Bombay High Court
Madhukar Nanaji Dandge vs Ku.Shanta D/O Wasudeorao Mankar on 19 April, 2017
apeal.54.02.jud.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.54 OF 2002
Madhukar Nanaji Dandge,
Aged about 40 years,
Occupation : Agricultural,
R/o Mangsawangi, Tahsil Babhulgaon,
District Yavatmal. .... Appellant
-- Versus --
01] Ku. Shanta d/o Wasudeorao Mankar,
Aged about 25 years,
Occupation : Household,
R/o Babhulgaon, Tahsil Babhulgaon,
District Yavatmal.
02] The State of Maharashtra .... Respondents
Shri N.R. Gaikwad, Advocate for the Appellant.
Ms. T.H. Udeshi, Additional Public Prosecutor for Respondent No.2-State.
CORAM : KUM. INDIRA JAIN, J.
DATE : APRIL 19, 2017.
ORAL JUDGMENT :-
Being aggrieved by the judgment and order dated 27/12/2001 in Special Complaint Case No.45/1997 convicting the accused-appellant of the offences punishable under Section 500 of the Indian Penal Code and Section 3(1)(ix) of the Scheduled ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 2 Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act' for short) and sentencing him to suffer simple imprisonment for six months and fine of Rs.500/-, in default, simple imprisonment for one month for the offence punishable under Section 500 of the Indian Penal Code and simple imprisonment for nine months with fine of Rs.500/-, in default, simple imprisonment for one month, original accused-appellant has preferred this appeal. 02] Learned Additional Sessions directed both the substantive sentences of imprisonment to run concurrently. 03] For the sake of convenience, appellant is referred in his original status as accused, as he was referred before the Trial Court.
04] Prosecution case, which can be revealed from the complaint and connecting papers thereto, may be stated in brief as under :
i. Complainant Shantabai d/o Wasudeorao Mankar was resident of Babhulgaon, District Yavatmal. Accused- ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 3 Madhukar was resident of Mangsawangi in Tahsil Babhulgaon, District Yavatmal. On 07/07/1996, Madhukar lodged report with Police Station Babhulgaon as he wanted to verify the accounts of crops in the field, which were with Shantabai w/o Wasudeo Mankar. Inquiry of the complaint was entrusted to Head Constable Vishnu Pise attached to Babhulgaon Police Station. On 17/09/1996, statement of Madhukar was recorded. In the said statement, he made certain allegations against Head Constable Vishnu Pise and expressed his distrust on him. He requested the higher authority of police that investigation into his complaint should not be with Head Constable Vishnu Pise. The statement refers to contents of application submitted by him on 24/04/1996 against Head Constable Vishnu Pise. The relevant contents are -
"He has illicit relations with Smt. Shantabai Wasudeo Mankar. He goes to her house at odd hours of night, stays there over night and maintains illicit relations with her. It can be ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 4 proved from two persons (1) Shri Girdharsingh Yewtikar and (2) Shri Mahekar (whose name and father's name are not known). Both are residents of Babhulgaon and have complete information in this respect."
ii. In view of the above allegations made in application dated 24/04/1996, complainant filed a private complaint before the learned Judicial Magistrate First Class, Babhulgaon alleging the offence of defamation and under the Atrocities Act. She submitted that allegations are absolutely false and by giving such false report, reputation of complainant has been lowered down in public and society. She claims herself to be belonging to Mana community, recognized as Scheduled Tribe.
iii. In pursuance to the complaint and verification statement of complainant, Trial Court issued summons to the accused. Accused appeared and then the case was committed to the Court of Sessions.
::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 5 05] On committal, Trial Court framed charge vide Exh.30 against the accused. He pleaded not guilty and claimed to be tried. His defence was of total denial and false implication. 06] Complainant examined herself and two other witnesses in support of her case. Considering the evidence of complainant and other witnesses, Trial Court came to the conclusion that charge against the accused has been proved and in consequence thereof accused was convicted as stated in paragraph 1 above. Hence, this appeal.
07] Heard at length Shri N.A. Gaikwad, learned Counsel for the appellant and Ms. T.H. Udeshi, learned Additional Public Prosecutor for the State. Perused the evidence of complainant and her witnesses. On the close scrutiny of the evidence and taking into consideration the submissions made on behalf of the parties, this Court, for the below mentioned reasons, is of the view that guilt of the accused is not proved beyond reasonable doubt and accused ought to have been acquitted by the Trial Court.
::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 6 08] It is not in dispute that on the report of complainant- Shantabai, offence under Section 500 of the Indian Penal Code and Section 3(1)(ix) of the Atrocities Act came to be registered against the accused. So far as the offence under Section 3(1)(ix) of the Atrocities Act is concerned, learned Counsel for appellant vehemently contended that the entire investigation was vitiated, as investigation was not conducted by the competent Officer as prescribed in Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as 'the Atrocities Rules' for short). Referring to Rule 7, learned Counsel for appellant submits that investigation ought to have been by the Officer not below the rank of Deputy Superintendent of Police.
