Partly allowed

Sudhakar S/O Vithobaji Waghmare v. State of Mah. Thr. Pso Ps Sindi (Rly) Tah.Seloo Dist.Wardha and Another

Bombay HC4 Apr 2024APEAL/226/2022

Case brief

AI extract

What is this about?

The High Court of Nagpur partly allowed an appeal challenging the rejection of a discharge application. The court held that basic ingredients for offences under the Atrocities Act were absent due to lack of caste abuse allegations in the initial report. Consequently, the accused was discharged for Atrocities offences but the appeal against IPC charges was dismissed.

What did the court decide?

The appeal is partly allowed. The accused is discharged of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

Sudhakar S/O Vithobaji Waghmare Vs State of Mah. Thr. Pso Ps… — Caste Atrocities | Bombay HC (2024)

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2024:BHC-NAG:3956

Judgment

204 apeal226.22

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

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CRIMINAL APPEAL NO.226 OF 2022

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Sudhakar s/o Vithobaji Waghmare,
aged about 58 years, occupation : business,
r/o Sindhi (Rly.), tahsil Seloo,
district Wardha. ….. Appellant.

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:: V E R S U S ::

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1. State of Maharashtra,
through PSO Police Station
Sindi (Rly.), tahsil Seloo, district Wardha.

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2. Sau. Vidya Bharat Kodape,
aged about 35 years, occupation : business,
r/o Shivanphal, Samudrapur,
tahsil : Samudrapur, Wardha. ….. Respondents.
=================================
Shri J.R.Kidilay, Counsel for the Appellant.
Smt.S.P.Giratkar, Counsel appointed for Respondent No.2.
Shri A.B.Badar, Additional Public Prosecutor for the State.
=================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 19/03/2024
PRONOUNCED ON : 04/04/2024

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JUDGMENT

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1. By this appeal, under Section 14-A(2) of the Scheduled

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Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

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1989 (the Atrocities Act), the appellant (the accused) has

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challenged order passed below Exhibit-14 by learned Additional

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Judgment

204 apeal226.22

Sessions Judge, Wardha in Special (Atrocity) Case No.93/2020
rejecting discharge application of the accused.

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2. Heard learned counsel Shri J.R.Kidilay for the accused;
learned counsel Smt.S.P.Giratkar appointed for respondent No.2,
and learned Additional Pubic Prosecutor for the State.

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3. Facts in a nutshell runs as under:

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On 9.6.2019, respondent No.2 Vidya Bharat Kodape (the

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complainant) approached Sindi Police Station, district Wardha
and lodged a report that on the said date, there was a quarrel

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between her husband and the accused on account of amount
Rs.1500/- which was due against her husband who had
purchased iron pipes from shop of the accused. It is alleged that
the accused abused her and her husband and threatened them.
On the basis of the said report, initially, N.C.Report is lodged.
Regarding the said incident, again, on 11.6.2019, she lodged a
report alleging that on account of Rs.1500/-, she and her
husband were abused on their caste and the accused outraged
her modesty. On the basis of the said, Crime No.117/2019 was

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Judgment

204 apeal226.22

registered under Sections 354-A(1)(i), 504, 506, 294, and 323
read with 34 of the Indian Penal Code and under Section 3(1)
(w)(i), 3(1)(w)(ii), and 3(2)(va) of the Atrocities Act.

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4. After investigation, the Investigating Officer filed
chargesheet against the accused.

