Dharmadhikari, J.:— This Criminal Revision Application is filed against the decision of the Additional Sessions Judge, Thana, confirming the conviction of the petitioner under section 7(1)(d) of the Protection of Civil Rights Act, 1955 (hereinafter referred to as “the Act”).
2. The prosecution case in short is that the complainant Mukund Krishna Dhule and his cousin uncle Balu Vithu Dhule have lands in village Dahisar, Taluka Basscin, district Thana. Petitioner No. 1 Shantabai was cultivating lands of Balu Vithu Dhule for a long time. During the agricultural season of the year 1977, Balu Dhule gave these lands to the complainant Mukund Krishna Dhule for cultivation. This was not liked by Shantabai w/o Mankya Patil. On 17th July, 1977 when the complainant was carrying out agricultural operations with the help of labourers, Shantabai and Govind Haresh-war Patil, i.e accused Nos. 1 and 2, went to the land, petitioner No. 2 Govind rushed to the complainant Mukund pointed out an umbrella to him and said to him “Mahardya, do not speak more, I will cut you.” Petitioner No. 1 — Shantabai, also said to the complainant, “This Mahardi of Dahisar had gone too high (has become arrogant) and each one of them should be killed”. Thereafter the complainant went to the Police Patil at about 7-0 p.m the same day. On 18th Jul. 1977 the complainant went to a social worker by name Hari-bhau Laxman Jadhav of village Kanhor and gave the report written by the Police Patil on the previous day to him. On that basis a complaint was written by Haribhau Jadhav. Then the complainant went to the police station at Virar and filed the complaint. On the basis of these allegations the accused were prosecuted for the offence punishable under Ss. 7(1)(b) and 7(1)(d) of the Protection of Civil Rights Act, 1955, simpliciter as also with the and of S. 34 I.P.C They were also prosecuted for the offence punishable under S. 504 read with S. 34 as well as S. 506 I.P.C After appreciating all the evidence on record, the learned Magistrate acquitted the petitioners of the offences punishable under S. 7(1)(b) of the Act as also under Ss. 504 and 506 I.P.C He however, convicted them for the offence punishable under S. 7(1)(d) of the Act and sentenced them to suffer R. I, for a period of one month and to pay a fine of Rs. 100/- each, or in default to suffer R.I for 15 days. Against this order of conviction and sentence the petitioners preferred an appeal to the Sessions Court at Thane. The said appeal was heard by the Addl. Sessions Judge, Thane, who ultimately dismissed it. Against this order, the petitioners have preferred the present Revision Application. Initially the matter was placed before the single Judge of this Court, Rele, J. In support of the argument advanced before the learned single Judge, the learned counsel appearing for the accused, placed reliance upon the decision of Kanade, J., in Laxman v. State of Maharashtra (1980 Mah LJ 833) : (1981 Cri LJ 387) (Bom). As the learned Judge found that the question raised was an important one, he referred the present Revision Petition to the Division Bench. This is how the matter has some to be placed before us.
3. Shri Babardesai, learned counsel appearing for the petitioners, contended before us that the conviction of the accused under S. 7(1)(d) of the Act is wholly illegal, as the prosecution has failed to prove that the words uttered by the accused amounted to an insult and the said act of the insult was committed on the ground of untouchability. He further contended that the prosecution has merely proved that the petitioners uttered the word “Mahardya” in combination with other words and mere use of this word, with reference to a person of Scheduled Caste is not enough for a conviction under S. 7(1)(d) of the Act. According to learned counsel under the said provision, the prosecution is further enjoined to prove that these words were used with the necessary mens rea i.e insult, was referable to the preaching and practice of untouchability. According to Shri Babardesai, mere use of the word “Mahardya” is not sufficient for the conviction. He also contended that the presumption under S. 12(1) of the Act can be raised only if it is proved by the prosecution that the words were referable to the preaching and practice of untouchability and unless the said ingredients are proved, no presumption can be raised even under Sec. 12 of the Act. In support of this contention, the learned counsel has placed reliance upon the decision of this Court, in Laxman v. State of Maharashtra (1980 Mah LJ 833) : (1981 Cri LJ 387) (Bom)’.
