Baste Subrayalu vs Robert Mariadassou and Others

This is a criminal revision case filed by P.W. 2 Baste Subrayalu/complainant in C.C. No. 234 of 1982 on the file of the Court of the learned

Chief Judicial Magistrate, Pondicherry, against the judgment of the said Court in the said case dated 27-11-1982 finding the accused not guilty of

the offence under S. 7(1)(d) of the Protection of Civil Rights Act, 1955 (Act No. 22 of 1955), read with S. 34, I.P.C., and acquitting all the

accused/respondents 1 to 6 herein. The State of Pondicherry represented by the Station House Officer, C.I.D. Branches, Pondicherry (Crime No.

11 of 1982) is the 7th respondent in this criminal revision case. A.1 Robert Mariadassou, A.2 Antoine, A.3 Lourde Marinathan alias Jayabal, A.4

Sagayanathan, A.5 Arokiamary and A.6 Ponnusundaram are respondents 1 to 6 in this criminal revision case, and they are all residing at No. 6,

Saint Roserio Street, Muthialpet Pondicherry A.1 to A.4 are the sons of Selvarasu alias Selvanathan. A.5 is the wife of A.3 Lourde Marinathan

alias Jayabal. A.6 is the wife of Selvarasu alias Selvanathan.

The Sub-Inspector of Police, Crime Investigation Department, Pondicherry, has laid to charge-sheet against the accused for an offence under S.

7(1)(d) of the Protection of Civil Rights Act, 1955, read with S. 34, I.P.C., stating that on 22-5-1982 at Savariapet, Pondicherry, A.1 to A.6

insulted the complaint''s daughter-Selvi Vasantha alias Vasanth Kumari who is a member of the scheduled caste viz., ''Valluvan'' (Hindu) by

abusing the girl by her caste. Copies of documents referred to under S. 207, Cr.P.C., were furnished to the accused, and when examined for an

offence under S. 7(1)(d) of the Protection of Civil Rights Act, 1955 read with S. 34, I.P.C., all of them pleaded not guilty. Hence the witnesses for

the prosecution, that is, P.W. 1 Vasantha alias Vasanthakumari. P.W. 2 Baste Subrayalu, P.W. 3 Devarasu, P.W. 4 Sar su alias Saraswathi, P.W.

5 Sambavadhi, P.W. 6 Veeraraghu, P.W. 7 Stalin Jason, Sub-Inspector-I of Muthialpet Police Station, P.W. 8 Anandaraman, Head Constable,

C.I.D. Police and P.W. 9 Swaminathan, Sub-Inspector of Police, C.I.D., were examined before the lower Court. On behalf of the prosecution,

Exhibits P. 1 complaint, P. 2 caste certificate and P.W. 3 F.I.R. No. 78 of 1982 of Muthialpet Police Station were filed. No witness was

examined on behalf of the accused. Exts. D. 1 to D. 6 - six colour photographs were filed on behalf of the accused.

The case of the prosecution in brief is as follows :- On 22-5-1982 at about 10 a.m., when P.W. 1 Vasantha alias Vasanthakumari was alone in

her house, A.2 Antoine and A.3 Lourde Marianathan alias Jayapal came and cut the ''othian'' tree belonging to P.W. 1, and when question, A.1

Robert Mariadassou came there and said (Matter in vernacular omitted)

Meanwhile, A.4, A.5 and A.6 came to the scene and they also abused in insulted P.W. 1 saying (Matter in vernacular omitted). Then, P.Ws. 3 to

5 came there and they asked the accused as to why they insulted P.W. 1 in the absence of her parents. For that, all the accused scolded them also.

Then P.Ws. 3 to 5 advised P.W. 1 to go home and report to her father after his return. Then at about 1 p.m., P.W. 2 (P.W. 1''s father) returned

home. P.W. 1 narrated him as to what had happened. Then P.W. 2 went to the police station at about 5 p.m., and lodged a complaint - Ex. P. 1

to the Sub-Inspector of Police, Muthialpet Police Station (P.W. 7) who has registered a case in Crime No. 78 of 1982 under S. 7(1)(d) of the

Protection of Civil Rights Act, 1955 against A.1 to A.6, and then he transferred this case to the crime investigation department, Pondicherry, for

further investigation. P.W. 8 Head Constable of the Crime Investigation Department, Pondicherry received the case on transfer and registered a

case in Crime No. 11 of 1982 of the Crime Investigation Department, Pondicherry, and then he submitted this case to P.W. 9 Sub-Inspector of

Police for further investigation. P.W. 9 obtained caste certificate from P.W. 6 - the Deputy Tahsildar, and after perusing the records, he laid

charge-sheet against the accused on 30-6-1982, under S. 7(1)(d) of the Protection of Civil Rights, Act, 1955, read with S. 34, I.P.C. The

accused were examined by the lower Court under S. 313, Cr.P.C., for the offences under S. 7(1)(d) of the Protection of Civil Rights Act, 1955

read with S. 34, I.P.C., with reference to the evidence appearing against them, and all the accused said that this case was concocted against them

because of the pending civil dispute against the accused and the complaint''s family. A.1 has stated that even one month prior to the incident, P.W.

