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2015 DIGILAW 320 (ORI)

Khageswar Kunar v. State of Orissa

2015-05-08

D.DASH

body2015
JUDGMENT : Appellants having been convicted by the learned Sessions Judge, Balasore in S.T. No. 201 of 1993 (G.R. Case No. 987 of 1992 for offence under Section 3 (i) (x) & (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and having been sentenced to undergo rigorous imprisonment for a period of one}ear have filed this appeal. 2. The prosecution case is that on 01.09.1992 around 10 to 10.30 AM, when Kanchan (P W.1) was coming from the river side in search of her goats near the land of one Kumuda Kunar, accused Khageswar abused her uttering "Sali, Ghodagehi Dhobani etc." and caught hold of the hair tuft and assaulted making her lie on the ground. It is stated that when P.W. 1 raised alarm other accused persons came and assaulted by giving blows and kicks when accused Lambodar also caused injury on her left wrist by a sickle. Brother of P. W.1 namely, Narahari also assaulted when accused Kumuda pulled the wearing sari of P.W. 1 making her naked. At this point of time, local Gramarakhi arrived and seeing them, the accused persons fled away. The informant (P.W.I) and her brother (P.W.6) were medically examined and they reported the matter in writing at Amarda Police Out-Post vide Ext.1. The case having been registered, investigation commenced, incriminating articles such as blouse and stick etc. were seized and, finally on completion of investigation, the charge sheet was submitted. The accused persons faced the, trial wherein they pleaded their innocence and false implication on account of prior rivalry. 3. The trial court having recorded the evidence of eight witnesses examined from the side of the prosecution which includes the victim informant (P.W.I), her brother (P.W.6), the other injured and eye witness P.W.2 and other official witnesses such as medical officer and police officer sat over to decide the complicity of the accused persons and to find out as to how far the prosecution has been able to establish the charges against the accused: persons. On evaluation of evidence, the trial court has ultimately arrived at a conclusion that the appellants are liable for commission of offence under Section 3 (x) and (xi) of the Act and accordingly holding them guilty of the said offence, the sentence as stated above has been imposed. 4. On evaluation of evidence, the trial court has ultimately arrived at a conclusion that the appellants are liable for commission of offence under Section 3 (x) and (xi) of the Act and accordingly holding them guilty of the said offence, the sentence as stated above has been imposed. 4. Learned counsel for the appellants at the outset submits that the very first foundational fact as regards the establishment of the charge under any of the limbs of Section 3 of the Act that the informant and her brother (P.Ws. 1 and 6) are members of Scheduled Caste has not been established. It is further submitted that in order to attract the offence under Section 3 (1) (x) of the Act, the prosecution has failed to prove that the incident occurred in a place within public view. Therefore, he urges that the order of conviction and sentence are unsustainable in the eye of law. Learned counsel for the State supports the finding of the trial court and also the ultimate order of conviction and sentence. 5. Admittedly, in this case no such documentary evidence has been tendered proving the caste of the informant and her brother (P.Ws. 1 and 6) that they are the members of Scheduled Caste. It is stated in the FIR that the informant was abused by accused Khageswar and he had hurled the abusive words those are "Sali Ohobani Ghoda Gehi etc," The trial court as it appears has taken into consideration that as the accused persons nowhere claim of the exemption of being member of SC and ST which provides them immunity of prosecution under the Act, on the face of the evidence of P. W. 1 receiving corroboration from the FIR she is to be held to be a member of Scheduled Caste as prosecution version is that she was insulted by calling her caste. The view on he trial court that simply because of the evidence on record that accused Khageswar abused P.W. 1 stating, as 'Dhobani', the same is enough to hold P.W. 1 as a member of Scheduled Caste, in my considered view is not sustainable in the eye of law in a prosecution for offence under the Act. The view on he trial court that simply because of the evidence on record that accused Khageswar abused P.W. 1 stating, as 'Dhobani', the same is enough to hold P.W. 1 as a member of Scheduled Caste, in my considered view is not sustainable in the eye of law in a prosecution for offence under the Act. The prosecution is always under legal obligation to prove that the victim belongs to a caste which specifically finds place 'in the list of Scheduled Caste or Scheduled Tribe as the case may be in any of the entry specified in the Presidential Order promulgated in exercise of the power conferred by clause-I of Article 342 of the Constitution of India. Here accepting for a moment that the accused Khageswar had abused informant (P.W. 1) uttering 'Dhobani', then also 'Dhobani' is not found to be there in any of the entries in the Constitution (Scheduled Caste) Order, 1950 as amended from time to time. Therefore, this Court is led to accept the submission of the learned counsel for the appellants that here is a case where the foundational fact to attract any of the offences provided under the Act as regards the victim being a member of Scheduled Caste has not been established by acceptable evidence when it is specifically denied by the accused persons during their examination under Section 313 of the Code of Criminal Procedure and when even P.W. 1 has not stated her caste on oath that as such that she is a member of Scheduled Caste community. 6. Next submission of the learned counsel for the appellants also appears to be having the force. The trial court as it is found considering the distance of the place of occurrence from the public road to be around 100 cubits apart has concluded that P. Ws. 1 and 6 were intentionally insulted in the place within public view. In this connection, it may be stated that the trial court has proceeded with a view that when the incident take place either in a public place or near a public place in a close or reasonable vicinity or within a visible range from the public place, the same satisfies the condition precedent for establishment of the charge under Section 3(1) (x) of the Act that it was in a place within public view. In my considered opinion such a view is .not universally acceptable. The legislature having specifically employed the words "in any place within public view" and when emphasis is on the word 'within public view, burden lies on the prosecution to prove that such insult or intimidation with was in fact viewed by the public and an incident taking place in any place being not viewed by public and simply holding that it could have been so viewed, cannot lead the Court to say that the insult or intimidation had taken in a place within the public view. So, for the purpose it has to be proved that in fact public have viewed the incident so as to say that such insult or intimidation to the member of the Scheduled Caste or Scheduled Tribe in 'the place was within public view. The place need not necessarily be a public place and whether it is in public place or not, it does not matter. But what it matters is that it must have been viewed by public. So finding of the trial Court on this score is unsustainable. For the aforesaid, the accused persons are not found to be liable for offence under Section 3 (i)(x) and (xi) of the Act. Thus, I hold that the conviction of the appellants for commission of offence under Section 3 (x) and (xi) of the Act are unsustainable in the eye of law. 7. In the wake of aforesaid, the appeal stands allowed. The order of conviction and sentence passed by the learned Sessions Judge, Balasore for offence under Section 3(i)(x) and (xi) of the Act are hereby set aside. The bail bonds executed by the accused persons shall accordingly stand discharged. Appeal allowed.