CR.A/91/1993 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 91 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= MAHASUKHRAI KESHAVLAL JOSHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YOGESH S LAKHANI WITH MR HARNISH DARJI for Appellant(s) : 1, MS DS PANDIT, LD.APP for Respondent-State. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 22/03/2007 CAV JUDGMENT 1. The present appeal is preferred by the appellant-orig.convict (hereinafter referred to as 'the appellant') against the judgment and order of conviction and sentence dated 15th January, 1993, passed by the learned Sessions Judge, Rajkot, in Sessions Case No.173/1991, under Section 374 read with Section 386 of the CR.A/91/1993 2/55 JUDGMENT Code of Criminal Procedure, 1973. The learned trial Judge at the conclusion of the trial has held the appellant guilty for the offence punishable under Sections 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') and also under Section 506(2) of the Indian Penal Code. While passing the judgment and order of conviction and sentence, the learned trial Judge has observed, “where for the offence punishable under Section 3, 7 of the Civil Rights Act, as it is included under Section 3(1)(10) of the Scheduled Casts and Scheduled Tribes Act and further offence is committed, it is not in the interest of justice to pass any separate order of punishment.” However, the learned trial Judge has given benefit of doubt to the appellant for the offence punishable under Section 504 of the Indian Penal Code. For the sake of brevity and convenience, and to appreciate the arguments advanced by the learned counsel appearing for the appellant Shri Harnish Darji on behalf of Shri Y.S. Lakhani as well as the learned CR.A/91/1993 3/55 JUDGMENT Additional Public Prosecutor Ms.D.S. Pandit, it would be appropriate to state the basic facts of the case of the prosecution reflected in charge framed vide Ex.1. 2. According to prosecution, on 14th August, 1991, in the afternoon at 03-45 p.m., the appellant made fun of the complainant Shri D.L. Maheshwari, Senior Clerk of the Police Central Motor Transport Workshop (hereinafter referred to as 'the workshop'). But when the complainant asked the appellant not to make fun of him, the appellant started using abusive and obsessive language for the complainant in the Account Branch of the office of the Commissioner of Police, Rajkot. The appellant addressed the complainant by his caste name and the said, “go, go, 'Sala Dheda'”. In vernacular Gujarati language, the word 'Dheda' is being used for undermined low caste or the members of the low caste. 'Dhed' is the name of a community falling in the category of Scheduled Castes so far as the State of Gujarat is concerned. The appellant also asked the complainant to get lost from there, meaning thereby, the Account Branch CR.A/91/1993 4/55 JUDGMENT where the complainant had gone with one Akbarkhan Husseinkhan, Buckle No.294, who was the writer-Police Constable for the work of said Akbarkhan. The appellant told the complainant, “This is not your Kachchh, I have taught lessons to them whomsoever has stood against me. If you will speak much, your wife and children will be kept waiting for you and I will get you killed. Nobody will come to know about your whereabouts.” It is alleged that the appellant inspite of knowing that the complainant is the member of Scheduled Caste, he was addressed accordingly and the complainant was insulted and the appellant was making fun of him. The appellant had addressed the complainant with an intention to humiliate him in public and threatened him to be killed. The obsessive language is also used to provoke the situation of the office room where the incident has occurred. It is the say of the prosecution that by this offending act, the appellant has committed offence punishable under Sections 504 and 506 of the Indian Penal Code and also under Section 3(1)(x) of the Act. CR.A/91/1993 5/55 JUDGMENT 3. The learned counsel appearing for the appellant has taken me through the oral as well as documentary evidence led during the course of trial and also the version of the defence-side. It is argued that the judgment and order of conviction and sentence is bad and illegal, and suffers from factual as well as legal errors committed by the learned trial Judge while appreciating the evidence and, hence, it cannot sustain mainly on the grounds mentioned in the memo of the appeal. He has also taken me through various grounds of challenge and also conduct of the learned Presiding Judge, and it is alleged that it has resulted into serious prejudice to the appellant. 4. On the other hand, Ms.D.S. Pandit, learned Additional Public Prosecutor, has submitted that the judgment and order of conviction and sentence is a reasoned order and the evidence of the complainant was found acceptable by the learned trial Judge having sufficient corroboration from two prosecution witnesses CR.A/91/1993 6/55 JUDGMENT namely the Police personnel who had accompanied the complainant to the Account Branch and for whose work the complainant had gone to the Account Branch and also the person serving in Account Branch i.e. PW-Manoj Devji Maheshwari. The presence of PW-M.D.Maheshwari at the spot of incident was natural and he had no reason to implicate the appellant falsely, especially when he belongs to his own department and caste. There was no reason for the appellant to go there in the Account Branch because it is not his say that he was serving in the Account Branch and the presence of the complainant was there in the room where the incident has occurred. It appears that both were in the Account Branch though they were supposed to be there on their duty and at the place of the work assigned to both of them and in this background, the learned trial Judge has appreciated the evidence. The complainant gets ample corroboration from the complaint which was sent to the Commissioner of Police in writing by post and he has specifically explained as to why the FIR could not be lodged by him immediately after the CR.A/91/1993 7/55 JUDGMENT incident on 14th August, 1991. Merely because the complainant is an activist in a union of Government employees working in the interest of members of the Scheduled Castes and Scheduled Tribes, his deposition cannot be said to be vulnerable or otherwise doubtful and, therefore, the judgment and order of conviction and sentence should be upheld. 