Himachal Pradesh High Court
Sarla Devi vs State Of Himachal Pradesh on 18 July, 2024
Neutral Citation No. ( 2024:HHC:5400 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 109 of 2011 Reserved on: 17.06.2024 .
Date of Decision: 18.07.2024
Sarla Devi ...Appellant.
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the appellant
r : Mr R.K. Gautam, Senior Advocate
with Ms. Radhika Gautam, Advocate.
For the Respondent : Mr. Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment dated 25.3.2011 passed by learned Special Judge, Una (learned Trial Court) vide which, the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ( in short 'the Act') and was sentenced to undergo simple imprisonment for six months 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 18/07/2024 20:32:41 :::CIS 2and to pay a fine of ₹1,000/- and in default of payment of fine to further undergo simple imprisonment for 15 days. (Parties shall .
hereinafter be referred to in the same manner as they were arrayed before learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 3(1)(x) of the Act. It was asserted that informant-Prakash Chand (PW2) is a Panch of Gram Panchayat Kathohar Kalan. The accused is also a Ward Panch. She was Up-
Pradhan of the Panchayat earlier. A Panchayat meeting was held on 8.4.2009, in which all the panchayat members were present.
They were discussing the affairs of the Panchayat. When the matter related to Ward No.2 came up for discussion, the accused started saying that money would not be invested in Ward No.2.
When the informant asked the accused as to why the money would not be invested in his ward, the accused became infuriated and started abusing the informant. She called the informant 'Jullaha', a person of a lower caste. She further stated that his mind was as low as his caste and he had no right to become a Panch, since Panchayat does not have anything to do with the low caste. These ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 3 words were uttered by the accused deliberately to defame the informant. She also stated that her post of Up-Pradhan was lost .
because of the informant. Next time, she would get the vote by beating him with the shoe. She removed the chappal from her foot and attempted to beat the informant. The Members of the Panchayat pacified the accused and snatched the chappal from her. The accused continued to threaten the informant to implicate him in a false case and kill him. The informant filed an application (Ext. PW2/A) before the police. The police registered the FIR (Ext.PW7/A). Madan Lal, Dy.SP (PW8) started the investigation. He went to the spot and recorded the statements of witnesses as per their version. He obtained the caste certificate of the victim (Ext.
PW1/A), which shows that the informant belongs to Kabirpanthi (Scheduled Caste). He also obtained the pedigree tables of the informant (Ext. PW5/A and Ext. PW5/B) and the certificate of accused issued by Pradhan and counter-signed by Patwari (Ext.
PW6/A). The police conducted the investigation and prepared the challan after the completion of the investigation, which was presented before the Court of learned Judicial Magistrate First Class, Amb, who committed it for trial to learned Special Judge, Una.
::: Downloaded on - 18/07/2024 20:32:41 :::CIS 43. Learned Special Judge, Una framed the charge against the accused for the commission of an offence punishable under .
Section 3(1)(x) of the Act. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined eight witnesses to prove its case. Kesar Ram (PW1) produced the certificates. Prakash Chand (PW2) is the informant. Baldev Singh (PW3) and Shakuntla Devi (PW4) are the eye-witnesses. Gian Singh (PW5) issued the pedigree tables. Gurcharan Singh (PW6) issued the certificate stating that the accused belongs to other backward class (OBC).
Mohammad Arshad (PW7) signed the FIR. Dy.S.P. Madan Lal (PW8) conducted the investigation.
5. The accused in her statement recorded under Section 313 of Cr. P.C. admitted that a meeting was convened and she and the accused were present in the meeting, as Members of the Panchayat. She admitted that the informant belongs to the Jullaha caste. She denied the rest of the prosecution case. She stated that a false case was made against her. She was earlier Up-Pradhan of the concerned Panchayat. Prakash Chand and other members of the Panchayat used to misappropriate the funds of the Panchayat.
::: Downloaded on - 18/07/2024 20:32:41 :::CIS 5She used to complain against them because of which, they were inimical to her and they falsely implicated her in the present case.
.
