DNYANOBA ANNASAHEB KALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) APPELLANT (original accused) - Dnyanoba s/o Annasaheb Kale was charged, prosecuted and convicted for the offence, punishable under Section7 (1) (d) of the Protection of Civil Rights Act, 1955, Section3 (1) (d) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section506 of the Indian Penal Code and he was sentenced to suffer imprisonment for different terms under different counts.

(2.) ONE Satwaji Purbhaji Chaurange, complainant who is Mason by profession and who belongs to Baudh religion, was resident of village Chikhali, Taluka Vasmat, District Parbhani. On 22-8-1992, at about4. 00 p. m. in the noon, he was called by one Baburao Pandharinath Rampurikar in his field for some work. When the complainant, Satwaji Chaurange went to the field of Baburao Rampurikar in village Erandeshwar, he could not meet Baburao Rampurikar but, he met appellant (accused) Dnyanoba Kale, was the owner of the adjacent field. Appellant (accused) though that, the complainant. Satwaji Chaurange had come in his field for committing theft of wooden logs. Therefore, appellant (accused) abused him in filthy language making reference to his caste and also threatened him to cause harm to his life. The incident was witnesses by Sakharam Marotrao Pandav-vir and Sonaji Topaji Kirtane. On the next day, i. e. on23-8-1992, complainant - Satwaji Chaurange went to police station. Hatta alongwith written complainant, lodged the complaint against the appellant (accused) and accordingly, offence at Crime No. 24 of 1992 was registered against him. Head Constable Sawai registered the offence and on the same day, he visited the spot of incident and prepared spot panchanama (Exhibit 12 ). He recorded the statements of the witnesses and after completing Investigation, he did submit charge-sheet against the appellant. In the court of Sessions Judge, Parbhani.

(3.) COMPLAINANT, Satwaji Chaurange entered in witness box and narrated his complaint against appellant (accused), in few lines. He says, "accused came there and abused me by making reference to my caste and said to me whether I had come for committing theft of "babul" tree. Accused then threatened me to cut my leg, if I was seen there again. He also threatened me to kill. " The case of the prosecution centers upon oral testimony of complainant and his eye-witness, Sakharam. It was argued by Mr. Salunke, learned Advocate for the appellant that, the version of the complainant is vague any cryptic and it does not amount to any offence and secondly, it does not get support from oral, documentary and circumstantial evidence. According to the learned Advocate, the version of the complainant, on the other hand, is full with discrepancies and infirmities. Therefore, we have to view the case of the prosecution in the light of the ground taken in appeal memo. (i)COMPLAINANT, Satwaji Chaurange, who is Mason by profession, is resident of village Chikhali, while appellant (accused), Dnyanoba Kale is the agriculturist and resident of village Erandeshwar. It is situated at a distance of about1 mile from village Chikhali. From the evidence on record. It appears that, the complainant, Satwaji Chaurange and appellant (accused), Dnyanoba Kale, before happening of the incident, had no concern with each other. It is mentioned in the complaint (Exhibit 10) by the complainant, Satwaji Chaurange that, he had some work with Baburao Rampurikar, resident of village Erandeshwar and, therefore, he had gone to the filed of Baburao Rampurikar on the day of incident at about4. 00 p. m. In the witness box, he did tell that, Baburao Rampurikar called him in his field for some work. The complainant, in his cross-examinations, changes his version and he says that, Baburao Rampurikar wanted to repair his house and, therefore, he was called by him. Admittedly, at material point of time, Baburao Rampurikar was not at all present in the field. It shows that, Baburao Rampurikar had not called this complaint, Satwaji Chaurange, in his field and the version of the complainant is not true. Thus the complainant had no reason to go the field. When according to him, Baburao wanted to repair his house COMPLAINANT in his cross-examination, in clear words admitted that, he did not go to the house of Baburao Rampurikar, even though, he could not meet Baburao Rampurikar in he field. Thus, the complainant really had no reason to go to the field of Baburao Rampurikar, which is situated far away in another village. (ii)The alleged incident occurred on22-8-1992 at about4. 00 p. m. and the first information report (Exhibit 10) was lodged in police station and offence was registered on23-8-1992 at about12. 