1 Cri appeal 431.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 431 OF 1999 1. Abaji S/o Shripatrao Tekale, Age : 30 Years, Occu. : Service, R/o Hadgewar Chowk, Mukhed, (Dhobi Galli). 2. Vishwambhar S/o Bhikaji Bhosle, Age : 28 Years, Occu. : Agril., R/o Khategaon (P.D.), Tq. Mukhed, District Nanded. .. .. APPELLANTS VERSUS The State of Maharashtra, through Police Station Mukhed, Tq. Mukhed, Dist. Nanded. .. .. RESPONDENT (Copy served on Public Prosecutor High Court Aurangabad) Shri Jyodeep Chatterji, Advocate h/f Miss. S. A. Dhumal, Advocate for Appellants. Smt. Y. M. Kshirsagar, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. RESERVED FOR JUDGMENT : 12.01.2011 JUDGMENT PRONOUNCED : 17.01.2011 2 Cri appeal 431.99 JUDGMENT : . This appeal is filed challenging the judgment and order dated 28.10.1999 passed by the Special Judge, Nanded in Special Case No. 12/1996, thereby convicting the appellants for the offence under Section 3(1)(xiv) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and appellants are sentenced to suffer SI for 6 months and to pay fine of Rs. 100/- each, in default of payment of fine, each of the appellant has to suffer further SI for one month. 2. Brief facts of the prosecution case are as under : Admittedly, all the nine accused persons are not the members of scheduled caste or scheduled tribe. Complainant Venkati, PW 2/Nagorao, PW 3/Muktabai, PW 4/Pandurang, PW 5/Govind, PW 6/Gangabai, PW 7/Dhondyabai, belong to scheduled caste. Undisputedly, on 30.04.1992 the village celebrated Dr. Babasaheb Ambedkar Jayanti at village Khatgaon. A procession was arranged on the eve of Dr. Ambedkar Jayanti. The prosecution reached in front of Grampanchayat Office. Some of the boys belonging to scheduled caste were playing Lezim in the procession. According to the prosecution, accused Sripta, Parbat, Manika and Ananda tried to 3 Cri appeal 431.99 bring obstruction in the procession. However, the procession proceeded further and the function was over peacefully. 3. The prosecution has further alleged that, Manika and other persons belonging to scheduled caste celebrated Dr. Ambedkar Jayanti and, therefore, the villagers who are not belonging to scheduled caste called a meeting on 1.5.92 on the platform of Maroti temple in the evening and they decided to observe boycott on the persons belonging to scheduled caste and denied access to them to the public water stand, shops, flour mill etc. According to the prosecution, the accused have decided not to sell grocery articles to the persons belonging to scheduled caste. They also did not allow the women and children belonging to scheduled caste to go to answer call of nature and they did not allow them to the flour mill etc. 4. Prosecution story further goes to state that due to fear, on the very night on 1.5.92 the persons belonging to scheduled caste left the village Khatgaon. On the next day i. e. on 2.5.92 complainant Venkati/PW 1 lodged the complaint Exh. 33 in the police station Mukhed before PW 9 Bhagwan Thorat PSI. PW-9 Bhagwan registered the offence and further investigation was carried out by PSI PW 10 Suryawanshi. Undisputedly, on 30.4.92 4 Cri appeal 431.99 PW 8 Narsing Police Head constable had gone to village Khatgaon for Bandobast duty, as the procession was arranged on account of Dr. Babasheb Ambedkar Jayanti. PSI Suryawanshi went to village Khatgaon and prepared a scene of offence panchanama Exh. 34. He recorded statement of Venkati, Govind, Muktabai, Pandurang, Gangabai, Dondyabai and others on 3.5.92. The statements of some of the witnesses were recorded on 6.5.92. After having completed the investigation, he submitted charge sheet in the court of J.M.F.C., Mukhed. 5. It appears from the record that JMFC, Mukhed was pleased to commit this case to the court of Sessions as the offences registered against the accused persons are exclusively triable by the Special Court. 6. After having considered police statements, learned Special Judge was pleased to frame charges vide Exh. 15 under Section 3(1)(xiv) of S.C. & S.T. (Prevention of Atrocities) Act, 1989 and under Section 4(i) & (iv) of the Protection of Civil Rights Act against all the accused. The charges were read over and explained to them in vernacular. They pleaded not guilty and claimed to be tried. Their defence is that of total denial. They have denied that, the meeting was held in the village and they 5 Cri appeal 431.99 had decided to observe boycott on the persons of the scheduled caste. According to them they did not deny the access to persons of scheduled caste namely, Venkat and others to the public water stand, shops, flour mill, etc. According to them a false complaint was lodged by Venkati in order to extract money from the accused persons. 