4. On the other hand, it is contended by Shri Barday, the learned Public Prosecutor, that the only burden upon the prosecution is to prove that an act of insult has been committed with reference to a member of Scheduled Caste and nothing more. Once this is established, the prosecution is entitled to rely upon the presumption under S. 12 of the Act. According to the learned Public Prosecutor, in this particular case, the prosecution has proved beyond reasonable doubt with the and of S. 12 of the Act, that the act of insult constituting the offence was committed on the ground of untouchability and therefore, the Courts below were right in convicting the accused for the offence punishable under S. 7(1)(d) of the Act.
5. For properly appreciating the controversy raised before us, it would be worthwhile if a reference is made to Ss. 7(1) and 12 of the Act.
“Section 7(1) — Whoever
(a) prevents any person from exercising any right accruing to him by reason of the abolition of “untouchability” under Art. 17 of the Constitution; or
(b) molests, injures, annoys, obstructs or causes or attempts to cause obstruction to any person in the exercise of any such right or molests, injures, annoys or boycotts any person by reason of his having exercised any such right; or
(c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practise “untouchability” in any form whatsoever, (or)
(d) insults or attempts to insult, on the ground of “untouchability” a member of a Scheduled Caste.
(shall be punishable with imprisonment for a term of not less than one month and not more than six months, and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees).”
6. Section 12:
“Where any act constituting an offence under this Act is committed in relation to a members of Scheduled Caste*** the court shall presume, unless the contrary is proved, that such act was committed on the ground of “untouchability”.”
7. Section 7(1)(d) of the Act deals with insult or attempt to insult on the ground of untouchability a member of Scheduled Caste. The word ‘insult’ in the legal parlance means to treat with offensive disrespect or to offer indignity to a person. The significance to be attached to the word used would obviously depend on the facts and circumstances of each case, the occasion and the manner in which the words are used and person to whom they are addressed. Any act or speech meant to hurt the feelings or self-respect of another or to treat a person with insolence or contempt by words or action would obviously amount to an insult. If the act of insult is committed with reference to a member of Scheduled Caste as defined in S. 2(db), then presumption under Section 12 of the Act can safely be raised. S. 12 enacts a special rule of evidence. It is no doubt true that for proving the guilt under S. 7(1)(d) one of the essential ingredients is that the insult or attempt to insult which is an act constituting an offence should be committed on the ground of untouchability. However, S. 12 relieves the prosecution of the burden of proving that ingredient, namely that the act was committed on the ground of untouchability. The presumption is not as regards commission of the act of insult or attempt to insult, but is restricted to one of the ingredients of the offence only. If a proof of this ingredient is also insisted upon, then S. 12 will become redundant. An act of insult or attempt to insult in relation to a member of Scheduled Caste is presumed to be on the ground of untouchability unless the contrary is proved. The presumption under S. 12 is a rebuttable presumption. If the prosecution succeeds in proving that the act constituting an offence has been committed in relation to a member of Scheduled Caste and the words used or the insult offered has a nexus with the caste which is a scheduled caste, then the Court is obliged to presume, until the contrary is proved, that the said act was committed on the ground of untouchability. When a person belonging to higher caste offers insult to a Harijan or to a person belonging to Scheduled Caste on the ground of his caste, then the said act is presumed to fall within the inhibition contained in the section. In such cases the burden would shift on the accused to establish that the act alleged to be committed was not committed on the ground of untouchability but on some other ground. The quantum and nature of proof required to displace the presumption must vary according to the facts and circumstances of each case. Such proof may partake the shape of defence evidence or may consists of the circumstances appearing in the evidence led by the prosecution itself, including cross-examination of the witnesses or the improbability of the case. The burden to rebut the presumption can stand, discharged if the material brought on record considered in its totality renders the existence of the facts presumed improbable. Thus, the accused may rebut the presumption by showing preponderance of probability in his favour and need not establish his innocence beyond a reasonable doubt.
8. It appears that in view of the historical background of the caste system and the fact that amongst certain religions caste is the only reality and to some extent the religion is fiction, the Legislature has taken a judicial notice of the fact of practice of untouchability by raising a presumption that certain acts constituting offence in relation to members of the Scheduled Caste per se has a nexus with the untouchability. An insult or attempt to insult a member of a Scheduled Caste is per se treated, as having relation to the ground of untouchability. This presumption is restricted to the members of the Scheduled Caste, who are treated as condemned classes or secondary human beings. Since it is difficult to prove as to what was passing in one's mind, a provision for raising a presumption is made in S. 12 of the Act. After all the intention or motive could be gathered from the act committed, as the person is presumed to intend the consequences of the act actually committed by him.
