((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.702 OF 1996 Pandharinath Mahadeo Patil Appellant versus Unus Noormohamed Mulla & anr. Respondents Mr.D.S.Sawant for appellant. Mr.R.M.Haridas i/by P.N.Joshi for respondent no.1. Mr.J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 12th January 2009 JUDGEMENT : 1. I have heard learned counsel appearing for the appellant (original complainant) and learned counsel for the first respondent (original accused). I have heard learned APP for the State. This is an appeal against an order of acquittal dated 31st May 1994 by which the learned Judicial Magistrate, First Class acquitted the first respondent-accused of an offence under section 7(1)(d) of the Protection of Civil Rights Act, 1955. The first respondent was prosecuted on the basis of a private complaint filed by the appellant. ((-2-)) 2. In the private complaint filed by the appellant it is stated that the appellant is occupying a residential premises as tenant of Mulla Masjid and Idgah Trust. The first respondent has been appointed as trustee of the said trust six or seven months prior to institution of the said complaint. The allegation is that the first respondent has been abusing and threatening the appellant for forcing him to vacate the premises held by him. 3. The case of the appellant is that he has been regularly paying the rent to the trust but the rent receipts have not been issued. A Miscellaneous Application has been therefore filed by the appellant in the Civil Court. The allegation is that the first respondent was desirous of giving premises of the appellant to the person belonging to Mohammedan community. The case is that the first respondent has been insulting the appellant on the ground of untouchability. 4. The incident occurred on 3rd December 1986. According to the appellant, at about 5.30 p.m. to 6.00 p.m; the first respondent visited the place of appellant and threatened the appellant ((-3-)) that if he failed to vacate the premises within a period of one month, the persons of Mohammedan community will ensure that the appellant should not stay in the premises. He threatened the appellant of dire consequences if any attempt was made by the appellant to approach the Police. The allegation is that the first respondent abused not only the appellant but also the members of his family. The allegation is that repeatedly the first respondent alleged that the appellant was "Maharada" and stated that the persons belonging to lower caste have no right to occupy the premises of the trust. When the appellant called upon the first respondent not to refer to his caste, the first respondent again referred to the appellant by words "Maharade" and "Chambharde" and stated that the said persons should be taught a lesson. 5. The appellant attempted to lodge a complaint to the Police Station but the same was not registered. Therefore, the appellant filed a complaint to the Collector on 7th December 1986. Subsequently a private complaint was filed by the appellant on 28th February 1987. Initially an order was passed ((-4-)) under section 202 of the Code of Criminal Procedure, 1973. Later on process was issued against the first respondent. 6. The learned counsel appearing for the appellant invited my attention to the evidence of the appellant as well as his witness Shravan. He invited my attention to the cross examination of the appellant. He stated that a suggestion was given to the appellant in the cross examination that he does not belong to the lower caste and correctness of the said suggestion has been denied. He also denied the correctness of a suggestion made to him that the appellant does not belong to Scheduled Caste. He invited my attention to the evidence of Shravan (Exhibit-43) who has supported the complainant on all material particulars by reiterating the action of insulting the appellant on the ground of untouchability. He placed reliance on a decision of a Division Bench of this Court in the case of V.P.Shetty v/s. Senior Inspector of Police and another (2005[3]-Mh.L.J.-1006) as well as a decision of the learned Single Judge of this Court in the case of Rama @ Ramchandra s/o Babbruvan Naikwadi vs. State of Maharashtra and another ((-5-)) (2006-ALL MR [Cri]-3375) and submitted that failure to mention the caste of the appellant in the complaint is not fatal as the evidence on record establishes that he belongs to scheduled caste. He submitted that even the evidence on record shows that the first respondent does not belong to Scheduled Caste. He invited my attention to the findings recorded by the learned Judge and submitted that on the basis of the evidence on record only one conclusion was possible that is of the guilt of the first respondent. 