2 was threatening him that he would give a complaint against A.1 and his family members under the Protection of Civil Rights Act, and A.1 has

already reported this matter to the police. Since A.1 is a Government employee, the complainant, just to wreak vengeance upon him, P.W. 2 has

implicated him and his brother and other members of his family in this case. They never insulted P.W. 1 or P.W. 2 or any one of his family

members mentioning the caste name viz., (Matter in vernacular omitted). The accused have not examined any witness.

On the point, whether all the accused insulted P.W. 1 Vasantha alias Vasanthakumari, on the ground of untouchability, the lower Court

discussed the evidence on record and came to the conclusion that the accused are not guilty of the offence under S. 7(1)(d) of the Protection of

Civil Rights Act, 1955, read with S. 34, I.P.C., and acquitted all the accused. Aggrieved by the above decision of the lower Court, the

complainant - P.W. 2 Baste Subrayalu has come forward with this criminal revision case.

Mr. G. Masilamani, learned counsel for the revision petitioner herein, inter alia, contends that the lower Court had not properly appreciated the

evidence available on record and as such the judgment of the lower Court acquitting the accused is not correct and in accordance with law.

The point for consideration in this criminal revision case is whether there is any infirmity in the judgment of the lower Court.

Section 7(1)(d) of the Protection of Civil Rights Act, 1955, (Act No. 22 of 1955) provides that whoever insults or attempts to insult, on the

ground of ""untouchability"" a member of a Scheduled Caste, shall be punishable with imprisonment for a term of not less than one month and not

more than six months, and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.

In ""The Concise Oxford Dictionary"", the meaning of the word ""insult"" is given as ''treat with scornful abuse''; ''offer indignity to''; (of person or

thing) ''affront''.

In the Chambers Twentieth Century Dictionary"", the meaning of the word ""insult"" is given as ''to assail''; ''to triumph insolently or exultantly over'';

''to treat with indignity or contempt''; ''to affront''; ''to make an attack''; ''to have behave with boastful insolence''; ''abuse''; ''affront''; ''contumely'';

Section 34, I.P.C., reads as follows :-

Act Done By Several Persons In Furtherance Of Common Intention. - When a criminal act is done by several persons in furtherance of the

common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

The word ''insult'' in the legal parlance means to treat with offensive disrespect or to offer indignity to a person. The significance attached to the

word used would depend on the facts and circumstances of each case, the occasion and the manner in which the words are used and person to

whom they are addressed. Any act or speech meant to hurt the feelings or self-respect of another or treat a person with insolence or contempt by

words or action would amount to an insult. If the act of insult is committed with reference to a member of Scheduled Caste as defined in S. 2(db)

of the Protection of Civil Rights Act, 1955, then presumption under S. 12 of the Act can be raised. Section 12 of the Protection of Civil Rights

Act, 1965 enacts a special rule of evidence. It provides that where any act constituting an offence under this Act is committed in relation to a

member of a Scheduled Caste, the Court shall presume, unless the contrary is proved, that such act was committed on the ground of

untouchability"". The provision of S. 12 of the Protection of Civil Rights Act, 1955 relieves the prosecution of the burden of proving that ingredient,

namely that the act was committed on the ground of untouchability. A careful reading of the provision shows that the presumption is not as regards

commission of the act of insult or attempt to insult, but is restricted to one of the ingredients of the offence only. If a proof of this ingredient is also

insisted upon, then S. 12 of the Protection of Civil Rights Act will become redundant. An act of insult or attempt to insult in relation to a member of

Scheduled Cast is presumed to be on the ground of untouchability unless the contrary is proved. The presumption under S. 12 of the Protection of

Civil Rights Act, 1955 is a rebuttable presumption. If the prosecution succeeds in proving that the act constituting an offence has been committed in

relation to a member of Scheduled Caste and the words used or the insult offered has a nexus with the caste which is a Scheduled Caste, then the

Court is obliged to presume, until the contrary is proved, that the said act was committed on the ground of untouchability.

The presumption is an inference of existence of some fact which is drawn without evidence from some other facts already proved or assumed

to exist. It has also been defined as an inference affirmative or disaffirmative of the existence of some fact thereof by a Judicial Tribunal by a

process of probable reasoning from some matter of fact either judicial notes or admitted or established by legal evidence to the satisfaction of the

Court. The law relating to presumption has been dealt by S. 4 of the Evidence Act which reads as under :-

""May presume"" - whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and

until it is disproved, or may call for proof of it.

Shall presume"" - whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is

disproved.

Conclusive proof"" - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the

other as proved, and shall not allow evidence to be given for the purpose of disproving it.

In Ramachandran Pillai v. State of Kerala, 1965 MLJ 32 : 1964 KLT 1015, it has been held that where the Head master of a school

constituted separate section exclusively for Harijan students and he separated them from other caste students and where he failed to prove the

contrary : it was held that the presumption arises in holding that the alleged act was committed on the ground of untouchability.

Sub-section (db) of S. 2 of the Protection of Civil Rights Act, 1955 defines the word ""Scheduled Castes"" and says merely that the word has

got the same meaning which has been assigned to it in Clause (24) of Art. 366 of the constitution. Hence Clause (24) of the Art. 366 of the

Constitution is reproduced here for ready reference.