No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the informant's version was corroborated by the other witnesses present on the spot. There was nothing in the cross-examination of the witnesses to show that they were deposing falsely. Enmity is a double-edged weapon, which can be considered against either party based on the evidence led before the Court. The delay was satisfactorily explained. The prosecution had succeeded in establishing its case beyond reasonable doubt; hence, the accused was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. The accused also belongs to other backward class (OBC). It was not proved on record that the informant belongs to the caste Jullaha. The incident was not recorded in the proceedings of the Panchayat. The FIR was lodged after a delay. The informant admitted that the complaint was ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 6 written by some person after seeking advice from the Advocate, which shows that the possibility of the concoction cannot be ruled .
out. The enmity was proved and learned Trial Court erred in ignoring the same. Kanta Devi was not examined. The place, where the meeting was going on was not a public place; therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
8. I have heard Mr. R.K. Gautam, learned Senior counsel assisted by Ms. Radhika Gautam learned counsel for the appellant/accused and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State.
9. Mr. R.K. Gautam, learned Senior Counsel for the appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. As per the prosecution case, the incident had taken place inside the building, where the Members of the Panchayat were present. This is not sufficient as the Members of the public should have been present. Reliance was placed upon the judgmentsi.e. Daya Bhatnagar versus State, 2004 SCC online (Delhi) 33, Priti Agarwalla v. State (NCT of Delhi), 2024 SCC OnLine SC 973and Swaran Singh v. State (2008) 8 SCC 435. There ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 7 was a delay in reporting the matter to the police, which was not properly explained. The informant admitted that he had got the .
complaint written from some other person after consulting the Advocate, which shows that the possibility of the concoction and deliberation cannot be ruled out; hence, he prayed that the present appeal be allowed and the judgment and order passed by learned Trial Court be set aside.
10. Mr. Jitender Sharma, 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 it.
11. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
12. The informant-Prakash Chand (PW2) stated that the meeting of the Panchayat was convened on 08.04.2009. Baldev Singh, Shakuntla Devi, Sarla Devi, Kanta Devi and Rekha Devi were present at the meeting. The meeting started at 2/2:30 pm. Sarla Devi-accused was Panch of Ward No.3. The matter related to the works being undertaken by the panchayat was discussed. When ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 8 the matter regarding Ward No.2 represented by the informant was discussed, the accused stated that no work would be carried out in .
Ward no.2. She called the informant Jullaha. She further stated that he (the informant) had low intellect and his mind was also of low standard being Jullaha. She got up and tried to hit him with her chappal. Pradhan and up-Pradhan caught hold of her and tried to pacify her. The accused pushed the table and went outside. She abused the informant. He tried to lodge the report with the police on 08.04.2009 but SHO was not available on that day. The report was lodged on the next day.
13. He stated in his cross-examination that the meeting of the Panchayat is convened on 15-30th of every month, which are the scheduled dates for organizing the meeting. This practice has continued for many years. He admitted that the Circle Secretary is usually present during the meetings and the proceedings are entered in the record by the Secretary. The meeting was not scheduled for the 8th but it was convened by Pradhan of Gram Panchayat. The Secretary was not present at that time. No proceedings of the meeting were recorded on the 8th. He admitted that usually the proceedings are recorded but volunteered to say that proceedings were not recorded on that day as the Panchayat ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 9 meeting had abruptly come to an end because of the quarrel. He was not aware that accused Sarla Devi had lodged a complaint .
against the Panchayat for not utilising the funds. He was not aware if the Block Development Officer had directed the Inspector of Panchayat to conduct the inquiry. He was not aware if Sarla Devi had told the BDO that the inquiry should not be conducted by the Panchayat Inspector, as he was also working in connivance with the complainant and other members of the Panchayat. He denied that there was enmity between the parties as he had initiated a no-confidence motion against the accused. He denied that the funds were being misused by the Panchayat and the accused was falsely implicated. He admitted that he was convicted of the commission of offences punishable under Sections 452 and 323 of IPC. He volunteered to say that he was acquitted later on in the appeal. He denied that a false complaint was made to the police.
14. Learned Trial Court had rightly pointed out that there was nothing in his cross-examination to show that he was making a false statement. He has nowhere admitted that the complaint was lodged after consultation with the Advocate. Therefore, the submission that the complaint was lodged after due deliberation is not acceptable.
::: Downloaded on - 18/07/2024 20:32:41 :::CIS 1015. He was cross-examined regarding the date of the meeting and the fact that the 8th was not a scheduled date for the .
meeting. However, the accused has not disputed in her statement recorded under Section 313 of Cr.P.C. that a meeting of Panchayat was being convened on that day. Hence, the meeting is undisputed and the fact that it was being held on the date which was not already scheduled will not affect the prosecution case.
