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2011 DIGILAW 1450 (BOM)

Sitaram v. State of Maharashtra

2011-11-29

A.P.BHANGALE

body2011
Judgment : 1. The present Revision Application is directed against the judgment and order dated 17th September, 2005 delivered by learned 3rd Ad-hoc Assistant Sessions Judge, Washim in Atrocity Case No. 18/2004 prosecuted by the State of Maharashtra. The Revision-applicant who is the original first informant in respect of the alleged incident, challenged the judgment and order of acquittal on the ground that it is unjust, improper and contrary to the settled principles of law. According to learned Advocate for the revision-applicant there was sufficient clinching evidence before the trial Court which was discarded. 2. Thefacts which appear from the record and proceedings are as under: FIR No. 3045/2004 was reported at Washim Police Station on 17.7.2004 by Sitaram Mahadu Dhadve (first informant and revision applicant herein). The first informant contended that he belongs to “Chambhar” Scheduled Caste and is residing at Tondgaon, cultivating agricultural land admeasuring 5 acres. According to him, adjacent agricultural land in Gut No. 235 admeasuring about 3 acres is owned by Sopan Daryaji Gote. It is stated that on 10.7.2004 at about 111.00 a.m. when first informant visited his agricultural land, at that time, Sopan was pouring soil in the boundary that was dug out. On following day i.e. on 11.7.2004, he took Panchas from the village, namely, Narayan Tukaram Gote, Ramdas Narayan Gote, Narayan Kisan Gote, Govindrao Shankar Gote and Laxman Kisan Kate in the field of Sopan Gote to show them the dug out boundary. At that time Sopan Daryaji Gote, Uttam Daryaji Gote, Vithal Dnaynba Gote, Vinayak Govinda Gote, all R/o Tondgaon were also present in the field. Panchas had seen the dug out boundary and opined that the boundary ought to have been dug out jointly by both the owners. It is alleged that at that time Sopan Gote questioned the first informant as follows:- …........................................................................................................................ …........................................................................................................................ ............................................................................................................................ …........................................................................................................................ …........................................................................................................................ The words were attributed jointly in evidence to Uttam Gote, Govinda Gote and Vithal Gote. Thereafter, on 16.7.2004 at about 6.00 p.m. when first informant returned home, at that time, Sopan Gote, Govinda, Vithal Gote again abused on the basis of caste as “..........................................................” and threatened to kill him. The threat was attributed to all the accused. 3. …........................................................................................................................ …........................................................................................................................ The words were attributed jointly in evidence to Uttam Gote, Govinda Gote and Vithal Gote. Thereafter, on 16.7.2004 at about 6.00 p.m. when first informant returned home, at that time, Sopan Gote, Govinda, Vithal Gote again abused on the basis of caste as “..........................................................” and threatened to kill him. The threat was attributed to all the accused. 3. Complaint in respect of the incident which occurred on 11.7.2004 at about 10.00 a.m. on 16.7.2004 at about 6.00 p.m. was lodged at 15.00 hours on 17.7.2004 at the Washim Police Station which was recorded as FIR No.3045/2004 on 17.7.2004. The investigation followed. Thereafter, as the spot panchanamawas drawn on the same day at about 8.00 p.m. and on the following day, statements of certain witnesses were recorded by the Police. 4. After completion of investigation, the accused were charge-sheeted under section 3(i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ( henceforth “the Atrocity Act” in short) and Sections 506 read with section 34 of the IPC. 5. It appears that the case was committed by the learned Judicial Magistrate, First Class, Washim to the Sessions Court, Washim, which was registered as Atrocity Case No.18/2004. The charge was framed on 6.1.2005 against as many as four accused namely, Sopan, Uttam, Govinda and Vitthal Gote under sections 3 (i)(x) of the Atrocity Act as also under section 506 Part II read with section 34 of the Indian Penal Code. After the accused pleaded not guilty and claimed to be tried, the evidence was led. 6. The prosecution chose to rely upon the evidence of first informant Sitaram, examined as PW 1, Narayan @ Balaji Tukaram Gote, Narayan Kisan Gote, Ramdas Narayan, Ramesh Narayanswami and the Investigating Officer U J Jadhav (PW 7). 