rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 157 OF 1996 CRIMINAL APPEAL NO. 157 OF 1996 CRIMINAL APPEAL NO. 157 OF 1996 Ravindra Rajaram Rawool ] Age 31 years, r/o.Andurle, ] Rawoolwadi, Taluka -Kudal ] District Sindhudurg ] .. Appellant Vs. The State of Maharashtra ] .. Respondent Mr.S.P.Prabhu h/f.Mr.N.V.Walawalkar for the Appellant. Ms.A.T.Javeri, A.P.P. for the State. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 20TH JANUARY, 2009 DATED : 20TH JANUARY, 2009 DATED : 20TH JANUARY, 2009 JUDGMENT :- JUDGMENT :- JUDGMENT :- . By this Appeal, the Applicant (Original Accused) has taken an exception to the Judgment and order dated 26th February, 1996 passed by the learned Special Judge, Sindhudurg. 2. The Appellant has been convicted for the offence punishable under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities) Act, 1989 (hereinafter referred as the ( 2 ) said Act of 1989), offence punishable under section 7(1)(d) of the Protection of Civil Rights Act, 1955 (hereinafter referred as the said Act of 1955) and under section 506 of the Indian Penal Code. 3. The case of the prosecution is that the complainant Ratnakar Sakharam Mhapankar was working as a Talathi of Village Andurle. According to the case of the prosecution, the complainant belongs to "Chambhar Caste" which is a scheduled caste. According to the prosecution he used to reach his office at 9.15 or 9.30 a.m.and used to stay in the office upto 5.30 p.m. On 13th November, 1992 at about 9.30 a.m.,the appellant accused had been to the office of the complainant. The case of the complainant is that at that time Sarpanch and Village Development Officer were present in the office and they directed the complainant to carry out some work regarding election. The Sarpanch and other officer left the office. One Ramchandra Mestri, Balkrishna Patkar and one peon were in the office. The Appellant/accused alongwith one Shridhar Raul arrived at the office. They had brought a Fair Price Shop Card of one ( 3 ) Savitri Shantaram Tembkar. They had visited to office for the purpose of deleting the name of Savitri. For that purpose they needed a certificate. The Complainant informed them that after the work in his hand is over he would do their work. The Appellant/accused stated that the complainant must do his work on priority. According to the prosecution case, the Appellant/accused started abusing the complainant on the basis of his caste by making certain allegations. According to the prosecution case, the appellant started saying that "Chambhardya tu chapla karnyacha layakicha ahes" (As a cobbler you deserve to deal in sale of footwear). According to the prosecution, he threatened the complainant that his hands and legs will be amputated. After the incident the Appellant/accused left. Till 15th November, 1992 the complainant was busy in the election work and therefore he could not lodge the complaint. According to the complainant as soon as the election work was over, he lodged the complaint with Tahasildar with a request to forward the same to the Sub-Inspector of Police. On the basis of the said complaint, offence was registered. ( 4 ) 4. The prosecution examined the complainant (P.W.1) Ratnakar Sakharam Mhapankar. The prosecution examined P.W.2 Mohan Appaji Tandel who is a panch witness to the scene of offence panchanama. P.W.3 examined by the prosecution is Ramchandra Ankush Mestri who was allegedly an eye witness. The said witness was declared as hostile. P.W.4 examined by the prosecution is Balkrishna Gopal Patkar who is stated to be an eye witness. P.W.5 is Laxman Tanu Sawant is the investigating officer. 5. P.W.1 Ratnakar Sakharam Mhapankar deposed before the Court about the incident of 13th November, 1992. According to him all persons know that he was a cobbler by caste and the Appellant/accused was aware that he was cobbler by caste. After describing the incident P.W.1 stated that Korgaonkar, Mhapankar, Patkar and Mestri have witnessed the incident. In the cross examination, the witness admitted that one Tandel was Sarpanch of Village Andurle. When a question was asked as to whether the said Tandel had submitted his nomination for the Gram Panchayat ( 5 ) Election, the witness stated that he was not aware whether the said Tandel had submitted a nomination for Gram Panchayat Election. He stated that he was not aware whether the Appellant was contesting the election against Tandel. He stated that he prepared the papers for election. He denied the correctness of suggestions that as the Appellant/accused has not withdrawn his nomination, hence he filed a complaint at the instance of Tandel. 