1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.5 OF 2007. State of Goa ... Appellant Versus Miss Maria @ Mary Mascarenhas, Resident of H.No.108 Gina, Chicalim, Goa. ... Respondent Ms. Winnie Coutinho, Public Prosecutor for the appellant. Mr. Zeller D'Souza, Advocate for the respondent. Coram :- A. P. LAVANDE,J. Date of reserving the Judgment: 24 th November,2008. Date of pronouncing the Judgment : 1 st December, 2008. JUDGMENT : 1. Heard Ms.Coutinho, learned Public Prosecutor for the appellant and Mr. D' Souza, learned Counsel for the respondent. 2. By this appeal, the appellant – State of Goa, takes exception to the judgment and order dated 31.08.2006 passed by the Special Judge, South Goa, Margao acquitting the respondent for the offence punishable under Section 3(1)(X) of the Schedule Caste and 2 The Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “The Act” for short). 3. Briefly, the facts leading to the filing of the present appeal, are as follows : The Village Panchayat of Chicalim, Dabolim, had fixed a site inspection on 03/09/2005 at about 11.30 a.m. in respect of proposed extension of Shipyard at Tambsodo. All the panchayat members including the respondent, were present for the site inspection. Sebastiao Menino da Gama P.W.1, Antonnetta Barreto Figueiredio Fernandes P.W.2, Manuel Francisco Colaco P.W.3 and Piedade Gama P.W.5,were also present for the said site inspection. All the four persons are the members of Scheduled Tribe Community i.e. 'Gauda' Community. The accused does not belong to Scheduled Caste or Scheduled Tribe. It is the case of the prosecution that the accused abused the informants Sebastiao Gama and other members of the 'Gauda' community by using offensive and humiliating language on the basis of the caste in public view by uttering the words such as “Gauddeank kitem somzota, gauddeank hanga konnem apoileat, gauddeank koslo right asa hea dokant bitor sorunk” (what 'Gaude' know, who called 'Gaude' here, what right 'Gaude' have to enter this dock). The report was lodged by 3 Sebastiao Gama, Antoneata Fernandes and Manuel Colaco with Deputy Superintendent of Police, Vasco Police Station, Vasco da Gama on 19.11.2005. The investigation was taken up and after completion of the investigation, the chargesheet was filed against the accused respondent. The respondent was charged for having committed the offences under Section 3(1)(X) of the Act. The accused pleaded not guilty. In the course of the trial of Special Case No.1/2006, the prosecution examined seven witnesses namely, Sebastiao Menino da Gama P.W.1, Antonetta Bbarreto F. Fernandes P.W.2, Manuel Francisco Colaco P.W.3, Fanscisco Jose Nunes P.W.4, Piedade Gama P.W.5, Nilu Raut Dessai P.W.6 and Dinraj Govekar P.W.7. The accused did not lead evidence in defence. 4. The learned Special Judge, upon appreciation of the evidence led by the prosecution, oral and documentary, held that the prosecution was not able to establish beyond reasonable doubt, the offence alleged against her. The Trial Court acquitted the accused on the following grounds : (i) There was gross unexplained delay of 77 days in filing the report with the Deputy Superintendent of Police. (ii) The accused had not intentionally insulted or humiliated the informants or the members of the Scheduled Tribe community. 4 (iii) The accused had uttered the offensive expressions without making any reference to the informants and she had no intention to insult or humiliate the informants or other members of the Scheduled Tribe community. 5. Ms. W. Coutinho, learned Public Prosecutor took me to the evidence of the prosecution witnesses and submitted that the reasons given by the learned Special Judge for acquitting the accused, are patently unsustainable in law. According to the learned Public Prosecutor, the intention of the accused to humiliate the informants, could be gathered from the conduct of the accused as well as other relevant circumstances. The evidence on record clearly establishes that the accused knew that the informants were belonging to the Scheduled Tribe. The accused was working as a Panch and as such, she was very much aware that all the informants were belonging to the Scheduled Tribe. The delay in lodging the report has been explained by the informant. The learned Public Prosecutor further submitted that the evidence on record clearly proves beyond reasonable doubt that the accused has committed the offence under Section 3(1)(X) of the Act. According to the learned Public Prosecutor, the findings recorded by the 5 Special Judge, are totally perverse and, therefore, the impugned order deserves to be set aside. 