REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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.  

J U D G M E N T

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

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  

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(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  

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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  

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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.

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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

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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  

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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  

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(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  –

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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%  

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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  

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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.

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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

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