16. This witness (PW2) stated in his cross-examination that the Secretary was not present and the proceedings of the Panchayat were not recorded on that day. Thus, the submission that the proceedings of the incident were not recorded in the Panchayat Register, which made the prosecution case suspect is not acceptable.
17. It was submitted that he stated that the delay occurred because the SHO was not present on the date of the incident. This explanation is false because Mohammad Arshad (PW7) stated that the police station never remains without the SHO and there is no hitch in the registration of the FIR even if the SHO is out of station.
This submission will not assist the defence. Mohammad Arshad specifically stated that he was out of the police station on ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 11 08.04.2009. This corroborates the version of the informant that he could not report the matter to the police because SHO was out of .
station. Simply because some other person was acting as SHO will not show that the informant was making a false statement regarding the SHO being out of station.
18. The statement of the informant is corroborated by Baldev Singh (PW3), who stated that a discussion was being made in the Panchayat on 08.04.2009. When the turn of Ward No.2 came, Sarla Devi said that the work of Ward No.2 would not be carried out. She also got enraged. An altercation took between the informant and the accused. The accused told the informant that he was Jullaha and had a low mentality. She also said that the informant had not voted for her as vice president of Gram Panchayat. She took out her slipper from her foot to hurl it at the informant; however, the Members of the Panchayat intervened and stopped her. She went out hurling abuses. He stated in his cross-examination that he was elected Pradhan in the year 2006.
The accused was unanimously elected as Vice Pradhan in the same year. He admitted that the practice of holding two meetings in the month on the 15th and 30th was prevalent. He volunteered to say that practice was discontinued after the coming into force of ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 12 Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA). Panchayat was empowered to convene meetings as per .
the wishes of the Members. He admitted that lakhs of rupees were granted to the Panchayat under MNREGA. He denied that the MNREGA was not being implemented at the time of the incident.
He was not aware of the no-confidence proceedings but volunteered to say that the no-confidence motion could be passed against Pradhan or Up Pradhan after two years. A requisition was made two years after the election of Sarla Devi. He did not remember the exact date. Proceedings were recorded in the proceedings register, which was in the custody of the Secretary.
The Investigating Officer did not ask for the no-confidence proceedings. He volunteered to say that a no-confidence motion was passed one year before the incident. No other person was present except the Ward Members. The misbehaviour of the accused was not recorded in the proceedings because the Members of the Panchayat had gone to the Police Station. SHO was not present, hence, they were called on the next day. He denied that a false case was made against the accused.
19. Nothing was suggested in his cross-examination to show that he had any enmity with the accused. He was Pradhan of ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 13 the Gram Panchayat. The accused remained Up-Pradhan with him, therefore, he had no reason to depose falsely against the .
accused and learned Trial Court had rightly accepted his testimony.
20. It was submitted that there are contradictions in his statement and the statement of the informant regarding the presence of the Secretary and recording of the proceedings.
However, these contradictions are minor and will not affect the core of their testimonies regarding the incident. Further, the incident had taken place on 08.04.2009 and he was making a statement on 05.01.2011 three years after the incident; hence, minor contradictions were bound to come, which cannot be used for discarding the prosecution case.
21. Shakuntla Devi (PW4) stated that she belongs to other backward castes. The accused also belongs to the other backward class. A meeting of Panchayat was convened on 08.04.2009. All the Ward Members, Pradhan and Up Pradhan were present in the meeting. The works being carried out by Panchayat were being discussed. The informant and the accused had an altercation during the meeting because the accused said that no work would ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 14 be carried out in the Ward of the informant. The accused also said that the informant was a Jullaha and had a low mentality. The .
informant was also of the low caste. The accused took out a slipper and hurled it at the informant. She and Ward Panch Rekha Devi snatched the 'Chappal' from the accused and restrained her from assaulting the informant. The accused left the Panchayat thereafter. She denied in her cross-examination that the accused used to complain against the Panchayat for pilferage of funds issued under MNREGA. No members of the public except Panch was present. She became Up-Pradhan after the accused was removed. Panch, Inspector, Secretary and Ward Members were present at the time when the accused was removed from the post of Up-Pradhan. She denied that she had feelings of ill-will against the accused because she became Up-Pradhan in place of the accused. She was not aware whether the Secretary was aware of such proceedings or not. She volunteered to say that the Secretary was aware of the removal of the accused from Up-Pradhan. She denied that she was a political rival and was deposing falsely against the accused.
