Thomas vs Sriramulu Chettiar and Others

David Annoussamy, J.—This is a revision petition against the order of acquittal by one of the victims (P.W.1). The case of the prosecution

was that the victims, viz., Thomas and his wife Annamariyal were members of a Scheduled Caste and that the accused, nine in number, have

formed themselves into an unlawful assembly in order to annoy these two persons and have insulted them. Charges were, therefore, framed u/s

147, I.P.C. and Section 7(l) of the Protection of Civil Rights Act. The trial court by judgment, dated 20th October, 1983, found that the charge u/s

147, I.P.C., was not proved and convicted eight accused, to the exclusion of the ninth one, for an offence u/s 4 of the Act, rejecting the plea of the

accused that the victims were Christians and therefore, were not members of a scheduled caste.

The Appellate Court, viz., the Sessions Court of Ramanathapuram at Madurai, found that the victims were Christians and accordingly held that

they were not entitled to the protection under the Act. This is a finding of fact which cannot be reversed in a revision petition against the order of

acquittal. Learned Counsel for the revision Petitioner has not pointed out any instance of gross miscarriage of justice as the ones listed by the

Supreme Court in C. Krishnaswamy v. State of A.P. AIR 1962 S.C 1783 and Akalahir v. Ramanaram 1974 M.L.J. (Crl.) 168, or any instance

similar thereto.

Learned Counsel for the revision Petitioner however, would point out that the appellate court has committed a grave error of law in not applying

Section 12 of the Act to the facts of the case. As per the learned Counsel for the revision Petitioner, whenever there is a prosecution for an offence

under the Act, there would be a presumption that the victims are members of a Scheduled Caste. But that is not what is embodied in Section 12 of

the Act, which reads as follows:

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.

From a reading of the above text, it will be clear that the presumption is not in relation to the status of the victim, but in relation to the ground on

which the offence was committed. Once it is proved or not disputed that the victim is a member of the Scheduled Caste, if acts, as the case

contemplated for in cases in Section 4 or Section 7(l) of the Act, are committed, the Court has to presume that these acts, like insult or refusal to

access to a shop, were done on the ground of untouchability. Therefore, the scope of presumption is entirely different from what the learned

Counsel would contend it to be.

Further, it is noticed that in this case, though the charge was u/s 7 of the Act, the trial Court has convicted the accused for an offence u/s 4 (x) of

the Act. Learned Counsel for the revision Petitioner would say that the original charge was u/s 7(i)(d) of the Act and that they were convicted for

an offence under Section4(viii) of the Act. The offence u/s 7(i)(d) is insult on the ground of untouchability. The offence u/s 4 (viii) is the

enforcement of disability with regard to occupation of any residential premises in any locality on the ground of untouchability. These are two distinct

different offences. The court cannot convict a person for an offence for which he was not charged, except in the the circumstances mentioned in

Ss.221 and 222, Code of Criminal Procedure The trial Court has not indicated that such circumstances existed and in view of the different nature

of the offences such circumstances obviously do not exist in this case. For that reason also, the conviction imposed by the trial Court was bad. I do

not, therefore, find any reason to interfere with the order of acquittal passed by the appellate Court. This revision petition is dismissed.