The presumption under S.12 of the Protection of Civil Rights Act, 1955, which presumes that an act constituting an offence under the Act is committed on the ground of untouchability, is rebuttable and the accused can discharge the burden of proof by showing that the act was not committed on the ground of untouchability.

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 Hareshwar 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 Haribhau 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(f)(d) of the Protection of Civil Rights Act, 1955, simpliciter as also with the aid 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.

3. 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.

4. 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 a