9. However it is contended by Shri Babardesai that though the complainant has stated in his evidence that he is Harijan and Mahar by caste, it is not established that he belongs to Hindu religion and in the absence of such an evidence it cannot be said that the complainant belonged to Scheduled Caste as defined in the Act. In this context he made a reference to the Constitution (Scheduled Castes) Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes Order (Amending) Act, 1966. In our opinion, this contention is hyper-technical. From the bare reading of the entries in the Schedule it is quite clear that in no other religion the Mahar caste exists. When the complainant has stated in his evidence that he is Harijan and Mahar by caste, prima facie it will have to be presumed that he is Hindu by religion, though in a given case it could be established that he has been converted to another religion and, therefore, is not a member of the Scheduled Caste, within the meaning of the said expression as defined in the Act.
10. In this context reliance was placed on a decision of this Court in Ku. Mangala Parsharam Kelkar v. State of Maharashtra, AIR 1979 Bom 282, However, it is contended by the learned Public Prosecutor that the observations of the learned single Judge in para 7 of the said judgment should be read in its context, and not torn from the context, and if so read, it cannot be said that in the said decision it is held that none of the provisions of the Act would apply to a Buddhist or a person professing Buddhism. In our opinion the contention raised by Shri Barde is well founded. Padhye, J. had an occasion to consider the ambit and the scope of the various provisions of this Act in Criminal Appeal Nos. 126/79, 127/1979 and 128/1979 — Ziblabai w/o Nathu Athare v. State of Maharashtra decided on 5th December, 1980. After making a detailed reference to the aims and objects “of the Act, and to the judgment of Pratap, J. in Mangala's case, (AIR 1979 Bom 282) this is what Padhye, J. has observed:
“A perusal of the various sections of the Protection of Civil Rights Act, 1955 discloses an anxiety to prevent the practice of untouchability. Section 3 provides for punishment to persons for enforcing religious disabilities based on the practice of untouchability. Section 4 seeks to punish those persons who try to enforce social disabilities on the ground of untouchability. Those who refuse admission to persons to hospitals, educational institutions or those persons who practice discrimination on the ground of untouchability after giving entry to persons in such institutions are liable to be punished under the provisions of Section 5 of the Act. Failure to sell goods or render service to any person on the ground of untouchability is punishable under Section 6 of the Act. Section 7 provides for punishment to those persons who prevent any person from exercising any right according to him by reason of the abolition of untouchability under Article 17 of the Constitution or to those who molest, injure, annoy or obstruct or attempt to cause obstruction to any such person in the exercise of any such right, or molest, injure or annoy or boycott by reason of having exercised any such right. Sub-section (c) provides for punishment to those persons who by words, either spoken or written by signs or by physical representations or otherwise, incite or encourage any person or class of persons and public generally to practice untouchability in any form whatsoever. Section 7-A provides for punishment to those who compel person to do scavenging or sweeping work on the ground of untouchability. Clause (d) was added to section 7(1) of the Untouchability (Offences) Act, 1955 providing punishment for a person who insulted or attempted to insult a member of Scheduled Caste on the ground of untouchability, by Act No. 106 of 1976. It can thus, be seen that so far as the extremely wide provision of providing punishment for a mere insult or an attempt to insult on the ground of untouchability was concerned. The Legislature wanted to restrict it to a case in which such an insult, hurt, molested, injured or annoyed a member of Scheduled Caste. It was by this Amendment Act No. 106 of 1976 that definition of Scheduled Caste was added by inserting clause (d) in section 2 to provide that Scheduled Caste has the meaning assigned in clause (4) of the Article 366 of the Constitution. Section 12 of the Act provides for presumption that the alleged criminal act was committed by accused on the ground of “untouchability” in relation to a member of “Scheduled Caste”. No presumption is created if it was committed in respect of other persons. Thus, it can be seen that the provision of wider offence providing punishment for a mere attempt to insult on the ground of untouchability and the provision regarding presumption against accused were restricted to offences in respect of members of Scheduled Castes.
