( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 364 OF 1997 1. Rohidas s/o. Tukaram Zambre .. Appellants Age 50 years, Occ. Agri., R/o. Hingji, Tq. Ashti, Dist. Beed. 2. Bhivrabai w/o. Raosaheb Khile Age 57 years, Occ. Household, R/o. Kandi, Tq. Ashti, Dist. Beed. Versus The State of Maharashtra .. Respondent Shri S.S. Choudhari, Advocate for the appellants. Shri K.M. Suryawanshi, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 06.11.2009 ORAL JUDGMENT :- 1. The original accused have filed this appeal being aggrieved by the order of conviction and sentence passed by the Sessions Judge, Ahmednagar, in Sessions Case No.289 of ( 2 ) 1993, decided on 13.11.1997, whereby the appellants are convicted for offences punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “Atrocities Act”), under Section 7 (1) (d) of the Protection of Civil Rights Act, 1955 (for short “P.C.R. Act”) and under Section 323 r/w 34 of the Indian Penal Code (for short “I.P.C.”). Each of the appellant is sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 300, in default, to suffer rigorous imprisonment for 15 days for offence punishable under Section 3 (1) (x) of the Atrocities Act. For offence punishable under Section 7 (1) (d) of the P.C.R. Act each of the appellant is sentenced to suffer rigorous imprisonment for one month and to pay fine of Rs. 100/-, in default, to suffer rigorous imprisonment for 7 days. For offence punishable under Section 323 r/w 34 of the I.P.C. the appellants are sentenced to suffer rigorous imprisonment for 15 days and to pay fine of Rs. 100/-, in default, to suffer simple imprisonment for 3 days. 2. Briefly stated it is case of the prosecution that appellant No.1 Rohidas Zambre was Surpanch of village Hingni, ( 3 ) Tal. Ashti, Dist. Beed. Appellant No.2 is sister of appellant No.1, but resident of village Kanadi, Tal. Ashti, Dist. Beed. She appears to be married sister. One Ravindra Kamble (P.W.2) is Editor, Publisher and also Distributor of weekly “Saccha Karyakarta”. In the issue dated 15.08.1994 under caption “Surpanch and Police Patil should be handcuffed” a news item was published and in the said news item it is alleged that present appellant No.1, who was Surpanch of village Hingni and Shrirang Zambre, who was Police Patil of village Hingni, had called one Sumanbai Namdeo Zambre to the Village Panchayat, insulted her, instigated two ladies to assault Sumanbai and thereafter filed false case against Sumanbai. Admittedly, after above said news item was published by P.W.2-Ravindra Kamble, appellant No.1 issued notice to P.W.2-Ravindra Kamble through advocate on 26.08.1994, stating that the contents of news item were defamatory and he should publish public apology. To the said notice, P.W.2-Ravindra Kamble gave reply through another advocate on 07.09.1994 justifying the news item. 3. It is further prosecution case that on 14.09.1994 P.W.1-Tukaram Pawar, who claimed himself to be Secretary of ( 4 ) Communist Party of India, Ashti, lodged complaint at Karjat Police Station alleging that on that day at 2.00 p.m. he had gone to Weekly Bazar of Mirajgaon. At that time P.W.2- Ravindra Kamble was selling his weekly “Saccha Karyakarta” and P.W.1-Tukaram Pawar purchased copy thereof. At that time both the appellants met him in the Bazar. Appellant No.2 asked P.W.1-Tukaram Pawar “---------------------------------- --------------” which may be translated in English as “Oh Chambhardya, have you given news item against my brother?”. Thereafter, appellant No.1 - Rohidas Zambre said “-----------------------------------------------” which may be translated in English as “Lady, leave it, this inferior caste should be beaten with footwear”. Thereafter appellant No.2 gave blow with footwear on left hand of P.W.1-Tukaram Pawar. At that time many persons gathered. P.W.2-Ravindra Kamble, Mahadeo Maharnawar, P.W.4-Shivaji Zambre and P.W.3- Gahininath Zambre had seen the incident. After this complaint was lodged, crime was registered under Section 7 (1) (d) of the P.C.R. Act, under Section 3 (1) (x) of the Atrocities Act and under Section 323 of the I.P.C. The investigation was carried by the then P.S.I. Khilari, who was promoted subsequently as Police Inspector when gave ( 5 ) deposition at Exh.26 on 06.08.1997. He sent charge sheet to the Court. 4. The prosecution examined in all nine witnesses. Considering the evidence, the learned Sessions Judge passed order of conviction and sentence as aforesaid. It is this order, which is challenged in this appeal. 