Bombay High Court
The State Of Maharashtra vs Bhanu Kanu Hatankar on 5 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 1103
Author: K.R. Shriram
Bench: K.R.Shriram
1/11 4-Appeal 346-2009.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 346 OF 2009
The State of Maharashtra
(Through Deputy Superintendent
of Police, Ratnagiri I/c - Lanja) ....Appellant
(Orig. Complainant)
V/s.
Bhanu Kanu Hatankar
Age - 49 years,
R/a - Gothane Donivade,
Taluka - Rajapur,
Dist. - Ratnagiri. ....Respondent
(Orig. Accused)
----
Ms. Anamika Malhotra, APP for State.
None for Respondent.
----
CORAM : K.R.SHRIRAM, J.
DATED : 5th FEBRUARY, 2021.
ORAL JUDGMENT :
1. This is an appeal impugning an order and judgment dated 17 th October, 2008 passed by the Learned Special Judge, Ratnagiri, acquitting the respondent (hereinafter referred as accused) of offence punishable under Section 3 (1) (x) (intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 7 (1) (d) ( insults or attempts to insult, on the ground of "untouchability", a member of a Scheduled Caste) of The Protection of Civil Rights Act, 1955.
Purti Parab
::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 :::
2/11 4-Appeal 346-2009.doc
2. The complainant Sunil Govind Bhosale (P.W. 1) was working as driver with Maharashtra State Road Transport Corporation (MSRTC) in Ratnagiri district. He was a resident of village Gothane, Taluka Rajapur. On 13th March, 2007 at about 12.30 p.m., on his way home, P.W. 1 had come to rickshaw stand near Azad Talkies, Rajapur. Accused was also present there. Accused was saying "Doctor Ambedkar bhikarchot janmala aala mhanun he buddha samaj majale aahet. Aamachya kadache buddha khup majale aahet tyana aamacha samaj nestanabut karel". At that time one Rajendra Vetkar (P.W. 2) was also present. Both P.W. 1 and P.W. 2 belong to same caste - Navbouddha Scheduled Castes. Accused belongs to Hindu Kunbi which is OBC.
3. After hearing accused saying the words "Doctor Ambedkar bhikarchot janmala aala mhanun he buddha samaj majale aahet. Aamachya kadache buddha khup majale aahet tyana aamacha samaj nestanabut karel", P.W. 1 along with accused went in the share rickshaw of Santosh Soundalkar and went home. On reaching village, complainant narrated the incident to Prakash Laxman Bhosale, Pradip Dashrath Bhosale, Satyawan Jayaram Bhosale, Vishnu Ganpat Bhosale, Shankar Dhondiram Bhosale, Nandkumar Laxman Bhosale and Vishram Kamru Bhosale. None of these persons have been examined. After discussing with them a complaint was submitted to Rajapur Police Station at about 2.30 p.m. on the same day. A complaint was recorded at 9.00 p.m. The complainant has produced his caste certificate. Charges were framed. Accused pleaded not guilty and claimed to be tried.
Purti Parab
::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 :::
3/11 4-Appeal 346-2009.doc
4. It is the case of accused that, in their village there is dispute between Kunbi community and caste to which complainant belongs to and the members of caste of complainant have used complainant to file this false case against accused because accused also belongs to the same village.
5. To bring home the charge, prosecution lead evidence of five witnesses viz., Sunil Govind Bhosale, Complainant as P.W. 1 ; Rajendra Pandurang Vetkar, Eye Witness as P.W. 2 ; Bhaskar Bhikaji Kuwalekar, Spot Panch as P.W. 3, Anil Dattu Jadhav and Rajabhau Dhanu Pawar, Investigating Officer as P.W. 4 and P.W. 5. P.W. 3 spot panch witness turned hostile.
6. Section 3 (1) (x) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 provides as under ;
3 (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
(x) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view".
7. The essential ingredients for the offence punishable under Section 3 (1) (x) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is intentional insult to humiliate a member of schedule caste. Thus, the words allegedly intimidating or insulting must be with reference to person from Scheduled Caste. In the present case the complainant, no doubt, is a person from Scheduled Caste, but accused did Purti Parab ::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 ::: 4/11 4-Appeal 346-2009.doc not utter the words with reference to complaint but with reference to Dr.Babasaheb Ambedkar. Thus, there was no intention to commit individual insult of the complainant by uttering words with reference to his caste. No personal attack could be read in the comments or the words used by accused. He used those words with reference to persons from bouddha community and used insulting words with reference to Dr. Babasaheb Ambedkar. Close reading of Section 3 (1) (x) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 would reveal that to attract that provision accused must have committed insult of a person of Scheduled Caste or Scheduled Tribes.
