1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1089 OF 2002 State of Maharashtra, ..Applicant -versus Vijay Shridhar Tapkir residing at : Lonikand, Tal. Haveli, Dist.Pune .. Respondents Mr A.S. Shitole, APP for the state Mr.Vilas B Tapkir, for the respondent. CORAM: R. V. MORE, J DATED: 20th March,2009 Oral Judgment 1. This appeal has been preferred by the State taking exception to the judgment and order dated 6th June,2002 by IV th Additional Sessions Judge,Pune, in Special Case No.5 of 2001, recording respondent's acquittal for an offence punishable under section 325, 504 of the Indian penal Code and section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. The prosecution case in brief is as under:- The complainant Sharda, and the respondent 2 Accused Vijay are serving as labours in Laxmi Soap Factory, Koregaon-Bhima. The complainant Sharda, belongs to Scheduled Caste ie cobbler (Chambhar) and the respondent belongs to “Maratha” caste. PW-2, Vaishali, P.W.3 Rajaram and P. W.4, Dinesh Thakur, are also working in the same factory as labours. 3. On 17.5.2000, at about 5.00 pm, when the motor tempo went to the factory for carrying out the goods, the complainant Sharda, PW-2- Vaishali and PW-3- Rajaram went to load the goods in the tempo, that time respondent accused who was sitting there asked PW-3 Rajaram, to allow complainant Sharda Kamble to load the goods in the tempo, uttering abusive words, “Chambardilach Gadi Bharu Dya”. The complainant Sharda asked the respondent accused Vijay to talk properly and hold tongue. There was exchange of abuses between them. Then respondent rushed towards the complainant Sharda and gave fist blow on the left side of her mouth due to which she fell down causing bleeding injury. Thereafter the complainant Sharda with permission of Assistant Manager Mr.Dinesh Thakur returned back to her house. On the same day, she registered complaint (Exhibit -l3) at Shikrapur Police Station. PW-7, 3 ASI Mr.Popat Pathare, recorded her complaint and registered NC case and referred her for medical examination. On 19.5.2000 PW-5 Dr.Kailash Batte examined complainant Sharda and found contusion over her cheek and bleeding through her gums. PW- 5 issued medical certificate (Exhibit l9) and referred the complainant for further treatment to Sasson Hospital,Pune. She was treated there as out door patient for l5 days. But there was no improvement, therefore, she contacted Dr.Shinde of Koregaon and thereafter Dr.Shinde referred her to Dr.Shah of Yerawada. Then Dr.Shah referred the complainant Sharda to Radiologist Dr.Choudhari. Dr.Choudhary after taking her X- ray, found fracture on her lower jaw. The complainant thereafter went to KEM Hospital, Mumbai and took treatment for one month. Thereafter the complainant Sharda on l9.8.2000, made complaint (Exhibit l0.). The P.S.O. PW-6, recorded her complaint and registered offence as CR No.79 of 2000 under section 3(l) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under section 325 and 504 of the Indian Penal Code and handed over the case to API Jadhav. 4. Pursuant to the registration of the 4 complaint, accused was arrested by PW-6 API Jadhav on 2l.8.2000. Investigation was taken over by SDPO Nagesh Sutkar who submitted chargesheet in the Court of Judicial Magistrate First Class, Shirur (Ghodnadi). As the charge under section 3 (l)(x) of the Attrocities Act, is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions at Pune. 5. The learned Additional Sessions Judge at Pune, framed charge against the respondent accused which was explained to him in vernacular to which he pleaded not guilty and claimed to be tried. His defence was of total denial. 6. In order to establish the guilt, the prosecution examined 8 witnesses viz i)PW-1 Sharda Kamble, PW-2 Vaishali, PW-3 Rajaram, PW.4 Dinesh Thakur, PW-5, Dr.Kailas Batte, PW-6 API Jadhav, PW7, ASI Popat Pathare and PW-8, SDPO, Nagesh Sutar. 7. The learned Additional Sessions Judge,by Judgment and order dated the June,2002, acquitted the respondent of the charges levelled against him. 8. Having gone through the deposition of the witnesses, as well as documentary evidence and 5 having heard the learned counsel for respective parties, I do not find any merit in the appeal. 9. The prosecution examined in all 8 witnesses. The evidence of PW-2, 3 and 4 is of no avail as these witnesses turned hostile and did not support the prosecution case. 10. Now let us see, whether on the basis of evidence of complainant Sharda, PW-5, Dr.Batte, P.W.6, 7 and 8, the prosecution establish the guilt of the respondent. Firstly let us consider, whether the prosecution prove the charge framed against respondent for an offence punishable under section 3(l)(x) of the Attrocities Act. There is no dispute that the complainant Sharda belongs to Scheduled Caste ie Cobbler (Chambhar) and the respondent belongs to non scheduled caste. In order to attract the provision of section 3(l) (x) of the Attrocities Act, the “intentional insult” or “intimation” must be with intent to humiliate scheduled caste member, by non scheduled Caste/Scheduled Tribe member and that insult must have been “in place within the public view”. 