6. P.W.2 Mohan Appaji Tandel is a panch witness who signed the scene of offence panchanama. In the cross examination he admitted that the Appellant /Accused was contesting the election against him and the nominations were already filed. He stated that after 13th November, 1992 there was no talk between himself and the complainant. He admitted that the complainant had pointed out the scene of offence and accordingly a panchanma was prepared. The English version of the deposition records denial of the witness to the suggestion that his relations with the Talathi (complainant) were cordial. However, in the Marathi deposition, the version of the witness ( 6 ) recorded is that he was not having any relations with Talathi (Complainant). He denied the correctness of the suggestion that as his relations with the complainant were cordial, false complaint was filed by the complainant. P.W.3 Ramchandra Mestri supported the prosecution only to a limited extent by stating that the accused brought the Ration Card of one Tembkar and the complainant stated that he will do the work of the Appellant/accused lateron. He stated that there was "altercation of the words", but the Appellant/accused never uttered any words. The said witness was declared as hostile. 7. P.W.4 Balkrishna Gopal Patkar who is an alleged eye witness supported the prosecution. He stated that when the complainant told the accused to wait for some time, the Appellant/accused got annoyed and he started abusing the complainant by stating that the complainant who is a cobbler must stitch the foot- ware. He deposed that Appellant/accused was abusing the complainant by calling him with reference to his caste and threatened to amputate the legs of the complainant. In the cross examination he admitted ( 7 ) that P.W.2 Mohan Appaji Tandel was a Sarpanach of village Andurle and his relations with the said witness are cordial. P.W.5 Laxman Tanu Sawant stated that the Complainant had been in his office with the complaint addressed to the Tahasilkdar and lodged the complaint. He stated that on the basis of the said complaint, offence was registered and scene of offence panchanama was drawn. At the time of recording his evidence, he produced a copy of a caste certificate of the complainant. In cross-examination, he stated that at about 5.00 p.m.on 15th November, 1992, the complainant submitted the complaint. 8. The learned counsel appearing for the Appellant / accused submitted that the complaint was belatedly filed by the complainant. He submitted that though the case of the prosecution is that the complaint was addressed to the Tahashildar who forwarded it to the police, from the original complaint it does not appears that it was submitted to the Tahashildar. He submitted that there is no explanation in the complaint for the delay in filing the same. He submitted that the explanation of ( 8 ) complainant that he was busy in election work and therefore could not lodge the complaint cannot be accepted. He submitted that in the original complaint (Exh.23) the complainant has not disclosed his caste and has not stated that Appellant/Accused does not belongs to scheduled caste. He pointed out that there is no evidence about the caste of both the complainant and the Appellant/accused. He pointed out that investigating officer produced on record a Xerox copy of the caste certificate which is not admitted in evidence. He stated that in the absence of any evidence to establish that the complainant belongs to scheduled casts, there could not have been the conviction of the appellant. He submitted that it is obvious that a false complaint was filed by the Talathi at the instance of Mohan Tandel, the Sarpanch of the village Andurle who was contesting the election against the Appellant/accused. He stated that the said Mohan Tandel has been examined by the Police as a panch witness. He submitted that even according to the case of the complainant, apart from the prosecution witnesses one Korgaonkar and Mhapankar were present. He submitted that in the charge-sheet ( 9 ) they have been cited as witnesses but they were not examined. He submitted that in the absence