1. These two Criminal Appeals are directed against the judgment dated 9-2-1994 passed by the Special Judge-cum-Sessions Judge, Koraput, Jeypore in S.C No. 192 of 1993, convicting the two appellants under Section 332/34 of the Indian Penal Code (for short ‘IPC’) and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the Act’) and sentencing them to undergo rigorous imprisonment for six months on each count with direction that the sentences will run concurrently. The appellants have been acquitted of the charge under Section 307/34, IPC read with Section 3(2)(v) of the Act. Mr. Manoj Misra, learned counsel for the appellants, and the learned Addl. Standing Counsel for the State were heard at length.

2. Prosecution case, in brief, may be stated as follows:—

In the night of 4-1-1993, P. Sethi (P.W 5), S.I of Police attached to Rayagada P.S and belonging to Scheduled Caste being ‘Dhoba’ by caste and S. Gamango (P.W 2), Havildar attached to the said P.S and belonging to the Scheduled Tribe being ‘Sabara’ by caste, were performing patrol duty in Rayagada Town and atabout 2 a.m on 5-1-1993 they found both the appellants moving in an intoxicated state near the Sub-Collector's Office. They detained them with a view to execute the non-bailable warrant of arrest issued against appellant Goura Gobinda Das in G.R Case No. 349/91. When asked to come to the Police Station for execution of the warrant, it is alleged that appellant Goura Gobinda Das pressed the neck of P.W 5 intending to kill him and when P.W 2 intervened he was assaulted by both the appellants. In the process the shoulder flap of the shirt of P.W 5 was torn and the nickel badge was separated. It is also alleged by the prosecution that both the appellants called P. Ws. 5 and 2 by their caste and threated to see them when they would be found in civilian dress. At that time a Police Constable and a Home Guard reached the spot and seeing them both the appellants took to their heels, but fell down at a little distance near Hotel Swagat and were apprehended. It is the further case of the prosecution that another police party led by B. Aich (P.W 6), S.I of Police attached to Rayagada Police Station reached the spot in a police jeep and both the appellants were taken to Rayagada Police Station in that vehicle. P.W 5 lodged the F.I.R (Ext. 7) and the Inspector-in-charge of the Police Station registered case and directed P.W 6 to take up investigation. P.W 6 sent P. Ws. 5 and 2 as well as both the appellants for medical examination and P.W 1-Dr. S. Panda medically examined them and submitted the injury reports, Exts. 1 to 4. His further opinions were obtained as per Exts. 5 and 6. The recovered shoulder flap and badge were seized under seizure list Ext. 6 and kept in the Zima of P.W 5 vide Ext. 9. After completion of investigation P.W 6 submitted chargesheet against both the appellants under Sections 307/332/34, IPC read with Section 3(1)(x) of the Act. Charge was framed under Sections 307/34, IPC read with Section 3(2)(v) of the Act, 332/34, IPC and Section 3(1)(x) of the Act against the appellants who stood their trial.

3. The defence plea is one of denial and false implication after being assaulted by the police officers when appellant Kamala Kanta Padhi requested them to arrest appellant Goura Gobinda Das on the next morning if at all any non-bailable warrant of arrest was pending against him in any case.

4. Mr. Manoj Misra, learned counsel for the appellants contended that the impugned judgment is liable to be set aside since the learned Special Judge failed to appreciate the evidence on record as well as the provisions of the Act. The learned Addl. Standing Counsel appearing for the respondent has supported the impugned judgment.

5. P.W 5-P. Sethi is a member of the Scheduled Caste being ‘Dhoba’ by caste and P.W 2 belongs to Scheduled Tribe being ‘Sabara’ by caste. They are vital witnesses for the prosecution in this case, since the alleged occurrence took place while they were performing patrol duty inside Rayagada. The learned Special Judge has observed that “although P.W 2 has broadly corroborated the occurrence of assault and abuse, he differs P.W 5 with regard to the sequence of that occurrence.” She has based the conviction of the appellants on the statements of P. Ws. 2 and 5 which is unsustainable in the eye of law for the reasons stated below.