45 p. m. at Crime No. 24 of 1992. The complainant, Satwaji Chaurange, in his cross-examination, admitted that, police station, Hatta is situated at a distance of about2 kms from his village. He admitted that, anybody could reach to the police station, Hatta from his village within 20 minutes. However, he voluntarily stated that, he could not go in police station, on the day of incident, because, it was then raining. According to Mr. Salunke, learned Advocate that, there is abnormal delay in filing the complaint in police station. According to him, when such type of offence has taken place, it was expected from the complainant to lodge the complaint in police station immediately. In other words, according to the learned Advocate, much time was spent by the complainant in concocting the case against the appellant. In other words, according to the learned Advocate, the delay in lodging the first information report in police station, is not properly explained, is fatal to the prosecution case and the learned Advocate relied or the decisions, reported in 2001 AIR SCW 857 (Kanhai Mishra alias Kanhaiya Misar Vs. State of Bihar) and 2002 Cri. L. J. 3407 (Mekala Raji Reddy and others Vs. State of Andhra Pradesh ). As the delay is not properly explained, it is fatal to the prosecution case. Secondly, the complainant, Satwaji Chaurange. In his cross-examination, admitted that, he got written the complaint (Exhibit 10) from some another person Ramchandra Dhobi. However, this Ramchandra Dhobi did not accompany him to the police station. It has nowhere come on record that, Ramchandra Dhobi had written this complaint (Exhibit 10) as per the dictation given by the complainant. Satwaji Chaurange. Therefore, there is nothing on record, which will indicate that, Ramchandra Dhobi had written the complaint strictly, as per the events occurred on the spot of incident. Therefore, in such circumstances, we have to view the complaint (Exhibit 10) lodged in the police station with suspicion. (iii)The complainant, in his complaint (Exhibit 10), in clear words, mentioned that, he belonged to Baudh religion. However, in witness box, in the first breathe, he stated that, he is 'mahar' by caste. It was argued by Mr. Salunke, learned counsel that, Buddhist cannot be treated as member of scheduled castes and in support of his contention, relied on the decision given by this Court, reported in AIR 1979 Bombay 282 (Ku. Mangala Parashram Kelkar and another Vs. State of Maharashtra ). After pointing out all these things, it was argued by the learned Advocate that, the provisions of protection of Civil Rights Act, 1955, are not attracted in the present case. In reply, it was argued by the leaned Additional Public Prosecutor that, the view taken in the case of Ku. Mangala (supra), has been accepted by the full bench of this Court, in Gopalkrishna Vs. State of Maharashtra reported in AIR 1987 Bom. 123. It was further argued that, in this decision, (Gopalkrishna Vs. State) (supra) it was observed that these persons continued to be Backward Class or citizens. The learned Additional Public Prosecutor has brought to the notice that by the Act No. 15 of 1990, the Constitution (Scheduled Castes) Orders (Amendment) Act, 1990, by Section2, the paragraph no.3 of the Constitution (Scheduled Castes) Order, 1950 is amended and thus, from this date, the Buddhist shall also be deemed to be a member of a Scheduled Caste. Therefore, the provisions of the Act was attracted in the present case also. It was argued by the learned Counsel Mr. Salunke that, the prosecution, in order to succeed in this matter, has to establish that, the complainant belongs to the Scheduled Caste or Scheduled Tribe and the appellant (accused) does not belong to Scheduled Caste and Scheduled Tribe and relied on the decision given by this Court, reported in 1999 (2) Mh. L. J. 36 (Ashabai Ganeshrao Khote and another Vs. State Maharashtra ). In this case, it was held that, the prosecution has to establish that, accused was not the member of Scheduled Caste or Scheduled Tribe and the person aggrieved, was member of Scheduled Caste or Scheduled Tribe. According to the learned Counsel. In the present case, the prosecution has not produced on record any documentary evidence to establish all these things. In reply, it was argued by the learned Additional Public Prosecutor that, the appellant (accused), in his statement under section313 of Code of Criminal Procedure, in clear words admitted that, he belongs to Maratha Caste while complainant, Satwaji Chaurange belongs to Mahar Caste. According to Mr. Salunke, learned counsel for the appellant, the prosecution could not take advantage of weakness of other side. In other words, the prosecution has to stand on their own legs and they have to establish the case independently, on the basis of the evidence, which is in their possession. According to the learned Advocate, the appellant (accused), who is a villager, might not have given correct answers because, he is not an educated witness. In other words, according to the learned Counsel, the Court should not have put complex questions to the appellant (accused) during his statement, under Section313 of Cr. P. C. and in support of his contention, relied on the decision given by this Court in Ashabai w/o. Ganeshrao Khote Vs. State of Maharashtra, reported in 1999 (1) Bom. C. R. 489 and another decision of this Court, in Raju s/o. Sureshsingh Thakur Vs. The State of Maharashtra, reported in 2001 ALL MR (Cri.) 2300. It was held that, "the question, which are put to the appellant (accused) must be fair and simple and must not be confusing and misleading. In the case of Ashabai Vs. State (supra), it was held that, the prosecution has to establish all these things independently and it cannot be said that, the accused admitted those statements. Therefore, in the present case, the prosecution did not establish the caste of the complaint and that of appellant (accused ). (iv)In the complaint (Exhibit 10 ). It is mentioned by the complainant that, the appellant (accused) abused him in filthy language and he did narrate actual words or abuses. However, in witness box, the complainant only stated that, appellant abused him by making reference of his caste. In witness box, he did not tell the actual words of the abuses and how he was insulted on the