7. The Special Court at Nanded after appreciating the rival submissions framed as many as three points for his determination and held that the appellants herein who are original accused Nos. 6 and 8 are found guilty under Sec. 3(1) (xiv) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Rest of the accused who were tried are acquitted. Hence this appeal challenging the judgment and order passed by the Special Court in Special Case No. 12/1996 on 28.10.1999. 8. The learned counsel appearing for appellants submitted that the prosecution examined as many as ten witness, however, no single witness is able to explain about their customary rites and how said rites are violated by the appellants. It is further submitted that, the Special Court is not correct in placing reliance on the evidence of Govind. It is further submitted that, 6 Cri appeal 431.99 the allegations against the appellants/accused that ,they have refused to give grocery to the Scheduled Caste and Scheduled Tribe persons, is not correct, since no accused is having grocery shop in the village, Khategaon. It is further submitted that, the prosecution has not proved that, access to public places was denied to the complainant and prosecution witnesses on the ground of untouchebility. The counsel further invited my attention to the evidence of police head constable who was on duty on 30th April, 1992 at village Khategaon and submitted that, said witness has stated that the complainant Vithal told him that there is no grievance against anybody. The counsel further submitted that, there was no any obstruction to the procession and said was completed peacefully and without obstruction. However, the complainant is leader of Republican Party of India (RPI) and he is taking undue advantage of his political position and harassing the villagers and more particularly the accused persons. It is further submitted that, as per prosecution story the alleged incident has taken place on 01st May, 1992 and FIR was lodged on 02nd May, 1992. It is further submitted that, there is no any independent witness examined by the prosecution and all ten witnesses examined by the prosecution are interested witnesses. 7 Cri appeal 431.99 9. The learned counsel appearing for the appellants further submitted that, the appellants are convicted merely relying on the evidence of P.W. 3/Muktabai. According to the counsel for the appellants, the evidence of Muktabai is general in nature and in absence of any corroboration to her evidence the Special Court should have acquitted the appellants/accused. However, relying on evidence of Muktabai, the Special Court has convicted the appellants. The counsel further submitted that, there is general statement by this witness that, "we were not allowed to take water thereafter and we were not allowed to answer the call of nature by Vishwamber Patil and Abaji Patil." According to learned counsel for the appellants, they were not allowed is not stated in the evidence by this witness. Whether they were not allowed to enter is not also stated in the evidence and what manner they were prevented from taking water or going to answer nature's call has not been stated in the evidence before the Court. Therefore, counsel for the appellants would submit that, the appellants deserve to be acquitted from the charges leveled against them. Learned counsel also invited my attention to the other evidence which reads against the appellants and submitted that said evidence suffers from material 8 Cri appeal 431.99 contradictions and omissions and, therefore, counsel for the appellants relying on the grounds in the appeal memo and arguments advanced before the Trial Court by the counsel for the appellants and other material would submit that this appeal deserves to be allowed. 10. Learned Additional Public Prosecutor appearing for the State submits that, there is evidence which suggest that the involvement of the appellants herein in the commission of offence. It is further submitted that, taking into consideration the evidence of prosecution witnesses, the Special Court has correctly arrived to the conclusion that the appellants herein are liable to be convicted for the offence under section 3(1) (xiv) of the S. C. and S.T. (Prevention of Atrocities) Act. Therefore, learned Additional Public Prosecutor would submit that, appeal deserves to be dismissed. 11. With the assistant of learned counsel appearing for the appellants and learned Additional Public Prosecutor, I have perused the entire compilation and also evidence made available. 