Himachal Pradesh High Court
Bhagwan Dass vs State Of H.P on 17 October, 2024
( 2024:HHC:9848 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No. 182, 279 to 282 of 2010 Reserved on: 21.08.2024 Date of Decision: 17.10.2024.
1. Cr. Appeal No. 182 of 2010 Bhagwan Dass ...Appellant Versus State of H.P. ...Respondent _____________________________________
2. Cr. Appeal No. 279 of 2010 Kaushalya ...Appellant Versus State of H.P. ...Respondent _____________________________________
3. Cr. Appeal No. 280 of 2010 Meena Kumari ...Appellant Versus State of H.P. ...Respondent _____________________________________ 4. Cr. Appeal No. 281 of 2010 Pawana Devi ...Appellant Versus State of H.P. ...Respondent 2 ( 2024:HHC:9848 ) 5. Cr. Appeal No. 282 of 2010 Santosh Kumari ...Appellant.
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Arvind Sharma, Advocate, in all the appeals.
For the Respondents : Mr. Lokender Kutlehria, Additional Advocate General, in all the appeals.
Rakesh Kainthla, Judge The present appeals are directed against the judgment dated 24.07.2010 and order dated 28.07.2010 vide which the learned Special Judge (learned Trial Court) convicted the appellants (accused before the learned Trial Court) of the commission of an offence punishable under Section 3 (1) (iv) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as SC & ST Act) read with Section 149 of IPC and sentenced each of the accused to undergo Simple Imprisonment for 6 months and pay a fine of ₹5000/- each and in default of payment of fine to undergo simple 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 3
( 2024:HHC:9848 ) imprisonment for one month each for the commission of the aforesaid offence. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeals are that the police presented a challan before the learned Trial Court against the accused for the commission of an offence punishable under Section 3(1) (iv) (x) of SC&ST Act. It was asserted that the informant Thakur Dass (PW-1) made a complaint (Ext. PW-1/A) to the police that he had purchased the land from Durga Dass and Janki Devi in the year 1987. He was in possession of the land. The land of accused Bhagwan Dass etc. was located adjacent to his land. The accused interfered with his possession. The informant had made a complaint against the accused on 04.05.2007. The police obtained the demarcation and the boundaries were settled. On 23.05.2007 at around 2:30 PM, Bhagwan Dass, his wife, his son, and daughters-in-law irrigated their land and thereafter diverted the flow of water towards the field of the informant. They also removed the boundary marks affixed by the revenue department. The informant protested. The accused pushed him. They threatened to break the informant's leg 4 ( 2024:HHC:9848 ) in case he would visit the fields of the accused. They also abused the informant in the name of his caste. The informant shouted for help. His daughter-in-law Shashi reached the spot. The accused also gave her beatings. They abused her in the name of her caste. The informant and his daughter-in-law shouted, on which Sunil Kumar (PW-3), Balbir and Manoj Mehta (PW-9) came to the spot and rescued the informant from the accused. The police conducted a preliminary enquiry and found substance in the complaint of the informant. Jeet Singh (PW-10) made his endorsement (Ext. PW-10/A) on the back of the rukka and sent it to the police station where FIR (Ext. PW-8/A) was registered. Jeet Singh conducted the investigation. He visited the spot and prepared the site plan (Ext. PW-10/B). Thakur Dass produced his caste certificate (Ext. PW-10/C) and photocopies of the demarcation report, tatima, copies of jamabandi, mutation and field book. These were seized vide memo (Ext. PW-5/A). He recorded the statements of witnesses as per their version. He seized the pedigree table (Ext. PW-10/E) of the accused and jamabandi (Ext. PW-10/F). After the completion of the investigation, he prepared the challan and presented it to the Court of learned Judicial 5 ( 2024:HHC:9848 ) Magistrate First Class-1 Kangra, who committed it for trial to the Court of learned Special Judge, Kangra at Dharamshala.
3. Learned Special Judge charged the accused with the commission of an offence punishable under Section 3 (1) (iv) (x) of the SC&ST Act read with Section 149 of the Indian Penal Code, to which the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 10 witnesses to prove its case. Thakur Dass (PW-1) is the informant. Shashi (PW-2), Sunit Kumar (PW-3), Bali Ram (PW-4), Ram Chand (PW-5), and Manoj Mehta (PW-9) are the eyewitnesses. SI Des Raj (PW-6) submitted the report of the preliminary enquiry. Chuni Lal (PW-7) produced the original documents. Ramesh Kumar (PW-8) signed the FIR. Jeet Singh (PW-10) conducted the investigation.
