1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Appeal No.5/1998 Devendra s/o Vishwanath Bhagat, R/o Akoli Jahagir, Police Station Mana, Distt. Akola. ..Appellant/accused. ..Vs.. State of Maharashtra, through P.SO. Mana, Distt. Akola. Respondent. Mr. P.C. Madkholkar, Adv. for appellant/accused. Mr. S.M. Bhagde, A.P.P. for respondent/State. ------------------------------------------------------------------------------------------------------------------------------------------------------------ CORAM : M.N. GILANI, J. DATED : 4.7.2011. ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 17/12/1997 passed by learned 2nd Additional Sessions Judge, Akola in Sessions Trial No.16/1996 whereby learned Additional Sessions Judge convicted the accused/appellant under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and awarded sentence of R.I. for six months and to pay fine of Rs.1,000/-, in default to suffer S.I. for two months; further convicted the accused for the offence punishable under section 506 of the Indian Penal Code and sentenced to suffer R.I. for two months and to pay fine of Rs.500/-, in default to suffer S.I. 2 for one month. 2. The accused was Sarpanch of village Akoli Jahagir, Distt. Akola at the relevant time and the complainant is also resident of the said village. Incident occurred on 6/10/1995 at about 9 p.m. at village Akoli Jahagir. The complainant along with one Padmakar Tidke was passing by the road while accused and Gowardhan were coming from opposite direction. It seems that there was acrimony between the complainant and the accused. When they happened to cross each other, firstly, there was exchange of words which was followed by quarrel. It is alleged that the accused abused the complainant on the basis of his caste and also hit blow of fist on his shoulder. The complainant went to police station Mana and lodged F.I.R. The police visited the spot on the next day, prepared the spot panchanama, recorded the statements of witnesses and then submitted chargesheet. Since the complainant belongs to the scheduled caste the accused was charged with the offence punishable under section 3(1)(x) of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act and under section 294, 506 of the Indian Penal Code. 3. It being a prosecution under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the case was committed to the Court of Sessions. The charges were framed and explained to the accused under the offences with which he has been charged. The accused pleaded not guilty and claimed to be tried. His defence is that due to enmity this false case has been filed against him. The prosecution examined 6 3 witnesses. The accused examined one Govarkhand Devedar in his defence. After examining the evidence brought on the record learned Additional Sessions Judge proceeded to convict the accused, as stated above. However, the accused came to be acquitted of the offence punishable under section 294 of the Indian Penal Code. Dissatisfied with the judgment and order of conviction and sentence this appeal has been filed. 4. With the assistance of learned counsel for the accused/appellant and learned A.P.P. for the respondent/State depositions of the witnesses and the documents placed on record are perused. Learned counsel for the appellant criticized the judgment and order of conviction on various grounds. According to him, learned Additional Sessions Judge committed an error in accepting the evidence adduced by the prosecution. Learned Additional Sessions Judge failed to appreciate that because of acrimony between both the parties false evidence has been given. Learned Additional Sessions Judge while believing the witnesses examined by the prosecution, discarded the testimony of the defence witness without assigning any reason. According to him, the close scrutiny of the evidence would show that it is unreliable, untrustworthy and appears improbable. According to him, there is variance between the oral account of the incident deposed to by the witnesses and the contents in F.I.R. 5. Learned A.P.P. supported the judgment and order of conviction by contending that learned Sessions Judge has not committed any error in accepting the prosecution case which is based upon cogent evidence. 4 6. Wasudeo (P.W.1) is the complainant. He deposed that on 6/10/1995 at about 9 p.m. he was coming from Murtizapur along with one Padmakar Tidke. On way, he saw the accused coming from opposite direction. The accused asked him as to from where he was coming. He replied that he was coming from Murtizapur. The accused disputed this fact and uttered that he was coming from Jamathi after meeting one Gole Guruji. Wasudeo (P.W.1) replied by saying that he had not met said Gole Guruji. This verbal talk was followed by the accused abusing the complainant by saying that Chambharde Majale. Then the accused threatened him and hit fist blow on his shoulder. Padmakar Tidke (P.W.2) intervened and caught hold the accused. One Shaligram Agarkar also appeared on the spot and carried the accused away. The accused continued to hurl abuses and threats. He, therefore, went to the police station and lodged report (Exh.6). 7. Padmakar (P.W.2) deposed in the same line. According to him while crossing each other the complainant and accused opened talk. The accused suspected that the complainant was coming from the place of Gole Guruji. Then the accused abused the complainant by saying “Chambharde Jasti Majale and that Tumacha Maj Khali Utarava Lagate”. According to this witness he intervened in the quarrel and tried to carry the accused away. However, the accused gave him jerk and tried to rush towards the complainant. He also spoke about the threats given by the accused. 