12. Upon perusal of the entire evidence and impugned judgment and order, it appears that in all nine accused were 9 Cri appeal 431.99 tried U/Sec. 3(1)(xiv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and U/Sec. 4(i)(iv) of the Protection of the Civil Rights Act. However, all of them are acquitted for the offence punishable U/Sec. 4(i)(iv) of the Protection of Civil Rights Act. It further appears that, out of these nine accused seven are acquitted from the offence punishable U/Sec. 3(1)(xiv) of the S.C. & S.T. (Prevention of Atrocities) Act. However, the appellants herein who are original accused Nos. 6 and 8 namely Vishwambhar Bhosale and Abaji Tekale are convicted of the offence punishable U/Sec. 3(1)(xiv) of the S. C. & S. T. (Prevention of Atrocities) Act and each of them is sentenced to suffer S.I. for six months and to pay fine of Rs. 100/- and in default of payment of fine each of accused has to suffer S.I. for one month. 13. It is not necessary to narrate the entire episod happened at the said village on the date of incident or thereafter. The Special Court trying the said case had commented upon the recitals of the complaint and the deposition of all the prosecution witnesses as far as the incident which took place on 30th April, 1992. The Court has recorded that the prosecution witnesses consistently speak that while the procession was going on a dash of boy who 10 Cri appeal 431.99 was playing lezim was received by accused Manika and, therefore, some exchange of words between the two groups took place. However, it has also come in the evidence of the witnesses that the matter was pacified and the Dr. Babasaheb Ambedkar Jayanti was peacefully celebrated. P.W. 8/Narsing was the police head constable, who was on Bandobast duty since the procession started on 30th April, 1992. He has stated the incident which took place on 30th April, 1992 in the procession. He has stated that after incident he tried to resolve the quarrel and accordingly afterwards the procession peacefully went ahead. The Special Court in para 13 held that, though P.W. 8 is police head constable, his evidence can be believed because I find it genuine. He has further observed that, 'if the evidence of all the prosecution witnesses are taken into consideration, it can be very well said that a dash of a boy was received by accused Manika when the procession was going on, and, therefore, petty incident took place between accused persons, particularly accused Manika and the persons who were participated in the procession. 14. It is the prosecution case as stated by the prosecution witnesses that, on next date i. e. on 01st May, 1992, a meeting was held by the villagers including some of the accused persons 11 Cri appeal 431.99 on the platform of Maroti temple and it was decided in the said meeting to deny the access to the persons belonging to scheduled caste and scheduled tribe to the public water stand, shops, passage, flour mill, etc. In para 15 of the judgment impugned, the Special Court has referred to the deposition of the prosecution witnesses and also taken into consideration the contention of the accused persons and in para 16 observed, thus : "if at all it is held that, the prosecution failed to prove the presence of almost all the accused in the meeting which was held on 01st May, 1992, on the platform, at the most it can be held that some of the accused namely Manika, Parbata and Ananda attended the said meeting. It has further come in the evidence of almost all the prosecution witnesses that some male members of Scheduled Caste left village Khatgaon due to fear. It has also come on record that after the meeting was held, some persons gave slogans, "Har Har Mahadev". In such circumstances I do not think that almost all the prosecution witnesses are situated near Maroti temple, where the meeting was held, " Viewed thus, I hold that a meeting of some villagers was definitely held on 1.5.1992 on the platform of Maroti temple." (emphasis supplied). 15. The Special Court in para 18 has discussed about, whether the accused and some villagers decided in the said meeting to deny the access to the persons belonging to S.C. and S.T to the 12 Cri appeal 431.99 public places such as shops, public water stand, passage, flour mill, etc. The Special Court has discussed the evidence of the complainant and other prosecution witnesses in the said paragraph. In para 19, the Special Court has observed that, the persons belonging to Scheduled caste who were afraid, some of them left village Khatgaon in the same night on the date of incident and could not dare to stand near the Maroti temple, where the meeting of the persons other than scheduled caste was going on. Therefore, the Special Court arrived to the conclusion that, all the witnesses would not be able to speak actually what was decided in the meeting. However, the Special Court in para 19 