5. The accused persons in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. They stated that prosecution witnesses deposed against them because they were interested. The accused were innocent and were falsely implicated. They have not committed any offence as was alleged by the prosecution. Statement of Amar Nath (DW-
1) was recorded in defence.6
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6. The learned Trial Court held that the testimonies of the witnesses corroborated each other. It was duly proved on record that the accused had abused the informant in the name of his caste. Abusing a person by the name of caste in a public place attracts the provision of the SC&ST Act. Mere pendency of the civil dispute between the parties will not assist the defence. The minor contradictions in the testimonies of eyewitnesses were not sufficient to discard them. The statement of Amar Nath (DW-1) was not relied on and the accused were convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the appellants/accused have filed the present appeals.
8. I have heard Mr. Arvind Sharma, learned counsel for the appellants/accused and Mr. Lokender Kutlehria, Additional Advocate General for respondent/State.
9. Mr. Arvind Sharma, learned counsel for the appellants/accused submitted that the learned Trial Court failed to appreciate the evidence properly. There were major contradictions in the statements of prosecution witnesses. There was enmity 7 ( 2024:HHC:9848 ) between the complainant and the accused. The informant had made a false case against the accused to pressurise them to abandon their claim. The ingredients of Section 3 (1) (v) (x) of SC&ST Act were not satisfied. He relied upon the judgments of the Hon'ble Supreme Court in Hitesh Verma versus the State of Uttarakhand & Anr. in Cr. Appeal No. 707 of 2020 decided on 05.11.2020, Dashrath Sahu versus State of Chhattisgarh 2024 SLP (Crl.) Nos. 6367 of 2023, Ramesh Chandra Vaishya versus State of Uttar Pradesh & Anr in SLP (CRL) No. 1249 of 2023 decided on 19.05.2023, B. Venkateswaran & Ors versus P. Bakthavatchalam, Cr. Appeal No. 1555 of 2022 decided on 05.06.2023 and Khuman Singh versus State of Madhya Pradesh, Cr. Appeal No. 1283 of 2019 decided on 27.08.2019 in support of his submission.
10. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with them.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8
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12. The informant Thakur Dass (PW-1) stated that he is Lohar by caste, which is a scheduled caste. The accused persons belong to non-scheduled caste. He purchased a piece of land from Durga Dass and Janki Devi in the year 1987. He was put in possession of the land and used to cultivate it. The accused started irrigating their land in May 2007 probably on the 4 th and 5th of the month. His land is located adjacent to the land of the accused person. He noticed that the accused had cut the boundary of his land and diverted the flow of water towards his field. He tried to block the water. The accused started abusing him by his caste name and threatened to break his leg. The accused called him Lohar and Chamar and stated that he did not have the status to talk to them. He raised a hue and cry. His son and daughter-in- law, namely, Sumit Kumar and Smt. Shashi Devi came to the field after hearing his cries. Other villagers also came to the spot. The accused caught hold of Shashi from her hair. They used filthy and objectionable language. He was defamed in the eyes of the public and his image was degraded. He made a complaint to the police.
13. He stated in his cross-examination that he had relations with people of all the caste. He used to participate in the marriages of the people of these communities before the incident. 9
( 2024:HHC:9848 ) The people knew his caste. He had no enmity with anyone but the accused had dragged him into litigation. He admitted that the father of the accused Bhagwan Dass was a tenant over the land purchased by him. He admitted that mutation was entered and attested at the time of relinquishment of the tenancy. He admitted that possession was not delivered to him. He volunteered to say that he had purchased the land through a power of attorney. Bhagwan Dass, his wife and his three daughters-in-law were in the field at about 2-2:30 PM. The quarrel continued for 2-3 hours. He remained sitting on the spot for about 2-3 hours. He admitted that he had not been beaten by the accused. He denied that he filed a false case to harass the accused. He admitted that his relationship with the people of other communities remained cordial and he had good social dealing with his co-villagers.
