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2007 DIGILAW 48 (BOM)

Manohar s/o Sawai Rathod v. State of Maharashtra

2007-01-12

A.P.LAVANDE

body2007
Oral Judgment By this appeal, the appellant takes exception to the Judgment and Order dated 24.2.1999 passed by Additional Sessions Judge, Washim in Atrocity Case No. 190/1996 convicting the appellant/ accused for the offences punishable under Sections 448 and 354 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for three months and to pay a fine of Rs. 200/- in default of payment of fine to suffer simple imprisonment for one month for the offence punishable under Section 448 of the Indian Penal Code and to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/- in default to suffer simple imprisonment for one and half month for the offence punishable under Section 3(1)(xi) of the Act. 2. The facts leading to filing of the present appeal are as under: On 11.8.1993 at about 2.00 p. m. at village Wanoja the accused entered the dwelling house of Ms Mira Pundlik Ghodke with intent to outrage her modesty and assaulted her. Pursuant to the report lodged by said Ms Mira at Mangrulpith Police Station, F.I. R. was registered against the accused. After completing the investigation charge sheet was filed against the accused. The case was committed to the Court of Sessions Judge, Wasim. In the course of trial before the Additional Sessions Judge, Wasim the prosecution examined two witnesses . the complainant Ms. Mira and the investigating officer A. S. I. Ramdas Malve. 3. Just before passing of the Judgment on 24.2.1999 an application duly signed by the accused and said Ms. Mira for compounding the offences was filed. The said application was dismissed by the learned Judge solely on the ground that the charge was already framed. The appellant by the present appeal has challenged the conviction and sentences imposed on him. 4. At the outset, Advocate Shri Rushi appearing for the appellant/ accused submitted that the learned Judge ought to have permitted compounding of the offences under Sections 354 and 448 of the Indian Penal Code since they were compoundable under Section 320 of the Indian Penal Code and the learned Judge ought not to have dismissed the prayer for compounding on the ground that the charge was framed. In so far as the conviction under section 3(1)(XI) of the Act is concerned the learned counsel submitted that except the statement of Ms. Mira that she is cobbler by caste and the accused is Banjara by caste there is absolutely no documentary evidence to establish that Ms. Mira was a member of the Scheduled Caste or Scheduled Tribe and that the accused was not a member of Scheduled Caste or Scheduled Tribe. Therefore, in the absence of any cogent documentary evidence to prove the caste of the complainant Ms. Mira and of the accused the conviction recorded by the learned Judge cannot be sustained. In support of his submission, the learned counsel relied upon the Judgment of this court in Ashabai Ganeshrao Khote and another vs. State of Maharashtra (1999(2) Mh. L.J., 36). 5. Per contra, Mr. S. Y. Deopujari, learned A. P. P. submitted that the findings recorded by the learned Judge for convicting the accused are borne out from the evidence on record and as such no interference is called for in this appeal. I have considered the submissions made by the learned counsel and perused the records. 6. In so far as the application dated 24.2.1999 filed jointly by the accused and Ms. Mira, which was filed prior to the pronouncement of the Judgment is concerned the learned Judge has dismissed the same solely on the ground that the charge was framed against the accused. The reason given by the learned Judge for dismissing the application cannot be sustained inasmuch as the parties in a criminal trial are entitled to file application for compounding the offences even after framing of the charge but before the judgment is pronounced. In the present case the application was filed prior to the Judgment. In my opinion, the same could not have been dismissed by the learned Judge for the reason stated in the order. The learned Judge ought to have allowed the application in so far as the offences under Sections 448 and 354 of the Indian Penal Code are concerned since both these offences are compoundable under Section 320 of the Code of Criminal Procedure. The learned Judge ought to have allowed the application in so far as the offences under Sections 448 and 354 of the Indian Penal Code are concerned since both these offences are compoundable under Section 320 of the Code of Criminal Procedure. Accordingly, by setting aside the order dated 24.2.1999 dismissing the application, the parties are permitted to compound the offences punishable under Sections 448 and 354 of the Indian Penal Code and consequently the conviction and sentence imposed for the offences punishable under Sections 354 and 448 of the Indian Penal Code are quashed and set aside. 7. In so far as the offence punishable under Section 3(1)(xi) of the Act is concerned, I find that reliance placed by the learned counsel for the accused upon the Judgment in Ashabai Khote's case (supra) is well merited. In the said case, the learned Single Judge of this Court has held that mere fact that the evidence of the witnesses that she belongs to Matang community and the accused belongs to Maratha community was not challenged in the cross-examination was not sufficient to prove the caste of the accused as well as the caste of the complainant. The learned Judge further held that the prosecution ought to have brought on record 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 belonged to Scheduled Caste or Scheduled Tribe. In the present case also although the statement of Ms. Mira that she is cobbler by caste and accused is Banjara by caste has not been challenged in the crossexamination, that by itself would not be sufficient to hold that the prosecution has been able to establish that Ms. Mira belongs to cobbler caste and accused belongs to Banjara caste in view of the clear ratio laid down in Ashabai Khote's case (supra) with which I respectfully agree. The prosecution has not produced any other evidence to prove the caste of the accused and that of the complainant Ms. Mira. That being the position conviction of the accused for the offence punishable under Section 3(1)(xi) of the Act cannot be sustained. 8. In the result, therefore, the appeal is allowed. The prosecution has not produced any other evidence to prove the caste of the accused and that of the complainant Ms. Mira. That being the position conviction of the accused for the offence punishable under Section 3(1)(xi) of the Act cannot be sustained. 8. In the result, therefore, the appeal is allowed. The conviction and sentences imposed upon the appellant/accused by the Additional Sessions Judge, Washim in Atrocity Case No. 190 of 1996 for the offences punishable under Sections 448 and 354 of the Indian Penal Code and Section 3(1)(xi) of the Act are quashed and set aside and the accused is acquitted of the said offences. The bail bond of the accused/appellant shall stand discharged. Fine amount, if paid by the appellant/accused, shall be refunded to him.