Nana vs State of Maharashtra

A.R. Joshi, J—Heard rival submissions on this appeal preferred by the appellant-original sole accused challenging the judgment and order of conviction dated 28.10.1999 passed by the Additional Sessions Judge, Washim.

By the impugned judgment and order, the present appellant-accused was convicted for the offence punishable under Section 436 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for one year. The appellant-accused was acquitted for another offence punishable under section 3(2)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

There is no appeal preferred by the State challenging the acquittal for the offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, the appellant-accused has challenged his conviction in the present appeal.

The case of the prosecution in nutshell is that in the afternoon of 25.4.1996, the present appellant set on fire eight huts of sugarcane cutting labourers on the ground that their Mukardam was not ready to do the work of sugarcane cutting from the field of the appellant-accused prior to the work of other agriculturists. According to the prosecution, the incident occurred at about 2.00 pm. On 25.4.1996, PW 2 Meerabai, wife of the first informant PW 1 Dadarao S/o. Govind Aale, was alone at her hut, which was the temporary abode created by the sugarcane cutting labourers. That time she saw appellant-accused coming to the spot and setting on fire all the huts including her hut. According to the case of the prosecution and as transpired from the spot panchanama, which is an admitted document and which is Exh. 16, found that all the huts, which were set on fire, were in the field of one Babarao Shriram Thakare, resident of Gawha, which is the place within the boundary limits of village Vitholi. At the time of the incident, the sugarcane labourers including their in-charge Mukardam PW 3 Bhagwan S/o. Tukaram Chavan and first informant PW 1 Dadarao, were working in the same village Vitholi, but in the another field, cutting the sugarcane for one sugarcane factory. PW 2 Meerabai, wife of first informant, after witnessing that accused had set the said huts on fire, rushed to the agricultural field, where the other workers were doing the work. On knowing the incident, they all rushed and ran towards their huts, but in the meantime, all the huts were completely burnt and all the belongings of these labourers were destroyed. On that evening, a written complaint was lodged (Exh. 10) by PW 1 Dadarao, husband of eyewitness woman. It was lodged with Manora Police Station, in which, it is specifically mentioned that the total loss for the ten families was about Rs. 1,03,000/-. On the basis of said written complaint, formal First Information Report form was taken down on that evening and offence was registered against the present appellant-accused for the offence punishable under Section 436 of the Indian Penal Code and apparently for the offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, as initial charges were such, as mentioned in the First Information Report, which is Exh. 15. At the time of framing of the charge, the trial Court took care and framed the charge (Exh. 6) for the offence punishable under Section 436 of the Indian Penal Code and for the offence punishable under Section 3(2)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

During the trial, total six prosecution witnesses were examined. There was no defence witness. It is an admitted position that investigating officer is not examined. It is further an admitted position that Police Head Constable PW 5 Ramdas S/o. Raghoji Baidukar recorded the First Information Report on the written complaint of PW 1 Dadarao. It is also an admitted position that PW 2 Meerabai is the only alleged eyewitness to the incident of burning of all the huts. It is also an admitted position that last prosecution witness PW 6 Anil S/o. Haribhau Thombare, a panch, did not support the case of the prosecution. He was the panch allegedly on the recovery of the matchbox at the instance of the present appellant-accused and such recovery was allegedly done on 29.4.1996, after the arrest of the accused on 26.4.1996.

Firstly, it is argued and brought to the notice of this court that once the charge under section 3(2)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been levelled against the present appellant-accused, the investigating officer should have been by an officer of the rank not below than the Deputy Superintendent of Police. This is a mandate of law as per the rules framed under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said Act provides for framing of the Rules and Rule 7 of those rules provides that an offence under the Act shall be investigated by the Officer not below the rank of the Deputy Superintendent of Police. Such Investigating Officer has to be appointed by the State Government or Director General of Police or Superintendent of Police, after taking into account the past experience, ability and sense of justice, implications of the case and ability to investigate the offence along the right lines within the shortest possible time, but in the present case, the investigation was not carried out by such designated officer as contemplated by Rule 7. As such, on this count itself, in the opinion of this Court, the said investigation vitiates. When this aspect brought to the notice by the learned A.P.P. for the State, learned A.P.P. stated that, in fact, the charge for the offence punishable under section 3(2)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has not been proved and the appellant-accused was acquitted of the said charge and as such, it is not of much importance, whether the investigation was carried out by the designated officer or the officer lower than the rank of the Deputy Superintendent of Police. In the considered opinion of this Court, whether or not, there is a acquittal or conviction for the offence punishable under the specific sections of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the requirement of law is investigation by specified officer not below the rank of the Deputy Superintendent of Police, when the investigation is in the matter, where the offence charged is under the said Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. When this is the legal requirement, then definitely the argument advanced on behalf of the State cannot be accepted, as it was insignificant, who conduct the investigation, when there is an acquittal for the offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

