1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 61 OF 1999 1. Bharat S/o Premchand (Padamraj) Zambre, Age : Major, Occ : Agril., R/o Kallam, Tq. Kallam, Dist. Osmanabad. 2. Premchandra (Padamraj) S/o Sadashiv Zambre, Age : 64 years, Occ : Agriculture, R/o Kallam, Tq. Kallam, District Osmanabad. APPELLANTS -VERSUS- The State of Maharashtra, Copy to be served on public prosecutor, High Court of Judicature of Bombay Bench at Aurangabad. RESPONDENT Mrs. M.A. Kulkarni, advocate for appellants Mr. T.S. Lodhe, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J. Date : 22nd November, 2010 ORAL JUDGMENT : 1. This appeal is filed against the judgment and order passed by the learned Additional Sessions Judge, Osmanabad in Special Case No. 11 of 1995. The appellants were accused in the Special Case. The appellants were charged under Sections 323, 341 and 506 r/w 34 of the Indian Penal Code and also under Section 3(1)(x) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989(hence forth be referred to as The Atrocities Act). The prosecution case, in short, can be 2 narrated as under : 2. The complainant-Sachin, who is a Hindu Mahar by caste (a Scheduled Caste) took on rent a room on 15th August, 1994, in a building which belongs to prosecution witness no.3, in which the appellants were already residing as tenants. On 28th August, 1994, in the morning, the complainant went out and came back at about 7.30 a.m. as he was about to enter his house, the appellants first abused him on the basis of his caste and then prevented his entry in the room saying that they would kill him and they would not allow him to take back his household articles. They even assaulted him. Two persons, namely, the prosecution witness nos.2 and 4 saw this incident. The complainant went to meet the landlord, the prosecution witness no.3, who resided at Kaij, a place about 18 Km. away from Kallam where the incident took place. After reporting the incident to him, the complainant came back and lodged the complaint at Police Station Kallam. The Police thereafter registered the offence and investigated the case. 3. The case was tried as Special Case No. 11 of 1995. The prosecution case depends on the depositions of five witnesses. The prosecution witness no.1 is the complainant. He categorically stated that at about 7.30, he came back from the vegetable market. When he came in front of his room, he saw both the appellants were standing in front of their room. He said, they addressed him as Mhargya Dhedgya (these are derogatory terms used while addressing a person belonging to the above mentioned particular scheduled caste). He said, they asked him as to where he was going and asked him not to enter in his own room. He said, they not only abused him but assaulted him with kicks and fists. The complainant further stated that after the said incident, he went to Kaij and met his landlord, the prosecution witness no.3. He 3 said, he reported the incident to him and returned back from Kaij and again went to his room. He found that the front door of his room was closed from inside and the back side door was closed from outside and a padlock was put on it. He said, thereafter he went to the Police Station and lodged his complaint. 4. The prosecution witness no.2 is the panch in whose presence the police recorded the scene of offence panchanama. He said, the panchanama was recorded on the same day at about 4 p.m. He said, he was called by Police in front of the room of the appellants. He said, when he reached there, the appellants were also present. He said, he noticed that the room of the complainant was locked from both the sides i.e. front and back. He said, the Police obtained the key of the lock from the complainant, which was put on front door. He said, the key of other lock was with one of the appellants. With the help of keys, the Police opened the door of the room, he said. He further said, he entered the room of the complainant and noticed household articles belonging to the complainant in the room. Although this witness was suggested that the complainant was not residing in the room in question, he denied the suggestion. This witness is not attributed any motive as to why he will speaking against the appellants. 5. The prosecution witness no.3 as said above, is the landlord of the appellants as well as the complainant. He said, at about 9.30 or so, the complainant came to him at Kaij and narrated the incident. He said, he came to Kallam and tried to persuade the appellants. He said, to this, the appellants asked him as to why he had let out the room to a member of scheduled caste. He said, on this count, the appellants even abused him. The cross examiner for the appellants suggested to the witness that in order to evict the appellants from their tenement, this witness instigated the 4 complainant to lodge the complaint. But this witness denied the suggestion. 6. The prosecution witness no.4 is the eye witness to the incident, who stated that he was residing in front of the building in which the appellants as well as the complainant were residing. He said, at about 7 to 8 am., he heard the noise of quarrel from the house of the appellants. He said, he went to the said place and found that the appellants were abusing the complainant by uttering the derogatory words used for addressing a members of the scheduled caste. He said, the appellants were asking the complainant as to why he is residing in the building. He said, appellants were not only abusing the complainant but were issuing threats and telling him that they would not allow him to reside in the said building. He further added that the appellants were beating the complainant with fists and kicks. He said, when he intervened, the appellants gave abuses to him too. He said, he noticed that the complainant attempted to open the door of his room but could not open the door as it was locked from inside. This witness, was suggested in cross examination that the complainant was not residing in a room in question. The appellants practically did not cross examine this witness except suggesting that he was speaking lie. No reason is attributed asto why this witness was speaking against them. 7. The learned Judge of the Lower Court believed the case of the prosecution to the extent of constituting the offence under Section 3(1)(x) of the Atrocities Act and under Section 341 r/w 34 of the Indian Penal Code. He held that the prosecution had failed to prove the case of assault, causing injury to the complainant and of criminal intimidation. So he convicted the appellants under Section 3(1)(x) of the Atrocities Act r/w 34 of the Indian Penal Code and sentenced them to suffer rigorous 5 imprisonment for six months and to pay fine of Rs. 300/- each with a default clause. The learned Judge also convicted the appellants under Section 341 r/w 34 of the Indian Penal Code and were sentenced to suffer simple imprisonment for 15 days and to pay fine of Rs. 100/- each with default clause. As said above, the appellants were acquitted for the offence under Section 323 and 