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2005 DIGILAW 272 (BOM)

ASISKHAN HABIBKHAN PATHAN v. STATE OF MAHARASHTRA

2005-02-28

S.R.SATHE

body2005
( 1 ) APPELLANT, the original accused in Sessions Case no. 68 of 1992 has preferred this appeal against the judgment and order dated 23-2-1993 passed by the court of Special Judge, Dhule, whereby the accused was convicted for the offence punishable under section 3 (1) read with section 3 (l) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "sc and ST Act", for the sake of convenience) and sentenced to suffer rigorous imprisonment for six months and to pay fine of rs. 100/-, in default rigorous imprisonment for one month. ( 2 ) BRIEF facts giving rise to this appeal are as under : Complainant Milind rajaram Bhamre was serving as Stand Incharge of Shirpur S. T. Bus Stand in the year 1992. The appellant/accused was also working at Shirpur S. T. Bus Stand as a driver. As the accused had misbehaved with complainant Milind Bhamre, he had made a report against the accused to his superiors. On the basis of the said report, a departmental enquiry was carried out and the services of the accused were terminated. The accused had thereafter filed an appeal against the order of termination and it was pending. ( 3 ) ON 11-8-1992 at about 9. 30 a. m. , when complainant was proceeding to s. T. Bus stand, he found that the accused and one Ashok Patil, who was also serving at Shirpur S. T. Bus stand, were standing on the way. As soon as the accused saw the complainant, he abused him and threatened that he would kill him, because, as a result of the report which was submitted by him (complainant), his services were terminated. The accused rushed towards the complainant and bet him. However, Ashok Patil intervened and separated the accused. Then the complainant went to Shirpur S. T. Bus stand and reported the matter to his superior officer, namely, Shri Deore. He, however, asked the complainant to go to Police Station and lodge a complaint. Accordingly, the complainant went to Shirpur Police Station and lodged a complaint. On the basis of the said complaint, police registered Crime No. 114/1992 for the offences punishable under sections 323, 353, 504 and 506 of the Indian Penal Code and started investigation. He, however, asked the complainant to go to Police Station and lodge a complaint. Accordingly, the complainant went to Shirpur Police Station and lodged a complaint. On the basis of the said complaint, police registered Crime No. 114/1992 for the offences punishable under sections 323, 353, 504 and 506 of the Indian Penal Code and started investigation. On 13-08-1992, a supplementary statement of the complainant was recorded and at that time, the complainant produced a xerox copy of his caste certificate in order to show that he was belonging to Scheduled caste. In view of the said supplementary statement of the complainant, police registered an offence punishable under section 3 (1) (x) of the SC and ST Act. After completion of the investigation, the police submitted charge-sheet against the accused. ( 4 ) THE Special Judge, Dhule framed charge (Exh-3) against the accused only for the offence punishable under section 3 (1) (x) of the SC and ST Act. The charge was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. His defence was of total denial. ( 5 ) IN order to bring home the guilt of the accused, prosecution examined in all four witnesses consisting of complainant Milind Bhamre (Exh.-7) , Ashok patil (Exh.-9), Rajendra Deore (Exh.-l0) and PSI Ashok Wandekar (Exh.-l1 ). ( 6 ) AFTER considering the evidence on record, the learned Special Judge, dhule came to the conclusion that prosecution has proved that the accused has committed an offence punishable under section 3 (l) (x) of the SC and ST Act. He, therefore, convicted and sentenced the accused as mentioned above. ( 7 ) BEING aggrieved by the said order of conviction and sentence, the accused has filed the present appeal. In this appeal before me, Shri Suryawanshi, learned advocate for the appellant/accused has urged only three points. Firstly, he submitted that the learned trial judge has not properly appreciated the evidence on record and has wrongly held that the prosecution has proved that the complainant belongs to Scheduled Caste. Secondly, he canvassed before me that as per Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995, it was necessary to investigate the said offence by a police officer not below the rank of a Deputy Superintendent of Police. Secondly, he canvassed before me that as per Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995, it was necessary to investigate the said offence by a police officer not below the rank of a Deputy Superintendent of Police. He, therefore, submitted that the investigation carried out by Police Sub-Inspector in the instant case, is not legal and correct and on the basis of such investigation, conviction cannot be based. Lastly, he submitted that there was absolutely no evidence to show that the accused intentionally insulted the complainant, he (complainant) being a member of a Scheduled Caste. He, therefore, submitted that the appeal be allowed and the order of conviction and sentence passed by the special Judge be set aside and the accused be acquitted of the charge levelled against him. As against this, the learned APP supported the judgment and order passed by the learned Special Judge. ( 8 ) IT is not in dispute that the complainant as well as the accused were serving at Shirpur S. T. Bus Stand. It is also an admitted fact that previously the complainant had made a report against the accused and as a result of the same, a departmental inquiry was carried out and ultimately, services of the accused were terminated. Naturally, on that count, the accused was having some grudge against the complainant. ( 9 ) COMPLAINANT Milind Bhamre (Exh-7) has categorically stated that on 11-8-1992 at about 9. 