22. There is nothing in her cross-examination to show that she is making a false statement. She became Up-Pradhan ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 15 after the accused but this will give no reason to her to depose falsely against the accused. She is a member of the same .
Panchayat and also belongs to the caste of the accused. In the absence of anything in her cross-examination, her testimony was rightly accepted by the learned Trial Court.
23. It was submitted that Kanta Devi, Ward Panch was not examined and an adverse inference should be drawn against the prosecution. This cannot be accepted. Kanta Devi and Rekha Rani were given up by the learned Public Prosecutor as being repetitive.
When three witnesses of the incident had been examined, learned Public Prosecutor was justified in giving up Kanta Devi and Rekha Rani as being repetitive. It was held in Hukam Singh vs. State of Rajasthan 2000 (7) SCC 490 that the Public Prosecutor is under no obligation to examine all the witnesses. If the statement of a witness is repetitive, the public prosecutor can give him up. It was observed:
"13.....If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 16 three of them, it is open to him to inform the court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for reliev- ing itself of the strain of adducing repetitive evidence on the .
same point but also help the court considerably in lessening the workload. The time has come to make every effort pos- sible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.
24. This position was reiterated in Rohtash vs. State of Haryana 2013 (14) SCC 434 and it was held that the prosecution is not bound to examine all the cited witnesses and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed:
14. A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses is, whether the prosecution is bound to examine all the listed/cited witnesses. This Court, in Abdul Gani &Ors. v. State of Madhya Pradesh, AIR 1954 SC 31, has examined the aforesaid issue and held, that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regard-
ing the facts that the prosecution desires to prove. Ulti-
mately, it is a matter left to the discretion of the public prosecutor, and though a court ought to and no doubt would take into consideration the absence of witnesses whose tes- timony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testi- mony given in the light of such criticism, as may be levelled at the absence of possible material witnesses.
::: Downloaded on - 18/07/2024 20:32:41 :::CIS 1715. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a similar view has been reiterated, observing that a court cannot normally compel the prosecution to examine a wit- ness which the prosecution does not choose to examine and .
that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials.
16. In Masalti v. the State of U.P., AIR 1965 SC 202, this Court held that it would be unsound to lay down as a general rule, that every witness must be examined, even though, the evi- dence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised.
In such cases, it is always open to the defence to ex- amine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr.P.C. (See also: Bir Singh &Ors. vs. State of U.P., (1977 (4) SCC 420)
17. In Darya Singh &Ors. v. State of Punjab, AIR 1965 SC 328, this Court reiterated a similar view and held that if the eye- witness(s) is deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said wit- nesses as constituting a serious infirmity in the proof of the prosecution case.
18. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this Court held as under:
"10. ... Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redun- dant multiplication of witnesses. The appellant's counsel has not shown how the prosecution story is rendered less trustworthy as a result of the non- production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally, we may point ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 18 out that the accused too have not considered it proper to produce those persons as witnesses for controvert- ing the prosecution version....."
19. In Harpal Singh v. Devinder Singh & Ann, AIR 1997 SC .
2914], this Court reiterated a similar view and further ob-
served:
"24. ... Illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a neces- sary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the ad- verse inference merely on the strength of non-
examination of a witness even if it is a material wit- ness....."
20. In Mohanlal Shamji Soni v. Union of India &Anr., AIR 1991 SC 1346, this Court held:
"10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to estab-
lish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecu-
tion or the defence to examine any particular witness or witnesses on their sides. Nonetheless, if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.
.. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Sec- tion 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its dis- cretionary authority at any stage of enquiry, trial or another proceeding can summon any person as a wit- ness or examine any person in attendance though not ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 19 summoned as a witness or recall or re-examine any person in attendance though not summoned as a wit- ness or recall and re-examine any person already ex- amined who are expected to be able to throw light .
upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."
21. In Banti @ Guddu v. State of M.P. AIR 2004 SC 261, this Court held:
"12. In trials before a Court of Session the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evi- dence he proposes to adduce for proving the guilt of the accused.......If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for the prosecution.
13. When the case reaches the stage envisaged in Sec-
tion 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said section that the Public Prosecutor is expected to produce evi- dence "in support of the prosecution" and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the presence cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depo- sitions on the same factual aspects.......This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessen- ing the workload. The time has come to make every ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 20 effort possible to lessen the workload, particularly those courts crammed with cases, but without im- pairing the cause of justice.