Apart from the above, coming to the appeal at hand challenging the judgment and order of conviction for the offence punishable under Section 436 of the Indian Penal Code, on the backdrop of the above referred facts as detailed above, it is to be seen, whether the substantive evidence of the sole eyewitness PW 2 Meerabai is reliable to be accepted and to place the conviction on its basis. Nowhere in the substantive evidence of this prosecution witness, it is brought on record either by the prosecution or by the accused, as to what was the distance between the actual spot of offence i.e. where the huts were set on fire and the agricultural field where all other labourers were working. This is important as it is the case of the prosecution that PW 1 Dadarao, PW 2 Meerabai and PW 3 Bhagwan, after getting the information from PW 2 Meerabai as to the appellant-accused set the huts on fire, they rushed to the spot by running and found out that the huts of all the ten families were completely gutted, thus causing complete destruction of the property including their utensils, photographs and other articles and even clothing etc. According to the case of the prosecution, as per spot panchanama Exh. 16, all the huts were situated at the property of Babarao Shriram Thakare, whereas all the prosecution witnesses namely PW 1 Dadarao, PW 2 Meerabai, PW 3 Bhagwan and PW 4 Ankush have stated that their huts were on the property of the present appellant-accused and they were set on fire. This discrepancy has not been cleared by the prosecution though there was opportunity for the learned A.P.P. then conducting the trial to seek for the examination or for the re-examination of the witnesses so as to clarify as to the huts were situated on whose property. Though this aspect has been brought to the notice of the trial court on behalf of the accused, during the trial and the arguments, this aspect was brushed aside lightly by the trial court mentioning that it does not go to the root of the matter. On the contrary, it should have been looked into by the trial court as to clarification from any of the witness for coming out of the discrepancy.

Moreover, the entire case of the prosecution was based only on the substantive evidence of PW 2 and according to her evidence, accused had given her threats of setting their huts on fire, as these labourers are not doing a work of sugarcane cutting and then he set the huts on fire and, thereafter, she went to her husband PW 1 Dadarao working in another field and narrated the incident to him and other workers and other workers, including her husband, then rushed to the spot and saw that all the huts were completely destroyed by fire. Definitely, this episode of burning the entire huts could not have happened within few minutes and it must have taken some time. However, there is nothing on record to show, except the evidence of PW 2 Meerabai, that how the incident occurred and under these circumstances, the trial court should have looked this aspect with much gravity than lightly brushing aside the discrepancy brought to the notice of the court on behalf of the accused during the trial. This is more so, as mentioned earlier, when the case of the prosecution is that the place of the huts not at the field of the accused, but at the field of said Babarao Shriram Thakare. In any event, in the opinion of this court, the trial court had ignored this aspect and had erred in coming to the conclusion that the substantive evidence of PW 1 Dadarao is trustworthy and clinching. Also erred in coming to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt.

Considering the effect of substantive evidence and mainly the answers given by the prosecution witnesses i.e. PW 1 Dadarao, PW 2 Meerabai, PW 3 Bhagwan and PW 4 Ankush in their examination-in-chief and mainly on account of non-examination of the investigating officer and no clarification as to the discrepancy leading to the root of the matter and due to the investigation carried out not by the officer competent to carry out the investigation under the guidelines of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, in the opinion of this court, the present appeal must succeed and the same is accordingly allowed. Hence, the following order:

The impugned judgment and order dated 28.10.1999 is quashed and set aside. The conviction of the appellant for the offence punishable under Section 436 of the Indian Penal Code is set aside. If fine amount is already paid, the same shall be returned back to the appellant. The bail bond of the appellant stands cancelled.