7. The learned trial Judge who heard the evidence and recorded statements of accused under section 313 of the Criminal Procedure Code acquitted the accused by the impugned judgment and order of all offences with which the accused were charged. The acquittal appears mainly on the ground that the learned trial Judge posed question to himself as to whether in the presence of influential person like Sarpanch of Tondgaon who was also Chairman of APMC, Washim for 15 years, the accused Sopan would have dared to hurl vulgar vituperative and swearwords and insult Sitaram. The acquittal appears mainly on the ground that the learned trial Judge posed question to himself as to whether in the presence of influential person like Sarpanch of Tondgaon who was also Chairman of APMC, Washim for 15 years, the accused Sopan would have dared to hurl vulgar vituperative and swearwords and insult Sitaram. The learned trial Judge expressed his opinion that no sane man from the village could indulge in the act of hurling abuses as alleged and give threat of life and limb to Sitaram in the immediate presence of Narayan Tukaram (PW 3), who was admittedly a very influential person in the village for last 15 years, working as Chairman of APMC Washim and he was also the Sarpanch heading Gram Panchayat, Tondgaon during the period between 1971 and 1977. Furthermore, the learned trial Judge noted that the accused had no previous antecedent of crime as against them and they would have a natural sense of fear while facing Sitaram in presence and supported by three influential persons from the village acting as Panchas. The incident, according to the learned trial Judge was, therefore, inherently improbable. The learned trial Judge, therefore, found that the evidence of witnesses was not cogent and convincing as Sitaram alleged that the incident had happened on 11.7.2004 and considering that he was supported by influential persons from the village; his conduct is unexplained as to why he kept quite for a about six days for lodging the first information report. Sitaram also alleged one more incident stating that it happened on 16.7.2004 but no witness nobody referred to that incident in the course of evidence. That being so, the learned trial Judge felt that delay of six days in lodging FIR casts a serious doubt on the authenticity of the incident. Furthermore, there was a dispute of immovable property as regards field between first informant Sitaram and accused Sopan. Under these circumstances, Sitaram would have immediately lodged a complaint instead of waiting long for about 6 days. Thus, the learned trial Judge found it difficult to believe the incident of alleged abuse on the ground of caste and threat as stated by the first informant Sitaram in his evidence. The learned trial Judge concluded that apart from unbelievable evidence of Sitaram and PW 3, 4 and 5 who were examined as independent and impartial witnesses. Thus, the learned trial Judge found it difficult to believe the incident of alleged abuse on the ground of caste and threat as stated by the first informant Sitaram in his evidence. The learned trial Judge concluded that apart from unbelievable evidence of Sitaram and PW 3, 4 and 5 who were examined as independent and impartial witnesses. The delay in lodging the FIR was fatal to the prosecution case and it is difficult to accept the prosecution case as true in respect of the alleged incident. The learned trial Judge also felt that accusation of criminal intimidation did not inspire confidence. 8. The learned Advocate for the revision-applicant argued that the learned trial Judge was swayed by the factum of delay in lodging the FIR so as to disbelieve the prosecution case and evidence of eye witnesses to the incident was unreasonably discarded. He prayed that the case may be remanded back to the learned trial Judge for to reappreciate the evidence and decide the case afresh in accordance with law. The learned APP, on the other hand, submitted that the State did not prefer to challenge the impugned judgment and order as it appears a well-reasoned order in accordance with law. 9. The learned Advocate for the respondent/accused submitted that the delay in lodging FIR was rightly considered as fatal to the prosecution case in the facts and circumstances of the case when there was village rivalry and petty politics at village Tondgoan. It was crystal clear from the admissions elicited from alleged eye witnesses. It was also crystal clear that the first informant and the accused Sopan were neighbouring owner of agricultural lands in the limits of village Tondgaon and they had dispute over the boundary of their agricultural field. Under these circumstances it is plausible that when first informant Sitaram had support of influential persons in the village nobody from the accused persons would have ventured to abuse Sitaram on the ground of his caste and also give threat to his life and limb under the circumstances. My attention is invited to the vital omission in the evidence of Narayan Tukaram Gote who admitted that the words allegedly uttered by accused Sopan addressing Sitaram as “..................................................? did not appear in his police statement in the cross of cross-examination. He also admitted the groupism in the village and his cordial and good relations with first informant-Sitaram. My attention is invited to the vital omission in the evidence of Narayan Tukaram Gote who admitted that the words allegedly uttered by accused Sopan addressing Sitaram as “..................................................? did not appear in his police statement in the cross of cross-examination. He also admitted the groupism in the village and his cordial and good relations with first informant-Sitaram. Thus, considering that there are three groups in the village he admitted that Dr, Bhagwan's group is in existence since long. Considering the evidence referred as above in the light of defence of the accused that they are falsely implicated on the ground that there are three groups in the village and the accused belong to Dr. Bhagwan's group which was a rival group than the group of Narayan Tukaram Gote who was annoyed because accused did not participate in the canvassing of Narayan at the time of election the accused apprehended that false case was filed. 