Mr. A. A. MUKHEDKAR
Respondent Counsel: Shri. N. B. PATIL,None

Cases Cited:
Shri. V. P. Shetty Vs. Sr. Inspector of Police, 2005 ALL MR (Cri) 2384 [Para 14,15]
Manohar s/o. Martandrao Kulkarni Vs. State of Maharashtra, 2005 ALL MR (Cri) 2602=2005(4) Mh.L.J. 588 [Para 15]
Ashok Lakhaji Halmare Vs. State of Maharashtra, 2005 ALL MR (Cri) 2489 [Para 15]

JUDGMENT

JUDGMENT :- This appeal is directed against order passed by learned Special Judge, Osmanabad in Special Case No.3/1995. By the impugned order, the appellant came to be convicted for offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also under Section 323 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for 6(six) months and to pay fine of Rs.200/- (Rs.Two Hundred) in default to suffer rigorous imprisonment for 2(two) months for offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and further to suffer rigorous imprisonment for 6(six) months and to pay fine of Rs.300/- (Rs.Three Hundred) in default to suffer rigorous imprisonment for 2(two) months for offence punishable under Section 323 of the Indian Penal Code. Both the substantive sentence are directed to run concurrently.

2. The prosecution case, narrated briefly, is that complainant-Bhimrao Ranba Zende is a member of Scheduled Caste being "Mahar". He is a labour. There is a bicycle shop run by his family members, situated, near Octroi Post (Naka) at Osmanabad. As per his daily routine, on 31st January, 1992 he had gone to a tea stall near the bicycle shop at about 2.30/3.00 p.m. while he was sipping a cup of tea, the appellant/accused went there and made query, "Bhimya, Mahardya, have you become more arrogant ?" (......uËYµÈe c|ej[Èe cepnem keÈ nF_¿......) The appellant further abused him in the name of his mother and sister. So, he asked the appellant why for such abuses were being hurled. The appellant caught hold of his neck, manhandled, pulled and pushed him and gave kick blows. The appellant then picked up an iron rod which was lying near the spot and dealt a blow thereof on his head. Another blow of the iron rod was struck on his back. He was injured. His shirt and Baniyan were stained with blood and were torn due to pulling and pushing. His brother-in-law, namely, Vijay Chandanshive and Chandrakant Chandanshive rescued him.

3. The complainant went to the police station in the same noon and gave his report. He was referred to Civil Hospital, Osmanabad, for medical examination and treatment. Crime No.28/1992 was registered, on the basis of the F.I.R. for the offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 323 of the Indian Penal Code. P.S.I. Shinde, carried out investigation. The appellant was charge-sheeted for the offence as indicated above.

4. At the trial, the appellant pleaded not guilty to the charge (Exh.15) framed by the Special Court. He denied truth into the accusation. His defence is one of simple denial. According to the defence, the complainant was in a habit of making false complaints. It is suggested to the complainant that the complaint is falsely lodged so as to frame the appellant, therefore, he sought acquittal from the charge.

5. The prosecution examined 9 (Nine) witnesses in order to prove its case. Out of them, P.W.2-Vijay and P.W.3-Chandrakant were examined as eye-witnesses. Both of them, however, withdrew their support to the case of the prosecution and were declared hostile. Nothing of much importance could be gathered from their cross-examination conducted by the learned A.P.P. Their evidence is of no avail, whatsoever, and hence was dis-carded by the learned Special Judge. The learned Special Judge believed testimony of P.W.1 Bhimrao (complainant) due to corroboration received from the medical evidence. Thus, the appellant came to be convicted and sentenced as stated at the outset.

6. On behalf of the appellant, learned counsel Mr. A. A. Mukhedkar, holding for Mr. S. S. Chaudhari, Advocate, canvassed before me that the impugned order is erroneous and un-sustainable. He argued that version of P.W.1. Bhimrao should not have been relied upon by the learned Special Judge. He contended that prior animosity between the complainant and the appellant should be interpreted as a ground to falsely frame him. He further pointed out that the F.I.R. (Exh.22) does not disclose caste of the complainant and the appellant. He submitted that the intention of the appellant to insult the complainant on the ground of caste or with a view to practice un-touchability is absent. He contended that findings of the learned trial court are improper and illegal. Hence, he urged to allow the appeal. On the other hand, the learned A.P.P. Mr. N. B. Patil, supported the impugned judgment.