of proof of caste, they could not be convicted under said Acts of 1955 and 1989. He submitted that the entire prosecution case was untrustworthy. He has placed reliance on certain decisions of this Court. The learned A.P.P supported the impugned Judgment and order by pointing out that the complainant in examination-in-chief deposed that he was a cobbler by caste and there is no challenge to the said statement in the corss-examination of the complainant. The learned A.P.P submitted that the fact that the complainant was a cobbler by caste was not disputed by the Appellant/accused in the statement under section 313 of the Code of Criminal Procedure, 1973. He submitted that under section 7(1)(d) of the said Act of 1955, it was not necessary to prove the caste of the complainant or the caste of the accused. He submitted that the prosecution case has been established beyond a reasonable doubt. 9. I have carefully considered the submissions. The offence under clause (x) of the said section 3(1) ( 10 ) of the said Act of 1989 is made out when it is established that the accused not being a member of scheduled caste or scheduled tribe intentionally insulted or intimidated a member of a scheduled caste or a scheduled tribe with intent to humiliate him in any place within public view. 10. An offence under section 7(1)(d) of the said Act of 1955 is established when an accused insults or attempts to insult a person on the ground of untouchability. Under clause (x) section 3(1)of the said Act of 1989, the requirement is that the victim must be a member of scheduled caste or scheduled tribe. 11. It will be necessary to refer to the law laid down in the case of Manohar Martandrao Kulkarni & Ors. Manohar Martandrao Kulkarni & Ors. Manohar Martandrao Kulkarni & Ors. V/s.State of Maharashtra (2005(4)Mh.L.J.588) V/s.State of Maharashtra (2005(4)Mh.L.J.588) V/s.State of Maharashtra (2005(4)Mh.L.J.588), [in paragraph 13], this court held thus : " In the circumstances, it is held that the registration of the crime by the police in all the aforesaid matters under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 or the Protection of Civil Rights Act, 1953 (where applied and only ( 11 ) where the caste of the complainant is not given in the body of the F.I.R.) and the consequent investigation and prosecution for the offences under the Atrocities Act or the Protection of Civil Rights Act, 1955 (where applied and where the caste of the complainant is not given in the body of the F.I.R.), was not in accordance with law and is liable to be quashed and set aside." It is necessary to refer to the decision of this Court in the case of Bibhishan Maruti Anarse & Anr. V/s. Bibhishan Maruti Anarse & Anr. V/s. Bibhishan Maruti Anarse & Anr. V/s. State of Maharashtra & Ors. (2007) ALL MR (Cri) 194. State of Maharashtra & Ors. (2007) ALL MR (Cri) 194. State of Maharashtra & Ors. (2007) ALL MR (Cri) 194. In paragraph 5 of the said decision, the learned single Judge of this Court held thus : . " In view of this, it is now well settled that before investigation can be intitiated for the offences punishable under section 3 of the Atrocities Act or Section 7 of the Civil Rights Act, it is necessary that the complainant should disclose his caste in his report and it should specify that it is Scheduled Caste or Scheduled Tribe. Unless the case is disclosed, action cannot be taken." In the decision in the case of Bai @ Laxmbai Nivratti Bai @ Laxmbai Nivratti Bai @ Laxmbai Nivratti Poul & Ors. V/s.State of Maharashtra (2001) ALL MR Poul & Ors. V/s.State of Maharashtra (2001) ALL MR Poul & Ors. V/s.State of Maharashtra (2001) ALL MR (Cri.) 219, (Cri.) 219, (Cri.) 219, this court had an occasion to deal with this aspect. In paragraph 8 of the said decision this Court held that in order to constitute an action on the part of the person to have committed an offence ( 12 ) within the meaning of section 7(1)(d) of the said Act 1955, the insult or intimidation has to be addressed to a member of the scheduled caste. 