Definitions - In this Constitution, unless the context otherwise requires, the following expression have the meanings hereby respectively

assigned to them, that is to say -

(24) ""Scheduled Castes"" means such castes, races or tribes or parts or groups within such castes, races or tribes as are deemed under Art. 341

to be Scheduled Castes for the purposes of this Constitution.

Now Art. 366 leaves the burden of defining the Scheduled Castes on Art. 341 which is also reproduced here.

Scheduled Caste - (1) The President may with respect to any State or Union territory and where it is a State, after consultation with the

Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the

purposes of this Constitution be deemed Scheduled Castes in relation to that State or Union territory as the case may be. (2) Parliament may by

law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or

group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent

notification.

Article 341 of the Constitution empowers the President of India to specify by public notification the castes, races or tribes or parts of or

groups within such castes, races or tribes in any State or Union territory as Scheduled Castes in relation to the State or Union Territory. This

Article empowers the President to specify not only the entire castes but tribes or parts or groups within such castes, races or tribes which were to

be treated as Scheduled Castes in relation to a particular caste. However in order to determine whether a particular caste is a Scheduled Caste or

not within the meaning of Art. 341, one has to look at public notification issued by the President in that behalf and it is not open to anyone to seek

for any modification in the order by producing evidence to show (for example) that though Caste ''A'' alone was mentioned in the order, Cast ''B''

was also a part of Cast ''A'', and as such to be deemed, to be included in Caste ''A''. Wherever one caste has another name it has been mentioned

in brackets after it in the order.

In the exercise of his powers under Art. 341 of the Constitution the President of India has issued the notification which is called as the

''Constitution (Scheduled Castes) Order, 1950. The Order has been amended from time to time.

In the instance case before us, P.W. 1 Vasantha alias Vasanthakumari belongs to ''Valluvan'' caste. In the Constitution (Schedule Castes)

Order, 1950, under Part XVI, Tamil Nadu State has classified the caste ''Valluvan'' as Item No. 70, as a ''Schedule Caste''. The Constitution

(Pondicherry) Scheduled Castes Order, 1964, has classified the caste ''Valluvan'' as item No. 13, under the said order as a ''Scheduled Caste''.

When a person belonging to higher caste offers insult to a Harijan or to a person belonging to a Scheduled Caste on the ground of his caste,

then the said act is presumed to fall within the inhibition contained in the section. In such cases the burden would shift on the accused to establish

that the act alleged to be committed was not committed on the ground of untouchability but on some other ground. The quantum and nature of

proof required to displace the presumption must vary according to the facts and circumstances of each case. Such proof may partake the shape of

defence evidence or may consist of the circumstances appearing in the evidence led by the prosecution itself, including cross-examination of the

witnesses or the improbability of the case. The burden to rebut the presumption can stand discharged if the material brought on record considered

in its totality renders the existence of the facts presumed improbable. Thus, the accused may rebut the presumption by showing preponderance of

probability in his favour and need not establish his innocence beyond a reasonable doubt.

In this context, it would be useful to turn attention at the outset to S. 12 of the Protection of Civil Rights Act (22 of 1955) :

S. 12 : Where any act constituting an offence under this Act is committed in relation to a member of a Scheduled Caste, the Court shall presume,

unless the contrary is proved, that such act was committed on the ground of ""untouchability.

Obvious position thus is that the aforesaid presumption applies vis-a-vis only to a member of a Scheduled Caste. The term ""Scheduled Castes"" is

defined in Clause (db) of S. 2 of the Protection of Civil Rights Act as having :

the meaning assigned to it in Clause (24) of Art. 366 of the Constitution.

Turning next to the said Clause (24) of Art. 366 of the Constitution, (which, incidentally, is also a definition article) one finds the same defining

Scheduled Castes as meaning :

Such castes, races, or tribes or parts of or groups within such castes, races, or tribes as are deemed under Art. 341 to be Scheduled Castes for

the purposes of this Constitution.

Turning next to Art. 341 of the Constitution, one finds that it empowers the President to specify, with respect to any State or Union Territory :

the castes, races or tribes or parts of groups within castes, races or tribes, which shall for the purpose of this Constitution be deemed to be

Scheduled Castes in relation to that State or Union Territory, as the case may be.

By virtue of the power aforesaid, the President issued the Constitution (Scheduled Castes) Order, 1950. The said Order was amended from time

to time.

All that S. 12 of the Protection of Civil Rights Act, 1955, enact is that the presumption therein will arise where the impugned act is committed

in relation to a member of a Scheduled Caste. It is for the prosecution, therefore, to first show that the complaint was a member of a Scheduled

Caste and that the act in question was committed in relation to them as member of a Scheduled Caste. Only thereafter the presumption in question

could arise and be raised.

