DATTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard rival arguments at length on this Criminal Appeal preferred by all three appellants/ convicted accused. The challenge in the present appeal is to the judgment and order of conviction passed in Atrocity Case no. 56/1996. By the said impugned judgment and order dated 6th August 1998, all the three appellants-accused were convicted of the offence punishable under Section 323 read with Section 34 of the Indian Penal Code and were sentenced to suffer simple imprisonment till rising of the Court and to pay a fine of Rs. 100/ - each in default to suffer simple imprisonment for 10 days each. The appellants-accused were also convicted for the offence punishable under Section 3(1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and were sentenced to suffer rigorous imprisonment for six months each. Prior to appreciating rival submissions and the material available before the Special Court, certain factual position is required to be narrated in order to have proper perspective of the matter and in order to ascertain whether the substantive evidence of important prosecution witness PW 2 has been properly appreciated or not.

(2.) The alleged incident of assault and abuse of the complainant on his caste occurred at about 10.00 p.m. on 11th June, 1993, near the house of the accused persons. The place of the said incident was apparently the premises of some school where usually the villagers used to sit for chit-chat after their dinner. According to the complainant, a member of scheduled caste, while he was proceeding towards the said area near the school to have some relaxation, he was followed by the appellant/accused no. 1 who abused the complainant on his caste. Apparently that time, some other villagers were present, as per the case of the complainant. After such abuses, appellant-accused no. 1 assaulted the complainant. Thereafter other appellants-accused came there in succession and also assaulted the complainant. Accused no. 2 -Sanjay used stick to assault the complainant causing some injuries. The complaint was lodged with the police on the same night. However, registration of offence occurred at about 10.00 a.m. on the next day when PW 1 -Police Officer registered First Information Report alleging the commission of offence punishable under Section 323 read with Section 34 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and a copy of the complaint was forwarded to the nearest Judicial Magistrate First Class.

(3.) So far as the evidence before the Special Court is concerned, only four witnesses were examined. PW 1 and PW 4 are the Police Officers. PW 1 registered the F.I.R. and did not do anything else. PW 4 -Investigating Officer, who recorded statements of the witnesses, conducted spot panchanama and probably filed the charge-sheet. The main prosecution witnesses are P W 2 - complainant and PW 3 an alleged eye witness. It is a factual position that PW 3 one Shankar, though cited as an eye witness, he did not support the case of the prosecution and mentions only to the effect that he saw some altercation between the accused persons and the complainant and did not notice anything else and went back to his home. It is also factual position that no other independent witnesses were examined. It is also an admitted position, as transpired from the cross-examination of PW 2, the main witness i.e. complainant that out of the same incident there were cross-complaints and on the strength of the complaint lodged by the present accused persons, present complainant and his brothers were charged and also convicted by the concerned Judicial Magistrate First Class for offence punishable under Section 294 read with Section 34 of the Indian Penal Code. It appears that there was no conviction of the said complainant and his brothers for offence punishable under Section 323 of the Indian Penal Code. It is seen from the reasoning given by the Special Court that this fact weighed much with Special Court as to no conviction of the complainant for the offence punishable under section 323 of the Indian Penal Code. However, it must be said that the Special Court had ignored overall effect of lodging of cross complaint and conviction of the complainant in the present matter, concerning offence punishable under Section 294 of the Indian Penal Code. This was important aspect, which would have been dealt with by the Special Court when the entire case of the complainant was based on his sole testimony without there being any corroboration much less the documentary evidence regarding the alleged assault on him at the hands of the appellants-accused persons.