Kailas & Ors vs State Of Maharashtra Tr.Taluka P.S

CRIMINAL APPEAL NO. ___11_____/2011 (Arising out of Special Leave Petition (Crl) No. 10367 of 2010)

Kailas & Others .. Appellant (s)

-versus-

State of Maharashtra TR. .. Respondent (s) Taluka P.S.

JUDGMENT

1. Leave granted.

2. This appeal has been filed against the final judgment and order dated

10.03.2010 in Criminal Appeal No. 62 of 1998 passed by the Aurangabad

Bench of Bombay High Court.

3. Heard learned counsel for the appellants.

4. This appeal furnishes a typical instance of how many of our people in

India have been treating the tribal people (Scheduled Tribes or Adivasis),

who are probably the descendants of the original inhabitants of India, but 2

now constitute only about 8% of our total population, and as a group are one

of the most marginalized and vulnerable communities in India characterized

by high level of poverty, illiteracy, unemployment, disease, and

landlessness.

5. The victim in the present case is a young woman Nandabai 25 years

of age belonging to the Bhil tribe which is a Scheduled Tribe (ST) in

Maharashtra, who was beaten with fists and kicks and stripped naked by the

accused persons after tearing her blouse and brassieres and then got paraded

in naked condition on the road of a village while being beaten and abused by

the accused herein.

6. The four accused were convicted by the Additional Sessions Judge,

Ahmednagar on 05.02.1998 under Sections 452, 354, 323, 506(2) read with

Section 34 IPC and sentenced to suffer RI for six months and to pay a fine of

Rs. 100/-. They were also sentenced to suffer RI for one year and to pay a

fine of Rs. 100/- for the offence punishable under Sections 354/34 IPC.

They were also sentenced under Section 323/34 IPC and sentenced to three

months RI and to pay a fine of Rs. 100/-. The appellants were further

convicted under Section 3 of the Scheduled Cases and Scheduled Tribes 3

(Prevention of Atrocities) Act, 1989 and sentenced to suffer RI for one year

and to pay a fine of Rs. 100/-.

6. In appeal before the High Court the appellants were acquitted of the

offence under Section 3 of the SC/ST Act, but the conviction under the

provisions of the IPC were confirmed. However, that part of the order

regarding fine was set aside and each of the appellant was directed to pay a

fine of Rs. 5000/- only to the victim Nandabai.

7. The prosecution case is that the victim Nandabai who belongs to the

Bhil community was residing with her father, handicapped brother, and

lunatic sister. She had illicit relations with PW9 Vikram and had given birth

to his daughter and was also pregnant through him for a second time.

Vikram belongs to a higher caste and his marriage was being arranged by his

family with a woman of his own caste. On 13.5.1994 at about 5.00 P.M.

when the victim Nandabai was at her house the four accused went to her

house and asked why she had illicit relations with Vikram and started

beating her with fists and kicks. At that time the accused Kailas and Balu

held her hands while accused Subabai @ Subhadra removed her sari. The

accused Subhash then removed her petticoat and accused Subabai tore the

blouse and brassiere of the victim Nandabai. Thereafter the accused Subabai 4

and Balu paraded the victim Nandabai on the road of the village and at that

time the four accused herein were beating and abusing the victim Nandabai.

8. At about 8.40 p.m. an FIR was lodged at Taluka Police Station and

after investigation a charge-sheet was filed. After taking evidence the

learned Additional Sessions Judge convicted the accused.

9. As already mentioned above, the conviction under the provisions of

the IPC have been upheld but that under the Scheduled Cases and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 have been set aside.

10. We are surprised that the conviction of the accused under the

Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989

was set aside on hyper technical grounds that the Caste Certificate was not

produced and investigation by a Police Officer of the rank of Deputy

Superintendent of Police was not done. These appear to be only

technicalities and hardly a ground for acquittal, but since no appeal has been

filed against that part of the High Court judgment, we are now not going into

it.

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11. However, we see no reason to interfere with the judgment of the High

court convicting the appellants under various provisions of the IPC and

imposing fine on them. In fact, we feel that the sentence was too light

considering the gravity of the offence.

12. There is the evidence of the victim Nandabai PW4 herself and we see

no reason to disbelieve the same. Although many of the witnesses have

turned hostile, we see no reason to disbelieve the statement of the victim

Nandabai. In fact, PW9 Vikram supported the prosecution case to some

extent. He has accepted his illicit relations with victim Nandabai and

admitted that he had a daughter from her and she was pregnant for a second

time through him. Even though he did not support the actual incident, we

are of the opinion that Vikram's evidence at least on the points admitted by

him corroborates the evidence of victim Nandabai.