A careful perusal of the various sections of the Protection of Civil Rights Act, 1955 discloses an anxiety to prevent the practice of

untouchability. Section 3 of the Protection of Civil Rights Act, 1955 provides for punishment to persons for enforcing religious disabilities based on

the practice of untouchability. Section 4 of the Protection of Civil Rights Act, 1955 seeks to punish those persons who try to enforce social

disabilities on the ground of untouchability. Those who refuse admission to persons to hospitals, educational institutions or those persons who

practice discrimination on the ground of untouchability after giving entry to persons in such institutions are liable to be punished under the provisions

of S. 5 of the Protection of Civil Rights Act, 1955. Failure to sell goods or render service to any person on the ground of untouchability is

punishable under S. 6 of the Protection of Civil Rights Act, 1955. Section 7 of the Protection of Civil Rights Act, 1955 provides for punishment to

those persons who prevent any person from exercising any right according to him by reason of the abolition of untouchability under Art. 17 of the

Constitution or those who molest, injure, annoy or obstruct or attempt to cause obstruction to any such person in the exercise of any such right, or

molest, injure or annoy or boycott by reason of having exercised any such right. Sub-section (c) provides for punishment to those persons who by

words, either spoken or written by signs or by physical representations or otherwise incite or encourage any person or class of persons and public

generally to practice untouchability in any form whatsoever. Section 7-A of the Protection of Civil Rights Act, 1955 provides for punishment to

those who compel person to do scavenging or sweeping work on the ground of untouchability.

Clause (d) was added to S. 7(1) of the Untouchability (Offences) Act, 1955 providing punishment for a person who insulted or attempted to

insult a member of Scheduled Caste on the ground of untouchability, by Act No. 106 of 1976. It can thus, be seen that so far as the extremely

wide provision of providing punishment for a mere insult or an attempt to insult on the ground of untouchability was concerned, the Legislature

wanted to restrict it to a case in which such an insult hurt, molested, injured or annoyed a member of Scheduled Caste. It was by this Amendment

Act No. 106 of 1976 that definition of Scheduled Casts was added by inserting Clause (d) in S. 2 to provide that Schedule Caste has the meaning

assigned in Clause (4) of the Art. 366 of the Constitution. Section 12 of the Act provides for presumption that the alleged criminal act was

committed by a accused on the ground of ""untouchability"" in relation to a member of ""Scheduled Caste"". No presumption is created if it was

committed in respect of other persons. Thus, it can be seen that the provision of wider offence providing punishment for a mere attempt to insult on

the ground of untouchability and the provision regarding presumption against accused were restricted to offences in respect of members of

Scheduled Castes.

In Ganpat Vs. Returning Officer and Others, , Alagiriswami, J. has observed in paras 11 and 12 at pages 423 to 425 as follows :-

In this connection it is necessary to remember that Hinduism is a very broad based religion. In fact some people take the view that it is not a

religion at all on the ground that there is no one founder and no one sacred book for the Hindus. This, of course, is a very narrow view merely

based on the comparison between Hinduism on the one side and Islam and Christianity on the other. But one knows that Hinduism through the

ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths. One of the witnesses has

described that he considered Buddha as the 11th Avtar. Indeed there are historians and sociologists who take the view that Buddhism disappeared

from India not by any other means but by being absorbed into Hinduism. Therefore, if a certain community in a spirit of protest says that they

would give up Hinduism and adopt Buddhism it is not likely to make much change either in their beliefs or in their practices. Centuries of habit and

customs cannot be wiped out overnight. While in the case of highly educated a members who have chosen the new religion the change might make

a difference in their attitude and perhaps in their habits and customs, to the vast majority it is likely to make very little difference. Merely because in

a public meeting Dr. Ambedkar and Mrs. Ambedkar and a large number of people openly got themselves converted to Buddhism it does not

automatically follow that all the members of the Scheduled Castes followed them in their footsteps. It does not even mean that all Mahars; who

seem to form the largest element among the neo-Buddhists, became Buddhists. Hinduism is so tolerant and Hindu religions practices so varied and

ecletic that one would find it difficult to say whether one is practicing or professing Hindu religion or not. Especially when one is born a Hindu the

fact that he goes to a Buddhist temple or a church or a durgah cannot be said to show that they are no more Hindus unless it is clearly proved that

they have changed their religion from Hinduism to some other religion. In Tamil Nadu in Nagore at Nagapatnam there is a Muslim Durgah the

majority of pilgrims to which are Hindus. In the same town there is a church Vellankanni called Lourdes of the East, after the famous Lady of the

Lourdes in France. In Andhra Hindus have names like Mastan Ayya or Hussain Amma named after Muslim saints whose durgahs are near their

places.

For a person who has grown up in Indian society it is very difficult to get out of the coils of the caste system. There are many castes among the

Scheduled Castes. Though all of them are tainted with untouchability, some among them claim to be higher than some others. One knows of

instances of ""high cast"" members of the Schedule Castes addressing a ""low caste"" member of the Scheduled Caste in the same way as the ordinary

high caste Hindu would address a member of the Scheduled Castes. The Urdu speaking Muslims in the south word rarely inter-marry with Tamil

speaking Muslims. We know that the Punjabi Muslims used to look down upon the Bengali Muslims. Till recently Muslims, Hindu and Sikhs used

to call themselves as Rajput Muslims, Rajput Sikhs, Muslim Jats and Hindu Jats. Because of the Punjab legislation preventing alienation of

agricultural land many Muslims described themselves as agricultural tribes. At least in the South of India till recently there were churches where

places were separately reserved for Scheduled Caste Christian. To this day one sees matrimonial advertisements which want a Vellala Christian

bridge or Nadar Christian bride. All this is merely to indicate the difficulty of persons getting out of the caste customs and the mentality generated