7. The learned counsel for the first respondent relied upon various decisions including the decision of the learned Single Judge in the case of Manohar Martandrao Kulkarni v/s. State of Maharashtra (2005-ALL MR [Cri]-2602. He also placed reliance on the decisions in the case of Bai @ Laxmibai w/o Nivratti Poul & ors. v/s. The State of Maharashtra (2001-ALL MR [Cri]-219) and Bharatinath Namdeo Gavand v/s. Lakhsman Mali & others (2007-ALL MR [Cri]-1953). He submitted that it was mandatory for the appellant to disclose atleast his own caste in the complaint which has not been done. He submitted that no ((-6-)) interference is called for. 8. I have carefully considered the submissions. Perusal of the complaint filed by the appellant shows that there was a prior dispute between the appellant and the first respondent. The first respondent is admittedly a trustee of a trust of which the appellant is claiming to be a tenant. In the deposition, the appellant stated that Shravan (PW-2) and one Shankar Khandu Khairnar came at the spot. In the cross examination, the appellant admitted that in the property of the trust there are fifty to sixty persons staying as tenants. He admitted that the tenants belong to different religions and castes. He stated that the first respondent demanded the rent from all of them and that he did not pay the rent to the first respondent. He admitted that the first respondent had sent a notice through his advocate and a reply was given by him to the said notice. He denied the correctness of the suggestion that the first respondent has filed a civil suit against him. He, however, admitted that a suit has been filed by the first respondent against the witness Shravan, Shankar Khairnar and Shivaji Khairnar who are ((-7-)) residing at the said property as tenants. It is stated in the cross examination that the said tenants belong to Scheduled Caste. He admitted that there were chapter proceedings between the trustee Mohammed Yusuf Mulla and himself. 9. PW-2 Shrawan deposed about the incident of 3rd December 1986 stating that when he was at his residence at the relevant time, he heard the first respondent abusing the appellant. He stated that he himself and Shankar Khandu tried to intervene and requested both, the appellant and the first respondent not to fight. He stated that thereafter they proceeded to Police Station but the complaint was not received. 10. In the cross examination he stated that at the time of the incident, five to ten persons were gathered at the spot. He admitted that he had filed an application for fixation of standard rent. 11. Perusal of the findings recorded by the learned Trial Judge shows that the learned Judge has considered the following aspects :- ((-8-)) a) The appellant failed to examine Shankar Khandu as a witness; b) Considering the proceedings between the appellant and the first respondent there was a strong enmity between the appellant and the first respondent; c) There was enmity between the first respondent and the witness Shravan. 12. After recording the aforesaid findings he has come to a conclusion that the appellant has failed to prove his case beyond reasonable doubt. 13. Thus, the acquittal is not only on the ground that the appellant failed to prove his caste or that he failed to disclose his caste in the complaint. The acquittal is on the ground of failure of the appellant to prove his case beyond reasonable doubt. 14. As pointed out earlier, there is evidence on record to show that there were prior disputes between the appellant and the first respondent. The first respondent is admittedly ((-9-)) a trustee of a trust of which the appellant is a tenant. There is a prior dispute between the witness Shravan and the first respondent. In this context, the learned Judge has rightly found that failure of appellant to examine the other witness Shankar is very relevant. Thus, the finding of the learned Trial Judge that the appellant has failed to prove his case beyond reasonable doubt is certainly a possible finding which could have recorded on the basis of evidence on record. Even if the submissions made by the counsel for the appellant are accepted, at the highest, what can be held is that another conclusion can also be drawn on the basis of the said evidence. 15. As the view taken by the learned Judge is a possible view, in the light of the well settled law, it is not possible to interfere in an appeal against the acquittal. In this view of the matter, it is not necessary to consider the wider controversy regarding effect of failure of the applicant to mention his caste in the complaint. There is no merit in the appeal against acquittal and the same is dismissed. No order as to costs. ((-10-)) (A.S.OKA, J.) ((-11-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.702 OF 1996 Pandharinath Mahadeo Patil Appellant versus Unus Noormohamed Mulla & anr. Respondents Mr.D.S.Sawant for appellant. Mr.R.M.Haridas i/by P.N.Joshi for respondent no.1. Mr.J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 12th January 2009 JUDGEMENT : For the reasons recorded separately, following order is passed :- 1. As the view taken by the learned Judge is a possible view, in the light of the well settled law, it is not possible to interfere in an appeal against the acquittal. In this view of the matter, it is not necessary to consider the wider controversy regarding effect of failure of the applicant to mention his caste in the complaint. There is no merit in the appeal against acquittal and the same is dismissed. No order as to costs. (A.S.OKA, J.)