13. PW2 Narendra Kalamkar has proved the spot panchanama Exh. 12.

He stated that the panchanama was drawn in front of the house of PW4, the

victim Nandabai. At the time of the panchanama, Nandabai was

accompanied by the police and she had shown the entire area from her house

to the place in front of the shop of PW3 Shankar Pawar. The police seized

the clothes in torn condition, produced by PW4 Nandabai. There were 6

pieces of bangles lying in front of the house. Hence there is no reason to

disbelieve PW2 Narendra Kalamkar.

14. It appears that the accused are powerful persons in the village

inasmuch as that all the eye-witnesses have turned hostile out of fear or

some inducement. However, PW8 Dr. Ashok Ingale proved the medical

certificate Exh. 26 and stated that there were two contusions on the person of

the victim.

15. The parade of a tribal woman on the village road in broad day light is

shameful, shocking and outrageous. The dishonor of the victim Nandabai

called for harsher punishment, and we are surprised that the State

Government did not file any appeal for enhancement of the punishment

awarded by the Additional Sessions Judge.

16. It is alleged by the appellants that the people belonging to the Bhil

community live in torn clothes as they do not have proper clothes to wear.

This itself shows the mentality of the accused who regard tribal people as

inferior or sub-humans. This is totally unacceptable in modern India. 7

17. The Bhils are probably the descendants of some of the original

inhabitants of India living in various parts of the country particularly

southern Rajasthan, Maharashtra, Madhya Pradesh etc. They are mostly

tribal people and have managed to preserve many of their tribal customs

despite many oppressions and atrocities from other communities.

18. It is stated in the Article `World Directory of Minorities and

Indigenous Peoples - India: Advasis', that in Maharashtra Bhils were

mercilessly persecuted in the 17th century. If a criminal was caught and

found to be a Bhil, he or she was often killed on the spot. Historical

accounts tell us of entire Bhil communities being killed and wiped out.

Hence, Bhils retreated to the strongholds of the hills and forests.

19. Thus Bhils are probably the descendants of some of the original

inhabitants of India known as the `aborigines' or Scheduled Tribes

(Adivasis), who presently comprise of only about 8% of the population of

India. The rest 92 % of the population of India consists of descendants of

immigrants. Thus India is broadly a country of immigrants like North

America. We may consider this in some detail.

India is broadly a country of immigrants 8

20. While North America (USA and Canada) is a country of new

immigrants, who came mainly from Europe over the last four or five

centuries, India is a country of old immigrants in which people have been

coming in over the last ten thousand years or so. Probably about 92% people

living in India today are descendants of immigrants, who came mainly from

the North-West, and to a lesser extent from the North-East. Since this is a

point of great importance for the understanding of our country, it is

necessary to go into it in some detail.

21. People migrate from uncomfortable areas to comfortable areas. This

is natural because everyone wants to live in comfort. Before the coming of

modern industry there were agricultural societies everywhere, and India was

a paradise for these because agriculture requires level land, fertile soil,

plenty of water for irrigation etc. which was in abundance in India. Why

should anybody living in India migrate to, say, Afghanistan which has a

harsh terrain, rocky and mountainous and covered with snow for several

months in a year when one cannot grow any crop? Hence, almost all

immigrations and invasions came from outside into India (except those

Indians who were sent out during British rule as indentured labour, and the

recent migration of a few million Indians to the developed countries for job 9

opportunities). There is perhaps not a single instance of an invasion from

India to outside India.

22. India was a veritable paradise for pastoral and agricultural societies

because it has level & fertile land, hundreds of rivers, forests etc. and is rich

in natural resources. Hence for thousands of years people kept pouring into

India because they found a comfortable life here in a country which was

gifted by nature.

23. As the great Urdu poet Firaq Gorakhpuri wrote:

"Sar Zamin-e--hind par aqwaam-e-alam ke firaq Kafile guzarte gae Hindustan banta gaya"

Which means -

"In the land of Hind, the Caravans of the peoples of The world kept coming in and India kept getting formed".