thereby. The monstrous curse of untouchability has got to be eradicated. It has got to be eradicated not merely by making constitutional provisions

or laws but also by eradicating it from the minds and hearts of men. For that it is even more important that members of communities who are

untouchables should assert their self-respect and fight for their dignity that members of the other communities should forget about it. Fortunately

things are changing. In cities and bigger towns it can be said to have almost disappeared. One rarely knows whether the other person he meets is

or is not a member of the Scheduled Castes and no one bothers about it these days. The oppression which we read or sometimes in newspapers

of the Scheduled Castes by the higher castes in villages are really manifestation of the conflict between agricultural labour or the agricultural serfs,

as the members of the Scheduled Casts mostly are, on the one side and the landholding class on the other. It is wrong to describe them as

oppression of the Scheduled Castes by the higher casts. If in these circumstances some members of the Scheduled Castes in their protest against

the system of untouchability resort to desperate measures to erase the indignity of untouchability one cannot blame them. But whether it produces

any result is a different question, however well-meaning such efforts may be. There may be other members of the community equally educated and

equally conscious of the indignity of their being branded as untouchables who might still feel that the way to remove untouchability is not by

changing one''s religion. We have evidence in this case that people who claim themselves to have become Buddhists have taken advantage of

scholarship and other facilities granted by Government to members of Scheduled Castes. Whether such concession to members of Scheduled

Caste should also be extended to members of those castes who have changed their religion is a different question. Whether the Scheduled Caste

Order should also describe such persons as members of the Scheduled Castes is very relevant to the present question. We are of opinion that the

Scheduled Caste Order proceeds on a sound basis. The attempt of persons who have changed their religion from Hinduism to Buddhism, who still

claim the concessions and facilities intended for Hindus only shows that otherwise these persons might get a vested interest in continuing to be

members of the Scheduled Castes. In course of time vested interests are created in continuing to be members of Scheduled Castes as in continuing

to be members of Backward Classes. It is from the point of view of discouraging that tendency that the provision of the Scheduled Castes Order

seems to be a proper one"".

It is seen that the expression ""untouchability"" was left undefined both in the Constitution of India as well as in the Untouchability (Offences) Act,

1955. The offence punishable under S. 7(1)(d) of the Protection of Civil Rights Act, 1955 cannot take place unless the person insulted is proved

to be a member of a Scheduled Caste. Similarly presumption under S. 12 of the Act will not arise unless the act constituting the alleged offence

under the Act is committed in relation to a member of a Scheduled Caste.

In this context, reference may also be made to the decision of the Supreme Court in C.M. Arumugam Vs. S. Rajgopal and Others, , wherein

the following observations were made in paras 9, 10 and 13 :

It is a matter of common knowledge that the institution of caste is a peculiarly Indian institution. There is considerable controversy amongst

scholars as to how the caste system originated in this country. It is not necessary for the purpose of this appeal to go into this highly debatable

question. It is sufficient to state that originally there were only four main castes but gradually castes and sub-castes multiplied as the social fabric

expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in

its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity. Inevitably, it gave rise to

gradation which resulted in social inequality and put a premium on snobbery. The caste system tended to develop, as it were, group snobbery, one

caste looking down upon another. Thus, there came into being a social hierarchy and stratification resulting in perpetration of social and economic

injustice by the so-called higher castes on the lower castes. It was for this reason that it was though necessary by the constitution-markers to

accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afflicted by social economic

disabilities and the Constitution-marks accordingly provided that the President may specify the castes and these would obviously be the lower

castes which had suppered centuries of oppression and exploitation which shall be deemed to be the Scheduled Castes and laid down the principle

that seats should be reserved in the Legislature and for the Scheduled Castes as it was believed and rightly, that the higher castes would not

properly represent the interest of these lower castes.

But that immediately raises the question : what is a caste ? when we speak of a caste, we do not mean to refer in this context to the four

primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian Social scene. ""A caste"", as pointed out by the High Court

of Madras in Cooppoosami Chetty v. Duraisami Chetti, ILR(1910)Mad 67 : 19 MLJ 714, ""is a voluntary association of persons for certain

purposes."" It is a well defined yet fluctuating, group of persons governed by their own rules and regulations for certain internal purposes. Sir H.

Risley, has shown in his book on the People of India how castes are formed based not only on community of religion, but also on community of

functions. It is also pointed out by Sankaran Nair, J., in Muthusami v. Masila Mani, ILR(1910) Mad 342 : 20 MLJ 49, ""..... a change in the

occupation sometimes creates a new caste. A common occupation sometimes combines members of different castes into a distinct body which

becomes a new caste. Migration to another place makes ""sometimes a new caste"". A caste is more a social combination than a religious group. But

since, as pointed out by Rajamannar, C.J., in G. Michael Vs. Mr. S. Venkateswaran, Additional Secretary to Government, Public (Elections)

Department, Fort St. George, Madras, , ethics provides the standard for social life and it is founded ultimately on religious beliefs and doctrines,

religion is inevitably mixed up with social conduct and that is why caste has become an integral feature of Hindu society. But from that it does not

necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to

be a member of the caste in which he was born and to which he belonged prior to his conversion. It is no doubt true, and there we agree with the

Madras High Court in G. Michael Vs. Mr. S. Venkateswaran, Additional Secretary to Government, Public (Elections) Department, Fort St.