7. At the threashold, it is worthwhile to mention that the prosecution case hinges upon version of the complainant-P.W.1 - Bhimrao. The other three independent witnesses, namely, P.W.2-Vijay, P.W.3-Chandrakant and P.W.4-Phulchand did not support the prosecution case. Though they were cross-examined by the learned Special Public Prosecutor, yet nothing of significance could be gathered from their cross-examination. Still, however, P.W.4 - Phulchand has partly corroborated the prosecution case. He states that he was running a hotel near the place i.e. Barshi Naka and had witnessed a quarrel which took place between the complainant-P.W.1 -Bhima and the appellant. According to him, said quarrel took place at about 3.00/3.30 p.m. prior to about 2-3 years. He did not notice what really happened since he was busy in his hotel. This part of his testimony has remained unchallenged.

8. P.W.1-Bhimrao narrated the incident. His version purports to show that at about 2.30/3.00 p.m. on 31st January, 1992 he was taking a cup of tea at tea stall of one Popat Shelke. That tea stall is situated near Barshi Naka in the outskirts of township of Osmanabad. He deposed that the appellant reached the place and called him "Bhimya, Mahardya" and stated that he had become arrogant. His version purports to show that the appellant started pulling and pushing him. When he asked the appellant to stop the manhandling, the appellant suddenly lifted an iron bar and gave blows thereof on his back and head. His head was injured. The shirt was torn and soaked with blood. He corroborated recital of the complaint F.I.R. (Exh.22). The F.I.R. (Exh.22) was lodged in the same evening. His blood stained clothes (Article Nos.1 and 2) were seized by the police which he identified whilst in the witness box.

9. It is admitted by P.W.1 - Bhimrao that a large number of persons were present near the spot. He further admitted that except P.W.Vijay and P.W.Chandrakant who are his brothers-in-law, nobody-else intervened during the course of the incident. His version reveals that his brother had lodged a complaint against one Shivaji Zende and others. He denied the suggestion that he is in habit of lodging complaints against the villagers. He categorically states that he is "Mahar" by caste and the appellant belongs to "Maratha" caste.

10. So far as the fact that P.W.1 - Bhimrao belongs to Scheduled Caste, being "Mahar", there is no denial by the defence in the cross-examination. Similarly, there is no denial to the fact that the appellant is "Maratha" by caste. The appellant was put specific questions No.1 and 2 during his cross-examination under Section 313 of the Code of Criminal Procedure, 1973 regarding the caste of P.W.1 Bhimrao and his own caste. He admitted the fact that P.W.1 Bhimrao is "Mahar" by caste, whereas he is Maratha by caste.

11. Let it be noted that presence of the accused/appellant at the spot is clearly corroborated by P.W.4 -Phulchand though the manner of incident is not supported by him. The version of P.W.Bhimrao stands corroborated due to statement of P.W.- Fulchand and, therefore, it will have to be said that the appellant went to the tea stall in the relevant noon at about 3.00 p.m. and there took place some incident, which P.W.-Phulchand referred as quarrel between P.W.-Bhimrao and the appellant. It follows that the prosecution case is not without foundation and there is adequate proof to infer that some incident took place in the relevant noon at the tea stall.

12. The evidence of P.W.5 - Dr. Mohmad Ashpak reveals that P.W.- Bhimrao was produced before him in the same noon at about 4.00 p.m. for medical examination. At the relevant time, P.W. - Dr. Mohmad Ashpak was attached to Civil Hospital, Osmanabad as Medical Officer. He noticed two injuries on person of P.W. - Bhimrao. They were :-

i) Contusion lacerated wound - 3 c.m. x 1 c.m. x 1. c.m. on occipital region of left side.

ii) Contusion, 3 c.m. x 3 c.m. on back of right scapular region.

His version purports to show that both these injuries were caused by some hard and blunt object within 24 hours and were of simple nature. He corroborated recitals of the medical certificate (Exh.27). There is hardly any cross-examination directed against him, except and save a single question regarding the probable cause of the injuries. He admitted that those injuries could be caused even due to fall on hard substance. It is true that such injuries could be caused due to fall of a person on hard surface but then contusion lacerated wound on occipital region could not have been caused unless the fall was in slanted position with head towards the hard surface.

13. The evidence of P.W.7 Babu is of no avail. He was examined as panch regarding seizure of the iron rod. The panchanama (Exh.31) is not supported by P.W. babu. Nothing of much importance could be gathered from his cross-examination. His evidence is of no avail to either side. The evidence of P.W.8 - Police Head Constable-Nagnath corroborates the fact that P.W.- Bhimrao visited the City Police Station, Osmanabad, at about 3.50 p.m. and lodged the F.I.R. (Exh.22). The evidence of P.W.9 - PSI Shinde would show that blood stained shirt Banyan (Articles No.1 and 2) were seized under seizure panchanama (Exh.28). He prepared spot panchanama (Exh.29). He further claims to have effected the seizure of the iron bar (Article-3) from the appellant. The version of P.W.- PSI Shinde remained unchallenged in so far as it relates to seizure of the blood stained shirt and Banyan from person of P.W. - Bhimrao, vide seizure panchanama (Exh.28).