10. Learned Advocate for the revision-applicant sought to rely upon the ruling in Tara Singh vs. State of Punjab: ( AIR 1991 SC 63 )in order to submit that the Apex Court in paragraph 4 of the ruling made reference to the settled principle of law that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect the villagers to rush to the Police station immediately after the occurrence. Human nature as it is. the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At time because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course in cases arising out of acute factions there may be a tendency to implicate persons belonging to the opposite faction falsely. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course in cases arising out of acute factions there may be a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the Courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution by adopting process to separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinized carefully. These observations by the Apex Court are depending upon the facts and circumstances of each case as made clear by the Apex Court. The observations were made with reference to an incident of murder punishable under section 302 read with section 34 IPC, particularly when the Apex Court thought that there was no ground to doubt the presence of eye witnesses at the scene of occurrence. To my mind, the observations made by the Apex Court are required to be considered in the light of the facts and circumstances revealed from each case. In the present case, the accusation is mainly under section 3 (i) (x) of the Atrocities Act. It may be possible that due to groupism in village there may be rivalry between different persons from different grounds false accusations cannot be ruled out particularly when in a case first informant for unexplained and obscure reason, waited for days to lodge a complaint/ FIR in respect of alleged offence punishable under Atrocities Act. Section 3(i) (x) of the Act punishes intentional insult or intimidation from a person who is not a member of the Scheduled Castes or Scheduled Tribes when such insult or intimidation was given at any place within the public view to a member of a Scheduled Castes or Schedule Tribes. Thus, insult or abuse on the ground of Scheduled Castes or Scheduled Tribe must be with intention to insult or humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within the public view. Thus, insult or abuse on the ground of Scheduled Castes or Scheduled Tribe must be with intention to insult or humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within the public view. Mere imputation of name of the caste while addressing the complainant cannot make out an offence punishable under section 3 (i) (x) of the Act because simply addressing a person by his caste without intention to insult or intimidate does not constitute an offence under the said Section. Therefore, there must be acceptable evidence beyond reasonable doubts in respect of intentional insult or intimidation for humiliating a member of a Scheduled Caste or Scheduled Tribe in a any place within the public view. Considering the circumstances disclosed in the present case that delay of six days in order to lodge FIR in respect of the incident which allegedly happened on 11.7.2004 at about 10.00 a.m. FIR came to be lodged at about 15.00 hours on 17.7.2004. The accusation made as to the second incident which alleged occurred on 16.7.2004 at about 6.00 p.m. was also be doubted as there is a human tendency in a village in which the number of groups are formed due to village rivalry or politics to involve members of the opposite group in false criminal case. Under these circumstances, delay in lodging FIR ought to have been explained properly to the satisfaction of the trial Judge. That was not done in this case. Therefore, the conclusion by the learned trial Judge that the delay was fatal to the prosecution case cannot be assailed as faulty. In another ruling in the case of PappuSingh vs. State of U.P.: 2002 Cri.L.J. 1251(Allahabad High Court), it was observed in connection with Section 3 (i) (x) of the Atrocity Act that the offences under the Section is said to have been made out if a person not being a member of Scheduled Castes or Scheduled Tribes intentionally insults or intimidates with intent to humiliate a member of Scheduled Caste and Scheduled Tribes in any place within the public view. All these ingredients ought to be established beyond reasonable doubt to the satisfaction of the learned trial Judge even apart from delay in lodging the FIR. Looking to the facts and circumstances revealed from the evidence, the evidence did not inspire confidence in the judicial mind. All these ingredients ought to be established beyond reasonable doubt to the satisfaction of the learned trial Judge even apart from delay in lodging the FIR. Looking to the facts and circumstances revealed from the evidence, the evidence did not inspire confidence in the judicial mind. That being so one cannot find fault with the reasonings arrived at by the learned trial Judge in a proceedings where the judgment and order of acquittal is questioned by a private party in Criminal Revision. As already observed, the State did not find it necessary and proper to challenge the impugned judgment and order. Considering the fact that the reasons mentioned and conclusions arrived at by the learned trial Judge in the impugned judgment and order were based on record of the case including the evidence led before it, I do not find any substantial or compelling reason to upset the same as it cannot be assailed as manifestly unjust or unreasonable or patently illegal. The evidence was appreciated on merits. No fault can be found with the approach of the learned trial Judge. 11. In the result, no acceptable ground is made out so as to interfere in the impugned judgment and order of acquittal. Revision being sans merit deserve dismissal, which I direct.