5. The points which arise for my consideration are as under :- Sr. No. Points Findings 1. Whether the prosecution proved commission offence under Section 3 (1) (x) of the Atrocities Act, under Section 7 (1) (d) of the P.C.R. Act and under Section 323 r/w 34 of the I.P.C.? No 2. What order? As per final order. 6. The learned advocate Shri S.S. Choudhari argued that the entire prosecution under the Atrocities Act gets vitiated in as much as the investigation is carried out by the Officer below rank of Dy. Superintendent of Police. He relied upon two decisions of this Court. First is Asiskhan ( 6 ) Habibkhan Pathan V/s. State of Maharashtra, 2006 ALL MR (Cri) 796, in which it is held that where investigation of offence under the Atrocities Act is carried out by Police Officer below rank of Dy. Superintendent of Police, there is non- compliance of Rule 7 (1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The rule is mandatory and non-compliance of such provision would vitiate the trial. Same view is taken in Uttamlal s/o. Dulichand Yerne V/s. State of Maharashtra, 2006 ALL MR (Cri) 1015. It is held that as per Rule 7, investigation should be by a seasoned officer of the rank not below the rank of Dy. Superintendent of Police. Provision of Rule 7 is mandatory and failure to observe the same would result in vitiating the trial and investigation. In these circumstances, the conviction of the appellants under Section 3 (1) (x) of the Atrocities Act is vitiated. That takes me to the question whether the conviction of the appellant for other offences is justified. 7. As per Section 7 (1) (d) of the P.C.R. Act, whoever insults or attempts to insult, on the ground of “untouchability”, a member of a Scheduled Caste, shall be ( 7 ) punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall not be less than one hundred rupees and not more than five hundred rupees. It does not appear from the utterance of either of the appellants that any element of untouchability has arisen. No doubt, the complainant was referred to by his caste. He was questioned by appellant No. 2 whether he had given information; and thereafter appellant No.1 also said that such person should be beaten with footwear. In-fact, it is prosecution case that thereafter appellant No.2 gave blow with footwear to the complainant. So, we will have to examine whether commission of offence under Section 7 (1) (d) of the P.C.R. Act is really made out in the facts and circumstances of the case. 8. One important circumstance that deserves to be considered is that the caste of the complaint P.W.1-Tukaram is not established. No caste certificate is produced on record. The learned Sessions Judge has, in fact, adverted to this part regarding proof of caste in para 7 of its judgment. He observed that it was submitted before him by the learned advocate for the accused that only S.D.O. or Collector were ( 8 ) authorised to issue caste certificate and in the instant case caste certificate had been issued by Zampalwar who was the Naib Tahsildar and as such at the relevant time he had no authority to issue such certificate in view of the Government Resolution bearing No. STC/1696 dated 7th March, 1996. The learned Sessions Judge further observed that it was clear from resolution that only S.D.O. or Collector were authorized to issue Caste Certificate. Inspite of this it is observed that the application for issuing Caste Certificate was given to Taluka Executive Magistrate/S.D.O./Collector and it was mistake of the Nayab Tahsildar to issue the certificate. But fact remains that the Caste Certificate which was produced on record was not issued by the competent authority. The complainant did say that he was of Chambhar community and does cobbler’s work. 9. Certain authorities are cited before this Court. In the case of Manohar Sawai Rathod V/s. State of Maharashtra, 2007 ALL MR (Cri) 1839, there was no documentary evidence to establish caste of the complainant. It was held that in absence of cogent evidence to prove caste of the complainant, conviction of the accused under Section 3 (1) ( 9 ) (x) of the Atrocities Act cannot be sustained. On same point there is another case of our High Court in Ashabai Ganeshrao Khote and anr. V/s. State of Maharashtra, 1999(2) Mh.L.J.36. In that case also it is held that the prosecution must establish that accused was not member of Scheduled Caste or Scheduled Tribe and person aggrieved was member of Scheduled Caste or Scheduled Tribe. In the case of Mirza Ejaj Baig s/o. Ahmad Baig V/s. State of Maharashtra, 2007 ALL MR (Cri) 1613, it is held that it is incumbent upon the prosecution to establish caste of complainant with help of cogent evidence. In this case caste of the complainant is not admitted by both the accused. They said that they were not knowing about his caste. 