R.L. Narasimham, C.J.
1. This is a revision petition against the appellate judgment of the Sessions Judge of Bhawanipatna, maintaining the conviction of the petitioners under Section 500 I P. C. and the sentence of fine of RS. 60/- passed on each of them by a First Class Magistrate of Nawapara.
2. The six petitioners are all Thelis living in village' Jinjera, P. S. Jank, in Nawapara Sub-division of Kalahandi District. In Baisakh of 1954 the marriage of the niece of one Udiram Sahu (P. W. 2) of Dumirpani village, in P. S. Jank, with the son of one Sakhi Chand Sahu (P. W. 3) of Jinjera took place. . The said Sakhi Chand is the Sammandhi of the complainant Biswambar Sahu. Along with the 'Baraf party of Sakhi Chand the complainant Biswambar Sahu and other relations of his went to Dumirpani, to the house of Udiram Sahu for the purpose of the marriage. It was learnt that a letter (marked X) had been sent to Udiram Sahu by the petitioner in which it was alleged that the complainant Biswambar had been outcasted by his caste people and also by the people of his basti for about two and a half years.
Udiram Sahu naturally got very much perturbed on receiving this letter inasmuch as, if the allegations contained in it were true, it might mar the marriage celebrations. Hence he insisted on Sakhi Chand depositing with him a sum of Rs. 20/- as advance, for meeting any contingency that might arise. Subsequently another meeting of the caste panchayet was held in. which also it appears that the allegation thathe complainant was outcasted for assaulting a Gond woman was found to be true. In consequence of this decision the complainant lost the services of the village barber and the village dhoby and was put to much humiliation by being boycotted by his villagers. Hence he brought a criminal ease against the petitioners for an offence under Section 500 I, P. C.
3. The main defence of the petitioners was that the allegations contained in the letter (marked X) were true, that the complainant had been boycotted by his villagers on account of his having assaulted a Gond woman and that they in good faith sent the letter to Udiram Sahu on the eve of the marriage so that the marriage celebrations may not be marred if this matter came to light in the midst of these celebrations. They claim that their letter was covered by the 9th and 10th exceptions to Section 499 of the Indian Penal Code. They also examined several defence witnesses to prove the assault by the complainant on the Gond woman in 1952 and his subsequent ex-communication from society.
4. The trial court disbelieved the defence witnesses examined to prove the truth of the allegations contained in the letter (marked X). He therefore thought that the petitioner did not act in good faith and as such the 9th and 10th exceptions to Section 499, 1. P. G. would not apply.
5. The lower appellate Court however misconceived the law on the subject. He did not critically examine the evidence of defence witnesses with a view of ascertaining whether in fact the complainant had been ex-communicated by his own castemen sometime in 1952 on account of his assaulting a Gond woman. He thought that even if the accusations made in the letter (marked X) were true it would still amount to defamation unless it could be shown that the letter was sent for the good of the person to whom it was conveyed or for the public good. In this view of the law he did not carefully examine the evidence of the defence witnesses but held that the petitioners failed to prove their bona fides and that their action would not be covered by any of the exceptions to Section 499, I. P. C.
6. The lower appellate Court has clearly committed an error. The petitioners are not busybodies gratuitously interfering with the affairs of other persons. The complainant himself admitted in cross-examination that the petitioners are the Mukhias of the Thelis of the village. Udiram Sahu (P. W. 2) is also a leader of the Thelis of Dumirpani. If as a fact the complainant had been outcasted fay the Thelis on account of his misconduct on a previous occasion the headmen of the Thelis of his village were under a social obligation to mention this incident to the other prominent Thelis of the locality so that any function in their houses may not be marred and they may not be put to expenditure if someone objects to the presence of the. complainant there.
It is true that the Constitution does not recognise caste but social customs have not changed notwithstanding the provisions of the Constitution and if a person, in good faith, publishes any letter contaming defamatory matter in the interests of the other members of his caste, he cannot be held guilty of defamation. Thus in Umed Singh v. Emperor, AIR 1924 All 694(1) (A), it was held that where a person was outcasted and the accused informed some persons of his caste not to take water from the hands of that person and that if they did so they woud be excommunicated no offence of defamation was committed. In Bhagawant v. Errmeror, AIR 1933 Oudh 377 (B), it was held that as the caste punchayets in India exercise a beneficial effect by controlling the social behaviour of the members of its caste any member of a caste who brings to the notice of the Punchayet the commission of a social offence by anothermember of that caste will not be guilty o defamation unless the accusation itself is found to be f'alse.