8. Close scrutiny of the evidence of complainant and Padmakar Tidke (P.W.2) would reveal that they are not consistent with each other nor 5 consistent with the contents in the F.I.R. In the F.I.R. there is mention of the following abuses, alleged to have been hurled by the accused at the complainant. I quote the same for the better appreciation. “Sale Chambhadle Maj Gaya, Tum Ko Dekhana Hai” (you cobblers got puffed up, lesson must be taught to you, people). It is further mentioned that abuses were being hurled in Hindi and Marathi. None of these two witnesses spoke that the accused was hurling the abuses in Hindi also. It is pertinent to note that complainant (P.W.1), Padmakar Tidke (P.W.2) and accused were together coming from one direction. Amongst those who gathered after the quarrel started is Bhimrao (PW.3). According to him, there was an altercation between the complainant and accused. According to him, he was present in his shop when he heard the noise. When he came out, he saw the quarrel between both was over and also saw Shaligram taking accused away from the spot. According to him, the accused was also hurling abuses in the name of caste and also was threatening. He was confronted with the statement made before police. It is seen that he had not stated before the police that while, Shaligram was carrying accused away, he was making noise and hurling abuses. Considering that this is insignificant, the reading of testimony of Bhimrao (P.W.3) does not show that he had witnessed the incident. This is the reason that when he came out of the shop, according to him, the quarrel between accused and the complainant was over and accused was being carried away by Shaligram. It is not the case that such verbal altercation went on for a 6 quite long time. Looking at the prosecution case it appears that it was just a short lived incident since there was persons who had separated the accused and the complainant. 9. Learned counsel for the accused relied upon decision of Single Judge of this Court in case of Ashok Lakhaji Halmare V/s. State of Maharashtra & Anr. reported in 2005 ALL MR (Cri.) 2489 on the point of applicability of the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act) wherein in it is observed “every quarrel or altercation between the member of the Higher caste and that of the Scheduled Castes and Scheduled Tribes would not ipso facto constitute acts of commission of offence which are capable of cognizance under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) and Protection of Civil Rights Act as the case be. If the imputations are grossly vague and perfunctory, it would be appropriate to quash the proceedings being abuse of process of Law and Courts. Moreover particularly even when the complaint may technically answer the ingredients of offence sought to be complained of, but the evidence be so perfunctory to raise prima facie case for trial, the proceedings deserved to be quashed.” 10. Govarkhand (D.W.1) is a defence witness. In the F.I.R. (Exh.6) itself it is mentioned that the complainant was coming from opposite direction accompanied by Govarkhand (D.W.1). Thus nothing more is required to show that he was present on the spot. According to him, when the accused 7 and complainant crossed each other, they greeted, but in a different manner. Accused greeted him with a folded hands whereas the complainant wanted to shake hand with the accused. Then accused told to the complainant that he was serving outside and therefore, he should not mingle in the village politics. Thereafter there was exchange of words between them. Shaligram whose presence is not disputed came and separated them. He was extensively cross examined to show that just to favour the accused he deposed in his favour. It is pertinent to note that when the police came, his statement was recorded. However, he was not examined as a prosecution witness. 11. In case of State of Haryana V/s. Ram Singh With Rai Saheb and another V/s. State of Haryana reported in 2002 CRI. L.J. 987 where the Supreme Court has made the following observations. “Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one – the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.” 12. Considering the entire evidence it appears that, one Gole Guruji who is related to the complainant is a political opponent of the accused. This was a reason for the accused to comment that the complainant was coming 8 from the house of Gole Guruji. Naturally, this hurt the complainant and there was exchange of words. This creates possibility of the complainant to exaggerating the account of the actual incident. 13. Padmakar Tidke (P.W.2) since inception was with the complainant. It is admitted by the complainant in his cross examination that when he went to the police station to lodge report said Padmakar Tidke (PW.2) had accompanied him. It was suggested to him that when he and accused crossed, the accused greeted him with a folded hands whereas he wanted to shake hand with the accused. It was also suggested to him that only thing the accused told to him was that he should not mingle in the village politics and at that time he pulled the accused towards him. It was also suggested that this was the only incident that had occurred. If this evidence is read with the evidence of the defence witness, the defence put forth by the accused appears probable. There is no reason to discard the evidence of Govarkhand (D.W.1) whose presence on the spot is not at all disputed. In this view of the matter, the accused is entitled to get benefit of doubt. 14. Although learned Additional Sessions Judge proceeded to convict the accused for the offence punishable under section 506 of the Indian Penal Code, apart from the evidence lacking in consistency on the point of giving threats, there is no evidence to show that the complainant was alarmed by the threats given by the accused. Immediately after the incident the complainant went to the police station and lodged report. 9 15. In the result, there appears merit in this appeal. 16. The judgment and order dated 17/12/1997, passed by 2nd Additional Sessions Judge, Akola is quashed and set aside. 17. The appellant/accused is acquitted of the offences punishable under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act and under section 506 of the Indian Penal Code. 18. The amount of fine paid by the accused, if any, shall be refunded to him. 19. Bail bonds of accused stand cancelled. JUDGE Tambaskar.