recorded, "but the evidence is clear that, the meeting was held on the platform of Maroti temple and some decision was taken there. Now it is to be considered what was the impact of the said meet in the routine life of the persons belonging to the scheduled caste and whether the resolution which was passed in the said meeting was implemented by these persons." (Emphasis supplied) 16. The Special Court has observed in para 19 that, in such cases there could not be direct evidence regarding the resolution which has been passed in the said meeting. The subsequent 13 Cri appeal 431.99 conduct of the accused and other villagers who were not belonging to the scheduled caste is to be taken into consideration. Thereafter, the Special Court has discussed the independent instances in para 20 to 25. In para 20, the Special Court has discussed the evidence of P.W.3/Muktabai, P.W. 4/Pandurang and P.W. 5/Govind. It is observed that, admittedly they belong to scheduled caste. They have stated about the incident which took place in the procession and also they have stated about the meeting which was held on platform of Maroti temple on 1.5.1992 and also they have stated about subsequent acts of some of the accused. The Special Court has referred to the evidence of the Muktabai and observed that, Muktabai admits that she did not go to the Maroti temple when the meeting was being held. She speaks that nothing happened thereafter in the village. That, means the meeting was held. It does not mean that nothing was happened in the village till the complaint was filed. The special Court has further observed that, Muktabai positively speaks that she and Jalubai were not allowed to take water and were not allowed to go to answer call of nature by accused Vishwambar and accused Abaji i. e. accused Nos. 6 and 8. She further added that she herself and Jalubai were prevented to go to answer call of nature near the outskirt of village. She was subjected to cross- 14 Cri appeal 431.99 examination at length and her evidence was not shaken on the point that she was denied access to the public place. The Special Court has also referred evidence of P.W. 4/Pandurang and recorded that, accused Shripat kept thorny fencing in front of the house of Pandurang. However, the Special Court has acquitted said Shripat on the ground that merely because thorny fencing was kept in front of house, cannot be construed as denial to the access to the public places. In para 21, the Special Court has has referred to evidence of P.W. 5/Govind and also P.W. 1/Venkati who was complainant, whose complaint was exhibited as Exhibit 33. The Special Court observed in para 21 that the evidence of P.W. 1/Venkat and Govind speak in volume against the accused. The Special Court after referring to the evidence of these witnesses and also evidence of Muktabai held that, the evidence of P.W. 1 and P.W. 5 Venkati and Govind certainly discloses that after meeting was held persons belonging to scheduled caste i. e. Muktabai and some other ladies were prevented to go to answer call of nature and this circumstance is sufficient to infere what was decided in the meeting. The Special Court has also referred to the evidence of I. O. where he has stated that when he carried out 15 Cri appeal 431.99 investigation some persons belonging to S. C did not come forward to give statement. The Special Court in para 24 has discussed the evidence of Gangubai and accepted her evidence to the extent that her evidence is sufficient to infer that persons or ladies belonging to S. C. were denied their access to the public place. 17. Therefore, after appreciating entire evidence, the Special Court in para 26 recorded clear findings against the present appellants who are original accused Nos. 6 and 8 that, the evidence on record makes it clear that, the act of accused Nos. 6 and 8 Viwambhar and Abaji, preventing Muktabai from going to answer call of nature falls within the ambit of Section 3(1)(xiv) of S.C. and S.T. (Prevention of Atrocities) Act. The Court has also observed that, it is not the case of the defence that Muktabai has no right to go outskirt of the village to answer the call of nature and impliedly she has right to go outskirt of the village and that right has been denied by the accused No. 6/Vishwambhar and accused No. 8/Abaji. The Special Court in para 29 has held that, the prosecution has successfully established that, the accused No. 6 and 8 Vishwambhar and Abaji denied access to Muktabai and Jalubai 16 Cri appeal 431.99 from using a place of public resort, Muktabai is innocent person. She does not have any reason to implicate falsely accused No. 6/Vishwambhar and accused No. 8/Abaji. Her evidence appears to be satisfactory, cogent and reliable and, therefore, the Special Court accepted the evidence and convicted the appellants/accused. 