14. Shashi (PW-2) stated that she belongs to the Lohar caste. The accused are members of a non-scheduled caste. She and her husband were present in their house on 23.05.2007 at 2-2:30 PM. She heard some noise and came out of her house. She saw that the accused were quarrelling with her father-in-law in the field. She and her husband went to the field. The accused had diverted the water towards the informant's land and the informant 10 ( 2024:HHC:9848 ) objected to it. The accused pushed the informant and he fell. When she tried to rescue her father-in-law, the wife of Uttam Chand pulled her hair. She fell. When she got up, the accused abused her by saying Chamar and Lohar. Her husband reached the spot. Balbir Chaudhary, Manoj Mehta, Bali Ram Chaudhary and Ram Chand Dhiman came to the spot and accused abused them in the name of their caste.
15. She stated in her cross-examination that the land was located at a distance of 100 meters from her house and was visible from her house. They have similar social dealings with the people as they had before the incident. The quarrel continued for 45 minutes to one hour. The police reached within half an hour and remained on the spot for about half an hour. No quarrel took place in the presence of the police. She admitted that the possession of the land was not delivered to the informant in her presence. She volunteered to say that she was married about 18 years ago and she has been cultivating the land since then. She admitted that the disputes between the parties related to the possession and the boundaries of the land of the parties are common. She denied that the accused had not done anything and they were falsely implicated.
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16. Suneet Kumar (PW-3) stated that he belongs to a Lohar caste which is a scheduled caste. The accused are the members of a non-scheduled caste. On 22.05.2007 the field was cultivated with the help of a tractor and the wheat was to be sown there. On 23.05.2007 he was present in his house during the day. His wife told him at 2:30-2:45 PM that the accused were quarrelling with the informant and he should go to the spot. He and his wife went to their land. Balbir Singh, Manoj Mehta and Bali Ram also came to the spot after hearing the noise. He informed the police that the accused were saying that the land belonged to them and the accused could do anything. The accused also abused the informant party by calling them Chuda, Chamar and Lohar. The people heard these abuses and the image of the accused persons has diminished in the eyes of the public. The accused had diverted the flow of water towards the informant's land which was prepared for sowing. The accused had harvested the wheat crop growing on the informant's land.
17. He stated in his cross-examination that he had reached the spot within 2-3 minutes of his wife's arrival. He was present in his workshop located adjacent to the house. His father had gone to the spot about 10-15 minutes before his arrival. The police came 12 ( 2024:HHC:9848 ) to the spot after 15 minutes of his arrival. The accused had uttered the same words which were mentioned by him in the presence of the police. The land was purchased from Durga Dass who was in possession of the land. He denied that no incident had taken place and the accused were falsely implicated.
18. Bali Ram (PW-4) stated that he heard the noise on 23.07.2007 at 2:30 PM. He went to the spot and saw that the accused were irrigating the fields belonging to Bhagwan Dass. Both the parties were present and they were exchanging hot words. He was permitted to be cross-examined. He admitted that the occurrence had taken place on 23.05.2007 at 2:30 PM. He contradicted his previous statement. He admitted that the accused had called Thakur Dass and his family by calling them Lohar, Chamar, Harijan and the members of the lower caste. He admitted that the accused also stated that the informant party belonged to the lower caste and that their place was in the accused's shoes. He stated in cross-examination by learned counsel for the defence that the distance between the place of the incident and the place where he was working was about 25-30 meters. He saw the incident for about five minutes. He admitted that no derogatory 13 ( 2024:HHC:9848 ) words were used by the accused against Thakur Dass and his family members in his presence.
19. Ram Chand (PW-5) stated that he knew the informant Thakur Dass who was in possession of the land. Bhagwan Dass owned the land adjacent to the land of the complainant. The accused harvested the wheat crop on the land of informant Thakur Dass and a case was registered regarding this incident. The accused were irrigating their fields on 23.05.2007, at 2-2:30 PM. The water went to the field of the informant. This led to a quarrel between the parties. Thakur Dass was pushed and he fell. The accused asserted their possession over the land of Thakur Dass. The boundary of the land of Thakur Dass was also disturbed. The accused abused the informant. They stated that Thakur Dass was a Lohar by caste but his work was like that of Chamar. Shashi came on the spot and one of the accused had a scuffle with Shashi.
20. He stated in his cross-examination that the workshop of Thakur Dass was located at a distance of 100 meters from his land. 5-6 people were working in the workshop. He denied that he was employed as a Manager in the workshop. He volunteered to say that he had gone to the workshop to get his vehicle repaired. 14
( 2024:HHC:9848 ) His house was located at a distance of one and a half kilometres from the informant's workshop. Accused Thakur Dass and her daughter-in-law were present on the spot and other people were standing at some distance. The old lady had only uttered derogatory words. He did not know the name of the old lady. He identified her in the Court by pointing towards her.