basis of his caste and on the ground of untouchability. The prosecution rely on the averments made in the first information report (Exhibit 10 ). We know that first information report is not a substantial piece of evidence. It can be used only to a limited purpose of contradicting or corroborating the maker thereof. Therefore, the averments made in the first information report alone cannot take place of proof only by exhibiting the said documents unless all these things are told by the complainant in written box. The complainant has to prove each and every aspect, mentioned in the report. After pointing out all these things, it was argued by Mr. Salunke, learned Counsel for the Appellant that whatever utterances made by the complaint, even as per the evidence of the complainant, Satwaji Chaurange, give in the witness box, do not constitute offence under this Act. In other words according to the learned Counsel, simply addressing a person by his caste without any intention to insult or intimidate, no offence is committed. The learned Advocate, in support of his contention, relied on the case reported in 2002 Cri. L. J. 1251 (Pappu Singh Vs. State of Uttar Pradesh) and 1981 Cri. L. J. 387 (Laxman Jayaram Shant Vs. State of Maharashtra ). If the version of the complainant is viewed in the light of the observations made in the above decisions, then it will not amount to an offence, under the Act. The version of the complainant is not only cryptic but vague. (v)Attempt was made to show that, the version of the complainant gets support from the version of the eye-witness, Sakharam Pandav-vir. If we go through the evidence of this witness, then it will come to the notice that, he is an interested witness not being only of the caste of the complainant but, being a close relative of the complainant. If we go through his cross-examination, then it will come to the notice that, he had really no reason to be present on the scene of occurrence at the time of incident and he is the produced witness of the prosecution. He says that, he and another witness Sonaji Kirtane were present at the time of incident. The prosecution did not examine this Sonaji Kirtane. According to him, 4/5 women who were working as Labourers, in the field, were present and all these women were resident of his village. Even then, he could not state their names. The complainant, in his evidence or in complaint, never said that, these 4/5 women labourers, were present at that time. It has also come on record that, this witness - Sakharam Pandav-vir did not own any field near the spot of incident and, therefore, he had really no reason to be present on the spot of incident, at that time. He is not a credible witness because as he did not fare in his cross-examination. (vi) Head Constable, Sawai says that, on23-8-1992, he went on the spot of incident and prepared spot panchanama (Exhibit 12 ). However, in witness box, he did not tell anything as to what was the situation seen on the spot of incident, etc. The prosecution did not examine the panch witnesses. Therefore, it is very difficult to believe that, the incident, as narrated in the complaint, really did occur on the spot, shows in spot panchanama (Exhibit 12 ). (vii)It was the defence, taken by the appellant (accused) that, he did not commit any offence. On the other hand, the complainant, Satwaji Chaurange had come in his field for committing the theft of wooden logs. We have already seen that, the complainant really had not reason to go to the field of the appellant (accused ). The panchanama (Exhibit 12) says that, two wooden logs were found lying on the common boundary of the fields of appellant (accused) Dnyanoba and Akolikar Guruji. COMPLAINANT admits that he had gone on the spot of incident and he stood near the pieces of wooden logs. In witness box, the complainant tried to show that, he had gone near the field or his friend, Kisan. However, in next breathe, he admitted that, the field of Kisan is situated at a distance of 200 ft. from the field of the appellant the complainant neither gone to the field of Kisan not in the field of Baburao but, he had gone to the field of the appellant (accused), which is situated at a long distance only with an intention to commit theft. Even, the prosecution witness, Sakharam Pandav-Vir admitted that, the complainant, Satwaji was found standing near the Babul tree and at that time, appellant (accused) was scolding him as to why he did come there to commit theft of Babul tree. The complainant, in complaint (Exhibit 10) and even in witness box, admitted all these things. Thus, from the evidence on record, it has become clear that, the complainant had gone in the field of the appellant, only with an intention to commit theft of wooden logs. The defence taken by the appellant, is probable and in the given circumstances of the case. It can be accepted. After pointing out all these things, it was argued by the learned counsel that, in the present case, the appellant succeeded in establishing his defence. The entire case is suspicious and therefore, the appellant is entitled to a benefit of doubt and in support of his contention, he relied on the decision given by this Court. In Basavraj Malakappa Koli Vs. The State of Maharashtra, reported in (1999) Vol. 101 (1) Bom. L. R. 266. In the present case also, the entire case of the prosecution is suspicious. There is no reason for not accepting the defence taken by an appellant (accused ). Thus, the appellant is entitled to get the benefit of doubt.