14. Learned counsel Shri. A. A. Mukhedkar, relied upon certain observations in case of "Shri. V. P. Shetty Vs. Sr. Inspector of Police & Another" (2005 ALL MR (Cri) 2384). It is observed in the given case that while considering the challenge to the F.I.R., court has to consider the contents thereof. The facts of the given case would show that the F.I.R did not disclose that the abuses and utterances of the petitioner/accused were addressed to the complainant on the ground of the complainant being a member of the Scheduled Caste, at the place which was "within public view" and hence it was held that the F.I.R. was partly quashed to the extent it related to the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the present case, the alleged incident occurred in the public view and as such was witnessed by P.W. - Phulchand. The place is by side of road near Barshi Naka. The tea stall is not a private place, nor the complainant - P.W.- Bhimrao was sitting in a sickled or isolated place which could not be within the view of public members. Therefore, the observations in case of "Shri. V. P. Shetty" are of no assistance to the appellant.

15. Further reliance is placed on case of "Manohar s/o. Martandrao Kulkarni and another Vs. State of Maharashtra and others" (2005(4) Mh.L.J. 588) and Ashok Lakhaji Halmare Vs. State of Maharashtra & another (2005 ALL MR (Cri) 2489). The first one is Judgment of the Single Bench in the context of registration of crime under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The issue pertained to quashing of the F.I.R. In case of "Ashok Lakhaji Halmare" the incident had occurred in the office premises. The Single Bench of this court took view, therefore, that when the incident had not occurred at the place which was "within public view" then the proceedings in the Special Criminal Case deserved to be quashed. I am afraid, neither of the case law is of much help to the appellant. As regards the view expressed in "V. P. Shetty" (supra) that caste of the complainant and of/or the accused must be mentioned in the body of F.I.R., I have my own reservations. For, Section 154 of the Code of Criminal Procedure, 1973 only requires brief report regarding the incident which could set the criminal law in motion. It is well settled that the F.I.R. can not be regarded as compendium of the events and all the details of the incident in question. The caste of the complainant may be verified by the Investigation Officer before he undertakes the investigation and so also the caste of the accused may be ascertained during course of the investigation. Expectation that castes of both of them should be invariably incorporated in the F.I.R., is, in my opinion, asking for something more which is not expected by the law under Section 154 of the Code of Criminal Procedure, 1993. Consequently, with great respects, I find it difficult to go by the observations made in the above authority cited by the learned counsel for the appellant.

16. This court can not overlook intention of the Legislature in bringing about the special enactment, namely, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This earlier enactment i.e. the Protection of Civil Rights Act, (P.C.R. Act for short) did not provide for certain exigencies. The law may not be adequate to banish the evil of un-touchability but it would be viable instrument to curb such an evil. Being a special enactment aimed at achieving goal of social justice, the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must be strictly construed. The menace of untouchability has to be dealt with firm hand.

17. Learned counsel Mr. A. A. Mukhedkar, urged to discard version of P.W.- Bhimrao on the ground that it is not independently corroborated. I do not agree. Independent corroboration is not a rule of law as such. The evidence of P.W. - Bhimrao is duly corroborated by his immediate conduct. He lodged the F.I.R. (Exh.22) in the same noon. His blood stained shirt and Baniyan were seized by the Police Officer in the very same noon. His medical examination was conducted in the same evening. The medical evidence disclosed that he had received two injuries, including the head injury which caused trail of blood and stains thereof on the Shirt and Baniyan (Articles 1 and 2). As stated before, part of the version of P.W.4 - Phulchand also goes to show that there took place some incident in the relevant noon as between P.W. - Bhimrao and the appellant. All these circumstances, considered together, go to prove the accusation against the appellant. The learned Special Judge was justified, therefore, in accepting the version of P.W. - Bhimrao. I hold that the appellant insulted P.W. - Bhimrao on the ground of his caste and at the place which was within public view.

18. Section 3(1)(x) requires proof of following ingredients :

"(i) the intentional insult or intimidation by the accused.

(ii) existence of intention to humiliate a member of Scheduled Caste or Scheduled Tribe, and

(iii) the place where such act is committed shall be "within the public view".

19. I am of the opinion that all these ingredients are duly satisfied by the prosecution in the present case. There is no substantial reason, therefore, to dislodge findings of the learned Special Judge. Needless to say, the appeal is destitute of substance and liable to be dismissed.

20. In the result, the appeal is hereby dismissed. The impugned order is confirmed. The appellant shall surrender to the bail immediately.

Appeal dismissed.