1 Appln 3460-2010 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3460 OF 2010 Ajay Keshav Patole .Applicant V/s. Sau. Draupadi Prem Sadhwani & ors .Respondents Mr.P.B.Naiknaware, Advocate, for the Applicant Mr.Mulesh Modi, Advocate, for the Respondent Nos.1 to 4 Mr.S.A.Shaikh, APP, for Respondent No.5 - State CORAM : R.C.CHAVAN, J. DATE : 28TH JUNE, 2011 P.C. . Heard the learned Counsel for the respective parties. 2. This is an application for leave to file an Appeal filed by the first informant. The first informant questions the Judgment of the learned Special Judge, Greater Mumbai, whereby she acquitted the respondent Nos.1 to 4 for the offences punishable under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 323 read with Section 34 of 2 Appln 3460-2010 the Indian Penal Code. The respondents are two sisters of the first informant's wife and their husbands. The learned Counsel for the applicant submitted that the applicant does not press the appeal insofar as it relates to the respondent Nos.2 to 4. The appeal is restricted only to the acquittal of respondent No.1 Sau. Draupadi Prem Sadhwani. Even according to the learned Counsel, the incident dated 17th October, 2005 was not one at which the respondent Nos.2 to 4 participated. 3. As far as respondent No.1 is concerned, the learned Counsel for the applicant submitted that there are at least three witnesses, who have categorically stated that respondent No.1  Draupadi indulged in caste based abuses to the first informant. This allegation came in the context of the following facts. The first informant belongs to Scheduled Caste and he was married to respondent No.1  Draupadi's sister, Meena. 3 Appln 3460-2010 The marriage ended in a separation before the incident. On 17th September, 2005, there was a report by applicant's sister-in-law, Manisha which led to registration of non-cognizable case. On 17th October, 2005, according to the first informant, when he reached his house from his office at about 6:30 p.m., respondent No.1  Draupadi abused calling him Dhed, Mahar, Bhangi, Scheduled Caste ki aulad He stated that respondent No.3  Prem Vikram Sadhwani was also present there but did not restrain his wife Draupadi. PW-2 Harishchandra Jairam Kolhekar is a friend of the first informant's father. He too claimed to have witnessed the incident and stated that one lady was bouncing the first informant and calling Bhangi, dhed ki aulad, kaha bhag rahe ho . PW-3 Vijaykumar Narayandas Badlani also claimed to have witnessed the incident and stated that Draupadi and Manisha called the Complainant Dhed, mahar, bhangi, scheduled caste but the evidence of PW-6 4 Appln 3460-2010 Kishor Vasantrao Patil, PSI stated that Vijaykumar Badlani had not stated anything about the incident of 17th October, 2005. In any case, even the Counsel for the first informant now states that at the time of incident dated 17th October, 2005 only Draupadi was present and therefore, Badlani's evidence is obviously rejectable. PW-4 Keshav Gulaji Patole is father of the first informant, who too stated that Draupadi was following his son and abusing his son by saying Dhed ki aulad, bhangi tu kahatak chupega hamse, ham chodenge nahi . PW-5 Kishor Jairam Yashod's evidence is about the incident dated 17th September, 2005. As already stated, PW-6 is PSI, who conducted part of the investigation. PW-7 Milind Jayram Yashod is also witness of the incident dated 17th September, 2005. PW-8 Ajit D. Naik likewise stated that about the incident dated 17th September, 2005 which is not the subject matter of trial before the Special Court. PW-9 ACP Dilip Pandurang 5 Appln 3460-2010 Suryawanshi completed the investigation. 4. The learned Judge held that since the first informant was employed in the Government office, which he claims to have left at 6:00 p.m., he could not have been at the spot at 6:40 p.m. when the incident is reported to have taken place as per the FIR. Considering that the first informant was working at Churchgate and the incident occurred in Andheri, there is possibility that the first informant could not have been at the spot at 6:40 p.m., but this is not such serious discrepancy as to discard the evidence of the witnesses, though the first informant, who commutes on suburban trains, could not have been inaccurate about the time when the incident took place. 5. The learned trial Judge also held that the abuses attributed to respondent No.1  Draupadi by the three witnesses are all 6 Appln 3460-2010 different and therefore, the learned Judge refused to believe the word of the three witnesses. When an incident is made up only verbal tirade, it would be expected that the witnesses reproduce the exact words attributed to the accused. It cannot be said that view taken by the learned Judge is perverse or erroneous to call for interference by this Court. 6. However, while at this stage, the first informant seems to have come to realize that he could not have run after so many respondents in respect of the incident dated 17th October, 2005 and chose to withdraw the Appeal in respect of three other respondents, in the trial Court, the first informant was insistent that Manisha was also present at the time of the incident and stated in para 10 of the cross examination that he told the police that Manisha was present and could not imagine any reason as to why police had not so 7 Appln 3460-2010 recorded. It is also worthy to note that his own father PW-4 Keshav Gulaji Patole categorically stated that it did not happen on that day apart from Draupadi, he had also seen Manisha. Considering this, it cannot be said that the learned Judge erred in refusing to believe the word of the first informant. 7. The learned Counsel for the respondent Nos.1 to 4 also raised an objection to the tenability of appeal by relying on the Judgment in Damodar Pednekar Vs. Umakant Naik s/o. Laxman Naik & Anr., reported at 2006 ALL MR (Cri) 2607. In view of amendment of Section 372 Cr.P.C. which came into force on 31st December, 2009 i.e. after this Judgment was delivered, this Judgment becomes irrelevant. The learned Counsel also relied on Judgment in Balu s/o Bajirao Galande Vs. State of Maharashtra & anr., reported at 2006 ALL MR (Cri) 3197 where the Court considered the import of the expression public view in 8 Appln 3460-2010 Section 3(1)(x) of the Act. In para 19 the Court observed as under :- 19. Considering the judicial pronouncements on the subject, the expression within public view must be construed to mean that the insult or humiliation must take place in the presence of or in the proximity of at least one independent person. The test of audibility and visibility can be taken to have been satisfied if an independent person is actually present or is at a place where the utterances are clearly audible and reaches the scene of occurrence while the incident is still in progress. The learned Counsel for the respondent Nos.1 to 4, therefore, submits that unless an independent witness was actually present and had seen the incident, it cannot be said that the incident took place in public view. For deciding this Appeal, it is not necessary to go into this question, since on merits of the matter, because of the inconsistency in the evidence of the three witnesses, the view taken by the learned Judge has to be upheld. 9 Appln 3460-2010 Yet the insistence on examination of an independent witness to satisfy the requirements of incident having taken place in public view, would amount to insistence on the presence of stranger, who may not be there. An incident could be said to have taken place in public view, if it was capable of being viewed by a person other than family members and it is not necessary that first informant or victim must have seen a stranger actually witnessing the incident to be able to name such stranger as a witness. Therefore, non- examination of stranger need not result in an inference that incident did not take place in public view, only because family members or friends come up to depose in the Court. This is so because ordinarily, strangers or passers by show may not any interest in deposing in Court. Therefore, merely because an independent witness is not examined, an incident could not be said to have not taken place in public view. 10 Appln 3460-2010 8. In view of the foregoing, since view taken by the learned Judge cannot be said to be perverse or improbable. Leave refused. Appeal dismissed. (R.C.CHAVAN, J.)