8. The High Court of Delhi in Ms. Gayatri @ Apurna Singh Vs. State and Another1 has relied upon judgment of the Division Bench of Delhi High Court in D.P. Vats Vs. State2 which held that the word "a member"
occurring in Section 3 (1) (x) means an individual member and not against a group of members or the crowd or the public in general though these may comprise of SC/ST. Paragraph Nos. 31 to 34 of the said judgment reads as under ;
31. Section 3(1)(x), though quoted herein above in para 8, may be once again set out for ready reference, which reads as follows:
"3.(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- ... ... ...
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; ... ... ...
1 2018 ALL MR (Cri) 95 2 2002 (99) DLT 167 Purti Parab ::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 ::: 5/11 4-Appeal 346-2009.doc shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine." (emphasis supplied)
32. The ingredients of the aforesaid offence were culled out in Daya Bhatnagar (supra) as follows:
"15. Basic ingredients for the offence under Clause (x) of Sub- section (1) of Section 3 of the Act, revealed through the bare reading of this section are as follows: (a) there should be intentional insult or intimidation by a person, who is not a member of SC or ST; (b) the insult must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from long association; and (c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view" as long as it is within the "public view". The requirement of "public view" can be satisfied even in a private place, where the public is present... ...". (Emphasis supplied)
33. In D.P. Vats (supra), the Division Bench examined whether the uncontroverted allegations made in the FIR in that case - even if taken on face value, would constitute the alleged offence under Section 3 of the SC/ST Act, or for that matter, under the IPC. The ingredients of Section 3(1)(x) and Section 3(1)(xi) of the SC/ST Act were taken note of by the Division Bench in the following words:
"9. ... ... ...
(a) A person making the alleged derogatory utterance must know that the person whom he was intentionally insulting, intimidating with intent to humiliate him was a member of SC/ST.
(b) Such intentional insult, intimidation or humiliation must be directed against and made to a member of SC/ST and for being member of SC/ST.
(c) The utterance must be made at any place within "public view"." (emphasis supplied)
34. The Division Bench observed in paragraphs 10, 12 and 13 of this decision as follows:
"10. In the present case, we are concerned with the first two ingredients and it emerges therefrom that a case would fall Purti Parab ::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 ::: 6/11 4-Appeal 346-2009.doc under the first sub-section only when the person making the derogatory utterance knows that the person whom he was intentionally insulting or intimidating or humiliating in the name of the caste was a member of SC or ST. If he had no knowledge of his caste status, the offence under sub-section (1)(x) would not be constituted. Similarly if his utterance was not directed against a member of SC/ST in contradistinction to a group of members of SC/ST or the community as a whole, it would not again make out an offence under sub-section (1)
(x). The word "a member" occurring in the provision assumes crucial importance in this context and leaves no scope for doubt that it must be directed against the individual member and not against a group of members or the crowd or the public in general though these may comprise of SC/ST. If it is made in generalized terms against all and sundry and is not individual specific in the name of caste, it would not make out an offence under the first sub-section, the rationale being that intentional insult, intimidation and humiliation made in the name of caste was liable to be caused to a person and in this case to an individual member of SC/ST and not to a group of members or public in general.
11. x x x x x x x x x
12. That being so, we hold that derogatory utterance made in generalized terms in a public gathering, even in the name of caste would not attract an offence u/s 3(1)(x) unless it was directed against an individual member of the caste/Tribe and the person making it knew that the victim belonged to SC/ST.
For sub-section (xi) also, it was an essential requirement that the person using force or assaulting a women of SC/ST must know that she belonged to that caste/Tribe.