18. It is not in dispute that, all the accused persons are not the members of scheduled caste or scheduled tribe. It has also come on record that, complainant and other prosecution witnesses are members of scheduled caste or scheduled tribe as the case may be. There is no dispute on this point. 19. It is not necessary to again re-appreciate the evidence in its entirety on the point of procession, obstruction in procession and, thereafter peaceful procession of Dr. Babasaheb Ambedkar Jayanti, since the Special Court has recorded that, such incident had happened which gave cause to the further meeting in the village and subsequent activities of the accused persons. Upon perusal of the complaint given by the complainant on 02.05.1992, the name of present appellants does figure in the said complaint. The name of appellant No. 1/Abaji Shripatrao 17 Cri appeal 431.99 Tekale is at Sr. No. 1 and name of appellant No. 2/Vishwambhar Bhikaji Bhosale is at Sr. No. 5. Therefore, there was a complaint against the appellants/accused and against other accused persons also. There is no doubt that, in the said village as concluded by the Special Court, there was some incident took place between accused persons and particularly accused Manika and the persons who have participated in the procession i. e. procession of Dr. Babasaheb Ambedkar Jayanti. The Special Court has also recorded the positive findings that, the meeting was conducted by the accused persons and other villagers on 01.05.1992 at 9.00 p.m. There was individual overt act by some of the accused after meeting to prevent the members of the scheduled caste and scheduled tribe from giving access to the public places like fetching water, not allowing them to go to answer call of natur, etc. as discussed by the Special Court in its judgment. Therefore, in my opinion, in this appeal what is required to be considered is the evidence of P.W. 3/Muktabai, P.W. 4/Pandurang and P.W. 5/Govind, because relying on their evidence the appellants are convicted by the Special Court for the offence punishable U/Sec. 3(1)(xiv) of the S.C. & S.T. (Prevention of Atrocities) Act. 20. P.W. 3/Muktabai whose evidence is at Exhibit 36, in her 18 Cri appeal 431.99 examination in chief has stated that, she knows all the accused persons who are before the Court. She is Mahar by caste. The incident took place six years ago. It was day of Babasaheb Jayanti. She was standing under Wad tree. The boy who was playing lezim received kick blow. Therefore, there was hue and cry in the procession. The some persons intervened the matter, pacified the crowed and procession started. The function was over. Accused Parbatrao called the meeting on the next day near Maroti temple at 8-9 p.m. This witness has further stated that, "Nothing happened thereafter in the village. Thereafter, we did not come out of our house. I know Jalubai. We were not allowed to take water thereafter and were not allowed to answer call of nature by Vishwamber Patil and Abaji Patil. Myself and Jalubai were prevented to go to answer call of nature near outskirt of village." The above quoted and underlined portion from the evidence of P.W. 3 in vernacular reads thus : ^^ uarj xkokr dkghi.k ?kMys ukgh] uarj vkEgh vkeP;k ?kjkckgsjgh iMyks ukgh- tGwckbZyk eh vksG[kr ukgh- uarj vkEgkyk ik.kh Hkj.;kl ;sow fnys ukgh- laMklyk i.k tkow fnys ukgh- vkjksih fo'oaHkj ikVhy o vkckth ikVykus vkEgkyk laMklyk oxSjs ;sow fnys ukgh- eyk o tGwckbZyk laMklyk [kkjhe/;s] xkokckgsj ;sow fnys ukgh-^^ 19 Cri appeal 431.99 21. The evidence of P.W. 3/Muktabai has not shattered in any manner in the cross examination. On the contrary, she has denied the suggestion that, no meeting of the accused and other persons was held in the village, as she has stated. She has also denied the suggestion that nobody prevented her from going to answer call of nature and to fetch water from water tap. She has also denied the suggestion that her house is far away from Maroti temple. Therefore, the evidence of this witness appears to be fully trustworthy. 22. While convicting the appellants/accused U/Sec. 3(1)(xiv) of the S. C. and S.T. (Prevention of Atrocities) Act, the Special Court has also relied on the evidence of P.W. 1 and P.W. 5. It has also come in the evidence of P.W.1/Venkati and P.W. 5/Govind that, after meeting was held, the persons belonging to S. C. i. e. Muktabai and some other ladies were prevented by the accused pesons to have access to public places. There is evidence brought on record by the prosecution that, persons from Scheduled Caste or Scheduled Tribe were prevented from going to answer call of nature, from