BAIL SLIP That the Appellants herein / accused namely Sekar and Panneerselvam were directed to be enlarged on bail as per the order of this Court dated 17.3.2006 and made in Crl.M.P.No.1706/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED.12.09.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN C.A.No.230 of 2006 1. Sekar S/o. Palaniappa Gounder 2. Panneerselvam S/o.Kandasamy Gounder ... Appellants/Accused 1 and 2. Vs. State rep. by Dy. Superintendent of Police, Puduchatram P.S. Namakkal District. ... Respondent/Complainant. Cr.No.507/04. Prayer: Appeal is filed under Section 374(2) of Cr.P.C. against the judgment dated 16.02.2006 and made in S.C.No.73 of 2005 on the file of the learned Principal District & Sessions Judge (Special Court under Schedule Caste & Schedule Tribes (PA) Act 1989, Namakkal District. For Appellants : Mr.D. Shivakumar For Respondent : Mr.A.N.Thambidurai (Addl. Public Prosecutor) J U D G M E N T 1. Challenge is made in this appeal to the order of conviction and sentence dated 16.02.2006 and made in S.C.No.73 of 2005 on the file of the Learned Principal District and Sessions Judge (Special Court under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act) 1989, Namakkal. https://hcservices.ecourts.gov.in/hcservices/ 2. That on 07.12.2004, PW 8 the Deputy Superintendent of Police, Namakkal had laid a charge sheet against the appellants 1 and 2 under Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (PA) Act and under Sections 506(1) and 509 of IPC before the Learned Judicial Magistrate No.II, Namakkal, alleging that on 16.11.2004 at about 05.00pm., near the road leads to Pudhuchatram from Lakapuram, the appellants 1 and 2 had abused PW 1 and PW 2 viz., Tamarai and Sarasu in the name of their caste as they being the members of Scheduled Caste, with an intention to insult or intimidate or humiliate them within the public view and with an intention to insult their modesty and intrude upon their privacy. 3. The Learned Judicial Magistrate No.2, Namakkal had taken cognizance of the offences and committed the case to the Court of Sessions after completion of preliminary enquiry. On receipt of the case, the Learned Principal Sessions Judge, Namakkal Sessions Division, after hearing both sides had framed the following three charges; Charge NO.1 – Under Section 3(1)(x) of Scheduled Caste & Scheduled Tribes (PA) Act 1989. Charge No.2 - Under Section 506(1) of IPC. Charge NO.3 – Under Section 509 of IPC. 4. When the ingredients of the charges were explained and questioned, the appellants 1 and 2 had pleaded their innocence and claimed to be tried. Hence, they were put on trial. The prosecution in order to bring home the guilt of the appellants had totally examined 9 witnesses and during the course of their examination Exs.P1 to P13 were marked. 5. The facts in brief which giving rise to the appeal as under; 5.1. PW 1 Tamarai and PW 2 Sarasu are the residents of Navani Idayapatti Village. They are belonged to Arundhathiyar community. The appellants 1 and 2 are also the residents of the same village and belonged to Gounder community. A graveyard is located on the western side of the village. Since, the residents of the village of PW 1 and PW 2 are not having lavatory facility they have been using the said graveyard to answer the call of nature. The land of first appellant is located on the northern side of the said graveyard. The second appellant is also having his land on the northern side of the first appellant's land. That on 16.11.2004 at about 04.00pm., both PW 1 and PW 2 had been to the said graveyard for answering the call of nature. 5.2. While so, the appellants 1 and 2 who were present there had abused them in the name of their caste and threatened them that they would break their hands and legs if they happened to come again that side. This was witnessed by PW 3 and PW 4. Fearing danger PW 1 and PW 2 started running and climbed on the road leading to Natamangalam from Pudhuchatram. Since, the appellants had abused them in the name of their caste in the presence of PW 3 and PW 4 they got annoyed and https://hcservices.ecourts.gov.in/hcservices/ humiliated. At about 06.00pm., PW 1 had informed this incident to her husband Sengotayan and thereafter she long with her husband had been to Namakkal and lodged a complaint under Ex.P1 before the District Superintendent of Police. 5.3. That on 17.11.2004, PW 8 Deputy Superintendent of Police, Namakkal Sub-Division had received the complaint under Ex.P1 from the office of the Superintendent of Police with an endorsement under Ex.P8 to register a case. Accordingly PW 8 had forwarded the said complaint to the Inspector of Police attached to Pudhuchatram Police Station to register the case. The endorsement made by PW 8 on the complaint was marked as Ex.P9. 