BENUDHAR SAHU AND ANR. Vs. THE STATE

JUDGEMENT

(1.) THIS is a revision against the judgment of the Sub -divisional Magistrate, Kamakshyanagar, convicting the Petitioners under Section 7 of the Untouchability (Offences) Act, 1955, and sentencing them to pay a fine of Rs. 25/ - each. The allegations against them, which have been believed by the lower court were that when two pano boys named Ramesh Patra (P.W. 4) and Bilas Patra (P.W. 5) of village Sriseshapur went to draw water from a well in that village they were prevented by the Petitioners. It was further alleged that when a Teacher of the local School named Gobind Chandra Mullik (P.W. 1) took up the cause of the two boys and accompanied them to the well again, the Petitioners abused him saying that as the boys were Panos they could not draw water from the well. An information was in due course lodged at the Police Station on the basis of which charge sheet was submitted.

(2.) THE Petitioners stated that the well belonged to Petitioner Benudhar Sahu and that when the two Pano boys went to draw water from the well they had with them very dirty pitchers which he did not allow them to use for that purpose. He further stated that he himself volunteered to get a bucket and rope for the boys to draw water, but by that time the boys had left the place.

(3.) AS the main offence dealt with the prohibition of the two boys from drawing water from the well in question, the appropriate penal section was Section 4(iv) of the aforesaid Act and not Section 7 which is a residuary section. The allegation about the Petitioners abusing the boys on the ground that they were Pano was ancillary to the main offence of preventing them from drawing water from the well. But a scrutiny of Section 4(iv) of the Act shows that the practice of untouchability which is made penal is to the practice of preventing the use of or access to a well or any other watering place to which a person has a right of use or access. A private well of an owner will obviously not come within the scope of this clause, and it is open to the owner to regulate the use of his well by co -villagers, and merely because he was permitting other people in the village to draw water from his well, it cannot be said that every villager had a right of access to or right to use the well. The prosecution must affirmatively establish that the public had a right of access to or use of the well in question before the offence can be said to have been established. On this crucial question there is practically no evidence on the side of the prosecution. On the other hand, several prosecution witnesses admitted, in cross examination, that Petitioner Benudhar dug the well and the defence witnesses have further stated that the well belonged to Benudhar and that though he was allowing some of the villagers to draw water from it that was done with his permission. Hence no offence under Section 4(iv) of the Untouchability (Offence) Act can be said to have been made out in the circumstances of this case.