10. The prosecution examined in all four witnesses to prove the incident. Complainant P.W.1-Tukaram Pawar is examined at Exh.10, P.W.2-Ravindra Kamble, Editor, is examined at Exh.12, P.W.3-Gahininath is examined at Exh.20 and there is evidence of P.W.4-Shivaji Zambre at Exh.22. All four have stated same story as mentioned in the complaint and reproduced earlier in para 3. It may be noted that the place of incident was the market place where many people had ( 10 ) gathered. It is surprising that the four witnesses all of whom originally hailing from village Hingni, and happened to be close to each other are witnesses to the entire incident from beginning to end. It is not that any of these four witnesses has said that there was commotion and therefore his attention was drawn. When it is a market place where people gather for purchasing and selling, there would be so much commotion. It is difficult to believe that all witnesses who might be engaged in purchases or sales would be attentive to what has happened, what was said and could reproduce it in verbatim after three years. The cross-examination of all these witnesses clearly show that they come from a particular group and considering earlier history of defamatory publication and exchange of notices, question arises whether the case is regarding genuine incident or whether it is imaginary complaint lodged to settle personal scores. 11. According to P.W.1-Tukaram, P.W.2-Ravindra Kamble was selling news-paper “Saccha Karyakarta”. At that time he purchased news-paper. From the opposite side the appellants came and appellant No.1 asked him whether he had given news item against her brother. Then appellant No.1 said to leave ( 11 ) it and such caste should be beaten with footwear. So far as utterance of appellant No.1 is concerned, in one breath he was asking his sister not to go after complainant P.W.1- Tukaram and leave the matter there and in the same breath he said that persons like P.W.1-Tukaram should be beaten with footwear. It is difficult to believe that both such things would be part of same sentence and would be uttered by a man. If a person is in the mood not to precipitate the matter and leave the matter there, he would not utter second part and if he was in the mood of uttering second part regarding giving punishment with footwear, he would not utter first part cajolling or entreating his sister to leave the matter there only. So, the incident itself is of doubtful nature. The evidence of the complainant so also the complaint clearly shows that after the incident when complaint was lodged, the complainant himself given in handwriting that he he did not want to go to hospital. That may be because of there might not be any mark of beating. So question arises whether in absence of such independent evidence can we believe oral evidence of four witnesses. 12. It is worth noting that after the incident the ( 12 ) complainant and P.W.2-Ravindra Kamble both went to Mirajgaon outpost, but according to them no police came there. Therefore, they went to Karjat, typed the complaint and presented typed complaint at Karjat Police Station. It is difficult to believe that in market place at weekly Bazar, there would not be a policeman. It is also worth considering that P.W.2-Ravindra Kamble, who was selling in weekly Bazar should leave his work of his livelihood and accompany P.W.1- Tukaram Pawar. Secondly, when P.W.2-Ravindra Kamble was selling in the weekly Bazar, ordinarily wrath of the appellants would be against P.W.2-Ravindra Kamble and not against someone like P.W.1-Tukaram Pawar, who stated that he was residing at Ashti. There is also no reason why appellants suspected that it was P.W.1-Tukaram who was an instrumental in giving information in the news-paper. It is stated by P.W.1-Tukaram in cross-examination that from 1974 he was residing at Mirajgaon. If that was so, there was no reason for the appellants to suspect P.W.1-Tukaram Pawar, who had left village long back. Moreover, cross-examination of P.W.1-Tukaram clearly shows that there were several persons at Mirajgaon, who were known to