5.4. In pursuant to Ex.P9, PW 7, Sub-Inspector of Police attached to Pudhuchatram Police Station had registered a case on 17.11.2004 in Crime No.307 of 2004, under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (PA) Act 1989 and thereafter he had forwarded the first information report, Ex.P7 along with the complaint Ex.P1 to the Learned Judicial Magistrate No.II, Namakkal. He had also submitted a requisition to the Superintendent of Police, Namakkal to nominate an investigating officer. 5.5. In pursuant to the requisition made by PW 7, the District Superintendent of Police had nominated PW8 Deputy Superintendent of Police as the investigating officer vide in his order dated 17.11.2004 bearing No.CM98/TCR/Namakkal/2004. The Order of the District Superintendent of Police was marked as Ex.P10. 5.6. On receipt of the case records, P.W.8 had been to the place of occurrence on 18.06.2004 at about 06.00 a.m., inspected the same and prepared an observation mahazar under Ex.P3 in the presence of the witnesses viz.P.W.5 Sunder Raj and one Sadashivam. He had also prepared a rough sketch in respect of the place of occurrence under Ex.P11. Then he had examined the witnesses P.W.3 and P.W.4 and other witnesses and recorded their respective statements. At about 09.30 am., he had arrested the second appellant after explaining him the reason for his arrest under Ex.P12 and sent him to Court for being remanded to judicial custody. 5.7. That on 19.11.2004, he had given a request under Ex.P13 to P.W.6 Tahsildar requesting to issue community certificate in respect of P.W.1 and P.W.2 and the appellants 1 and 2 respectively. 5.8. In pursuant to Ex.P13, P.W.6 had issued Ex.P3 and Ex.P4 community certificates in respect of P.W.1 and P.W.2 saying that P.W.1 and P.W.2 are belonged to Hindu Arundhathiyar community, which comes under the category of Scheduledd Caste as per the Government Order. Similarly, he had also issued Exs.P5 and P6 in respect of the appellant 1 and 2 saying that they are belonged to Hindu Vellalar community, which comes under the category of backward class. https://hcservices.ecourts.gov.in/hcservices/ 5.9. The first appellant had voluntarily surrendered before the Court. After the completion of his investigation, P.W.8 had laid a final report against the appellants 1 and 2 on 07.12.2004 before the learned Judicial Magistrate, Namakkal. With the evidence of P.W.8, the prosecution has closed its side. 6. When the incriminating circumstances arising out of the testimonies of the prosecution witnesses ranging from PW 1 to PW 8 were read over and explained to the appellants 1 and 2 during the course of the proceedings under Section 313 Cr.P.C., while denying their testimonies they had jointly replied that there was previous enimity between them and PW 4 Ramasamy. DW 6 Mr.Swaminathan, Inspector of Police who was working in the District Police Office at Namakkal was also placed in additional charge of Puduchatram Police Station. In order to settle a civil dispute between the appellants and PW 4 Ramasamy, the appellants were asked to come to the office of the District Police Head Quarters at Namakkal. Besides this they were also compelled to settle the dispute with PW 4. Hence, the first appellant had approached his lawyer and caused a notice to be served on the Inspector of Police, DW 6 Mr.Swaminathan as well as on the District Superintendent of Police. 7. Apart from this there was also a dispute between the first appellant and one Sengodan who is the relative of PW 2 Sarasu. In this connection the first appellant was also compelled to provide a cart track in his land. With regard to this he had also filed a civil suit. Under the above circumstances in order to wreck vengeance PW 4, with the evil design to foist a criminal case that to under Scheduled Caste and Scheduled Tribes (PA) Act against the appellants had used PW 1 and 2 as an instrument to lodge the complaint against them. 8. In support of the case of the defence, the appellants had examined 6 witnesses on their part and during the course of their examination Exs.D1 to D17 were marked. Apart from this Exs.C1 and C2 were also marked as the court documents. The case of the defence: 9. DW 1 is the first appellant whereas DW 2 is the second appellant. Both the appellant are having their own cultivable lands in Navani Idayapatti Village. The agricultural land belonging to the first appellant is comprised in Survey