5. To appreciate the rival contentions, it is necessary to evaluate the overall evidence led by the prosecution and mainly by the PW-1- complainant, PW-M.D. Maheshwari as well as PW- Akbarkhan. The PW-1-Dahyabhai Laghubhai Maheshwari i.e. the complainant, has narrated the incident. According to him, on the date of incident, he was serving as a Senior Clerk- cum-Cashier at the Workshop and the appellant is also serving in the office of the Commissioner of Police. He was knowing the appellant as 'Joshibhai' and the appellant was working as a typist in the office of the Superintendent of Police (West). PW- Akbarkhan, Police Constable, was also serving in the said workshop. PW-M.D.Maheshwari was a CR.A/91/1993 8/55 JUDGMENT Senior Clerk in the office of the Commissioner of Police. According to the complainant, he and PW-M.D. Maheshwari belongs to the same community i.e. Meghwal, and that community is a Scheduled Caste and the appellant was knowing the complainant as a member of the Scheduled Caste. That on 14th August, 1991, at about 03-45 p.m., the complainant and the PW-Akbarkhan had gone to the Account Branch of the their office at Rajkot because PW- Akbarkhan found some error in calculating the amount of his increment and so also the difference in amount receivable by him considering the public holidays. Therefore, the Account Branch was to be informed about preparing the bill of the amount of arrears, and for that work, the complainant and PW- Akbarkhan had gone to PW-M.D. Maheshwari. It is the say of the complainant that billing work of PW-Akbarkhan was with him and when they were talking with PW-M.D. Maheshwari, the appellant had come and asked the complainant as to why he was not going for election propaganda. At that time, the complainant requested the appellant that the appellant may CR.A/91/1993 9/55 JUDGMENT not make fun of him and should not harass him. In this regard, the appellant had enraged and started insulting the complainant. The complainant requested the appellant not to utter such words. At that time, according to the complainant, the appellant had told the complainant, “Go go, 'sala dheda'. This is not your Kachchh. I have taught lessons to the persons whomsoever has stood against me. If you will speak much, your wife and children will be kept waiting for you and I will get you killed. Nobody will come to know about your whereabouts.” It is the say of this witness that PW-M.D. Maheshwari as well as PW- Akbarkhan were present on the spot and they had intervened. The case of this witness is that in the month of May, 1990, he had been to the office of the Superintendent of Police (West), Rajkot, to see Senior Clerk Shri Soni. At that time, the appellant was present and he had teased and told the complainant as to why he is not going for election propaganda and he should go when the election propaganda is going on. At that time also, the complainant had requested the appellant not to harass or CR.A/91/1993 10/55 JUDGMENT make fun of him as it gives mental tension to the complainant. Even on 14th August, 1991 at 03-45 p.m. the appellant had tried to make fun of the complainant and during conversation insulted him and humiliated him as he belonged to the Scheduled Caste. It is stated by this witness that after the incident in question, he had gone to see Commissioner of Police but he was not available in the office, so he had returned to his work place in the office. After his return, he had received one telephone call informing him that his wife is sick and therefore, he should reach Bhuj. Thereafter, on 14th August, 1991, he had left the office and had gone to Bhuj as his wife was sick and as he had received a phone call from Bhuj. After reaching Bhuj, he had sent a written complaint to the Commissioner of Police by R.P.A.D. The complaint in the present case is proved and tendered by this witness vide Ex.5. The complaint of the complainant was recorded by the Investigating Officer after registration of the offence on 03rd October, 1991. Neither any record from service book or the department has been CR.A/91/1993 11/55 JUDGMENT produced to show that the complainant belongs to the Scheduled Caste, nor any caste certificate has been produced. Prior to his transfer at Rajkot, the complainant was serving in the office of the Collector at Bhuj. Thereafter, he was transferred to the office of the D.S.P., Bhuj and had served at Bhuj from 1977 to 08th June, 1990. He has accepted that the suggestion made by the defence counsel that he was appointed in Government service as he belonged to the Scheduled Caste. It is in evidence that there is one union of the Government employees belonging to Scheduled Caste and the complainant is the General Secretary of the said Union. PW-M.D. Maheshwari is also a member of the said Union working at Kachchh and this PW-M.D. Maheshwari also belongs to District Kachchh. This witness was also serving in the office of the D.S.P., Kachchh at Bhuj. The complainant has accepted the suggestion that he is the General Secretary of the Union working in the name and style as “Gujarat Karmachari Utkarsh Mandal” at Bhuj. The complainant had sent a copy of the CR.A/91/1993 12/55 JUDGMENT complaint at various places including the Commissioner of Police. However, he has denied the suggestion that he had sent a copy of the complaint Ex.5 at various places mentioned at the bottom of the complaint but he had mentioned those names only with a view to pressurize the Commissioner of Police to initiate the proceedings against the appellant. 