If a reference to the facts contained in the decision of Mangla Parshram Kelkar v. State of Maharashtra (AIR 1979 Bom 282) (supra) is made, it will be seen that this court was concerned with an offence punishable under Section 7(1)(d) of the Untouchability (Offences) Act, 1955 said to have been committed on 4-3-1977. This Court was also concerned with interpretation of section 12 which used the expression Scheduled Caste. Reading the definition of Scheduled Caste, as contained in the Untouchability (Offences) Act, 1955 coupled with the use of the same expression in Section 7(1)(d) and Section 12 of the Act along with the provisions of the Constitution of India referred to above, it was rightly concluded that the complainant who was Buddhist could not make a grievance of the insult hurled at him on the ground of untouchability. It is against this background that the observations in paragraph 7 by S.C Pratap, J., in the case of Mangala (supra) have to be understood. It may be seen that the last sentence in paragraph No. 7 of the above referred Judgment can lead to an inference that none of the provisions of the Protection of Civil Rights Act, 1955 would apply to a Buddhist or a person professing Buddhism, though I am sure that the learned Judge never meant to lay down such a wide proposition.”
11. Then after making a reference to a decision of this Court in Subrao Hambirrao Patil v. Radha Hambirrao Patil, AIR 1928 Bom 295, Padhye, J. observed;
“It is this basic concept prevalent amongst Hindu society that caste springs from birth which is mainly responsible for persistent recurrence of the practice of untouchability in our villages in spite of mass conversions to Buddhism by persons belonging to the Scheduled Caste in the fond hope that conversion to other religion was a possible solution to overcome the concept of untouchability which offended against the dignity of man. I do not think that the founding fathers or the Legislature which enacted the “Protection of Civil Rights Act, 1955 did not intend to supress the mischief that may persist on account of long rooted practice of untouchability in spite of conversions to other religion. It is exactly because of this reason that the expression untouchability was left undefined both in Constitution of India as well as the Untouchability (Offences) Act, 1955. The result, therefore, according to me is that offences punishable under Sections 3, 4, 5, 6, 7, (i)(a)(b)(c) and 7A are concerned with various acts on the ground of untouchability committed against a person who belonged to Scheduled Caste by birth and got converted to Buddhism. Offlence punishable under Section 7(i)(d) cannot take place unless the person insulted is proved to be a member of a Scheduled Caste. Similarly presumption under Section 12 of the Act will not arise unless the Act constituting the alleged offence under the Act is committed in relation to a member of a Scheduled Caste.”
12. We generally agree with these observations.
13. In this context reference also could usefully be made to the decision of the Supreme Court in C.M Arumu-gam v. S. Rajgopal, (1976) 1 SCC 863 : AIR 1976 SC 939 and particularly to the following observations in paragraphs 9, 10, and 13.
“It is a matter of common knowledge that the institution of caste is a peculiarly Indian institution. There is considerable controversy amongst scholars as to how the caste system originated in this country. It is not necessary for the purpose of this appeal to go into this highly debatable question. It is sufficient to state that originally there were only four main castes but gradually castes and sub-castes multiplied as the social fabric expanded with absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into-a rigid framework based upon heredity. Inevitably it gave rise to gradation which resulted in social inequality and put a premium on snobbery. The caste system tended to develop as it were, group snobbery one caste looking down upon another. Thus there came into being social hierarchy and stratification resulting in perpetration of social and economic injustice by the so-called higher castes on the lower castes. It was for this reason that it was thought necessary by the Constitution makers to accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afflicted by social and economic disabilities and the Constitution makers accordingly provided that the President may specify the castes and these would obviously be the lower castes which had suffered centuries of oppression and exploitation which shall be deemed to be Scheduled Castes and laid down the principle that seats should be reserved in the legislature for the Scheduled Castes as it was believed, and rightly, that the higher castes would not properly represent the interest of these lower castes.