him and who were present at the place nearby the place where the incident had occurred, ( 13 ) but none of those are cited as independent witnesses. Para 4 of cross-examination of P.W.1 shows that during 1967 to 1970, he was Dy. Surpanch of village Hingni and uncle of the accused was Surpanch. He even contested election of Zilla Parishad and he was active in politics for long time. He also said that he had good relations with P.W.3-Gahininath so also P.W.4-Shivaji. He was witness of P.W.3-Gahininath in suit No. 85 of 1994. It has also come in evidence that P.W. 3-Gahininath had lodged complaint to police station on behalf of Sumanbai Zambre. So, it is clear that P.W.1, P.W.2, P.W.3 and P.W.4 are not independent persons, but they were persons well acquainted with each other. It has also come in the evidence that P.W.1-Tukaram has lodged similar complaint against one Meher and Court had issued notice to the complainant for filing false complaint. We find admission to that effect in para 7 of deposition of P.W.1-Tukaram. Though P.W.1-Tukaram stated that P.W.2- Ravindra Kamble was not friendly with him, he admitted that P.W.2-Ravindra Kamble had accompanying him to police station. This clearly indicates that they were friends and had close relations. 13. So far as P.W.2-Ravindra Kamble is concerned, he ( 14 ) admits in cross-examination that P.W.1-Tukaram was not his correspondent. No correspondent had given the news. In reply to the notice P.W.2-Ravindra Kamble had made it clear that it was Sumanbai who had given him written letter of complaint, on the basis of which news item was published. So, there was no reason for the appellant to suspect that P.W.1-Tukaram might have given false information to P.W.2- Ravindra Kamble. P.W.2-Ravindra Kamble also stated that he was selling his news-paper in weekly Bazar. Curiously P.W.2- Ravindra Kamble stated in his cross-examination that only on the day of incident, he came to know names of the accused. He denied that the he and the complainant had been part of communist movement. 14. It does not appear that the witnesses are telling the truth. So far as P.W.3-Gahininath is concerned, admittedly he had dispute with appellant No.1. The complaint filed by P.W.3-Gahininath against the appellant dated 14.09.1994 is produced on record. The certificate Exh.21 on record shows that P.W.3-Gahininath was on duty in Kada Co- operative Sugar Factory on 14.09.1994. That raises question whether he was really present. Para 6 of his deposition, ( 15 ) P.W.3-Gahininath clearly indicated that he has improved his earlier version before police. He has stated many things which he has not stated before police. Thus, he has not stated before police that he had accompanied complainant to Mirajgaon outpost. He did not state what accused No.1 had uttered in his statement before police. He has not stated that P.W.2-Ravindra Kamble has also came with them to the police outpost and complainant was writing complaint there. He has also not stated in his statement before police that complainant asked him to accompany him to Karjat Police Station. So, this witness has tendency to improve over his statement before police. 15. P.W.4-Shivaji has stated that he is resident of village Hingni. He stated in cross-examination that Shahaji Zambre is Secretary of Jai-bhavani Dudha Sanstha and Goraksh Zambre is Chairman of said Sanstha. It was suggested that there was some dispute between appellant No.1 and this witness. This witness also claimed that he was not knowing P.W.2-Ravindra Kamble. He states that there was always traffic on the road. Police were also deputed for Bandobast in the market. Though, he was person from Hingni, he did not ( 16 ) try to intervene in the incident, but just observed from a distance of 10 ft. 16. Considering the totality of the circumstances, I am not convinced that the prosecution witnesses who claimed themselves to be eye-witnesses are trustworthy and telling truth. In my opinion, chances of filing of false complaint cannot be ruled out. The appellants are entitled to benefit of doubt. 17. In the circumstances, the appeal is allowed. The appellants are acquitted of the offences with which they are charged. The order of conviction and sentence dated 13.11.1997, passed by the Sessions Judge, Ahmednagar, in Sessions Case No. 289 of 1994, is hereby set aside. The bail bonds of the appellants stand discharged. Fine, if paid, be refunded to them. [P.R. BORKAR,J.] snk/2009/NOV09/crap364.97