6. Undisputedly, the complainant is serving in the Police Department and was active as General Secretary; and so he must have tackled number of issues involving various types of victimizations of Government employees belonging to the Scheduled Caste. Of course, he has stated nothing either in his deposition or in his complaint, but it is rightly argued on behalf of the appellant that the complainant was aware that the appellant had committed a serious cognizable offence and for which the FIR is required to be registered at the earliest and delay in filing the FIR would come in his way. 14th August, 1991, was obviously a day prior to the National Holiday CR.A/91/1993 13/55 JUDGMENT i.e. 15th August-Independence Day. In absence of any convincing evidence on record, whether the bare words of complainant should be accepted that only because of ill-health of his wife and on account of urgent telephone call, he had left for Bhuj to enjoy the intervening holidays of 15th August and/or with a view to have deliberations with the members and other office bearers of the said Mandal with whom the complainant was attached. The detailed cross-examination has been made and the defence-side has tried to bring one aspect on record that the complaint Ex.5 is a planned complaint and it would not be safe for the Court to use the said complaint as genuine complaint. Every genuine complaint or delayed complaint should not be used as corroborative piece of evidence, is one of the main arguments advanced by the learned counsel appearing for the appellant. The learned trial Judge has not considered this aspect and has committed error in accepting the bare words of the complainant, whereby he has attempted to explain the delay caused in filing the complaint. There is no corroboration to the CR.A/91/1993 14/55 JUDGMENT evidence given by the complainant either by way of documentary evidence or any other oral evidence that after the incident he had gone to see Commissioner of Police personally but as he was not present there, the complainant could not meet him and could not ventilate his grievance. The place of incident is not the work place of the appellant, and the Court also shall have to consider the actual subject and topic initiated for discussion by the appellant with the complainant. It emerges from record that the complainant had suffered in past for his involvement in propaganda of election. Whether this proposition placed before the Court is found probable or not that teasing on such or similar subject by other employee can be said to be an attempt to humiliate that employee, that too only because he belongs to the Scheduled Caste, was also a question. 7. According to the complainant, he had not gone to the Police Station because according to him, the Commissioner of Police was required to be informed first. In the cross- CR.A/91/1993 15/55 JUDGMENT examination, he has accepted that he had returned to his work place between about 04-00 p.m. and 04-45 p.m. and had informed about incident to In-charge Police Inspector Shri Patel and Shri Patel had asked him to inform the Commissioner of Police as the incident has taken place in the office of the Commissioner of Police. He had admitted that after this advice also, he had not tried to draft out an application (complaint) addressing the Commissioner of Police. He was the Senior Clerk and was also dealing with various correspondences. The workshop does not have an independent accountant and one Shri M.K. Sanghvi was looking after accounts of their branch. Neither this M.K. Sanghvi has been examined nor any document is produced on record which can substantiate the say of the complainant about cause for which he had gone to the place where PW-M.D. Maheshwari was sitting. According to this witness, there is no movement register in their office. However, he had gone to Shri M.D. Maheshwari with PW- Akbarkhan after taking permission. The papers relating to increment, etc. were being sent CR.A/91/1993 16/55 JUDGMENT through the office of the Dy.S.P. and he was not directly concerned with the accounts relating to increment or leave difference, etc. but he had gone for the work of PW- Akbarkhan. It has come on record (paragraph no.13 of the cross-examination) that he was transferred first from Bhuj to Rajkot and thereafter PW-M.D. Maheshwari was also transferred. Of course, he has denied the suggestion that both of them were staying in the same house. Initially he was residing in the Quarter No.128 in the Mount Police Lane. It has also come on record that whether any other person i.e. clerks and persons serving in the office, other than PW-M.D. Maheshwari were present at the time when the alleged incident had taken place or not. It appears that there was one Head Clerk, Assistant Accountant, Senior Clerk, etc. were present there, and the Head Clerk was one Shri Sonpal. He has admitted that he had not talked on that day i.e. 14th August, 1991, with the Accountant. He was not even knowing the name of the person as to who was the Accountant. According to the complainant, PW-M.D. CR.A/91/1993 17/55 JUDGMENT Maheshwari was from Kachchh and was known to him and he had talked with the said PW-M.D. Maheshwari about the work of PW-Akbarkhan. The complainant has admitted that in the month of May, 1990, when the discussion had taken