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5. The accused filed an application below Exhibit-14 for
discharge on ground that the husband of the complainant had
purchased three steel rods on credit from his hardware shop
with an assurance that he would pay amount shortly. However,
the amount was not paid. On 9.6.2019, when the accused was
proceeding with his wife towards railway station for attending
marriage, at that time, he noticed the husband of the
complainant and, therefore, he enquired with him about the
amount due. At that time, the complainant, who was
accompanied by her husband, caught the accused and assaulted
him with fist blows and abused him and, therefore, he along
with his wife approached Sindi Railway Police Station, district
Wardha and lodged a report on which the police registered
N.C.Report. It is further contended that the complainant has

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Judgment

204 apeal226.22

also approached the police station and lodged the report alleging
that the wife of the accused abused her and lodged a
counterblast report to the report lodged by the wife of the
accused. Initially, there was no allegation that the accused
abused her and her husband on her caste. Subsequently, after
two days, i.e. 11.6.2019, after thought, allegations are made
that the accused abused her and her husband on her caste and
also outraged her modesty. In earlier report, there is no single
adverse allegation against the accused, but only to give colour of
abuses on caste, the said allegations are made. The alleged
incident is witnessed by witnesses who have also not stated that
earlier the accused had outraged her modesty and abused on the
caste. Thus, no prima facie case is made out against the accused
to frame charge against him. In fact, neither statement of the
complainant nor statements of witnesses disclosed about abuses
on caste or allegation of outraging modesty. Thus, there is no
material to frame charge against the accused and, therefore, he
filed an application for discharge which is rejected by learned
Judge below by passing a cryptic order.

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Judgment

204 apeal226.22

6. Learned counsel for the accused reiterated the said
contentions and also submitted that for framing charge against
the accused, there should have been prima facie material
attracting ingredients of the offence, which are not made out. He
stated that if after consideration and hearing, the Judge is of
opinion that there is a ground for presuming that accused had
committed an offence, the concerned Judge has to frame charge.
Thus, for framing charge, there should have been sufficient
material. However, here, in the present case, prima facie
material, that exact abuses uttered by the accused are not
narrated by the complainant or her husband or witnesses, who
witnessed the incident. Merely because she married with a
person of a Scheduled Caste is not sufficient to show that she
belongs to the Scheduled Caste.

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7. In support of his contentions, learned counsel for the accused placed reliance on following decisions:

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(1) Criminal Application No.115/2019 (Kishor s/o
Chhagan Ghate and ors vs. The State of Mah., thr. PS
Paithan, district Aurangabad and anr) decided on
8.4.2019 by this court at Aurangabad Bench;

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Judgment

204 apeal226.22

(2) Rajendra Shrivastava vs. State of Maharashtra,
reported in 2010(2) Mh.L.J. 198;

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(3) Satish s/o Harishchandra Yatare vs. State of Mah.,
reported in 2019 ALL MR (Cri) 1642, and

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(4) Yogesh @ Sachin Jagdish Joshi vs. State of Mah.,
reported in 2008 ALL MR (Cri) 3222 (SC).

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8. Learned counsel appointed for respondent No.2 and
learned Additional Public Prosecutor for the State supported the
order of the lower court and submitted that reports filed by the
accused and the complainant sufficiently shows involvement of
the accused in the alleged incident.

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9. Chapter XVIII of the Code of Criminal Procedure lays

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down for trial before a Court of Sessions in pursuance of a
commitment of the case under Section 209 of the Code. Section
227 of the Code contemplates circumstances under which
accused can be discharged at the point of time for framing
charge under Section 228 of the Code. It is provides that upon
consideration of the record of the case and documents submitted

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with police report, and after hearing the submissions of the
accused and the prosecution, the court is expected to decide

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Judgment

204 apeal226.22

whether there is “sufficient ground to proceed against the
accused” and as a consequence thereof either discharge the
accused or to proceed or to frame charge against him. The
words “not sufficient ground for proceeding against the accused”
appearing in the Section postulate exercise of judicial mind in
order to determine whether case for trial has been made out by
the prosecution. While doing this exercise, the Judge has the
power to sift and weigh the material for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out. The test to determine a prima face
case depends upon the facts of each case and in this regard it is
neither feasible nor desirable to lay down a rule of universal
application. If two views are equally possible and the Judge is
satisfied that the evidence produced before him gives rise to
suspicion only as distinguished from grave suspicion, he will be
fully within his right to discharge the accused. At this stage, he
is not to see as to whether the trial will end in conviction or not.
The broad test to be applied is whether the materials on record,
if unrebutted, make a conviction reasonably possible.

