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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 526 OF 2001
Sanjaykumar s/o Kishanlal Jain,
Age: 21 years, Occ: Business,
R/o. Selamba, Tq. Sangbare,
Dist.Bharuch (Gujrat State). .. APPELLANT
Versus
The State of Maharashtra. .. RESPONDENT
.....
Mr. Gaurav Deshpande, Advocate holding for
Mr. C.R. Deshpande, Advocate for the Appellant.
Mr. S.G. Nandedkar, A.P.P. for Respondent/State.
......
CORAM : S. S. SHINDE, J.
DATE : 28TH FEBRUARY,2011.
ORAL JUDGMENT :
This appeal is filed by the accused-
appellant herein, challenging the judgment and
order dated 29-11-2001 passed by the learned
Additional Sessions Judge and Special Judge,
Shahada in Other Sessions Case No.16 of 2000 (Old
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O.S.C.No. 258 of 1994).
2. The case of the prosecution can be
briefly narrated as under:
Sukhlal Ahire, father of the complainant
Sudam Ahire, who is now no more, used to sit in
front of the shop of the complainant Sudam Ahire
and carry on business of boot polishing. The
complainant Sudam Ahire belongs to cobbler
community which is recognised as a scheduled
caste. All the accused belong to Jain community
which does not fall either under Scheduled caste
or under Scheduled tribe. It is further alleged
that on 25-05-1994 at about 15-00 hours on the
Main Road at village Khapar, the accused NO. 3
Sanjaykumar drove his vehicle through the articles
used for the boot polish business belonging to
Sukhlal Ahire and thereby caused damage of more
than Rs.50/-. While said Suklal Ahire was making
enquiry about the damage caused to him, to accused
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No.3, accused Nos.1 and 2 also came there.
3. It is alleged that all the accused not
being members of either scheduled caste or
scheduled tribe, intentionally insulted, with
intent to humiliate, the complainant Sudam Suklal,
his father Suklal Ahire and brother Hiraman Suklal
Ahire, members of Scheduled Caste, in public place
within public view, by giving them abusements in
the name of their caste as “Sale, Chamar Mat Gaye
hein”. It is further alleged that all the accused
voluntarily caused hurt to the complainant Sudam
by giving him fist blows and by giving bite to his
brother Hiraman. The accused gave them abusements
in filthy language. It is alleged that accused
No.3 by driving his vehicle through the articles
used for the business of boot polish belonging to
Suklal Ahire, caused him damage of more than
Rs.50/-.
The witnesses present there separated the
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incident. The complainant then approached the
police Outpost of village Khapar and lodged
complaint Exh. 26. On basis of said complaint,
offence came to be registered under Sections 3(1)
(x) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and
under Sections 323,324, 504, and 427 read with
Section 34 of the Indian Penal Code, against the
accused. The injured came to be referred to the
Medical Officer for examination and treatment.
The Investigating Officer visited the place of
occurrence and draw panchnama of scene of offence.
He collected medical certificate of the injures
from the Medical Officer. The Investigating
Officer recorded statements of the witnesses. He
also obtained the caste certificate of the
complainant Sudam Suklal Ahire and after due
completion of investigation, he submitted charge
sheet in the Court of the learned J.M.F.C. at
Taloda.
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4. The offence punishable under Section 3(1)
(x) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 being
exclusively triable by the Special Judge, the
learned J.M.F.C. Taloda, committed the case to the
Court of the Special Judge at Dhule. After
establishment of this Court at Shahada, the case
in hand came to be transferred and as such all the
accused have been tried by this Court.
5. Charge Exh.17 came to be framed against
the accused. The particulars of accusation were
read over and explained to the accused in
vernacular to which they pleaded not guilty. The
defence of the accused is that, there are two
groups in Jain community at their village Khapar.
Mohan Seth is the head of the rival group and at
his instance, the complainant Sudam lodged false
complaint against them.
6. After recording the evidence and hearing
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the Counsel for the parties, learned Additional
Sessions Judge and Special Judge, Shahada held
guilty the appellant herein for the offence
punishable under Section 427 of the Indian Penal
Code and convicted under Section 235(2) of the
Code of Criminal Procedure. He is sentenced to
suffer simple imprisonment for one month and to
pay a fine of Rs.500/- (Rs. Five hundred only), in
default of payment of fine, he has to undergo
further simple imprisonment for a period of
fifteen days. Hence this appeal.
7. Learned Counsel for the appellant
submitted that the prosecution has utterly failed
to bring on record any overtact on the part of the
appellant-accused to cause wrongful loss or damage
to the respondent. He further submitted that out
of four witnesses, which were examined by the
prosecution, one is the Investigating Officer and
remaining three witnesses have turned hostile.
Nothing has been gathered from the spot, as
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revealed from the spot panchnama. He further
submitted that unless the calculation is done, it
cannot be said that the appellant-accused
committed mischief and thereby caused loss or
damage to the amount of Rs.50/- or upwards to the
respondent. Learned Counsel for the appellant
invited my attention to the impugned judgment and
reasons recorded by the trial Court and submitted
that the trial Court has not discussed any
evidence and in absence of any discussion about
the evidence brought on record, the trial Court
has convicted the accused-appellant. Therefore,
Counsel for the appellant would submit that the
appellant-accused deserves to be acquitted.
8. On the other hand, learned A.P.P. for the
respondent – State, relying on the reasons
recorded by the trial Court and upon reading
provisions of Section 427 of the Indian Penal
Code, would submit that, mens-rea is not necessary
to fulfill the ingredients of the Section 427 of
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the Indian Penal Code and therefore, the trial
Court has rightly convicted the appellant-accused
since he caused damage to the property of the
respondent. Therefore, he would submit that the
appeal may be dismissed.
9. I have given due consideration to the
submission of the Counsel for the appellant and
learned A.P.P. for the respondent-State. I have
carefully perused the Record and Proceedings and
also impugned judgment. It is not in dispute that
complainant Sudam Ahire and injured Hiraman Ahire
turned hostile. They were examined at Exhibit-25
and 29 respectively. They have stated before the
Court that no such incident had happened and
nobody gave them abusement in the name of their
caste. Another witness namely P.W. 2 also did not
support the prosecution case and did not state
anything against the accused. P.S.I. Mr. Deshmukh,
who is the Investigating Officer is not examined
by the prosecution and also Medical Officer is not
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examined, and there is no evidence to the effect
that the accused voluntarily caused hurt to
complainant Sudam Ahire and his brother Hiraman
Ahire and they received injuries.
10. Upon perusal of the spot panchnama, it
does not support to the prosecution story. It is
admitted position that, there is no any exercise
to calculate the alleged loss sustained by the
complainant.
11. In my opinion, the standard of proof
required in criminal case has not been brought on
record by the prosecution. When the prosecution
witnesses turned hostile including the
complainant, in that case, the trial Court was not
correct in convicting the appellant-accused. In
my opinion, there was no sufficient, cogent and
clinching evidence to convict the appellant-
accused.
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12. Therefore, in my opinion, the impugned
judgment and order passed by the trial Court is
required to be interfered. Accordingly, same is
quashed and set aside. Appeal is allowed. The
appellant-accused is acquitted for the offence
punishable under Section 427 of the Indian Penal
Code. His bail bond stands cancelled. Amount of
fine of Rs.500/- (Rs. Five hundred only) be
returned to the appellant-accused. Appeal stands
disposed of.
13. Original Record and Proceedings, if any,
be sent back forthwith, to the concerned Court.
[S. S. SHINDE, J.]
sut/feb11/criapl526.01
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