6. Per contra, Mr. D' souza, learned Counsel for the respondent invited my attention to the evidence of the prosecution witnesses and submitted that the evidence of the prosecution witnesses does not establish that the accused had intentionally insulted the informants and further that the accused knew that the informants were belonging to the Scheduled Tribe. According to the learned Counsel, delay has not been properly explained and, as such, the learned Special Judge was justified in acquitting the accused. According to the learned Counsel, the prosecution has not been able to make out predicates of Section 3(1)(X) of the Act and, therefore, the acquittal cannot be faulted. Mr. D'Souza further submitted that the findings recorded by the learned Special Judge, are not perverse and the view taken by the learned Special Judge, is possible view and, therefore, no interference is called in the appeal filed by the appellant against acquittal. In support of his submissions, Mr. D'Souza, placed reliance upon the judgment in the case of Sudamati Nandkumar Kade Versus State of Maharashtra reported in 2005 BCI, 80. 7. I have carefully considered the submissions made by the 6 learned Counsel for the parties and perused the record and the judgment relied upon by Mr. D'Souza. 8. In view of the rival submissions, the main point which arises for consideration, is whether the findings recorded by the learned Special Judge while acquitting the respondent for the offence punishable under Section 3(1)(X) of the Act, are perverse. I shall first deal with the aspect of inordinate delay in lodging the report. According to the prosecution, the alleged incident had taken place on 03.09.2005 and the report was lodged on 19.11.2005. Therefore, the report was lodged 77 days later. There is no explanation for the delay in the report itself. Sebastiao Gama P.W.1 in his cross-examination, has stated that he did not report the matter to police on 03.09.2005 itself because he wanted to consult his community members. This explanation given by P.W.1, does not inspire confidence. Delay of 77 days which is quite substantial, is not at all justified. No doubt, the delay in lodging the report / complaint by itself, is not fatal to the prosecution case, but inordinate unexplained delay in lodging the report, raises suspicion about the prosecution case. 9. In the present case, four witnesses examined by the prosecution namely Sebastiao Menino da Gama P.W.1, Antonnetta 7 Barreto Figueiredio Fernandes P.W.2, Manuel Francisco Colaco P.W.3 and Piedade Gama P.W.5 claimed that they belonged to Schedule Tribe. Franscico Jose Nunes P.W.4, who at the relevant time, was functioning as Deputy Sarpanch of Chicalim, admits that he was present on 03/09/2005 at 11.30 a.m. at the time of site inspection. He also stated that all the members of the Village Panchayat, were present. Besides, the villagers and labourers were also present. He further stated that in the Gramsewak meeting held after some days after site inspection, during which time P.W.1 Sebastiao raised the topic of the accused humiliating the 'Gauda' community during the site inspection, but there was no discussion in the Gramsewak meeting as to what transpired during the site inspection. This witness is an independent witness examined by the prosecution, who was admittedly present at the time of alleged incident. He has not stated that the accused humiliated P.W.1, P.W.2, P.W.3 and P.W.5 on the basis of their caste. The witness has not been declared hostile. Therefore, the statement given by Sebastiao Menino da Gama P.W.1, Antonnetta Barreto Figueiredio Fernandes P.W.2, Manuel Francisco Colaco P.W.3 and Piedade Gama P.W.5 that the accused humiliated them on the basis of their caste, is difficult to be accepted. The statement of P.W.4 Franscico Jose Nunes coupled with the delay in lodging the report, raises doubt about the prosecution case. 8 10. Another important aspect which has to be considered, is that the present appeal is an appeal against the acquittal. It is settled by a catena of decisions by the Apex Court that unless the findings recorded by the Trial Court are perverse, the Appellate Court should not interfere with the order of acquittal. In my opinion, the view taken by the learned Trial Court, is a possible view. Therefore, no interference is called for with the order of acquittal. 11. In view of the above, I do not deem it necessary to deal with the other grounds mentioned by the Trial Court for acquitting the accused in as much as the appeal is liable to be dismissed on the grounds mentioned above. 12. In the result, therefore, the appeal is dismissed. The bail bond executed by the respondent, stands discharged. A. P. LAVANDE, J. SMA