11. It is the prosecution case that incident took place in a private Soap Factory and that too in the presence of 3 to 4 employees and 6 therefore, it cannot be said that the incident occurred within a place of public view and therefore, provisions under section 3(l)(x) of the Attrocities Act, are not applicable. 12. Apart from the above facts, the version of PW-1, for the commission of offence under section 3(l) (x) of the Atrocity Act, does not inspire any confidence. The incident alleged to have occurred on 17.5.2000. Immediately on the same day PW-1, filed complaint (Exhibit l3) which was registered by PW-7 as NC complaint. In this complaint, there is no allegation that the respondent abused complainant Sharda on her caste. The allegation that the respondent abused/insulted the complainant Sharda on the date of incident were made for the first time on 19.8.2000, when the second complaint was registered by PW-6 API Jadhav, under section 325, 504 of Indian Penal Code and section 3(l)(x) of the Attrocities Act. The complainant Sharda could not give any satisfactory explanation as to why the allegations which were made in later complaint, does not find place in the earlier complaint which was made on the date of incident. In the absence of any explanation, the inference can be drawn that the same are after 7 thought. The learned Sessions Judge, in my view, rightly acquitted the respondent for an offence under section 3(l)(x) of the Attrocities Act. 13. This takes me to consider the charge under section 325 of the Indian Penal Code against complainant. PW-5, Dr.Batte has deposed that he examined complainant Sharda on l9.5.2000. He proved injury certificate at exh.l9. The injury certificate of PW-1, complainant Sharda discloses that there was contusion over her cheek and also there was bleeding from her gum. PW-5, as well as injury certificate (Exhibit l9), does not disclose that the complainant Sharda sustained fracture to Lower Jaw. PW-1 complainant Sharda deposed that she went to Dr.Batte on l7.5.2000. However, PW-5 Dr.Batte deposed that complainant Sharda visited his hospital on l9.5.2000. Had complainant sustained fracture to her lower jaw, surely she would not remain silent for two days between l7.5.2000 and l9.5.2000. Thus, the above evidence falsify the prosecution case that the complainant Sharda was sustained fracture injury on her lower jaw in alleged incident. There is one more circumstance which creates doubt about truthfulness of evidence of complainant Sharda as the complainant Sharda 8 deposed that initially she went to Dr.Batte and thereafter Dr.Batte referred her to Sasson Hospital, Pune. Since there was no improvement, therefore, she went to Dr.Shinde of Koregaon, who referred her to Dr.Shah of Yerwada and Dr.Shah referred her to Radiologist Dr.Chaudhari who found that there is fracture on her lower jaw. It was also deposed by the complainant Sharda that she went to to K.E.M. Hospital, Mumbai and took treatment. The complainant Sharda also produced case papers of KEM Hospital at Exhibit 24. These Medical Papers falsify the complainant's case as much as complainant Sharda while giving history stated that injury caused to her was accidental and accordingly same was noted down in KEM case papers. In the above facts and circumstances, the prosecution failed to make out any case under section 325 of the Indian penal Code. Similar findings are recorded by the learned Additional Sessions Judge. I do not find any reason to interfere in the same. 14. I find the evidence of PW-1 Complainant Sharda does not inspire any confidence. The defence of accused was of total denial and it is suggested to complainant that the injury which she suffered might have been result of fall. The 9 evidence of PW-l complainant Sharda is not corroborated by any independent witness. In this backdrop, the possibility of complainant sustaining injury by fall can not be ruled out. 15. The last charge against the respondent is under section 504 of the Indian Penal Code, viz intentionally insulting complainant Sharda and giving her provocation, by respondent. The incident alleged to have been occurred in a premises of factory in presence of employees of factory only and therefore, there is no question of provocation of public peace. Even assuming for the sake of argument that the incident occurred as alleged by the prosecution, in that case also the prosecution has not made out charge under section 504 of the Indian Penal Code. 16. In the facts and circumstance mentioned above, I find that the view taken by the learned Additional Sessions Judge is a possible view and same cannot be interfered, in an appeal against acquittal. The appeal is devoid of any merit and same is accordingly dismissed. (R.V.MORE, J)