12. Coming to the facts of the present case, P.W.5 Laxman has stated that the offence was registered on the basis of the complaint made by the complainant addressed to the Tahashildar. It is at Exh.23. In the complaint at Exh.23, the complainant has not disclosed his caste or the fact that the Appellant/accused does not belongs to either to a Scheduled Caste or a Scheduled Tribe. The statement of the complainant is recorded by the police on the basis of the complaint. The complainant stated that he belongs to Chambhar caste, but in the said statement he does not state that the Appellant/accused does not belong to any scheduled caste or scheduled tribe. In view of the above facts and circumstances and in view of the decisions referred to above, the offence punishable under section 3(1)(x) of the said Act of 1989 could not have been registered. 13. In the examination-in-chief, the complainant ( 13 ) stated that he is a cobbler by caste and the Appellant/accused knows that he belongs to the said caste. A submission has been made by the learned A.P.P that there is no challenge to the aforesaid statement of the complainant in his cross examination. The learned A.P.P invited my attention to the statement of the Appellant/accused under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred as the said Code of 1973). The learned A.P.P pointed out that when it was pointed out to the accused that the caste of the complainant was chambhar, his response was "I do not know", and therefore he did not deny the fact that the complainant belongs to the caste which is claimed by him. On this aspect, it will be necessary to refer the decision of this Court in the case of Ashabai Ashabai Ashabai Ganeshrao Khote & Anr. V/s. State of Maharashtra Ganeshrao Khote & Anr. V/s. State of Maharashtra Ganeshrao Khote & Anr. V/s. State of Maharashtra (1991)(2) Mh.L.J.36. (1991)(2) Mh.L.J.36. (1991)(2) Mh.L.J.36. In paragraph 7 of this decision, this Court has held in case of the offence under section 3(1) of the said Act, 1989 the prosecution has to establish that accused did not belong to scheduled caste or scheduled tribe and that the person aggrieved belongs to the scheduled caste or scheduled tribes. ( 14 ) In paragraph 8 of the said decision, this Court has observed : " It is true that in the cross examination, the statement made by the witness Ankush is not challenged. However, to prove the caste specified evidence is required than a mere statement of witness. The prosecution ought to have brought on record the caste certificates of both the parties to prove that the accused did not belong to scheduled caste or scheduled tribe and further to prove that the aggrieved person belongs to scheduled caste or scheduled tribe and further to prove that the aggrieved person belongs to scheduled caste or scheduled tribe. The prosecution has failed to do so. The investigating officer whose deposition is at Exhibit 6 is also not stating anything about the evidence collected to make out this specific case. In such circumstances, merely because the statements made by Ankush in examination-in-chief are not challenged in the cross-examination, it cannot be said that the accused admitted those statements or that the prosecution has proved beyond reasonable doubt the two important ingredients required under law to be proved." In view of what is held in paragraph 8 of this Judgment, the said submission of the learned A.P.P cannot be accepted. Thus, apart from the fact that in the complaint Exh.23 the complainant did not disclose his caste and he has not stated that the Appellant/accused does not belong either to a scheduled caste or a scheduled tribes, the complainant ( 15 ) has not stated in his deposition that the Appellant/accused does not belongs to either scheduled caste or schedule tribe. In support of prosecution case, the investigating officer has produced a Xerox copy of the caste certificate of the complainant. However, as the original certificate is not produced, the same was rightly not admitted in evidence by the learned Special Judge. Thus, mere statement in the examination in chief of the complainant or victim regarding his caste is not sufficient. To prove the caste of the complainant, some specific evidence is required. The prosecution ought to have brought on record the caste certificate of both the complainant and the accused. 