George, Madras, , that the general rule is that conversion operates as an expulsion from the caste, or in other words, the convert ceases to have

any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be regarded by

the other members of the caste as belonging to their fold. But ultimately it must depend on the structure of the caste and its rules and regulations

whether a person would cease to belong to the caste on his abjuring Hinduism. If the structure of the caste is such that its members must

necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the caste

according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist

not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other

religion may not involve loss of caste, because even persons professing such other religion can be members of the caste. This might happen where

caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as a social group is so strong

that conversion into another religion does not operate to snap the bond between the convert and social group. This is indeed not on infrequent

phenomenon in South India where, in some of the cases, even after conversion to Christianity, a person is regarded as continuing to belong to the

caste. Where an argument was advanced before the Madras High Court in G. Michael Vs. Mr. S. Venkateswaran, Additional Secretary to

Government, Public (Elections) Department, Fort St. George, Madras, ""that there were several cases in which a member of one of the lower

castes who has been converted to Christianity has continued not only to consider himself as still being a member of the cast, but has also been

considered so by other members of the caste who had not been converted, ""Rajamannar, C.J., who, it can safely be presumed, was familiar with

the customs and practices prevalent in South India, accepted the position ""that instances can be found in which in spite of conversion of caste

distinctions might continue"", though he treated them as exceptions to the general rule .....

Paras 2 and 3 of the Constitution (Scheduled Castes) Order, 1950 also support the view that even after conversion, a person may continue to

belong to a caste which has been specified in the Scheduled to that Order as a Scheduled Caste. Paragraph 2 provided that the castes specified in

the Scheduled to the Order shall be deemed to be Scheduled Caste but para 3 declares that, notwithstanding anything contained in para 2, that is,

notwithstanding that a person belongs to a caste specified as a Scheduled Casts, he shall not be deemed to be a member of the Scheduled Caste,

if he professes a religion different from Hindu or Sikh religion. Paragraphs 2 and 3 read together thus clearly recognise that there may be castes

specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion and if that be so, it must follow

a fortiori that in such castes conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though by reason of para

3 he would be deemed not to be a member of a Scheduled Caste.

It is contended on behalf of the revision-petitioner herein that the words said to have been uttered by the accused/respondent herein, namely,

(Matter in vernacular omitted) - ''Para'' donkey, ''para'' dog has to be beaten with a chappal, beat the ''Para'' donkey by catching hold of its tuft -

Paraiya"", amount to an insult. It is not in dispute before this Court, nor it could be disputed that the word ''Paraiya'', if uttered in an angry mood

against a person belonging to Scheduled Caste, it is prima facie amounts to an ''insult''. It is indicative of offensive disrespect and indignity. It is

normally used to hurt the feelings and self-respect of the person to whom it is addressed. Such a person is treated with insolence and contempt. In

the instant case before us, it is relevant to note that whether the prosecution is successful in bringing the fact of such insulting words having been

uttered by the accused/respondents herein against P.W. 1. In M.R. Balaji and Others Vs. State of Mysore, , Gajendragadkar, J., as he then was,

observed as follows :

...... In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to

sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid

and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later overburdened with

consideration of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidly. This artificial growth

inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties.

Therefore, it is quite clear that the word ""Paraiya"" is insulting one and if used by a person belonging to higher caste or class, then it has a nexus

with untouchability. However, no general rule can be laid down in this behalf and to some extent, it must depend on the facts and circumstances of

each case.

In Laxman Jayaram Shant Vs. The State of Maharashtra, , the accused who was superior officer of the complainant was alleged to have

exclaimed ""come on Maharsaheb, Have you finished the leave ? Are you joining ? Rs. 900/- have been spent and so now you remember about

your service. God has given bread to your Mahar caste and you do not deserve it. Your caste is such. It was held by the Bombay High Court in

the said case that those words indicated that the accused intended to tell the complainant to be honest and hard working in pursuit of the duties of

the office held by him. A person returned from a long leave and a superior officer expressed his resentment on the attitude of a person towards his

job, could not be said to be referable to preaching and practice of untouchability or expression thereof could not be said to be on the ground of

untouchability. It was necessary to read those words in the context and the background and one could not take those words out of context and say

that they dealt with the Mahar caste and therefore they were on the ground of ""untouchability"". It was also held in that case that although there is a

presumption of law under S. 12 even then there is an initial burden on the prosecution to prove prima facie that the accused had insulted or

attempted to insult the complaint. The accused can discharge the rebuttable presumption while cross-examining the prosecution witnesses.

There are number of abuses in every language on the ground of the caste, and such abuses on the ground of cast, and such abused on the

ground on case hurled against almost all members of all the communities. For instance, ""Harijan, Dhobi, Barber, Bhangi"", and similar like others.

These abuses are hurled without any intention to harm the feelings of the members of those castes, but definitely are intended to insult a person

against whom such abuses are hurled. The question in the present case is as to whether, if a member of a Scheduled Caste namely, P.W. 1 is

addressed as ''Paraiya'' without intending to preach or practice untouchability, the persons who hurled such a word can be convicted under Clause

(d) of S. 7(1) of the Act. If the alleged act indulged in by the accused/respondents herein is proved beyond all reasonable doubt, certainly their act

falls within the mischief of the said Clause (d) of S. 7(1) of the Act, since such insult or attempt to insult is on the ground of ''untouchability'',

inasmuch as it is not in dispute that P.W. 1 belongs to ''Valuvar'' caste, which is a Scheduled Caste. Let us consider the evidence relating to this

aspect later.