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Judgment

204 apeal226.22

10. In the light of the aforesaid principles, if facts of the
present case are considered, it would show that regarding the
incident dated 9.6.2019, two N.C.Reports are filed. One report
is filed by the wife of the accused alleging that she and the
accused were assaulted by the complainant and her husband on
9.6.2019. The complainant has also lodged report with the
same allegation. Admittedly, on 9.6.2019, she has not alleged
regarding outraging of modesty or abuses by the accused on her
caste. Subsequently, on 11.6.2019, she came with a case that on
9.6.2019 she and her husband were abused and assaulted by the
accused and his wife. Insofar as allegation regarding abuses on
caste are concerned, the exact abuses are not narrated by her. As
per the spot panchanama, the alleged spot of the incident was
shown by the complainant which is on the railway station road.
From the said spot of the incident, the railway station is at 900
feet. The incident occurred near one pan stall. The alleged
incident took place at a public place and was witnessed by
Rajendra Durgaprasad Tiwari, Ashok Vitthalrao Thakare, and
Udaybhan Mahadeorao Sapate. None of these witnesses stated
that the accused abused the complainant and her husband on

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Judgment

204 apeal226.22

her caste. They have also not supported the fact regarding
outraging of modesty. The complainant and her husband have
also not stated the exact abuses hurled by the accused.

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11. Perusal of the First Information Report shows that the
complainant has not stated that the accused belongs to caste
other than castes falling under the Scheduled Caste and the
Scheduled Tribe and the accused was knowing that she belongs
to the Scheduled Caste or the Scheduled Tribe. She stated in her
report that when she along with her husband was travelling
towards railway station, the accused demanded Rs.1500 and
abused her and her husband on her caste and outraged her
modesty. The said facts were not narrated in the earlier report.

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12. Thus, it is clear that the basic ingredients of the offence
are absent in the present case. Mere statement of the
complainant, which is not supported and was not initially stated
by her pertinently in the First Information Report, does not
mention that any attempts were made by her on the date of the
incident to lodge report alleging abuses on her caste or
outraging the modesty.

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204 apeal226.22

Judgment

13. It is well settled that at this stage the material collected
by the Investigating Officer is not to be scanned. However, it is
to be looked into and all attending facts and circumstances
require to be taken into consideration. If prima facie material
and all necessary ingredients for constituting offence are absent
in the First Information Report, and material collected during
course of investigation, and if there are no sufficient grounds for
proceeding against the accused, and after application of judicial
mind, if conclusion is only that case for trial has not been made
out, accused can be discharged. The sufficient ground is
required to proceed against the accused and as a consequence
thereof either charge is to be framed against the accused or the
accused is to be discharged.

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14. In the light of the aforesaid principles, admittedly, no
offence is made out against the accused to attract provisions of
the Atrocities Act. Whereas, offences under Sections 354-A(1)
(i), 504, 506, 294, and 323 read with 34 of the Indian Penal
Code are made out against the accused. As such, the appeal

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204 apeal226.22

Judgment

deserves to be allowed partly and, therefore, following order is
passed:

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ORDER

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(1) The criminal appeal is partly allowed .

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(2) The accused is discharged of offences under provisions of the

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Atrocities Act.

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(3) Fees of learned counsel appointed for respondent No.2 are quantified and the same be paid to her as per Rules.

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The appeal stands disposed of.

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 (URMILA JOSHI-PHALKE, J.)

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!! BrWankhede !!

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Sudhakar S/O Vithobaji Waghmare v. State of Mah. Thr. Pso Ps Sindi (Rly) Tah.Seloo Dist.Wardha and Another

Case brief

What is this about?

What did the court decide?

Sudhakar S/O Vithobaji Waghmare v. State of Mah. Thr. Pso Ps Sindi (Rly) Tah.Seloo Dist.Wardha and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

Coram

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