No.32/3. Besides this he is also having agricultural lands on the western side as well as on the northern side of Arundhathiyar colony. A panchayat road is running east-west on the southern side of the land comprised in Survey No.32/3. This metal road leads from Puduchatram to Lakapuram. PW 4 is also having his land near the land of the appellant. A cart track is lying in between the land of the appellants. In this connection there was an enmity prevailing between the first appellant and one Kaliannan, Ramasamy, Karupannan, Raju and one Selvi. Several case is also pending in respect of the above said cart track. On account of this PW 4 Ramasamy and Kaliannan and others had assaulted the first https://hcservices.ecourts.gov.in/hcservices/ appellant. Both the groups had lodged complaints against each other. Since several criminal and civil cases are pending a constable attached to Puduchatram Police Station had asked the first appellant to come to Namakkal S.P. Office. At that time DW 6, Mr.Swaminathan was placed as in additional charge of the Inspector of Police at Puduchatram Police Station. But the first appellant did not go and meet him. He was also compelled to come and settle the dispute with regard to the cart track. But the appellants had issued a notice through their lawyer to the DW 6, Inspector of Police, Swaminathan as well as to the Namakkal Superintendent of Police. The copy of the lawyer's notice was marked as Ex.D11. 10. After the issuance of the notice through their lawyer PW 4 Ramasamy one karupannan, katai @ Raman, Jaganathan and one Sundar Raj had claimed that the land belonging to the first appellant was used as graveyard. On account of this reason, the first appellant and his mother had filed a civil suit. The copy of the plaint was marked as Ex.D3. When the matter stood thus, PW 1 had lodged the complaint on 16.11.2004 against the appellants alleging that they had abused them in the name of their cast. In fact this case was foisted against them. The land comprised in Survey No.32/3 is belonged to the first appellant and his mother. PW 1 to PW 5 are working in the farm belonging to PW 4. Therefore, this case has been foisted only on the instigation of PW 4. In fact, the appellants had nothing to do with PW 1 and PW 2 and equally they had no animosity against them. 11. PW 4 Ramasamy is the aunts' son of DW 3 Palanichamy. There is no enmity between PW 4 and DW 3. There is neither graveyard nor any public toilet in between the land of the first appellant and Arundhathiyar colony. PW 4 Ramasamy's land is lying just 100ft. away from the land of the first appellant. No such incident was taken place on 16.11.2004 alleging that the appellants had abused PW 1 and PW 2 in the name of their cast. The witnesses PW 1 to PW 5 have been working under PW 4 Ramasamy as agricultural coolie's. They used to go for agricultural work through the land of PW 4 Ramasamy. 12. DW 4 is the Postal Superintendent. He has spoken to about the service of notice and summons through registered post to the Inspector of Police, Swaminathan attached to Puduchatram Police Station as well as to the Superintendent of Police, Namakkal. 13. DW 5 is working as Superintendent in the office of Deputy Inspector General of Police, Salem. He has spoken to about the transfer of Mr.Swamynathan Inspector of Police to Puduchatram Police Station from Paramati Police Station. Ex.C2 is the order of posting of the Inspector of Police (CATE-I) as Deputy Superintendent of Police passed by the Deputy Inspector General of Police, Salem range. Ex.C1 is the transfer and posting of the Inspector of Police dated 28.06.2004, ordered by the Deputy Inspector General of Police, Salem Range. As per Ex.C2, DW 6 Mr.Swaminathan, Inspector of Police attached to Puduchatrm Police Station was promoted as Deputy Superintendent of Police and posted at Tiruvarur District. He has https://hcservices.ecourts.gov.in/hcservices/ admitted that he had received a lawyers notice Ex.D11 which was sent by the appellants. Ex.D13 is the acknowledgment receipt. 14. On evaluating the evidences both oral and documentary, the learned Special Judge, under Scheduled Caste & Scheduled Tribes (PA) Act 1989 (Principal District and Sessions Judge), Namakkal had found the appellants 1 and 2 guilty under Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (PA) Act 1989 and under Sections 506(1) and 509 of Indian Penal Code convicting and sentencing them as aforestated. 15. Challenging the order of conviction and sentence the appellants have approached this Court by way of this appeal. 