30 a. m. , when he was passing by the road and proceeding towards S. T. Stand, the accused as well as one Ashok Patil were standing on the way and when the accused saw him, he started abusing him. Not only that, but he rushed towards him and bet him. However, Ashok Patil intervened and separated the accused. This version of the complainant is also corroborated by witness ashok Patil. As the accused is charged for the offence punishable under section 3 (l) (x) of the SC and ST Act, it would be worthwhile to see what section 3 (l) (x) of SC and ST Act says. It runs as follows. "3. This version of the complainant is also corroborated by witness ashok Patil. As the accused is charged for the offence punishable under section 3 (l) (x) of the SC and ST Act, it would be worthwhile to see what section 3 (l) (x) of SC and ST Act says. It runs as follows. "3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.- (i) | to (ix) ****** (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years or both. "from the perusal of the above section, it is quite evident that in order to bring the case within the four corners of the abovementioned section, it is absolutely essential for the prosecution to prove that the complainant was belonging to scheduled Caste or Scheduled Tribe and the accused was not belonging to scheduled Caste or Scheduled Tribes. Secondly, the prosecution must also prove that the accused intentionally insulted the complainant and such insult or intimidation was on the ground of caste. ( 10 ) BEARING in mind the above position, it is necessary to find out whether the prosecution has proved the alleged offence. ( 11 ) FROM the perusal of the deposition of complainant Milind Bhamre, we find that he has not at all stated the exact words uttered by the accused at the relevant time. All that he has deposed is that at the relevant time, the accused abused him. He caught his hand and bet him. Similarly, witness Ashok Patil (Exh-9) has also vaguely stated that at the relevant time, the accused abused the complainant. He has also not specifically stated the exact words uttered by the accused. If the exact words uttered by the accused are not brought on record, one is not in a position to determine whether the utterance made by the accused was with an intention to insult or intimidate the complainant on the basis of caste. He has also not specifically stated the exact words uttered by the accused. If the exact words uttered by the accused are not brought on record, one is not in a position to determine whether the utterance made by the accused was with an intention to insult or intimidate the complainant on the basis of caste. From the bare reading of the abovementioned section, it is very clear that section 3 (l) (x) of the SC and ST Act is attracted only when the alleged insult or intimidation of a person belonging to Scheduled Caste and Scheduled Tribe is made with an intent to humiliate him, he being a member of Scheduled Caste and scheduled Tribe. Mere act of humiliating a member of Scheduled Caste and scheduled Tribe is not made punishable. Humiliation must be on account of he being a member of SC or ST. In the instant case, there is absolutely not an iota of evidence to show that the accused intentionally insulted or intimidated the complainant, the complainant being a member of Scheduled Caste. Hence, I have no hesitation to hold that the essential ingredient of section 3 (l) (x) of the SC and st Act is not fulfilled in the instant case. ( 12 ) THERE is another aspect of the matter. In order to prove the charge under the above section, it is also necessary for the prosecution to prove beyond reasonable doubt that the complainant belongs to Scheduled Caste/scheduled tribe. In the instant case, admittedly, the complainant had not produced the original caste certificate when he filed the complaint. It is stated that on 13-8-1992. He produced the xerox copy of his caste certificate. However, the said caste certificate is not actually forthcoming. Moreover, admittedly, the same is not produced and proved during the evidence. Shri Suryawanshi, learned advocate for the accused canvassed before me that production of caste certificate is a sine qua non, for proving the offence under section 3 (l) (x) of the SC and ST act. For this purpose, he has placed reliance on a case of Ashabai Khote and another vs. State of Maharashtra, reported in 7999 (2) Mh. LJ. Page 36. In that case, the complainant had stated his caste in his examination-in-chief and the same was not challenged in cross-examination. However, the prosecution had not adduced any other independent evidence to prove the case of the complainant. LJ. Page 36. In that case, the complainant had stated his caste in his examination-in-chief and the same was not challenged in cross-examination. However, the prosecution had not adduced any other independent evidence to prove the case of the complainant. So, under such circumstances, it was observed by the court that to prove caste of the accused as well as to prove caste of the complainant, some specific evidence is required that a mere statement of witness. However, from the perusal of the said Judgment, it cannot be said that this was the ratio of the said Ruling. Ultimately, whether in a given case, caste of the complainant as well as that of the accused have been proved or not will depend on the facts and evidence of that case. Admittedly, there is no statutory Rule wherein it has been stated that the caste can only be proved by production of the caste certificate and then only it can be said that the offence under section 3 (l) (x) of the SC and ST Act has been committed. So far as the case in hand is concerned, we find that in the instant case, the complainant has stated in his examination-in-chief that he belongs to mahar community. This statement of the complainant has gone totally unchallenged. Moreover, even in his statement under section 313 of the Code of criminal procedure, the accused has nowhere stated that the complainant is not of Mahar Community or that he himself is not of Mohammedan community. So, under such circumstances, merely because caste certificate is not produced by the complainant, I am not inclined to hold that the prosecution has not proved that the complainant belongs to Scheduled Caste. Admittedly, from the perusal of the