Ramswaroop and Others vs State of M.P.

P.K. Jaiswal, J.

1.Being dissatisfied by the judgment dated 26.9.1997 passed by the learned Special Judge under SC & ST (Prevention of Atrocities) Act, 1989, in special case No. 89/97, thereby finding the appellants guilty of the offence punishable u/s 3(1)(x) of SC & ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''the Act'') convicted each of them for six months RI with fine of Rs. 500/- each, in default of payment of fine each shall suffer additional RI for one month, the appellants have preferred this appeal. Facts of the prosecution case as unfurled before the trial Court were that the complainant Gyarsibai belongs to Bhil Caste and she being a member of Schedule Tribe, on 22.6.1995 at about 4.00 PM in the evening when she was sitting in her house along with her family members at that time, appellants-accused persons came there, in the house and after entering in the house they started saying that "Bhildo Ki Kya Aaukat Hai" and asked them to come out of the house and deliver the possession of the house to them. They after saying so started throwing the belongings of the complainant. They also started ''Marpeet'' and abused her and when her younger brother Sattu, came to her rescue, the appellant No. 2 Shankarlal, started abusing her by saying ''Bhilne'' and when her sister Badamibai, came to her rescue, appellant No. 3 Dashrath, started abusing her and also caused injuries to her. Thereafter, they forcefully took possession of the house. The matter was reported by the complainant-Gyarsibai, on 23.6.1995 at 11.00 AM vide Exhibit P/5. She was medically examined. She also filed her caste certificate after obtaining it from Grampanchayat -Palsoda. On the basis of FIR spot map was prepared and after investigation challan was filed against them u/s 3(1)(x) of the Act. 3.

The trial Court after appreciation of the evidence of PW3 -Gyarsibai, PW5 - Badamibai, PW6 - Lalibai and PW8 - Bhalibai, Sarpanch of Grampanchayat Palsoda, came to the conclusion that complainant was insulted and intentionally humiliated being a member of Schedule Tribe and convicted them u/s 3(1)(x) of the Act by the impugned judgment as afore noted.

It is submitted by the learned counsel for the appellants that there is delay of one day in lodging the FIR. He also submitted that PW4 - Sattu and PW7 - Ratanlal, have not supported the case of the prosecution. He also drew my attention to the statements of PW5 and PW6 and submitted that as per the statement of PW5 the only allegation against the appellants that they have stated the following version "Bhilne Iss Makaan Mein Mat Rehena " and as per stated of P W6 they called her has ''Bhilne'', which does not amounts to the intentionally insulting with intend to humiliate the member of Schedule Tribe and prays that the impugned judgment be set aside and appellants be acquitted from the alleged offence.

On the other hand, learned Dy. Government Advocate drew my attention to the statements of complainant PW3, PW5 and PW6 and submitted that on consideration of the whole statements of the above witnesses prima facie offence has been committed by the appellants u/s 3(1)(x) of the Act. He also submitted that learned trial Court after appreciating the evidence on record gave a well reasoned judgment by holding that prima facie offence has been made out against the appellants and no case for interference of the said judgment as prayed by the appellants is made out and prayed for dismissal of the appeal.

The question which arises for consideration in this case is whether prima facie an offence has been committed u/s 3(1)(x) of the Act. Section 3(1)(x) states:-

(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; 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.

The question in this case is whether calling a person "Bhilno Ki Kya Aaukat Hal", "Bhilne Iss Makaan Mein Mat Rehena" & "Bhilne " amounts to intentionally insulting with intent to humiliate a member of the Scheduled Tribe.

On perusal of the Clause (x) of sub Section (1) of Section 3, I am of the view that calling a member of the Schedule Tribe "Bhilno Ki Kya Aaukat Hai", "Bhilne Is Makaan Mein Mat Rehena" & "Bhilne" with intent to insulting or humiliate her in a public place within public view is certainly an offence u/s 3(1)(x) of the Act.

The question whether there was intent to insult or humiliate by using a word "Bhilno Ki Kya Aaukat Hai", "Bhilne Iss Makaan Mein Mat Rehena " & "Bhilne " in a place within a public view is a question for consideration in this appeal.