09] In the case on hand, admittedly investigation was by the Officer of the rank of Police Sub-Inspector, who was not authorized to conduct the investigation. On this sole ground, it is submitted that conviction under Section 3(1)(ix) of the Atrocities Act needs to be set aside. In support of submission, reliance is placed on the decision of the Hon'ble Supreme Court in State of A.P. vs. Viswanadula Chetti Babu - [2011 ALL MR (Cri) 660 ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 7 (S.C.)] and the decisions of this Court in Mansingh Baburao Garud vs. State of Maharashtra - [2011 ALL MR (Cri) 1610] and Tulsidas Yeshwant Bhusari vs. State of Maharashtra in Criminal Appeal No.82/2000, decided on 06/04/2017. In the case before the Supreme Court, investigation into the offence under the Atrocities Act was by the Officer below the rank of Deputy Superintendent of Police and the Hon'ble Supreme Court in paragraph 4 observed thus :
"4. We are, therefore, of the opinion that in view of the clear mandate of the Rules, it was only a specified Deputy Superintendent of Police who could investigate an offence under the Act. An investigation done by any officer below the rank and not specified as per Rule7 would not be entitled to investigate any such offence. In the present matter, the investigation has been made by an officer of the rank of an Assistant Sub-Inspector of Police. This was not permissible. We endorse the judgment of the High Court in this respect."
Similar view is expressed by this Court in the case of Mansingh Garud and in Tulsidas Bhusari (supra). ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 8 10] Needless to state that Atrocities Rules came into force on 31st March, 1995. Incident in the present case occurred on 24/04/1996. As investigation was carried out by an Officer below the rank of Deputy Superintendent of Police, on this count alone, conviction of appellant for the offence under Section 3(1)(ix) of the Atrocities Act needs to be set aside.
11] So far as offence under Section 500 of the Indian Penal Code is concerned, it would be necessary to look into the provisions of Section 499 of the Indian Penal Code. The essential ingredients of the offence punishable under Section 499 of the Indian Penal Code are that the imputation should have been made or published with intention of causing harm or with the knowledge or with reasons to believe that the imputation will harm the reputation of such person. A publication is also essential part of the cause of action.
12] Prime question in the present case is whether appellant-accused made defamatory remarks against complainant- Shantabai in the communication dated 24/04/1996. It is for the complainant to show that accused intended or knew ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 9 or had reason to believe that imputation made by accused would harm the reputation of complainant.
13] Section 44 of the Indian Penal Code defines "injury". It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. The word "injury" includes harm caused to the reputation of any person. It also takes into account the harm caused to person's body and mind. Section 499 of the Indian Penal Code defines defamation. It provides for harm caused to the reputation of a person i.e. the complainant. 14] For the sake of convenience, it would be appropriate to extract the relevant portion from the statement of accused [Exh.50], which runs as under :
ßvkrk eyk iks y hl vf/k{kd ;orekG ;ka p s dMw u eh fnuka d 24-08-96 jks t h ikBfoys y k teknkj fo".kq fils ;kps fo#/nkr fnys y k vtZ nk[kfoyk rks vtZ ehp ikBfoys y k vlw u R;koj ds y s y h ejkBhr ek>hp lgh vkgs - R;k vtkZ e/;s eh tek- fo".kq fils cn~ n y vls fygys vkgs dh] R;kpk Jherh 'kka r kckbZ oklw n s o ekudj ghps l h vuS r hd la c a / k vkgs - o rs jk=h cs j k=h R;ka p s dMs ;s Å u eq d ke djrkr- o vuS r hd la c a / k Bs s Å u vkgs - ;k la n HkkZ r ekÖ;kdMs nks u iq j kos vkgs 1- xhj/kjfla x ;s o rhdj ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 10 rls p ,d es g j ukokpk ¿uko o ofMykps uko ekghr ukghÀ nks U gh jk- ckHkq G xka o gs vkgs R;ka u k ;k la n HkkZ r iw . kZ ekghr vkgs - Þ 15] PW-3 PSI Sayyad had recorded the statement of accused. The evidence of PSI Sayyad shows that in his statement, accused admitted that he moved an application to Deputy Superintendent of Police, Yavatmal and levelled allegations against complainant Shantabai Wasudeo Mankar having illicit relations with Head Constable Vishnu Pise. In the present case, complainant is Shanta d/o Wasudeo Mankar. At the time of presenting complaint, she stated her age as 25 years. Her evidence was recorded in the Court on 23/06/1999. That time, she stated her age as 27 years. She has specifically mentioned in the compliant and in her evidence that she is unmarried. If report lodged by accused on 24/08/1996 and statement dated 17/09/1996 are minutely looked into, it is apparent that name appears as Smt. Shantabai w/o Wasudeo Mankar and accused candidly referred that Smt. Shantabai has a daughter aged about 20-22 years, who is in full-fledged of her youth, with whom the Head Constable has close illicit relationship. It means, Shantabai referred in the communication ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 11 is a married lady having daughter aged about 20-22 years. She is not unmarried and not aged about 25 or 27 years as stated in the complaint and the evidence by the complainant. This makes the very identity of complainant doubtful. There is no whisper in the entire evidence that except complainant Shantabai, no other lady of the same name is in the village. In view of this anomaly and confusion, this Court finds that even offence under Section
500 of the Indian Penal Code cannot be said to be made out against the accused.
16] In the above premise and considering the inherent deficiencies in the communication and evidence, this Court is of the view that complainant could not establish the charge against the accused. As such, the judgment and order of conviction and sentence is unsustainable in law. Hence, the following order :
ORDER i. Criminal Appeal No.54/2002 is allowed. ii. Impugned judgment and order of conviction and sentence of the appellant-accused passed by the ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 ::: apeal.54.02.jud.doc 12 learned Additional Sessions Judge, Yavatmal, dated 27/12/2001 is set aside.
iii. Accused is acquitted of the offences punishable under Section 500 of the Indian Penal Code and Section 3(1)
(ix) of the Atrocities Act.
iv. His bail bonds stand cancelled.
v. Fine, if paid, shall be refunded to the appellant-
accused.
vi. No costs.
(Kum. Indira Jain, J.) *sdw ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:54:19 :::