Judgment:
ORDER
K. Sreedhar Rao, J.
1. The State has preferred this appeal against the judgment of acquittal rendered in Special Case No. 47/92 on the file of the III Addl. Sessions Judge, Belgaum. The respondent in this appeal along with one Ramanna Timmaji Kulkarni was charge sheeted before the trial Court for committing offences punishable under Sections 353, 323 read with 34, I.P.C. and Section 3(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, referred to as the Act).
2. The case of the prosecution is that on 11-2-1992, at 7.00 a.m., in Basavangalli of Gokak Town, Balappa Kallimani, Katigal Channaya, Yellappa Basarkatti, Lokayya Basavalingaiah Hiremath, Irappa Nagappa Simpri, Shivayogi Shigihalli and Kantappa Badami, all being employees in this Gokak Town Municipality, as public servants in discharge of their duties, had directed the accused not to proceed with the illegal construction of a staircase. The accused said to have abused the complainant and other employees who had visited the spot accusing them that they had come there to demand bribe and the accused 1 is said to have slapped Balappa Kallimani. When the complainant and other employees, Basappa Kallimani, Irappa Simpri and another tried to intervene, they too were assaulted by accused 1 and 2 and when the complainant and Basappa attempted to remove the constructed portion, the accused 1 abused them as 'holeya bastards'. The complainant and other employees returned to the office and a complaint was lodged before the police on the same day at 11.15 a.m.
3. In the course of investigation, a case is made out that prior to the incident, the Municipality had received a complaint about the illegal construction made by the accused and he was asked not to proceed with the same and to give an explanation, for which the accused had not given any reply. On the date of the incident, the Chief Officer had directed the aforesaid officials to go to the spot and ascertain the correctness of the information and during the course of such inspection by the aforesaid employees, the offences are alleged to have been committed against them while discharging their duties as public servants and also that the accused abused the complainants, Balappa, Basappa Kariappa Karimani by caste name as 'holeya bastards' and thus, the accused are alleged to have committed the offences punishable under Section 3(ii) of the Act. (The mention of this provision makes no sense since the description of the Section is totally incorrect and it does not indicate to which provision it relates to in the Act).
3A. Before the trial Court, the prosecution examined as many as ten witnesses and nine documents were exhibited. PW-1 is a main witness to the scene of the offence; PW-2 is one Appasaheb Balappa Badanikai who was the Chief Offices of the Gokak Municipality at the relevant point of time; PW-3, Balappa Kallimani, is the sweeper working in the Municipality; PW-4, Basappa Kallimani is also a sweeper; PW-5, Lokayya Baslingayya Hiremath, is working as Health Inspector in the same Municipality; PW-6, Irappa Nagappa Simpri is also a sweeper; PW-7, Shivayogi Rudrappa Shigihalli is the Engineer working in the Gokak Municipality; PW-8, K. D. Kulkarni is the Head Constable who registered the First Information Report; PW-9 is the Police Inspector who took up the effective part of the investigation; and PW-10 is the succeeding Inspector who completed the investigation as per the charge-sheet.
4. The trial Court, after appreciating the oral and documentary evidence, found the accused not guilty and acquitted them. Being aggrieved, the present appeal is filed.
5. After hearing the counsel for the appellant-State, I do not find any merit in the appeal to interfere with the finding of the trial Court on the questions of fact. It is the allegation made against the accused that when the employees of the Municipality had gone to inspect the alleged illegal construction of the staircase, they were prevented from discharging their official duties as public servants and were assaulted. Incidentally, two of the employee in the team of inspection belong to Scheduled Caste. It is alleged that the accused abused them by caste name with an intention to humiliate them as members of the Scheduled Caste and have thus committed offences under Section 3(1)(x) of the Act.