In Haripad v. Emperor, AIR 1930 Cal 645 (C), the same principle was reiterated and it was held that the imputation against a person which leads to his ex-communication from nis caste is defamatory if he is not guilty of the act alleged against him. In Manna v. Ram Ghulam, AIR 1950 All 619 (D), it was further held that the communication of a caste resolution ex-comniunicating a member of a caste, by one of the members of the caste to the other members is covered by exception 9 to Section 499, I. P. C., inasmuch as every member of that caste is bound both in his own interest and in the interest of his caste to publish the resolution, for saving himself and the caste from the defilement which would take place by acting against the verdict of his own ex-communication.
7. Hence, if as a fact the complainant had been excommunicated sometime in 1952 for some social offence by members of his own caste the Mukhias of his village were, in duty, bound to report this fact to the other prominent members of their caste in the interest of all of them. Under these circumstances their good faith is apparent and both the 9th and 10th exceptions to Section 499, I. P. C. would apply. In some cases even if the allegations against the person excommunicated are not found to be true yet the good faith of the persons disseminating such allegations may be inferred if there are reasonable grounds for those persons to believe, after due care and attention, that the allegations were true. All that the 9th and 10th exceptions to Section 499, 1. P. C. require is that there should be' good faith, i.e. the imputation must have been made after due care and attention even though on further searching investigation it may not be found to be true.
8. At this stage I may quote the material extracts from the offending letter :
'The purport of this letter is that Biswamber Sahu (complainant) has been ex-communicated 'chan-diya) by our caste-people and also by our basti people for the last two and a half years. In spite of that he has been taken in the marriage party by Sakhi Chand. Hence we send this complaint to you for a full enquiry as you happen to be an experienced sarpanch. What more can we write? You are an. extremely capable person.'
9. The petitioners sought to establish the truth of the allegations contained in this letter by examining six witnesses of whom five are residents of village Jinjera. Two of them, namely D.Ws. 4 and 6 are the barber and the dhoby of the village respectively. The other three witnesses (D.Ws. 1, 2 and 3) spoke about the ex-communication of the complainant Biswambar Sahu after full enquiry by the villagers sometime in 1952 for his having assaulted one Budhiarin Gondani of their village. D.W. 6 is a resident of Dumripani, the village of Udiram Sahu. He also spoke about the fact that at about that time news of the ex-communication of the complainant had reached his village also and when he questioned the complainant the latter replied that he did not attend the caste meeting. The trial Court disbelieved all these witnesses for reasons which are not very convincing.
He thought that the Gond woman should have been examined in support of the allegation of ex-communication. One cannot expect the woman, who (according to the evidence) was also ex-communicated to come forward to depose about her own disgrace. He has given no reasons for disbelieving D.W. 2, or D.Ws. 4 & 5 (the barber and the dhoby). He has also overlooked some damaging admissions made both by P.W. 1 (the complainant) and by P.W. 2 in cross-examination. Thus P.W. 2 stated that though the complainant had not been ex-communicated by his castemenhe was boycotted by his villagers. The subtle distinction between boycott and ex-communication is quite unreal in the present case. Moreover this witness further admitted that in the second punchayat held after the marriage ceremony in the house of, P.W, 2 was over, the allegation that the complainant had assaulted the Gond woman was found to be correct.
Doubtless this Court is not bound by the opinion of the punchayat as to the truth or otherwise of the allegation made against P.W. 1 but the fact that several members of the complainant's own caste thought that the allegations were true would justify the plea of good faith taken by the petitioners. P.W. 1 though denying the fact of his ex-communication admitted that during the Sakhati day ceremony in his house none of his caste-children joined him for the last three years. He also admitted that he could not join the funeral ceremony of Khasa's mother as he had been barred by the petitioners. These guarded admissions of even the prosecution witnesses including the complainant would seem to support the evidence of the defence witnesses to the effect that a caste punchayat was held sometime in 1952 and the complainant was boycotted for having assaulted a Gond woman. The petitioners were therefore entitled, in good faith, to believe that the allegations were true and to communicate the same to their fellow-casternan (P.W. 2) at Dumripani with a view to save the marriage function in his house from ending in a fiasco; such communication was necessary in the interest of P.W. 1 himself.
10. I would therefore allow this revision petition, set aside the conviction and sentence and acquit the petitioners.