State vs Krishna

The respondent ""hereinafter referred to as the accused"" who belongs to a Brahmin community criminally assaulted the complainant's wife Mst.

Bhagan, who belongs to a chamar community, and dragged her on the mud and made her half naked and thus out ragged her modesty when on

27.7.1976 she was taking a bath at a Public spring in village Takoli. The said incident took place on account of the fact that the accused got

annoyed that as to why she touched the water of such sprint and got it polluted.

In this regard a case Under Section 4/6 of the untouchability Offences Act and U/S 354 of the RFC was registered against the accused by the

police, who, on completion of the investigation, was challaned in the court of learned Chief Judicial Magistrate, Udhampur. After presentation of

the challan, the accused was charged for an offence Under Section 323 RFC and U/S 4/6 of Untouchability Offences Act, 1955, and, on the trial

of the case, the accused stood acquitted of the said charge by the trial court.

Aggrieved of the said order of acquittal, the prosecution filed an acquittal appeal in this court as far back as in the year, 1979, and challenged it

on the ground that the ingredients of the offence Under Section 4/6 of the Untouchability offences Act and Section 354 RFC were fully proved

beyond any shadow of doubt against the accused. The delay in lodging of the FIR was fully explained and the court below has erred in holding that

there was unexplained delay in filing of the FIR. The observation of the trial court holding that, as similar witnesses were not cited both in the

challan and the complaint, therefore, the witnesses examined for the trial of the accused on the basis of the police challan were not the real

witnesses was not correct. It was submitted that the list of the prosecution witnesses, which was given in the complaint was not conclusive and a

further list could be provided within the contemplation of Section 252 (2) Cr.P.C. It is all along the quality and not the quantity of the witnesses to

be valued for the purposes of deciding of a Criminal case, and the statements of the witnesses cannot be brushed aside on account of the fact that

they bear relationship with the complainant.

Heard learned counsel for the parties, also bestowed my thoughtful consideration over the record on the file.

On the perusal of the file it is found that the complainant filed a complaint in the court of Chief Judicial Magistrate, Udhampur, on 28.7.1976

after the occurrence had taken place on 27.7.1976 at 6 P.M. He did not cause any delay in lodging of the prosecution against the accused, with

regard to which he had filed an application with the police as well, which could not result into any action by the Police, till the complainant referred

the matter to the higher authorities, as a result of which, a case got registered against the accused with the police station on 18.10.1976. On

completion of the investigation, a challan was filed against the accused in the court of Chief Judicial magistrate, Udhampur, on 3.11.1976. Both the

challan and the complaint were bracketed together by the trial court the complaint were bracketed together by the trial court observing that as the

complaint pending in the trial court related with regard to the same incident, with regard to which challan as filed as such, the complaint was placed

on the record of the challan. On perusal of the interlocutory order dated 22.1.1977 recorded on the trial court file, it becomes apparent that the

accused was charged for an offence Under Section 4/6 of the Untouchability Offences Act of 1955 (which is now known as Protection of Civil

Rights Act, 1955). The trial court delivered the judgment on 23.10.1978, and acquitted the accused out of the charge mainly on the ground that as

instead of Nanaku S/O Labu, Shiv Ram S/O Beli Ram and Kaku S/O Jagatoo cited as witnesses in the complaint, some Faquir, Mst. Rano,

Lachan and Gopalu have been examined as witnesses in the case. Therefore, they were not the real witnesses of the occurrence, and were not

credit worthy for being related to the complainant. The learned trial Magistrate has observed in his judgment that the complainant first tried to lodge

a case with the police on 27.7.1976, and the same was not registered by the Police. Therefore, he filed a complaint in the court of law and also

made rigorous efforts to get the case registered against the accused, with respect to which, a representation about the incident was made by him by

registered post to the Ministers in the Government and, on their intervention, the case got registered against the accused on 18.10.1976.

I feel, that the complainant was greatly upset by the action of the accused, that he has scolded and dragged his wife on the mud on the excuse

that as to why she had come to public spring and had a bath there and cleared mud from her body. This act of high handedness by a member of

brahmin community against a lady of low cast, had put the complainant at SIC and in despair that he persistently followed the matter with the

higher authorities to the Government till he succeeded in getting a case registered against the accused and pursued the matter seriously to get his

grievance redressed by having initiated appropriate proceedings in the court of law. He has remained so much cautious about the matter that on the

very next day of the said incident, he lodged a complaint against the accused in a court of law, because he was not sure that the police would

register a case against the accused, he, therefore, perused the matter with the higher authorities of the Government, so seriously that he left no

option with the police except made them to register a case against the accused, as a result of whichTon completion of the investigation, a case was

filed against the accused before the trial court.

Ordinarily, the trial Magistrate should have dealt with the complaint which was prior in time, and in which some prosecution evidence had

already been recorded, before the challan was filed, and should have bracketed the challan with it. He, however, joined the complaint with the

challan and proceeded with the challan, observing that both the cases were related to one and the same incident. Once he did so, he was duty

bound to call for all the witnesses, who were cited as witnesses in both the cases. In case, he was, of the opinion, that some persons shown as

witnesses in the complaint were not cited as witnesses in the challan, he, while exercising his powers Under Section 252 (2) of the Cr.P.C. could

call for such witnesses of his own, whose names were mentioned in the complaint and could not throw away the case on the ground that such

persons did not figure in the list of witnesses cited by the prosecution. He has dismissed the prosecution case as not proved, simply on the ground

that, as some of the witnesses mentioned in the challan bear close relationship with the complainant and the victim, and were not shown as

witnesses in the challan, therefore, no case was made out against the accused.

It was imperative upon the trial magistrate to call for such witnesses listed in the complaint and record their evidence as well, and, thereafter, he

was at liberty to come to a conclusion as to whether a case was made out against the accused, and he could be convicted or not? As he has not

done so, therefore, the judgment and order passed by the learned trial Magistrate, by which he has acquitted the accused is vitiated, and set aside.

The case is remanded to him for fresh disposal, with a direction that he should call for all the left over witnesses cited in the complaint, and record

their evidence in accordance with law. In that regard he should afford an opportunity to the accused as well to lead evidence in defence, if any, and

then hear both the parties afresh and dispose of the matter on its merits.