6. According to P.W 5 he and P.W 2, while performing patrol duty, found the appellants at the Raniguda Farm area near the Sub-Collector's Office, Rayagada and both the appellants were in intoxicated State. According to him, since he was aware that a non-bailable warrant of arrest was pending against appellant Goura Gobinda Das in G.R Case No. 349 of 1991, he and P.W 2 tried to catch hold of him and asked him to come to the police station, but appellant Goura Gobinda pressed his neck intending to kill him and when P.W 2 tried to rescue him he was also assaulted by both the appellants. Further, he has stated that the shoulder flap of his shirt and the stars (nickel badges) were separated from his shirt when appellant Goura Gobinda Das pressed his neck. P.W 5 has not stated that the appellants hurled abuses at him and P.W 2 at that point of time but has stated that when another patrol party consisting of a Constable (P.W 3) and a Home Guard (P.W 4) reached the spot on bicycles, the appellants took to their heels towards Hotel ‘Swagat’, but both of them fell down while taking a turn towards that Hotel and were apprehended. At that point of time both the appellants hurled abuses at P. Ws. 2 and 5 calling them by their caste. According to P.W 5 at that time some outsiders gathered there and when the police patrolling jeep reached there with P.W 6, the appellants were taking to the police station in the said jeep. But P.W 2 has given a completely different story. He has stated that while he (P.W 2) and P.W 5 wanted to execute the non-bailable warrant of arrest against appellant Goura Gobinda Das, both the appellants abused them stating “DHOBA SALE AMAKU KAHINKI DHARUCHHA” and at that time the police jeep reached the spot and both the appellants started running away, but fell down, according to P.W 2, thereafter P. Ws. 3 and 4 reached the spot and all of them caught hold of the appellants who further abused them by calling them by their caste. P.W 2 has further stated that both the appellants tore the uniform of P.W 5 and threw away the same and at that time appellant Goura Gobinda Das pressed the neck of P.W 5 and dealt kicks on him and appellant Kamalakanta Padhi caught hold of him from his back side. He (P.W 2) dealt two lathi blows on appellant Kamalakanta. Thus the statements of P. Ws. 2 and 5 are quite contradictory to each other. In spite of that the learned Special Judge has placed reliance on them and has convicted the appellants for the offences under Sections 332/34, IPC and 3(1)(x) of the Act while she has disbelieved the prosecution case against the appellants under Sections 307/34, IPC read with Section 3(2)(v) of the Act and acquitted them of the said charge. According to the prosecution case as stated by P.W 5, the appellants were found at 2 a.m in the night in intoxicated state, but P.W 2 has not stated that the appellants were in intoxicated state. Though the investigating officer (P.W 6) has stated in his cross-examination that he was in the jeep and was performing patrol duty near the level crossing, and he found the appellants with P. Ws. 2 and 5 near the level crossing, he has not stated that the appellants were in intoxicating state. The investigating officer has stated to have examined two independent witnesses, namely, Sita Patra and Rampukar Chowdhury, but they have not been examined in Court and only official witnesses have been examined in support of the prosecution case. P.W 1 is the medical officer attached to the Sub-Divisional Hospital, Rayagada who had medically examined both the appellants and P. Ws. 2 and 5 immediately after the occurrence on police requisition. Exts. 1 and 3 are the injury reports in respect of the appellants, but there is no mention in the said reports that the appellants were drunk. Appellant Goura Gobinda Das was medically examined at 4.40 a.m vide injury report Ext. 3 and appellant Kamalakanta was medically examined at 4.50 a.m as per the injury report Ext. 1 P.W 5 was medically examined at 5.30 a.m as per the injury report Ext. 2 and P.W 2 was medically examined at 5.20 a.m as per the injury report Ext. 4. The police requisitions for medical examination and the injury reports are not in printed forms but are on plain papers which casts a doubt on the prosecuting case regarding examination of the injured persons at the fag end of the night when the medical officer was expected to be at his residence. To the query of the investigating officer, the medical officer P.W 1 opined that all the injuries sustained by the appellants Were possible by fall on a rough surface, as per Exts. 5/1 and 6/1. As stated earlier, P.W 2 has stated to have dealt two lathi blows on appellant Kamalakanta Padhi, but he has not stated on which part of his body he dealt the said blows. P.W 5 has not stated about the same and the injury report Ext. 1 does not reveal any injury on appellant Kamalakanta which had been sustained due to lathi blows. It cannot also be believed for a moment that both the appellants would have fallen down at the turning and would have sustained similar injuries on their fates and bodies. The specific plea of appellant Kamalakanta Padhi is that he had taken the other appellant to Uma Shankar Talkies to witness a picture and after the show was over at 9 p.m they went to a Hotel to take their food, but since there was rush in the Hotel they were waiting outside when the police officers wanted to apprehend appellant Goura Gobinda on the plea that a warrant of arrest was pending against him and that he asked the police officers not to arrest him then but to wait till the next morning. The police officers asked him as to why he was poking his nose in the matter and assaulted both the appellants and took them to police station. As per the injury report Ext. 1, appellant Kamalakanta Padhi had sustained one abrasion in between his eyebrows on the forehead, one abrasion on the left temporal region, one abrasion on the left cheek and another abrasion on the left thigh. As per the injury report Ext. 3, appellant Goura Gobinda had sustained one abrasion over his face on the angle of right mandible, one abrasion on his right side of face in the temporal region near the lateral angle of right eye, one abrasion on the chin and another abrasion over the dorsal aspect of fingers of both hands. As per the injury report Ext. 2, P.W 5 had sustained a bruise with nail marks in front of his neck measuring 3 cm × 3 cm, another bruise with swelling 3 cm × 2 cm on the posterior aspect of his left forearm below the elbow joint, tenderness on the left side of his chest and swelling with bruise 2 cm × 2 cm on the back of his right forearm. A1 the injuries were simple in nature and might have been caused by hard and blunt object. As per the injury report Ext. 4, P.W 2 had sustained pain and tenderness over his right cheek, right shoulder and right chest. Thus the medical evidence on record is not consistent with the oral testimony of P. Ws. 2 and 5 which are also contradictory to each other. Besides, the statements of the other two witnesses, P. Ws. 3 and 4, are also far from satisfactory and no reliance can be placed on them. P.W 3 has stated that while he was on patrol duty he found both the appellants running away being chased by P. Ws. 2 and 5 and he and P.W 4 joined P. Ws. 2 and 5 in chasing the appellants and he and P.W 4 apprehended the appellants while they fell down near Hotel Swagat. At that time the appellants hurled abuses at P. Ws. 2 and 5. When Police patrolling van reached there, the appellants were taken to the police station in that van. In his statement in cross-examination P.W 3 stated that both the appellants hurled the same abusive words at a time. But according to P.W 4, he and P.W 3 were performing patrol duty and at about 1 a.m or 1.30 a.m they found P. Ws. 2 and 5 chasing the appellants and asked P.W 5 as to what had happened. P.W 5 gave out that while a warrant of arrest was being executed against appellant Lalu (Goura Gobinda Das), both the appellants were running away after assaulting him. Thereafter he and P.W 3 also joined P. Ws. 2 and 5 to chase the appellants and when the appellants fell down near Hotel Swagar they were apprehended by them (P. Ws. 4 and 3) and subsequently P. Ws. 2 and 5 reached there and caught hold of the appellants when the appellants started abusing them. When the police van reached there, the appellants were taken to the police station. The statements of P. Ws. 3 and 4 are not consistent with each other regarding the abusive words alleged to have been hurled by the appellants at P. Ws. 2 and 5. As stated earlier, the investigating officer P.W 6 who allegedly arrived at the spot with police van has not stated that the appellants were in drunken state and that P. Ws. 3 and 4 were present at the spot. Though he has examined two outsiders during the investigation, they have not been examined in Court. The investigating officer (P.W 6) has stated to have seized one shoulder flap of a Sub-Inspector containing two nickel stars, one nickel badge with the letters ‘O.P’ and a red-blue ribbon at the place of occurrence under the seizure list Ext. 8 and to have left the seized articles in the Zima of P.W 5 under the Zimanama Ext. 9. P.W 5 and other witnesses are completely silent regarding the same and P.W 5 has not produced the same in Court which creates a doubt to the genuineness of Exts. 8 and 9 and the seizure of the articles.

