SHIVAJI NARAYAN GIRIGOSAVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present revision application arises from the judgement and order dated 12. 5. 1992 passed by the Sessions Judge, Ahmednagar in Criminal Appeal No. 2 of 1988. By the impugned judgement, the Lower Appellate Court has dismissed the appeal filed by the petitioner against his conviction under section 7 (1) (d) of the protection of Civil Rights Act 1955. The learned Judicial Magistrate, First Class, shrigonda, by his order dated 6. 1. 1988 had convicted the petitioner under the provisions of the said Act and was sentenced to suffer simple imprisonment for a period of one month and to pay a fine of Rs. 100/-, in default, to suffer simple imprisonment for 7 days.

(2.) THE accusation against the petitioner was that the petitioner, after availing leave for a certain period, approached the Head. Master of primary school at lokhandwadi, Taluka Shrigonda, on 17. 9. 85 with a letter from the Block Development Officer directing the Head Master to allow the petitioner to resume his duties and accordingly he was allowed to resume the duties. Thereafter on 19. 9. 85 at about 2. 00 p. m. in the presence of Assistant Teachers, by names, Sahebrao Shinde, harishchandra Mate, Pannalal Bhagwandas, the petitioner started abusing the Head master which resulted in exchange of verbal abuses and also followed by threats to the Head Master and insulting him by calling him "mangtya, Mangya" by the petitioner. Thereupon, a complaint of offence punishable under Sections 353, 323, 504 of the Indian Penal Code and under Section 7 (1) (d) of the said Act by the petitioner. The said complaint came to be registered at the Police Station, Shrigonda as Crime No. 164/85. After hearing the prosecution and considering the testimony of the witnesses before trial Court in Regular Trial Case No. 103 of 1985. the judicial Magistrate convicted and sentenced the petitioner as stated above and the appeal filed against the same did no yield any result in'favour of the petitioner.

(3.) THE judgements and orders of conviction of the petitioner under Section 7 (1) (d) of the said Act are sought to be assailed on three grounds. Firstly, mere utterance of the words like "mangtya, Mangya" without any evidence regarding practice of untouchability does not constitute offence under the said section of the said Act. Secondly, no offence can be said to have been committed under the said act unless it is established that the complainant belongs to Scheduled Caste and thirdly there is no whisper of the exact words said to have been uttered by the petitioner in the F. I. R. lodged by the complainant and the entire case being based on improvements made by the complainant in the course of evidence, the conviction of the petitioner is illegal and discloses failure of justice to the petitioner. According to the advocate for the petitioner, there is absolutely no evidence regarding any untouchability being practised by the petitioner while the alleged words are stated to have been uttered nor there is any evidence establishing that the complainant belongs to Scheduled Caste. In the absence of evidence on both these grounds, it cannot be said that there is any offence committed by the petitioner which can be said to be punishable under Section 7 (1) (d) of the said Act. Reliance is sought to be placed in the decisions in the matter of Phulsing v State of Madhya Pradesh reported in 1991 Cri. L. J. 2954 and Sugdeo Ramchandra Tayade v. State of maharashtra reported in 1994 Cri. L. J. 2150. It is also sought to be contended that in order to constitute an offence under Section 7 (1) (d) the insult should by a member of higher caste to the lower caste and there cannot be an offence in case of any reference to the caste in the manner which is alleged by the people belonging to the same social group. It is further contended by the learned advocate that the evidence on record clearly discloses that the petitioner belongs to the Other backward Class and, therefore, both hail from the same social group and therefore, there was no case of any offence being committed under the provisions of the said act by mere utterance of the alleged expressions. Reliance is placed in support of the contention in the matter of State of Karnataka v. N. K. Shanthappa reported in 1997 Cri. L. J. 2802. On the other hand, the learned A. P. P. has submitted that section 12 of the said Act provides for presumptions by the Court in certain cases and accordingly where any act constituting an offence under the Act is committed in relation to a member of a Scheduled Caste, the Court has to presume, unless the contrary is proved, that such an act was committed on the ground of untouchability. Considering the said provision of Section 12 and the clear finding of the Courts below that the complainant belonged to Scheduled Caste, there was clear case of an offence under the said section of the said Act by the petitioner when the petitioner uttered the above referred expressions. Reliance in that regard is also sought to be placed in the decision in the matter of Shantabai v. State of Maharashtra reported in 1982 Cri. L. J. 872. It was further submitted that the point that the complainant belongs to SC was never disputed by the accused and the finding discloses that the complainant belongs to Mang caste which is declared as a Scheduled Caste. In any case, according to the learned A. P. P. this point was never raised before the courts below. As regards the non reproduction of the exact words in the FIR it is contended that the same cannot vitiate the prosecution and the trial against the petitioner.