16. Heard the learned counsel for the appellants as well as the learned Additional Public Prosecutor appearing for the respondent/state. 17. Out of 3 charges, which are manifested from the records, the first charge under Section 3(1) of (PA) Act 1989 seems to be the prime one. 18. Section 3 of Scheduled Caste and Scheduled Tribes (PA) Act 1989 (it may hereinafter be referred to as the Act) deals with the punishment for offences of atrocities. Sub-Section 1 to Section 3 enacts as under: "Who ever not being a member of a Scheduled Caste or Scheduled Tribes.- Clause (x) to Sub-Section (1) of Section 3 of the Act reads as follows; "Intentionally insults or intimidates with intend or humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within public view." 19. In accordance with the first charge the accusation leveled against the appellants 1 and 2 is that on 16.11.2004 at about 05.00pm., when PW 1 and PW 2 were proceeding to the graveyard belonging to Arundhathiyar community for answering the call of nature, the appellants 1 and 2 were present in the agricultural land belonging to the first appellant which is lying proximate to Lakapuram Puduchatram road. On noticing them, the appellants 1 and 2 had abused PW 1 and PW 2 in the name of their caste with obscene language in public place within public view and thereby PW 1 and PW 2 were humiliated. 20. To attract the proviso to Clause(x) to Sub-Section (1) of Section 3 of the Act, the following ingredients are very much essential. 1.The person who is accused of, shall not be a member of the Scheduled caste or Scheduled tribe. 2.The person who is aggrieved shall be a member of the Scheduled caste or Scheduled tribe. https://hcservices.ecourts.gov.in/hcservices/ 3.Criminal intention to insult or intimidate or to humiliate. 4.The occurrence should have taken place in any place within public view. 21. Clause (x) to Sub-Section 1 of Section 3 of the Act itself is very clear that whoever not being a member of Scheduled Caste or Scheduled Tribe intentionally insults or intimidates with intend or humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. 22. Hence, the existence of mens rea or criminal intention to constitute an offence under Section 3(1)(x) of Scheduled Caste and Scheduled Tribe (PA) Act 1989 is very much essential. If there is no intention, no offence will constitute. And that is why, the legislators have carefully employed the words "intentionally insults". 23. The test of criminality depends upon the presence of criminal intent. The maxim – "actus non facit reum, nisimens sit rea" is then, as true here as it is in England. The above maxim conveys the meaning "the fact itself does not make a man guilty unless his intention was so". 24. In Wharton's Law Lexicon, 160th Year of Publication at page 40 the maxim "actus non facit reum, nisimens sit rea" has been defined as follows; “An act does not make a man guilty, unless there be guilty intention. This is one of the most important rules of criminal law. As a general rule of our law, a guilty mind is an essential ingredient of crime, and this rule ought to be borne in mind in construing all penal statues.” 25. It is only when the mind is at fault, that a man can be held guilty of an offence. It is fundamental, too, what whenever and wherever there is a mistake on fact on which is founded a belief in good faith of justification by law of an act, the requisite state of mind that would make the author of the act guilty is absent. Considered in this aspect, there is hardly any difference between mistake of fact and mistake of law, but it has been the policy of criminal jurisprudence of civilized countries that every individual shall be presumed to know the law and shall be debarred from pleading ignorance of law as an excuse. This principle is envisaged in king v. Tustipada Mandal reported in AIR 1951 Orissa 284 at p.289. Whether the presence of appellants 1 and 2 and PW 1 and PW 2 in the place of occurrence has been established ? 