In my view, every insult or attempt to insult a member of Scheduled Caste, would not fall within the mischief of the said Clause (d) of S. 7(1)

of the Act unless such insult or attempt to insult is on the ground of ""untouchability"". However abuses addressed to the members of the other

communities stand on a different footing. If the abuse ""Paraiya"" is addressed to a person belonging to a higher caste, the presumption under S. 12

is not available. It cannot be forgotten that if the abuse ""Paraiya"" is addressed to a member of Scheduled Caste, the intention is writ large. The said

abuse is indicative of caste supremacy. It is nothing but an assumption of superiority by a person over another, which to use the expression of

Mahatma Gandhi, is a sin against God and man. Such an expression has much more malice in it, than its literal meaning would suggest.

Untouchability is a heinous crime against humanity as a whole. Assuming that the question of means rea is relevant, once it is established by the

prosecution that the act constituting the offence viz., the insult or attempt to insult was qua member of Scheduled Caste, then in view of the

provisions of S. 12 of the Act, it is not necessary for the prosecution to further prove that such act was committed on the ground of untouchability.

By S. 12 of the Act unless the contrary is proved, it is presumed that such act was committed on the ground of untouchability. As already seen, the

said presumption is rebuttable one. In Shantabai v. State of Maharashtra, 1982 Cri LJ 872, the Bombay High Court has held that if for proving an

offence under S. 7(1)(d) of the Act, the prosecution is also required to prove the fact that the act constituting the offence was committed on the

ground of untouchability, then the presumption contemplated by S. 12 will have no meaning and the entire S. 12 will become redundant or

surplusage. In my view, S. 12 has a purpose behind it. In my opinion, although there is a presumption of law, even then there is an initial burden on

the prosecution to prove prima facie that the accused had insulted or attempted to insult the complainant. Even the accused can discharge the

rebuttable presumption while cross-examining the prosecution witnesses.

31A. The Supreme Court in Harbhajan Singh Vs. State of Punjab, , has observed :

There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge

that burden by leading evidence to prove his case beyond a reasonable doubt. This, however, is the test prescribed while deciding whether the

prosecution has discharged its onus of proving the guilt of the accused. It is not a test which can be applied to an accused person who seeks to

prove substantially his claim that his case falls under an exception. Where he is called upon to prove that his case falls under an exception, law

treats the onus as discharged if the succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established

the burden shifts to the prosecution which still has to discharge its original onus. Basically, the original onus never shifts and the prosecution has, at

all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.

Keeping in view the above observation of the Supreme Court, it is clear that the initial burden was on the prosecution to prove that accused

has insulted or attempted to insult the complainant, and then the burden of proof would shift on the accused that the insult, if any was not on the

ground of untouchability and the said onus on the accused would not be so heavy to prove its case beyond a reasonable doubt. The law laid down

in S. 12 of the Protection of Civil Rights Act, 1955 treats onus as discharged if he succeeds in proving a preponderance of probability. In the

instant case before us, the words alleged to be used by the accused/respondents 1 to 6 herein against P.W. 1 Vasantha alias Vasanthakumari

would certainly amount to abuse and insult, if the said ''insult'' is proved by the prosecution beyond all reasonable doubt.

In the instant case before us, the accused/respondents 1 to 6 herein are entitled to an order of acquittal. All the accused said, when examined

under S. 313, Cr.P.C. with reference to the evidence appearing against them, is that this case was concocted against them because of the pending

civil disputes between the accused and the complainant''s family. A.1 has stated that even one month prior to the incident, P.W. 2 was threatening

that he would give a complaint against A.1 and his family members under the Protection of Civil Rights Act, and A.1 has already reported the

matter to the police. Since A.1 is a Government employee, P.W. 2, in order to wreak vengeance, has implicated him and other members of his

family. According to the accused/respondents 1 to 6 herein, they never insulted P.W. 1 or P.W. 2 or anyone of his family members mentioning the

caste name, namely (Matter in vernacular omitted).

The occurrence witnesses in this case are P.Ws. 1, 3, 4 and 5. P.W. 1 is the alleged victim P.W. 1 belongs to ''Valluvar'' caste and she was

aged 20 years during the time of trial. P.W. 3 Devarasu also belongs to ''Valluvar'' caste and he resides in a house situate on the west of the house

of P.W. 2, separated by two houses. P.W. 4 Sarasu alias Saraswathi is also a Harijan by caste. P.W. 4 is residing in the third house next to the

house of P.W. 2 P.W. 5 Sambavathi also belongs to ''Valluvar'' caste, and she is residing in a house situate opposite to the house of P.W. 1.

As already stated P.W. 2 Baste Subrayalu is no other than the father of P.W. 1. In his cross-examination, P.W. 2 has specifically admitted that

there has been a civil dispute between him and A.1, and that they are also not on talking terms. P.W. 2 has also stated that there used to be

frequent quarrels between them.