“But that immediately raises the question; What is a caste? When we speak of a caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian social scene. “A caste”, as pointed out by the High Court of Madras in Cooppoosami Chetty v. Duraisami Chetty, (1910) ILR 33 Mad. 67 “is a voluntary association of persons for certain purposes”. It is a well defined yet fluctuating group of persons governed by their own rules and regulations for certain internal purposes. Sir, H. Risley has shown in his book on People of India how castes are formed based not only on community of religion, but also on community of function. It is also pointed out by Sankaran Nair, J., in Muthuswami v. Masilamani, (1910) ILR 33 Mad. 342 “… a change in the occupation sometimes creates a new caste. A common occupation sometimes combines members of different castes into a distinct body which becomes a new caste. Migration to another place makes sometimes a new caste.” A caste is more a social combination than a religious group. But since as pointed out by Rajamannar, C.J, in G. Michael v. S. Venkateshwaran, ILR (1953) Mad 106 : (AIR 1952 Mad. 474) ethics provides the standard for social life and it is founded ultimately on religious beliefs and doctrines, religion is inevitably mixed up with social conduct and that is why caste has become an integral feature of Hindu society. But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion. It is no doubt true, and there we agree with the Madras High Court in G. Michael's case (supra) that the general rule is that conversion operates as an expulsion from the caste, or, in other words, the convert ceases to have any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be regarded by the other members of the caste as belonging to their fold. But ultimately it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste in his abjuring Hinduism. If the structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the castes, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the year, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste. This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste. When an argument was advanced before the Madras High Court in G. Michael's case (AIR 1952 Mad 474) (supra) “that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being a member of the caste, but has also been considered so by other members of the caste who has not been converted”. Rajamannar, C.J, who, it can safely be presumed, was familiar with the customs and practices prevalent in South India, accepted the position “that instances can be found in which in spite of conversion the caste distinctions might continue”, though he treated them as exceptions to the general rule”.
14. Then in para 13 of the Judgment Supreme Court has dealt with the Constitution (Scheduled Castes) Order and has observed as under:—
“Paragraphs 2 and 3 of the Constitution (Scheduled Castes) Order, 1910 also support the view that even after conversion, a person may continue to belong to a caste which has been specified in the Schedule to the Order shall be deemed to be Scheduled Castes but paragraph 3 declares that notwithstanding anything contained in paragraph 2, that is notwithstanding that a person belong to a caste specified as a Scheduled Caste, he shall not be deemed to be a member of the Scheduled Caste, if he professes a religion different from Hindu or Sikh religion. Paragraphs 2 and 3 read together thus clearly recognise that there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion and if that be so, if must follow a fortiori, that in such castes, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though by reason of Paragraph 3 would be deemed not to be a member of a Scheduled Caste”.
15. It was then contended by Shri Babardesai that the word “Mahardya” per se does not amount to an insult. As already observed the significance to be attached to a word used must obviously depend upon the facts and circumstances of each case, the occasion and the manner in which it is used, as well as the person to whom it is addressed? It is not disputed before us, nor it could be disputed that the word “Mahardya” prima facie amounts to an insult. It is indicative of offensive disrespect and indignity. It is normally used to hurt the feelings and self-respect of the person to whom it is addressed. Such a person is treated with insolence and contempt. Such a view also seems to have been taken by Gujarat High Court in Patel Lilabhai Hirabhai v. State off Gujarat, (1979) 20 Guj. LR 154. Further it cannot be for-i gotten that the caste system in itself is based on the concept of purity. As observed by the Supreme Court in M.R Balaji v. State of Mysore, AIR 1983 SC 649 (at p. 659):—
“In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties.”
16. Therefore, it is quite obvious to us that the word “Mahardya” is insulting one and if used by a person belonging to higher caste or class, then it has a nexus with untouchability. However, no general rule can be laid down in this behalf and as already observed to some extent, it must depend on the facts and circumstances of each case.
17. Shri Babardesai has also placed reliance on the decision of Kanade, J. in Laxman Jayram Shant v. State of Maharashtra, 1980 Mah LJ 833 : (1981 Cri LJ 387) (supra), and particularly upon the observations of the learned Judge in para 12 of the said judgment, wherein it is observed that there are number of abuses in every language on the ground of caste and such abuses on the ground of caste hurled against almost all members of all communities. For instance Harijan, Dhobi, Bhangi and similar other communities. The relevant observations are as under;—
“There are number of abuses in every” language on the ground of caste and such abuses on the ground of caste hurled against almost all members of all the communities. For instance, “Harijan, Dhobi, Bhangi,” and similar like others. These abuses are hurled without any intention to harm the feelings of the members of those castes, but definitely are intended to insult a person against whom such abuses are hurled. The question in the present case is as to whether, if a member of a Scheduled Caste is addressed as Mahar or Mahardya without intending to preach or practice untouchability, the person who hurled such a word can be convicted under clause (d) of Section 7(1) of the Act. In my view, every insult or attempt to insult of a member of Scheduled Caste, would not fall with the mischief of the said clause (d) of Section 7(1) of the Act unless such insult or attempt to insult is on the ground of “untouchability”.”