26. Based on the fiction of prosecution, the presence of appellants 1 and 2 in the place of occurrence i.e., in the agricultural lands belonging to the first appellant which is lying proximate to the Lakapuram-Pudhuchatram road is very much doubtful. As per the case of the prosecution, PW 1 and PW 2 had been to the https://hcservices.ecourts.gov.in/hcservices/ place of occurrence i.e., the burial ground belonging to Arundhathiyar community for answering the call of nature. In fact as revealed from the testimonies of PW 1 and PW 2, the burial ground where they had been to for answering the call of nature is a plain surface without any bushes. It is also revealed from the evidence of PW 2 that a burial ground belonging to Gounder Community is located near her residence wherein there are plenty of plants and bushes. In this connection, the learned counsel for the appellant would submit that the residential house of PW 2 is located in a garden, 1km., away from the new street. PW 1 Tamarai is residing along with her husband in the old street. The graveyard which is classified as "Government poramboke" is lying on the western side of the old colony. He would submit further that indeed no toilet facility was available to the people belonging to the Arundhathiyar community. They used the public places to answer the call of nature. PW 1 and PW 2 being ladies naturally they would not prefer plain surface to answer the call of nature on account of their social coy or timid nature. Above all they require privacy. Here the place in question does not have bushes or any hidden place so as to facilitate them to answer the call of nature. Hence, the selection of the place by PW 1 and PW 2 where the appellants 1 and 2 were present is highly unbelievable. 27. As it revealed from the evidence of PW 4 Ramasamy, who is said to be one of the eye witnesses for the offence, his land is located on the northern side of the land belonging to the first appellant. The second appellant's land is located on the northern side of PW4's land. Hence while advancing his arguments the learned counsel for the appellants had doubted the presence of the appellants 1 and 2 in the land of the first appellant. Equally, the presence of PW 1 and PW 2 in the place of occurrence has also been doubted. In this connection, the learned counsel for the appellants would further submit that the testimonies of PW 3 and 4 itself would go to show that they would not have been present in the place of occurrence at the alleged time of occurrence. He has also invited the attention of this Court to the evidences of PW 3 and PW 4 particularly to their cross-examination. 28. In his chief examination PW 4 has stated that on 16.11.2004, at about 05.00pm., he was irrigating mulberry plants in his land after returning from market. In his cross examination he would state that since, PW 3 was present there, he had been to that place only to see him. He has also deposed that neither PW 3 was belonged to his community nor he was related to him. 29. On coming to the evidence of PW 3 he would state that, when he was returning to his house in the evening from the work spot, by the side of the graveyard situated near the old colony, PW 1 and PW 2 were present in the graveyard and the appellants 1 and 2 were also present in their respective lands. While so, the appellants 1 and 2 had abused PW 1 and PW 2 and driven them from the place. PW 1 and PW 2 also came running towards the road abutting on the graveyard. While so, PW 4 Ramasamy was also present there. But PW 3 did not say https://hcservices.ecourts.gov.in/hcservices/ anything about what PW 4 was doing at the time of occurrence. From the testimonies of PW 1 to PW 4 this court is able to infer that the presence of the appellants 1 and 2 in the place of occurrence, when PW 1 and PW 2 came there to answer the call of nature is doubtful and highly unbelievable. Further the presence of PW 3 and PW 4 in the place of occurrence has also not been probablised by the prosecuting agency. 30. Mr.D.Shivakumar, the learned counsel for the appellants has also submitted that the two ladies viz., PW 1 and PW 2 would not have gone to such a place which is an open area without any privacy to attend the natures call that too at 05.00pm., in the evening. He would contend further that when a burial ground meant for Gounder community which is situated very close to their residence with thorny bushes which could provide necessary privacy is available it is highly improbable to say that both of them had chosen a place without privacy which is more than 1 km., away from their residence. He would contend further that the graveyard where PW 1 and PW 2 had gone, is abutting on main road. He has added further that at 5pm., in the open space which is proximate to the main road, they would not have gone there for the purpose of answering the natures call. He has also contended that the contradictions between the testimonies of PW 3 and PW 4, regarding the presence of PW 1 and PW 2, at the alleged seen of occurrence created doubt and hence, the story of the prosecution is completely shrouded with suspicion. 31. In the first charge leveled against the appellant under Section 3(1)(x) of the Act, it is stated that there was verbal altercation between the appellants