14. Apart from this, there are other circumstances which create a serious doubt about the prosecution case. In the examination in chief, the complainant has stated that apart from P.W.3 and P.W.4, one Korgaonkar and Mhapankar were present at the time of the incident. The said two persons were cited as a witnesses, but they have not been examined. In the Examination-in-chief of the complainant, he stated ( 16 ) that the incident occurred at about 9.30 a.m. on 13th November, 1992, but the complainant who is a village Talathi did not approach the police and only on 15th November, 1992 he allegedly lodged the complaint with the Tahashildar. It is not explained by the complainant as to what prevented him from immediately approaching the police station or any other Authority It is his case that he filed complaint with Tahashildar and on that basis, an offence has been registered. However, P.W.6, the investigating officer has stated that it was the complainant who came with the complaint. He has not stated that the complaint was forwarded to him by the Tahashildar. Moreover, as stated earlier, two eye witnesses have not been examined by the prosecution. Apart from this one eye witness turned hostile and had not supported the prosecution case. 15. P.W.1 has admitted that he has very good relations with Mohan Tandel (P.W.2). However, he showed ignorance about the fact whether the said Tandel had filed a nomination form. But P.W.2 Tandel stated in the cross-examination that the ( 17 ) appellant/accused was contesting election against him. Even P.W.4 Balkrisha Gopal Patkar stated in his cross examination that he was not aware whether the relations between Tandel and Appellant/accused are strained. He admitted of having very good relations with the said Mohan Tandel and the complainant. Considering all these aspects, the delay of two days in filing the complaint becomes very irrelevant and it raises serious doubt about the prosecution case. The complainant stated that at the relevant time the Appellant/accused was accompanied by one Shridhar Raul. But, the eye witnesses have not deposed that the said Shridhar Raul accompanied the Appellant/accused. Apart from this aspect, the statement of Shridhar Raul has not been recorded by the Investigating officer and he has not been examined as a witness. 16. Perusal of the impugned Judgment shows that the aforesaid vital aspects have not been noted by the learned Judge which were very material for considering the issue of guilt of the Appellant/accused. The Appellant/accused could not have been convicted only ( 18 ) on the basis of the evidence of P.W.4 Balkrishna Gopal Patkar when the prosecution case suffers from lacuna and especially when material witnesses were not examined by the prosecution. 17. Thus, there is no reason to hold that the prosecution case as regards the commission of the aforesaid offences by the Appellant/accused is proved beyond a reasonable doubt. There is a serious doubt about the truthfulness of the prosecution case. 18. Apart from the defect regarding failure to prove the caste of the complainant, as stated earlier, a serious doubt is created regarding the prosecution case as regards the incident of 13th November, 1992. Benefit of all these must go to the Appellant/accused and, therefore, the appeal of the Appellant/accused must succeed. 19. Hence, I pass the following order : i. The impugned Judgment and order dated 28th February, 2006 is quashed and set aside. ( 19 ) ii. The conviction and sentence of the Appellant/accused is set aside and he is acquitted of the offences alleged against him. iii. Fine amount, if deposited by the Appellant/accused, shall be refunded to him. iv. Bail bond of the Appellant/accused stands cancelled. (A.S.Oka, J.) (A.S.Oka, J.) (A.S.Oka, J.) ( 20 ) rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 157 OF 1996 CRIMINAL APPEAL NO. 157 OF 1996 CRIMINAL APPEAL NO. 157 OF 1996 Ravindra Rajaram Rawool ] Age 31 years, r/o.Andurle, ] Rawoolwadi, Taluka -Kudal ] District Sindhudurg ] .. Appellant Vs. The State of Maharashtra ] .. Respondent Mr.S.P.Prabhu h/f.Mr.N.V.Walawalkar for the Appellant. Ms.A.T.Javeri, A.P.P. for the State. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 20TH JANUARY, 2009 DATED : 20TH JANUARY, 2009 DATED : 20TH JANUARY, 2009 JUDGMENT :- JUDGMENT :- JUDGMENT :- For the reasons separately recorded i. The impugned Judgment and order dated 28th February, 1996 is quashed and set aside. ii. The conviction and sentence of the Appellant/accused is set aside and he is acquitted of the offence alleged against him. ( 21 ) iii. Fine amount, if deposited by the Appellant/accused, shall be refunded to him. iv. Bail bond of the Appellant/accused stands cancelled. (A.S.Oka, J.) (A.S.Oka, J.) (A.S.Oka, J.)