24. Who were the original inhabitants of India ? At one time it was

believed that the Dravidians were the original inhabitants. However, this

view has been considerably modified subsequently, and now the generally

accepted belief is that the original inhabitants of India were the pre-

Dravidian aborigines i.e. the ancestors of the present tribals or advasis 1

(Scheduled Tribes). In this connection it is stated in The Cambridge History

of India (Vol-I), Ancient India as follows:

"It must be remembered, however, that, when the term `Dravidian' is thus used ethnographically, it is nothing more than a convenient label. It must not be assumed that the speakers of the Dravidian languages are aborigines. In Southern India, as in the North, the same general distinction exists between the more primitive tribes of the hills and jungles and the civilized inhabitants of the fertile tracts; and some ethnologists hold that the difference is racial and not merely the result of culture. Mr. Thurston, for instance, says:

"It is the Pre-Dravidian aborigines, and not the later and more cultured Dravidians, who must be regarded as the primitive existing race...... These Pre-Dravidians ...... are differentiated from the Dravidian classes by their short stature and broad (platyrhine) noses. There is strong ground for the belief that the Pre-Dravidians are ethnically related to the Veddas of Ceylon, the Talas of the Celebes, the Batin of Sumatra, and possibly the Australians. (The Madras Presidency, pp. 124-5.)"

It would seem probable, then, that the original speakers of the Dravidian languages were outsiders, and that the ethnographical Dravidians are a mixed race. In the more habitable regions the two elements have fused, while representatives of the aborigines are still in the fastnesses (in hills and forests) to which they retired before the encroachments of the newcomers. If this view be correct, we must suppose that these aborigines have, in the course of long ages, lost their ancient languages and adopted those of their conquerors. The process of linguistic transformation, which may still be observed in other parts of India, would seem to have been carried out more completely in the South than elsewhere.

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The theory that the Dravidian element is the most ancient which we can discover in the population of Northern India, must also be modified by what we now know of the Munda languages, the Indian representatives of the Austric family of speech, and the mixed languages in which their influence has been traced (p.43). Here, according to the evidence now available, it would seem that the Austric element is the oldest, and that it has been overlaid in different regions by successive waves of Dravidian and Indo-European on the one hand, and by Tibeto-Chinese on the other. Most ethnologists hold that there is no difference in physical type between the present speakers of Munda and Dravidian languages. This statement has been called in question; but, if it is true, it shows that racial conditions have become so complicated that it is no longer possible to analyse their constituents. Language alone has preserved a record which would otherwise have been lost.

At the same time, there can be little doubt that Dravidian languages were actually flourishing in the western regions of Northern India at the period when languages of the Indo- European type were introduced by the Aryan invasions from the north-west. Dravidian characteristics have been traced alike in Vedic and Classical Sanskrit, in the Prakrits, or early popular dialects, and in the modern vernaculars derived from them. The linguistic strata would thus appear to be arranged in the order- Austric, Dravidian, Indo-European.

There is good ground, then, for supposing that, before the coming of the Indo-Aryans speakers the Dravidian languages predominated both in Northern and in Southern India; but, as we have seen, older elements are discoverable in the populations of both regions, and therefore the assumption that the Dravidians are aboriginal is no longer tenable. Is there any evidence to show whence they came into India?

No theory of their origin can be maintained which does not account for the existence of Brahui, the large island of Dravidian speech in the mountainous regions of distant Baluchistan which lie near the western routes into India. Is Brahui a surviving trace of the immigration of Dravidian - 1

speaking peoples into India from the west? Or does it mark the limits of an overflow form India into Baluchistan? Both theories have been held; but as all the great movements of peoples have been into India and not out of India, and as a remote mountainous district may be expected to retain the survivals of ancient races while it is not likely to have been colonized, the former view would a priori seem to be by far the more probable."

(See `Brahui' on Google).

25. In Google `The original inhabitants of India', it is mentioned :

"A number of earlier anthropologists held the view that the Dravidian peoples together were a distinct race. However, comprehensive genetic studies have proven that this is not the case.

The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either Indo-Aryan or Dravidian languages"

26. Thus the generally accepted view now is that the original inhabitants

of India were not the Dravidians but the pre-Dravidians Munda aborigines

whose descendants presently live in parts of Chotanagpur (Jharkhand),

Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil

Nadu, the tribals in the Andaman Islands, the Adivasis in various parts of

India (especially in the forests and hills) e.g. Gonds, Santhals, Bhils, etc.

27. It is not necessary for us to go into further details into this issue, but

the facts mentioned above certainly lends support to the view that about 92% 1

people living in India are descendants of immigrants (though more research

is required).

28. It is for this reason that there is such tremendous diversity in India.

This diversity is a significant feature of our country, and the only way to

explain it is to accept that India is largely a country of immigrants.

29. There are a large number of religions, castes, languages, ethnic

groups, cultures etc. in our country, which is due to the fact that India is a

country of immigrants. Somebody is tall, somebody is short, some are dark,

some are fair complexioned, with all kinds of shades in between, someone

has Caucasian features, someone has Mongoloid features, someone has

Negroid features, etc. There are differences in dress, food habits and various

other matters.