21. Manoj Mehta (PW-9) stated that on 23.05.2007 the accused diverted the water of their field to the informant's field and they started cultivating the informant's land. Thakur Dass, his son and daughter-in-law came to the spot and they resisted the cultivation of their land by the accused person. Kaushalya Devi abused the informant party in the name of the caste, and the other accused hotly. Shashi tried to intervene but she was pushed. People advised the parties not to quarrel with each other. He stated in his cross-examination that his shop was situated near New Bus Stand Nagrota Bagwan at a distance of half a kilometer from the house of the accused. He remained on the spot for 30 to 45 minutes. The police were not called in his presence and the police had also not reached the spot. The informant party had 10- 12 fields and the area of the land was one and a half kanals. Thakur Dass had purchased the land in 1987 from Durga Dass. He was not 15 ( 2024:HHC:9848 ) aware that the land was under the tenancy of Parma Ram. He denied that no derogatory language was used by the accused.
22. This is the entire evidence led by the prosecution.
23. It was submitted that the witnesses have admitted that there was a land dispute between the parties. The informant claims to have purchased the land from Durga Dass and Janki Devi. He admitted that the father of the accused was a tenant. This shows that the relationship between the parties is not cordial and the possibility of false implication cannot be ruled out. This submission is not acceptable. Enmity is a double-edged weapon; while it provides a motive for false implication, it also provides a motive for the commission of crime. Thus, no advantage can be derived from the enmity between the parties.
24. It was submitted that the incident had not taken place in a public place and the provisions of Section 3 (1) (x) of the SC & ST Act are not attracted. This submission is not acceptable. Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act reads as under: -
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, --
(x) intentionally insults or intimidates with intent to 16 ( 2024:HHC:9848 ) humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with a fine.
25. It was laid down by Hon'ble Supreme Court in Swarn Singh versus State, 2008 (8) SCC 435 that when the incident has taken place outside the building, which is viewed by the members of the public, it would constitute an offence punishable under Section 3(1)(x) of SC&ST (Prevention of Atrocities) Act. It was observed:
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building and also not in the public view. However, if the offence is committed outside the building e.g. on a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an 17 ( 2024:HHC:9848 ) instrumentality of the State, and not by private persons or private bodies." (Emphasis supplied)
26. This judgment was followed by the Hon'ble Supreme Court in Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710 and it was held: -
"14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [Swaran Singh v. State, (2008) 8 SCC 435: (2008) 3 SCC (Cri) 527]. The Court had drawn a distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. on a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view (sic) [Ed. : This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:
"Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view."]
15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge sheet, 18 ( 2024:HHC:9848 ) certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh [Swaran Singh v. State, (2008) 8 SCC 435: (2008) 3 SCC (Cri) 527], it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet."
27. Similar view was taken in Ramesh Chandra Vaishya v. State of U.P., 2023 SCC OnLine SC 668, wherein it was held: -
"16. The first F.I.R. registered at the instance of the complainant is silent about the place of occurrence and who, being a member of the public, was present when the appellant is alleged to have hurled caste-related abuses at the complainant. However, on a reading of the second F.I.R. registered at the behest of the appellant, it appears that the incident took place at the house of the appellant.
17. The first question that calls for an answer is whether it was at a place within public view that the appellant hurled caste-related abuses at the complainant with an intent to insult or intimidate with an intent to humiliate him. From the charge sheet dated 21st January 2016 filed by the I.O., it appears that the prosecution would seek to rely on the evidence of three witnesses to drive home the charge against the appellant of committing offences under sections 323 and 504, IPC and 3(1)(x), SC/ST Act. These three witnesses are none other than the complainant, his wife and their son. Neither the first F.I.R. nor the charge sheet refers to the presence of a fifth individual (a member of the public) at the place of occurrence (apart from the appellant, the complainant, his wife and their son). Since the utterances, if any, made by the appellant were not "in any place within public view", the basic ingredient for attracting section 3(1)(x) of the SC/ST Act was missing/absent. We, therefore, hold that at the relevant 19 ( 2024:HHC:9848 ) point in time of the incident (of hurling of caste-related abuse at the complainant by the appellant), no member of the public was present."