6. In respect of the charge relating to the offences under Sections 353 and 323,I.P.C., the evidence placed on record is highly discrepant and unconvincing to accept. There is substantial prevarication and improvements made in the course of evidence by way of embellishment. Ex-facie none of these employees who visited the spot had jurisdictional right to inspect/check the alleged illegal construction. The Chief Officer, PW-2, who is the authority, for the first time, has spoken in his evidence that on the same day, one Bawadekar who had given a petition earlier, informed him about the illegal construction and, therefore, he directed CW-7 (examined as PW-5), CW-9 (examined as PW-7) and CW-6 (not examined) to go to the spot and verify. The rest of the officials who went to the scene had gone without any instructions or any delegated authority. The other employees are all sweepers and it is definitely not part of their normal duty as employees of the Municipality to detect/ check/inspect the alleged illegal construction activity. In cross-examination, PW-2 admits that when the statement was recorded before the police, he had not informed this incident of the complainant, Bawadekar, informing him earlier on the said date and about his giving instructions to CWs-6, 7, 9 to go to the spot and verify. This version perhaps is placed on record for the first time through the evidence of PW-2 before the Court. The omissions made by PW-2 in not mentioning these aspects in the statement recorded by the Investigating Officer appears to be very grave and it shakes the veracity of the evidence of PW-2 to a very great extent. Therefore, the theory of the prosecution that PWs-3, 4 and 6 had gone to the scene along with PWs-5 to 7 in discharge of their duties as public servants cannot be accepted as it was not a part of their duty to have accompanied PWs-5 and 7. Even the deputation of PWs-5 and 7 on the oral instructions of PW-2 becomes highly doubtful in view of the answers in the cross examination of PW-2, wherein it is only for the first time in his evidence such theory of delegating PWs-5 and 7 to the spot is deposed. The trial Court is right in appreciating this contradiction in a proper way while disbelieving the theory that the employees had gone to the scene in discharge of their official duties.
7. Although PW-7 is working as an Engineer, he does not have the authority of his own to check/detect cases of illegal constructions. It is only on the directions of the Chief Officer he is said to have visited the spot to verify the alleged illegal constructions.
8. It is the evidence of the prosecution that when PWs-3, 4 and 6 tried to prevent the construction, they were assaulted. However, their presence at the spot as public servants of the Municipality was not at all warranted. Assuming for a moment that there was any assault, it would not be in interference of the discharge of their public duty, since the prosecution has failed to show that those officials who went there had gone with the valid authority of preventing the alleged illegal construction.
9. On the question of commission of the offence under Section 3(l)(x) of the Act, it is essential to show that the accused is not a member of Scheduled Caste/Scheduled Tribe and that the victims are the members of Scheduled Caste/Scheduled Tribe and that the accused, intentionally knowing that the victims belonged to a member of Scheduled Caste, insulted or intimidated them as being members of the Scheduled Caste. If the said ingredients are not made out, the question of commission of the offence under Section 3(1)(x) of the Act does not arise at all.
10-11. In the instant case, although some material is produced to show that PWs-3, 4 and 6 are members of Scheduled Caste, from the evidence, it does not disclose that accused 1 knew about that fact prior to or at the time of the incident. In the absence of knowledge on the part of the accused that the victims are members of Scheduled Caste, the question of intention to insult or intimidate the victims as members of the Scheduled Caste does not arise at all. Thus, there has been a total failure on the part of the prosecution to prove all the ingredients of Section 3(1)(x) of the Act as observed above. Therefore, in my view, the trial Court was justified in holding that the accused is not guilty of the offence punishable under Section 3(1)(x) of the Act.
12. Besides, the manner of lodging the First Information Report, if considered, there appears to have been a lot of manipulation. The senior-most officer of the team is not the complainant. It is a sweeper of the Municipality who has no business to do with the checking or preventing of the alleged illegal construction and who is incidentally a member of the Scheduled Caste, appears to have been chosen as the complainant for lodging the First Information Report before the police, perhaps with the view to see that the alleged offence under Section 3(1)(x) of the Act could be highlighted with intensive vigour to create a sort of prejudice against the accused. In fact, a responsible officer of the team should have lodged First Information Report. That apart, except the interested witnesses, no other independent witness is cited and examined by the prosecution, although the evidence of PW-6 discloses that there were a number of persons in the locality who had witnessed the incident.
13. All the discrepancies noted above do create a serious doubt about the veracity of the version of the prosecution. In that view of the matter, the finding given by the trial Court does not call for interference and. the order of acquittal has to be upheld. Accordingly, the criminal appeal is dismissed.