30. We may compare India with China which is larger both in population

and in land area than India. China has a population of about 1.3 billion

whereas our population is roughly 1.1 billion. Also, China has more than

twice our land area. However, all Chinese have Mongoloid features; they

have a common written script (Mandarin Chinese) and 95% of them belong

to one ethnic group, called the Han Chinese. Hence there is a broad

(though not absolute) homogeneity in China.

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31. On the other hand, as stated above, India has tremendous diversity and

this is due to the large scale migrations and invasions into India over

thousands of years. The various immigrants/invaders who came into India

brought with them their different cultures, languages, religions, etc. which

accounts for the tremendous diversity in India.

32. Since India is a country of great diversity, it is absolutely essential if

we wish to keep our country united to have tolerance and equal respect for

all communities and sects. It was due to the wisdom of our founding fathers

that we have a Constitution which is secular in character, and which caters to

the tremendous diversity in our country.

33. Thus it is the Constitution of India which is keeping us together

despite all our tremendous diversity, because the Constitution gives equal

respect to all communities, sects, lingual and ethnic groups, etc. in the

country. The Constitution guarantees to all citizens freedom of speech

(Article 19), freedom of religion (Article 25), equality (Articles 14 to 17),

liberty (Article 21), etc.

34. However, giving formal equality to all groups or communities in India

would not result in genuine equality. The historically disadvantaged groups 1

must be given special protection and help so that they can be uplifted from

their poverty and low social status. It is for this reason that special

provisions have been made in our Constitution in Articles 15(4), 15(5),

16(4), 16(4A), 46, etc. for the upliftment of these groups. Among these

disadvantaged groups, the most disadvantaged and marginalized in India are

the Adivasis (STs), who, as already mentioned, are the descendants of the

original inhabitants of India, and are the most marginalized and living in

terrible poverty with high rates of illiteracy, disease, early mortality etc.

Their plight has been described by this Court in Samatha vs. State of

Andhra Pradesh and Ors. AIR 1997 SC 3297 (vide paragraphs 12 to 15).

Hence, it is the duty of all people who love our country to see that no harm

is done to the Scheduled Tribes and that they are given all help to bring them

up in their economic and social status, since they have been victimized for

thousands of years by terrible oppression and atrocities. The mentality of

our countrymen towards these tribals must change, and they must be given

the respect they deserve as the original inhabitants of India.

35. The bravery of the Bhils was accepted by that great Indian warrior

Rana Pratap, who held a high opinion of Bhils as part of his army. 1

36. The injustice done to the tribal people of India is a shameful chapter

in our country's history. The tribals were called `rakshas' (demons),

`asuras', and what not. They were slaughtered in large numbers, and the

survivors and their descendants were degraded, humiliated, and all kinds of

atrocities inflicted on them for centuries. They were deprived of their lands,

and pushed into forests and hills where they eke out a miserable existence of

poverty, illiteracy, disease, etc. And now efforts are being made by some

people to deprive them even of their forest and hill land where they are

living, and the forest produce on which they survive.

37. The well known example of the injustice to the tribals is the story of

Eklavya in the Adiparva of the Mahabharat. Eklavya wanted to learn

archery, but Dronacharya refused to teach him, regarding him as low born.

Eklavya then built a statue of Dronacharya and practiced archery before the

statue. He would have perhaps become a better archer than Arjun, but since

Arjun was Dronacharya's favourite pupil Dronacharya told Eklavya to cut

off his right thumb and give it to him as `guru dakshina' (gift to the teacher

given traditionally by the student after his study is complete). In his

simplicity Eklavya did what he was told.

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38. This was a shameful act on the part of Dronacharya. He had not even

taught Eklavya, so what right had he to demand `guru dakshina', and that too

of the right thumb of Eklavya so that the latter may not become a better

archer than his favourite pupil Arjun?

39. Despite this horrible oppression on them, the tribals of India have

generally (though not invariably) retained a higher level of ethics than the

non-tribals in our country. They normally do not cheat, tell lies, and do

other misdeeds which many non-tribals do. They are generally superior in

character to the non-tribals. It is time now to undo the historical injustice to

them.

40. Instances like the one with which we are concerned in this case

deserve total condemnation and harsh punishment.

41. With these observations the appeal stands dismissed.

................................J. (Markandey Katju)

...............................J. (Gyan Sudha Misra) New Delhi;

5th January, 2011