appendix-"a" of the Constitution (Scheduled Castes) Order, 1950, Part- X. Entry No. 37, it is very clear that Mahar community is covered under the scheduled Caste. So, it is very clear that the complainant belongs to Scheduled caste. However, as stated by me earlier, merely because he belongs to Mahar community and accused abused him, we cannot jump to the conclusion that the accused has committed the offence in question. ( 13 ) IT was argued on behalf of the accused that in the instant case, the prosecution has not adduced any evidence to show that the accused was knowing that complainant belongs to Mahar community. ( 13 ) IT was argued on behalf of the accused that in the instant case, the prosecution has not adduced any evidence to show that the accused was knowing that complainant belongs to Mahar community. The learned Special Judge has observed that as the complainant and accused both were working in the S. T. Department for quite long time, both of them were posted at Shirpur S. T. Bus Stand and they were known to each other, it must be presumed that the accused was knowing that the complainant is belonging to Mahar community. However, merely because both of them were working at one and the same S. T. Bus stand, one cannot jump to draw such presumption. Similarly, merely because at the time of trial the accused has not challenged the caste of complainant, that does not mean that prosecution has proved that at the time of incident, accused was knowing the caste of the complainant. The prosecution has not adduced any evidence even to indicate that the accused was knowing prior to the date offence, that the complainant was belonging to Mahar community. It is needless to say that in order to bring the case under the abovementioned section, it is necessary for the prosecution to prove that the accused was conscious of the fact that the complainant or the victim was belonging to Scheduled Caste. In the instant case, as the same is not proved, it cannot be said that the prosecution has proved the offence in question. ( 14 ) IT was also argued on behalf of the accused that as per Rule 7 of the scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, it was necessary to carry out the investigation by the police officer not below the rank of a Deputy Superintendent of Police. The relevant Rule reads as under. 7. Investigating Officer.- (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy superintendent of Police. The Investigating Officer shall be appointed by the State Government/director-General of Police/superintendent of police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. The Investigating Officer shall be appointed by the State Government/director-General of Police/superintendent of police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. (2)***** (3) ****" ( 15 ) IN the instant case, we find that initially the offence was not registered under the SC and ST Act, but it was only registered under the Indian Penal Code. Two days thereafter, the complainant produced xerox copy of his caste certificate and thereafter only, offence under section 3 (1) (x) of the SC and ST Act was added. Naturally, at that point of time, it was, in fact, necessary to handover the investigation to the Deputy Superintendent of Police, but that has not happened. From the perusal of Rule 7, it can be said that this Rule has been embodied only with a view to eliminate misuse of strict provisions of the SC and ST Act and as a result of the same, the Legislature thought it fit to impose a condition whereby the investigation can be carried out only by some responsible police officer not below the rank of a Deputy Superintendent of Police. So, Rule 7 is mandatory in nature and therefore, the prosecution is duty bound to follow the procedure of investigation and if the investigation is not carried out in accordance with Rule 7, then there is serious lacuna in the investigation and no conviction can be based on the same. If any authority is needed for this proposition, it is Ramnath sadashiv Kolharkar vs. State of Maharashtra reported in 1999 (2) Mh. L. J. 743 = 1999 All MR (Cri) 839. As in the instant case, admittedly, investigation is carried out by Ashok Wandekar, PSI, it must be held that the provisions of Rule 7 are not complied with and the accused is also entitled to get acquittal on that count. ( 16 ) THUS, having regard to all the facts and circumstances and the evidence on record, it is very clear that the prosecution has miserably failed to prove that the accused uttered particular words and that too with an intention to insult or intimidate the complainant he being a member of the Scheduled Caste. ( 16 ) THUS, having regard to all the facts and circumstances and the evidence on record, it is very clear that the prosecution has miserably failed to prove that the accused uttered particular words and that too with an intention to insult or intimidate the complainant he being a member of the Scheduled Caste. However, it seems that the learned Special Judge lost sight of the fact that the exact words uttered by the accused were not stated by the complainant and there was nothing to show that the said accused abused the complainant knowing fully well that the complainant was belonging to Scheduled Caste. There was also no evidence to show that alleged insult was made with an intention to humiliate complainant he being of a Scheduled Caste. Mere utterance of such words against a member of scheduled Caste/scheduled Tribe is not made punishable as observed by me earlier. So, the finding recorded by the Special Judge, Dhule is not legal and correct and as such, it is necessary to set aside the same. ( 17 ) IN the result, the appeal is allowed. The order dated 23-02-1993 passed by the Special Judge, Dhule in Sessions Case No. 68/1992 is set aside. The appellant/accused is acquitted of the offence punishable under section 3 (1) read with section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The bail bonds of the appellant/accused stand cancelled. Fine, if any deposited by the appellant/accused be returned to him after the period of appeal is over. Appeal Allowed.