As per FIR Exhibit P/5 and statement of complainant Gyarsibai PW2, at the relevant time, when the alleged incident took place she was at her house along with her sister Badanbai (PW5), brother Sattu (PW4), Sukhram, Lalibai (PW6) and Ratanlal. PW4 - Sattu has not supported the case of the prosecution. Similarly, PW5 - Madanbai and PW6-Lalibai in their statements deposed that "Bhilne Iss Makaan Mein Mat Rehena" it was the word of ''Bhilne'' and insulted her by saying ''Bhilne'', PW8 - Sarpanch in para 2 of her cross examination very categorically stated that she issued a caste certificate of the complainant Gyarsibai as she belongs to Schedule Tribe. From the material available on record, it is evident that the report (Exhibit P/5) was lodged on 23.6.1995 and there is a delay in lodging the FIR. The report is delayed and no plausible explanation has been offered on behalf of the prosecution to condone such delay.

To attract Section 3(1)(x) of the Act, the intentionally insults or intimidates must be at the place in public view. According to complainant, this incident took place in her house. No evidence is adduced as to how the place of occurrence is within the public view, therefore, this essential element to prove the offence u/s 3(1)(x) of the Act is missing in the case.

Learned counsel then contended that the alleged act was not committed in a public place and hence does not come within the purview of section 3(1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression ''public place'', but instead the expression used is in any place within public view''. In my opinion there is a clear distinction between the two expressions.

In the case of J. Sumaria Vs. Endluri Aseerwadamma, 2003 (1) ALD (Cri) 252 (AP), it has been held that where the petitioner was alleged to have abused in his chamber, the complainant, on the ground of caste. But there was no public in the chamber and it was not within the public view. As such, no offence could be said to be committed u/s 3(1)(x) of the Act.

In the case of K. Padma Reddy Vs. Station House Officer and Others, it has been held that where FIR was registered on a complaint for abusing a person in the name of caste by the petitioner. Held that every utterance which came within the purview of provision of Act by itself was not offence, unless it was made in a place within the public view. In the case of K. Padma Reddy (supra), scene of offence was Chamber of Municipal Commissioner. As there was no allegation to the effect that said utterance was made ''within public view'', therefore, offence could not be said to have been committed by the petitioner.

To attract this section the alleged insult or intimidation is to be done with intent to humiliate a member belonging to that particular community. Merely call by caste is not sufficient to constitute the offence.

It has been alleged in the FIR that Gyarsibai, the first informant was insulted by the appellants by calling her ("Bhilno Ki Kya Aaukat Hai", "Bhilne Iss Makaan Mein Mat Rehena" & "Bhilne ") when she was at her house. From the above, it is clear that the alleged offence has been committed inside a house and was not within the public view. Even if a remark is made inside a house, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. A place can be a private place, but yet within the public view. A public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.

Learned counsel for the appellants however, submitted that even if allegations made in the FIR is to be treated as correct, does not attract Section 3(1)(x) of the Act. Learned counsel for the appellants submits that in the FIR, it is mentioned that when the alleged incident took place her brother Sattu, her sister Badamibai, Lalibai, Sukhram and Ratanlal were there. Sukhram was not examined. Ratanlal and Lalibai have deposed that they have actually said "Bhilne Is Makaan Mein Mat Rehena " & ''Bhilde'' and hence they did not said anything wrong.

The Apex Court in the case of Swaran Singh and Others Vs. State through Standing Counsel and Another, considering the meaning of the expression ''in any place within public view'' observed as under:

It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a ''Chamar'') when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression ''place within public view'' with the expression ''public place'' A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.

However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the FIR. to show that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant No. 1.

However, a perusal of FIR shows that appellants did not used these offence words in public. There is nothing in FIR any member of public was present when the appellants uttered these words or that the place where uttered them was a place which ordinarily could be seen by the public. Hence, in my opinion no prima facie offence is made out against appellants.

Thus, from the foregoing discussion, it can be said that the prosecution has failed to prove all the essential ingredients require to prove the offence u/s 3(1)(x) of the Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act, 1989 and, therefore, the finding of the guilt which erroneous, which deserves to be set aside and appellants are entitled for acquittal. Consequently, the appeal succeeds and is allowed. The conviction and sentence awarded by the trial Court u/s 3(1)(x) of the Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act, 1989 are hereby set aside. The appellants are acquitted from the charge u/s 3(1)(x) of the Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act, 1989. The appellants are on bail. Their bail bonds are discharged. They be set at liberty.