7. In view of the discussions made above, the statements of P. Ws. 2 and 5 as well as of P. Ws. 3 and 4 which are bristling with contradictions and inconsistencies, cannot be relied upon and hence the finding of the learned special Judge that the prosecution case with regard to the offence under Sections 332/34, I.P.C and 3(1)(x) of the Act has been established beyond all reasonable doubts cannot be sustained. In other words, the learned Special Judge has failed to properly appreciate the evidence on record and has erred in holding that prosecution has been able to establish a part of the prosecution allegation while disbelieving the other part of the case alleged against the appellants. She has also failed to properly appreciate the provisions of Section 3(1)(x) of the Act which reads as follows:—

“3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe—

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(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place, within public view;”

8. In the present case, both P. Ws. 2 and 5 are silent regarding the presence of any member of public at the time of the alleged occurrence though P.W 5 has stated that some persons reached the spot when there was hurling of abuse by the appellants. Even if it is believed for the sake of argument that the appellants had called P. Ws. 2 and 5 by their caste, they could not have intended to insult them in public view and merely calling someone by his caste does not constitute an offence. To attract the provisions of Section 3 of the Act, it is necessary that it should be in a place where public could view the incident. In a case of this nature, the trial Court should exercise care and caution before holding an accused guilty of the charge, specially when the chances Of falsely implicating the accused by persons in authority cannot be ruled out.

9. In view of the discussions made above, the defence plea is found to be more probable than the prosecution case and the inevitable conclusion will be that the prosecution has miserably failed to prove the charge against the appellants. Consequently, the impugned-judgment holding the appellants guilty of the charge under Sections 332/34, IPC and 3(1)(x) of the Act cannot be sustained and the conviction and sentences passed by the learned Special Judge for the same are liable to be set aside and the appellants will be entitled to an acquittal. In the result, the conviction of the appellants under Sections 332/34, IPC and 3(1)(x) of the Act and the sentences passed thereunder are set aside and the appellants are acquitted of the said charge. Their bail-bonds be cancelled. Both the appeals are accordingly allowed.

10. Appeals allowed.