28. This position was reiterated in Priti Agarwalla v. State (NCT of Delhi), 2024 SCC OnLine SC 973, wherein it was observed-
"20. The cumulative effect of the structured application to a given situation is that the intentional insult or abuse coupled with the humiliation is made in any place within public view. The expression "in any place within public view" has an important role to play in deciding whether the allegation attracts the ingredients of an offence or not, and has been the subject matter of consideration in the following decisions:
(1) Swaran Singh v. State (2008) 8 SCC 435-
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building and also not in the public view. However, if the offence is committed outside the building e.g. on a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or 20 ( 2024:HHC:9848 ) gaon sabha or an instrumentality of the State, and not by private persons or private bodies."
(2) Daya Bhatnagar v. State2004 SCC OnLine Del 33.-
"19. The SC/ST Act was enacted with a laudable object to protect vulnerable sections of society. Sub-clauses (i) to
(xv) of Section 3(1) of the Act enumerate various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence.
However, Sub-clause (x) is the only clause where even offending "utterances" have been made punishable. The Legislature required 'intention' as an essential ingredient for the offence of 'insult', 'intimidation' and 'humiliation' of a member of the Scheduled Casts or Scheduled Tribe in any place within 'public view'. Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking at the aims and objects of the Act, the expression "public view" in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant would necessarily get excluded."
(3) Pramod Suryabhan Pawar v. State of Maharashtra (before the High Court of Bombay) 2016 SCC OnLine Bom 15947-
"17. The requirement of section 3(1)(x) of the old Act is intentional insult and intimidation with intent to humiliate the person belonging to a Scheduled Caste or Scheduled Tribe in any place within public view. Messages sent on WhatsApp cannot be said to be an act of intentional insult or intimidation or an intent to humiliate in a public place within public view. As such it is prima facie seen that no offence under the provisions of the Scheduled Castes and 21 ( 2024:HHC:9848 ) the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is attracted in the case in hand."
29. In the present case the incident had taken place in the fields of the informant and the accused, as per the statements of witnesses. Independent witnesses had also gathered on the spot. Therefore, the incident had not only taken place at a public place but the public was also present on the spot. Therefore, the submission that the provision of Section 3(1) (x) of the SC & ST Act is not attracted to the present case is not acceptable.
30. It was submitted that the prosecution witnesses admitted that the informant party was being called to the social function and their social standing had not deteriorated. Therefore, no offence punishable under Section 3(1) (x) of the SC&ST Act is made out. This submission is not acceptable. The offence, punishable under Section 3 (1) (x) of the SC & ST, is committed by the insult or humiliation of the member of a scheduled caste by a person not belonging to the scheduled caste. The definition does not require the disruption of the social ties and the submission that the social ties of the informant with the people were still intact and no offence punishable under Section 3(1) (x) is made out cannot be accepted.
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31. It was submitted that the accused had not done any act with the intention that the informant party belonged to the scheduled caste. Reliance was placed upon the judgment of the Hon'ble Supreme Court in Dashrath Sahu (supra) and Khuman Singh (supra). In both these cases, the Hon'ble Supreme Court was concerned with Section 3 (2) (v) of the SC&ST Prevention of Atrocities Act which requires the use of force on any woman belonging to a scheduled caste or scheduled tribe to dishonour or outrage her modesty. Therefore, the intention of dishonouring the members of scheduled caste and scheduled tribes is essential for attracting the provisions of Section 3 (2) (v) of the SC&ST Act, which is not the case under Section 3 (1) (x). Hence, no advantage can be derived from these judgments cited on behalf of the accused.
32. It was submitted that the dispute between the parties pertained to the land and the filing of a complaint under the provisions of the SC&ST Act was an abuse of the process of the Court. Reliance was placed upon the judgment of B. Venkateswaran & Ors (supra). The facts of the case show that a dispute between the parties was pending regarding the construction and a complaint under Section 3(1) (v) and (va) of the SCC&ST Act was 23 ( 2024:HHC:9848 ) filed. It was held that the provisions of Section 3(1) (VA) was not attracted because the private dispute was pending between the parties which was being given the colour of criminal dispute. Section 3 (1) (v) deals with wrongful dispossession of the member of the scheduled caste. The present case is concerned with the abuse and intentional insult of the member of the scheduled caste; therefore, this judgment will not assist the accused.