All the four alleged eye-witnesses have got their own version of the insulting words said to have been spoken to by each one of the accused

persons. P.W. 1 has deposed that all the accused used the word (Matter in vernacular omitted). But from the evidence of P.W. 3, it is seen that

A.4 and A.5 have not stated anything against P.W. 1, though P.W. 3 was present there from the time P.W. 1 came out from her house. From the

evidence of P.W. 4 it is seen that A.1, A.4 and A.5 used the insulting words; but he has not spoken those words against the other accused. His

evidence is contradictory to the evidence of P.W. 3, especially when it is the case of the prosecution that all the three witnesses were present there

from the beginning of the occurrence. From the evidence of P.W. 5 it is seen that A.5 and A.6 did not use the word (Matter in vernacular omitted).

Her version is totally different from the other witnesses. Under the circumstances, the lower Court is correct in finding that the case put forward on

behalf of the prosecution is concocted and exaggerated.

A.1 to A.4 are brothers. A.5 is the wife of A.3. A.6 is the mother of A.1 to A.4. It is seen that the intention of both P.Ws. 1 and 2 is to foist a

case against all the members of the family of the accused. In the instant case before us, the occurrence is said to have taken place at about 10 a.m.,

on 22-5-1982. The complaint (Ex. P. 1) had been given by P.W. 2 only at 6.30 p.m., on that day before Muthialpet police station regarding this

case. Though P.W. 1 has stated in her chief-examination that P.W. 2 wanted to go to the police station for laying a complaint regarding the

occurrence, it is she who had prevented him saying that she could wait till her mother returns (Matter in vernacular omitted) -

Her mother came out only at about 5 or 5.30 p.m., to the police station, and thereafter P.W. 2 had gone to the police station for giving a report.

This explanation for laying the complaint after 8 1/2 hours delay is unacceptable and artificial.

In Thulia Kali Vs. The State of Tamil Nadu, , it has been held as follows :-

Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report

not only gets bereft of the advantage of spontaniety, danger creeps in of the introduction of coloured version, exaggerated account or concocted

story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be

satisfactorily explained.

If an occurrence is not reported for more than 20 hours after the occurrence even though the police station is only two miles from the place of

occurrence it is unsafe to base conviction upon the evidence.

In the present case, P.W. 7 Sub-Inspector of Police, Muthialpet police station, has stated that on 22-5-1982 at about 18.30 hours, he

received Ex. P. 1 from P.W. 2, and registered a case in Crime No. 78 of 1982 under S. 7(1)(d) of the Protection of Civil Rights Act, 1955 against

A.1 and his five family members. On the same day, he transferred the said case to the crime investigation department, Pondicherry, for further

investigation. Ex. P. 3 is the F.I.R., sent to the Court. P.W. 8 Head Constable states that he received the copy of Ex. P. 3 at 4.30 p.m. On 23-5-

1982 when he was in charge of the police station and he re-registered the said case as Crime No. 11 of 1982. P.W. 9 Sub-Inspector of Police,

C.I.D., took up the investigation in this case on 19-6-1982. Thus, we find that both P.Ws. 1 and 2 have not properly explained the delay in

lodging the complaint. It is doubtful as to whether P.W. 1 had remembered the actual words alleged to have been uttered by the

accused/respondents 1 to 6 herein in the complaint (Ex. P. 1) that was given only by P.W. 2 - her father. In Ex. P. 1 the words said to have been

used by accused/respondents 1 to 6 herein read as follows :- (Matter in vernacular omitted).

It appears that having regard to the incident, and facts and circumstances of the case, the words alleged to have been expressed by the accused

appear to be out of the context. It is a clear case of concoction and falsehood, as stated by the accused/respondents 1 to 6 herein.

As a matter of law and practice, Revisional Court should not disturb the findings of the lower Court unless there is an error of law or otherwise

the finding is perverse or that the appreciation is so defective, perverse, and devoid of proper reasons, or the trial Court or the appellate Court had

misdirected itself on material points of law and facts. The revisional Court shall be justified in reappreciating the evidence and disturb such findings

of fact only under the above circumstances.

The lower Court, which had the benefit of seeing the witnesses in the box, disbelieved them, after discussing the evidence adduced through

them. It is also relevant in this connection to note that the caste of the accused/respondents 1 to 6 herein is not even mentioned in their statements

under S. 313, Cr.P.C., recorded by the lower Court. So, it is doubtful whether they belong to Hindu religion or Christian religion, because their

names are similar to Christian names prevailing in Tamil Nadu.

In the instant case before us, it is seen that the lower Court has properly appreciated the evidence available on record, both oral and

documentary and came to the correct conclusion that the prosecution has not proved its case against the accused/respondents 1 to 6 herein

beyond all reasonable doubt. Having considered the relevant and material evidence available on record and having taken into consideration the

facts and circumstances of the instant case before us and the interpretation of the provisions of Clause (d) of S. 7(1) of the Protection of Civil

Rights, Act, 1955, the accused/respondent 1 to 6 herein are entitled to an order or acquittal, and the lower Court is correct in having delivered

such an order of acquittal after discussing the evidence, in accordance with law.

There is no infirmity in the judgment of the lower Court. Hence the Criminal Revision Case is dismissed.

Revision dismissed.