18. However abuses addressed to the members of the other communities stand on a different footing. If the abuse “Mahardya” is addressed to a Brahmin, the presumption under Section 12 is not available. It cannot be forgotten that if the abuse “Mahardya” is addressed to a member of Scheduled Caste, the intention is writ large. Further there is vast difference in the word “Mahar” and expression “Mahardya” or “Mahardi”. The said abuse is indicative of, caste supremacy. It is nothing but an assumption of superiority by a person over another, which to use the expression of Mahatma Gandhi, is a sin against God and man. Such an expression has much more malice in it, than its literal meaning would suggest. Untouchability is a heinous crime against humanity as a whole. In our view the learned Judge in Laxman's case, (1981 Cri LJ 387) has unduly restricted the scope of Presumption contemplated by S. 12 of the Act. Assuming that the question of mens rea is relevant, once it is established by the prosecution that the act constituting the offence viz the insult or attempt to insult was qua member of Scheduled Caste then in view of the provisions of S. 12 of the Act, it is not necessary for the prosecution to further prove that such act was committed on the ground of untouchability. By S. 12 of the Act unless the contrary is proved, it is presumed that such act was committed on the ground of untouchability. As already observed, the said presumption is rebuttable one. If for proving an offence under S. 7(1)(d) of the Act, the prosecution is also required to prove the fact that the act constituting the offence was committed on the ground of untouchability, then the presumption contemplated by S. 12 will have no meaning and the entire S. 12 will become redundant or surplusage. In our view S. 12 has a purpose behind it, and was necessary to prove, by raising a presumption, one of the ingredients of the offence.
19. So far as the merits of the case are concerned as already observed, the accused stands acquitted of the offence punishable under S. 7(i)(b) of the Act and also for offence punishable under Ss. 504 and 506 I.P.C The said order of acquittal has become final since it has not been challenged by the State. So far as the conviction of the accused under Sec. 7(1)(d) is concerned, it is contended by Shri Babardesai that while examining the accused under Sec. 313 Cr. P.C incriminating circumstances constituting the offence under Sec. 7(1)(d) of the Act were not put to the accused. Therefore, accused had no opportunity to explain the incriminating circumstances appearing against them in the evidence or to adduce evidence in rebuttal. He also contended that accused could have established by adducing cogent evidence that the complainant was converted to another religion and was not a Hindu on the date of incident. He also contended that assuming that the accused had insulted complainant, by using the expression ‘Mahardya’ in combination with other words, the said act was not committed on the ground of untouchability. In support of this contention he has placed reliance upon a decision of the Supreme Court in Ganpat v. Presiding Officer, (1975) 1 SCC 589 : AIR 1975 SC 420, and particularly upon certain observations in para 12 thereof.
20. It is not disputed by Shri Barde, learned Public Prosecutor that relevant incriminating circumstances were not put to the accused when they were examined under Sec. 313 of Cri. P.C He has also submitted that without going into the controversy about the prejudice caused due to said omission, he has no objection if the matter is remanded back to the trial Court, for giving a reasonable opportunity to the accused to prove their case. Therefore, in our opinion, this is a fit case where the accused should be given an opportunity to explain the incriminating circumstances appearing against them in the evidence. On this short ground, the conviction of the accused under Section 7(i)(d) of the Act is set aside and matter is remanded back to the learned Judicial Magistrate First Class, Thane at Bassein, for deciding the case afresh in accordance with the law after examining the accused under Sec. 313 Cr. P.C so far as the offence under Section 7(i)(d) of the Act is concerned. It is needless to say that after such an examination the accused will be entitled to adduce evidence in their defence. At this stage Shri Babardesai has made a request that the accused should be permitted to recall prosecution witnesses for further cross-examination. Shri. Barde learned Public Prosecutor has no objection to grant this request. It appears that as the accused were also prosecuted for the offences under the Penal Code, the learned Counsel did not pay enough attention, so far as the offence under Sec. 7(d) of the Act is concerned, while cross-examining witnesses. In view of this, and as the learned Public Prosecutor has no objection, the request made by Shri Babardesai is granted. However, so far as the acquittal of the accused under Sec. 7(i)(b) of the Act and under Secs. 504 and 506 I.P.C is concerned, the said acquittal is confirmed, as it has become final. Hence, the Rule is made partly absolute.
21. Order accordingly.
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