33. It was submitted that there are major contradictions in the statements of the witnesses. They have given different descriptions of the words used by the accused. This submission will not help the accused. The incident took place on 23.05.2007. The witnesses made their statements before the Court on 09.03.2009 and afterwards. Thus, about 2 years had elapsed between the date of the incident and the date of deposition. It is difficult for anyone to remember the exact words used on the spot and the person can only give a broad description of the words used on the spot. Therefore, the variation is bound to come and the case cannot be discarded because the exact words used by the accused were not mentioned in the Court. It was laid down by the Hon'ble Supreme Court in Bharwada Bhoginbhai Hirji Bhai versus State of Gujarat 1983 (3) SCC 217 that the mere discrepancy in the 24 ( 2024:HHC:9848 ) statement of a witness is not sufficient to discard his testimony. It was observed:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.
(2) Ordinarily, it so happens that a witness is overtaken by events, the witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to the exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guesswork impulsively at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals, which varies from person to person.
(6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events, which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts gets confused regarding the sequence of events or 25 ( 2024:HHC:9848 ) fills up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of psychological defence mechanism activated on the spur of the moment." (Emphasis supplied)"
34. This position was reiterated in Balu Sudam Khalde and another Versus State of Maharashtra AIR 2023 SC 1736, wherein it was observed as under:-
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straightjacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which did not have this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor 26 ( 2024:HHC:9848 ) variations or infirmities in the matter of trivial details. III. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main 27 ( 2024:HHC:9848 ) purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to the exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events, which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and out of nervousness mix up facts, get confused regarding the sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the latter statement, even if the latter statement is at variance with the former to some extent it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096: (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)] 28 ( 2024:HHC:9848 )
35. It was submitted that witness Bali Ram did not support the prosecution case and the same is fatal. This submission cannot be accepted. Bali Ram admitted in his cross-examination that the accused had abused the informant party in the name of their caste. They had uttered the words like Lohar, Chamar and the informant party belongs to the Lohar caste, hence this witness has supported the prosecution case in the cross-examination by learned Public Prosecutor. He stated in cross-examination by learned Defence Counsel that no derogatory words were used in his presence. Thus, he is shown to have made different statements in his cross- examination, which would make it difficult to place reliance on his testimony. Therefore, his testimony cannot be used to discard the prosecution case.
36. The version of Thakur Dass is duly corroborated by the complaint made by him to the police on the next date of the incident. It contains the description of the incident in the same manner as was deposed in the Court. Therefore, the contents of the complaint duly corroborated the version of Thakur Dass.
37. The accused examined Amar Nath (DW-1) who stated that he had not heard that the accused called the informant party 29 ( 2024:HHC:9848 ) as Lohar and a person of lower caste. Testimony of this witness will not help the defence because it is not the case of the defence that he was present on the spot. Therefore, his testimony that he had not heard anything about the accused calling the informant party of the lower caste will not help the defence. It is trite to say that the absence of evidence is not evidence of absence. Hence, his testimony will not help the defence in any manner.
38. It was submitted that the complainant party had earlier filed a complaint against the accused regarding the theft and they were acquitted. This judgment will not help the accused in any manner. It pertains to the different incidents which do not have any impact on the present incident. Therefore, the acquittal in the previous litigation will not help them.
39. The statements of the witnesses were quite consistent regarding the abuse of the informant's party by the accused in a public place. Therefore, the learned Trial Court had rightly convicted the accused for the commission of an offence punishable under Section 3(1) (x) of the SC&ST Act (Prevention of Atrocities Act). Learned Trial Court sentenced the accused to undergo simple imprisonment for six months each and pay a fine of ₹5000/-each. 30
( 2024:HHC:9848 ) A person committing the offence punishable under Section 3(1) (x) can be punished with a minimum imprisonment of six months. Thus, the learned Trial Court had imposed the minimum sentence and no interference is required with the sentence imposed by the learned Trial Court.
40. Consequently, the judgment and order passed by the learned Trial Court are fully sustainable and no interference is required with the same. Hence, the present appeals fail and the same are dismissed.
41. The observations made hereinbefore shall remain confined to the disposal of the present petitions and will have no bearing, whatsoever, on the merits of the case.
42. Pending application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla) Judge 17th October, 2024 (Nikita) Digitally signed by KARAN SINGH GULERIA Date: 2024.10.17 20:14:15 IST