506 r/w 34 of the Indian Penal Code. 8. The appellants' Advocate contended that the entire prosecution case should be rejected and disbelieved firstly because there is gross delay in reporting of the incident. Admittedly, the complainant did not go to the Police Station soon after the incident. He thought it fit to go to Kaij, a place situated about 18 Km away from Kallam and reported the incident to the landlord. Thereafter, he came back to Kallam. He again went to his room. He tried to open the room once again, then he found that his room was locked inside and there after he went to the Police Station. The question is whether this conduct of the complainant suggests that he in the mean time fabricated the case with the help of other prosecution witnesses? The answer in my view is in negative. The complainant stated that he had taken room on rent only on 15th August, 1994 and within two weeks, the incident took place on 28th August, 1994. It is clear from the allegations that the appellants were residing in a building since prior to 15th August, 1994 and the prosecution case further suggests that the appellants did not want a member of scheduled caste residing in their neighbourhood in the same building. So since the incident took place within two weeks from the date when the complainant first came to reside in his room probably he thought it necessary to report the incident to the landlord, who probably had assured him that he would be able to stay in his building peacefully. It has come in evidence that the landlord after hearing the grievance the 6 complainant came to Kallam and tried to pacify the appellants but in vain. The appellants abused even the landlord. If the landlord could have persuaded the appellants not to cause further trouble to the complainant and if the complainant could have entered his room thereafter probably the complainant would not have gone to the Police. The matter would have got settled amicably in presence of the landlord. But the appellants, it seems, were so defiant that they did not want the complainant to stay in their vicinity. It is because of this, the complainant had gone to police station. I think, the delay that has occurred in lodging of the complaint is not fatal. 9. As said above, the prosecution witness nos.3 and 4 both supported the complainant's case but the appellants could not effectively cross examine these witnesses. Although the appellants suggested to the prosecution witness no.3, the landlord that he conspired with the complainant with a view to evict the appellants, nothing has come on record to show that there had been a dispute between the prosecution witness no.3 landlord and the appellants since prior to the incident on account of eviction of the appellants. Nothing has come on record to show or even to suggest that the landlord has filed any case for evicting the appellants. Not a single admission has come on record from the landlord to support the suggestions given by the appellants in their defence. The prosecution witness no.4 further supported the case of the complainant and as said above, there is practically no cross examination of this witness except giving suggestion that he was speaking lie. The appellants did not explain as to why this witness would lie against them. They did not suggest that this witness has already developed a grudge against them. 10. The last circumstance is the locking of doors of the room of the complainant from inside and outside. The prosecution witness no.2, an independent witness, a person who was residing 7 in neighbourhood specifically stated that the appellants had put a lock on the complainant's room from inside so as to prevent his entry in the room. They had the key for that lock and the Police used that key to open the lock. Again there is practically no cross examination of this witness to indicate any circumstance as to why he was speaking lie against them or as to why he was hostile to them. 11. The learned Advocate appearing for the appellants contended that despite of this, the offence under Section 3(1)(x) would not be constituted because the place where the incident took place was not within the public view. The Section 3(1)(x) of the Atrocities Act reads as under : "3. Punishments for offences of atrocities :- (1)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :- ….............…. (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.........." 12. Indeed, in order to constitute the offence under Section 3(1)(x), the offence ought to occur at in a place which is within public view. I failed to understand as to why the learned Advocate appearing for the appellants thought that the place of incident was not within the public view. The scene of offence panchanama as well as depositions of the prosecution witnesses nos.2 and 4 specifically mention that the outer door of the 8 complainant's room faced a public road. His room's door where the incident took place was thus a place within the public view. Besides, the prosecution witness no.4 after hearing the noise came out of his house and could witnessed the incident. He thus proves further that place where the incident took place was within the public view. Had the incident been taken place inside either the room of the complainant or in the house of the appellants then probably this witness could not have seen the incident at all. The learned Advocate appearing for the appellants further contended that there is nothing on record to show that the complainant was beaten up. She is obviously referring to the absence of medical evidence to indicate that the complainant had sustained any visible injuries. Indeed, the complainant was not even referred to any Medical Officer after the incident. She suggested that in absence of proof of injuries entire case becomes in believable. She said, it is a case of word of the prosecution witnesses against the word of the appellants and so benefit of doubt should go to the appellants. I afraid, this argument is also not acceptable. Had this been a case of word against the word, between the complainant on one side and appellants on the other, this argument would be an attractive proposition. But as said above, there are number of other witnesses, who not only witnessed the incident but clearly saw the appellants in belligerent mood on account of their opposition to the complainant's staying in their vicinity. 13. The learned Advocate appearing for the appellants then submitted that looking to the delay in disposal of the appeal, the appellants should be shown leniency and substantive sentence awarded to them may be reduced substantially. I am not accepting this suggestions also. The appellants are sentenced quite moderately. They were sentenced to suffer rigorous imprisonment only for six months for the main offence under Section 3(1)(x) of 9 the Atrocities Act. This is the minimum prescribed term of sentence for the said offence. The appeal should, therefore, fail and hence stands dismissed. Issue arrest warrant against the appellants. ( A.V. NIRGUDE ) JUDGE gas/cria61.99/ ok