place, he had tussle with the appellant and at that time, he had neither discussed nor disclosed that he (complainant) belongs to Maheshwari Meghwal caste (i.e. the caste included in the Schedule). It appears from paragraph nos.16 and 17 of the cross- examination that the complainant was transferred from Bhuj for his involvement in the election propaganda, and on account of his involvement in political activities, that too during election, an inquiry was initiated against the complainant and Dy.S.P. had inquired into the matter and on account of the same, he was transferred from Bhuj to Rajkot. It is the say of this witness that whomsoever talks about election of 1990, he considers that type of talk as his insult. The other grievance of the complainant is that the appellant is in habit of teasing co-employees. He has stated that the appellant has teased so CR.A/91/1993 18/55 JUDGMENT many persons and he does not recollect those names. It is alleged that the appellant is in habit of making false allegations and writing applications against the police personnel and, therefore, the police personnel are afraid of the appellant. According to him, he is not in a position to give the names of all those persons because it may create animosity between the complainant and those persons, and the appellant is behaving as a king in the office. According to this witness, the appellant was promoted to the post of Senior Clerk but he had refused to accept the promotion under apprehension that as he (appellant) had bad habits and if he accepts promotion, somebody may implicate him. So under fear, the appellant had not accepted the promotion. Of course, he has denied that he is not a member of the Scheduled Caste. This witness has, of course, denied that no departmental proceedings were initiated against him in paragraph no.16 of his deposition. However, in paragraph no.18, he has stated that in reference to a proceeding drawn for the meeting of Promotion Committee, CR.A/91/1993 19/55 JUDGMENT some proceedings were initiated against him and one another proceeding initiated was in reference to one account. Of course, he has denied that he was punished in those proceedings. Whether this is a case where the Court can confirm the judgment and order of conviction and sentence on the sole evidence of the complainant, is a question. It is true that there is no need to have corroborative piece of evidence and on the strength of the evidence of one single witness, the appellant can be held guilty. On plain reading of the evidence of the complainant, the Court is of the view that the case of the prosecution and especially the oral evidence of the complainant needs a close scrutiny, and therefore, the evidence of PW-Akbarkhan as well as PW-M.D. Maheshwari shall have to be appreciated. 8. PW-Akbarkhan was undisputedly working in the workshop and he was a Police Constable. It is not possible for this Court to accept that if any serious incident which can be said to be a cognizable and non-bailable criminal offence CR.A/91/1993 20/55 JUDGMENT would have been committed, whether this PW- Akbarkhan would have separated from the complainant immediately after the incident or not. At least, he would have returned at the workshop where the complainant was working. There is no cogent evidence about the distance between the two places i.e. alleged place of incident and the work place of the appellant. But it is clear that both these places and premises are different. It may be the same building or same compound. When the complainant had taken cause of this PW- Akbarkhan, the said PW-Akbarkhan would have remained in company of the complainant at least for some time. In this background, the evidence of PW-Akbarkhan is required to be looked into. 9. Shri M.D. Maheshwari has been examined as PW- 3. According to this witness, the complainant as well as PW-Akbarkhan had been to him for one inquiry and to know about who is handling the computation of increment and when this witness was talking with them, the appellant who was a typist came there and asked the CR.A/91/1993 21/55 JUDGMENT complainant as to why he was not going in the election propaganda, and when he wanted to go and in that way, he was making fun of the complainant. At that time, the complainant had told the appellant that he should not make such fun and should not give mental stress to the complainant. In response thereof, the appellant turned angry and told the complainant, “Go go, 'sala dheda'. This is not your Kachchh. I have taught lessons to them whomsoever has stood against me. If you will speak much, your wife and children will be kept waiting for you and I will get you killed. Nobody will come to know about your whereabouts.” The appellant had also given vulgar abuses and therefore, he (PW-M.D. Maheshwari) and PW-Akbarkhan intervened and the appellant was asked to calm down. Thereafter, they had gone away from there. This sentence appears to be applicable to all the three witnesses i.e. PW-Akbarkhan and complainant on one side and the appellant on the other. According to this witness, the Police had recorded his statement on 15th October, 1991. In the cross-examination, this CR.A/91/1993 22/55 JUDGMENT witness has accepted that prior to his transfer to Rajkot, he was serving in the office of the DSP at Bhuj and the complainant was also serving there, and both of them belong to same caste and he was not dealing with the work as to the increment of a person serving in the office of the Commissioner of Police. The complainant and PW-Akbarkhan had been to him and they were there for about 10 minutes of the alleged incident. This witness has stated that there are tables of the employees to his both sides i.e. left and right sides, and in his room 9 (nine) other