13. It does not, therefore, appear to us that uncontroverted allegations contained in FIR No.678/01, even if taken on face value, would attract an offence under sub-sections (1)(x) or (1)(xi) of SC/ST (POA) Act 1989. This is so because petitioner had made the utterance "CHUDE CHAMARON TUMHE MAAR DUNGA MAIN TUMSE NAHIN DARTA" in generalised terms. It was not directed against any particular member of SC/ST to attract the offence u/s 3(1)(x) of the Act. Nor was it shown or known whether he knew anyone in the group or crowd to be a member of SC or ST to whom the utterance could be linked. The same holds true of the alleged offence under the other sub-section. The allegations in the Purti Parab ::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 ::: 7/11 4-Appeal 346-2009.doc FIR nowhere disclose that petitioner had assaulted or used force against any woman in the gathering whom he knew to be belonging to SC/ST. That is not to suggest that allegations made in the FIR had to state all the ingredients of the offence. But the allegations were required to lay at least the factual foundation for attracting the offence under section 3(1)(x) and
(xi) which is lacking in the present case." (Emphasis supplied)
9. In the application (Exh.13) and complaint (Exh.14) filed by P.W.1, P.W. 1 complainant alleges that accused committed insult of Bouddha community and Dr. Babasaheb Ambedkar by using derogatory remarks. There he did not allege his own insult or expressed grievance about individual insult. From the contents of the application as well as complaint it is clearly seen that perception of the complainant or grievance of the complainant was that accused committed insult of Dr. Babasaheb Ambedkar as well as Bouddha community by uttering derogatory and insulting remarks vis-a-vis Dr. Babasaheb Ambedkar.
10. The act allegedly committed by accused either by word spoken or action should amount to intentional insult of a person from Scheduled Caste or Scheduled Tribes. Accused, no doubt, uttered the words which were insulting and derogatory to great personality like Babasaheb Ambedkar, but those words were not used or uttered by accused to individually insult or intimidate the complainant. Thus, individual insult, which is sine qua non for attracting the provisions contained in Section 3(1)
(x) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is lacking in the present case.
Purti Parab
::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 :::
8/11 4-Appeal 346-2009.doc
11. Same can be said about the offence punishable under Section 7 (1) (d) of The Protection of Civil Rights Act, 1955, because accused did not utter words or commit any act on the ground of untouchability. The words uttered by accused were certainly insulting and derogatory to great personality like Dr. Babasaheb Ambedkar, but they were not used or uttered to practice or propogate untouchability. That ingredient is lacking. Therefore, the offence punishable under Section 7 (1) (d) of The Protection of Civil Rights Act, 1955 is also not established.
12. In the result, the prosecution has established that accused uttered insulting and derogatory remarks with reference to Dr. Babasaheb Ambedkar at a public place but that act of accused fails to satisfy the essential requirement of Section 3 (1) (x) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 7 (1) (d) of The Protection of Civil Rights Act, 1955.
13. The Apex Court in Ghurey Lal V/s. State of U.P. 3 has formulated the factors to be kept in mind by the Appellate Court while hearing an appeal against acquittal. Paragraph Nos.72 and 73 of the said judgment read as under:
72. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Section 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the 3 (2008) 10 SCC 450 Purti Parab ::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 ::: 9/11 4-Appeal 346-2009.doc appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.
73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
i) The trial court's conclusion with regard to the facts is palpably wrong;
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
Purti Parab
::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 :::
10/11 4-Appeal 346-2009.doc
14. The Apex Court in many other judgments including Murlidhar & Ors. V/s. State of Karnataka 4 has held that unless the conclusions reached by the trial court are found to be palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand they are likely to result in grave injustice Appellate Court should not interfere with the conclusions of the Trial Court. Apex Court also held that merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view.
We must also keep in mind that there is a presumption of innocence in favour of respondent and such presumption is strengthened by the order of acquittal passed in his favour by the Trial Court.
15. The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat5 has held that if the Appellate Court holds, for reasons to be recorded that the order of acquittal cannot at all be sustained because Appellate Court finds the order to be palpably wrong, manifestly erroneous or demonstrably unsustainable, Appellate Court can reappraise the evidence to arrive at its own conclusions. In other words, if Appellate Court finds that there was nothing wrong or manifestly erroneous with the order of the Trial Court, the Appeal Court need not even re-appraise the evidence and arrive at its own conclusions.
4 (2014) 5 SCC 730
5 1996 SCC (Cri) 972
Purti Parab
::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 :::
11/11 4-Appeal 346-2009.doc
16. I have perused the impugned judgment, considered the evidence, also heard Ms. Malhotra, learned APP. I do not find anything palpably wrong, manifestly erroneous or demonstrably unsustainable in the impugned judgment. From the evidence available on record, there is nothing to substantiate the charge leveled against accused.
17. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court rightly observed that the prosecution had failed to prove its case.
18. In the circumstances, in my view, the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal, in my view, need not be interfered with.
19. Appeal dismissed.
(K.R. SHRIRAM, J.) Purti Parab ::: Uploaded on - 09/02/2021 ::: Downloaded on - 26/08/2021 08:07:56 :::