14. It is open to the defence to cite him and examine .
him as a defence witness."
22. The said issue was also considered by this Court in R. Shaji (supra), and the Court, after placing reliance upon its judgments in Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; and Kishan Chand v. State of Haryana JT 2013 (1) SC 222, held as under:
"22. In the matter of appreciation of evidence of wit-
nesses, it is not the number of witnesses, but the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or other- wise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multi-
plicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this, does not carry any weight."
23. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multi- plicity or plurality of witnesses. The accused can also exam- ine the cited, but not examined witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to ten- der the witnesses to prove the case of the prosecution and "the court will not interfere with the exercise of that dis- cretion unless, perhaps, it can be shown that the prosecu- tion has been influenced by some oblique motive." In an ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 21 extraordinary situation, if the court comes to the conclu- sion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubt-
.
edly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness, if it is so warranted in the interests of justice. In fact, the evidence of the witnesses must be tested on the touchstone of reliabil- ity, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same.
25. This position was reiterated in Rajesh Yadav & Anr versus State Of U P, 2022 (2) RCR (Criminal) 132, wherein it was held: -
"[31] A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their im- portance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab, 1976 4 SCC 369:
"13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 22 the evidence shows that there were some persons liv- ing in that locality like the 'pakodewalla', hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Addi-
.
tional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argu- ment. In our opinion, the comments of the Additional Sessions Judge are based on a serious misconception of the correct legal position. The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecu-
tion has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is with-
held, the court may draw an adverse inference against the prosecution. But it is not the law that the omis-
sion to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such wit- nesses as are essential for the unfolding of the prose- cution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewit- nesses who had actually seen the occurrence and were therefore material to prove the case. It is not neces-
sary for the prosecution to multiply witness after witness on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was as- saulted a large crowd had gathered and some of the members of the crowd had actually seen the occur-::: Downloaded on - 18/07/2024 20:32:41 :::CIS 23
rence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the wit- nesses in mofussil to shun giving evidence in courts .
because of the cumbersome and dilatory procedure of our courts, the harassment to which they are sub- jected by the police and the searching cross- examination which they have to face before the courts. Therefore nobody wants to be a witness in a murder or any serious offence if he can avoid it. Al- though the evidence does show that four or five per- sons had alighted from the bus at the time when the deceased and his companions got down from the bus, yet there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes "(Emphasis sup-
plied) [32] This Court has reiterated the aforesaid principle in Gu-
lam Sarbar v. State of Bihar, 2014 3 SCC 401:
"19. In the matter of appreciation of evidence of wit- nesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is co- gent, credible and trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which de- termines the adequacy of evidence as has been pro- vided by Section 134 of the Evidence Act. Even in pro- bate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any weight. Thus, a conviction can even be based on the testimony of a sole eyewitness, if the same inspires ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 24 confidence. (Vide Vadivelu Thevar v. State of Madras, 1957 AIR(SC) 614: 1957 Cri LJ 1000], Kunju v. State of T.N., 2008 2 SCC 151: (2008) 1 SCC (Cri) 331], Bipin Ku- mar Mondal v. State of W.B., 2010 12 SCC 91: (2011) 2 .
SCC (Cri) 150: AIR 2010 SC 3638], Mahesh v. State of M.P., 2011 9 SCC 626: (2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab, 2012 1 SCC 10: (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of Haryana, 2013 2 SCC 502: (2013) 2 SCC (Cri) 807: JT (2013) 1 SC 222].)"
26. Thus, no adverse inference should be drawn against the prosecution for not examining Kanta Devi and Rekha Rani.
27. It was submitted that no member of the public was present and the ingredients of Section 3(1)(x) of the Act were not satisfied. This submission is not acceptable. 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 inside 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 ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 25 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 instrumentality of the State, and not by private persons or private bodies." (Emphasis supplied)
28. 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 ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 26 435, 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, 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."
29. 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 ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 27 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 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."
30. 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 ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 28 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 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 ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 29 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 the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is attracted in the case in hand."
31. It was submitted that the Ward Panchs were friends of the victim/informant. This is not acceptable. They were the members of the public, who happened to be present in Panchayat at the time of the incident; therefore, it cannot be said that they would not fall within the definition of the public and the submission that the requirements of Section 3(1)(x) of the SC&ST (Prevention of Atrocities) Act are not satisfied cannot be accepted.
32. A heavy reliance was placed upon the statement of the informant (Ext. DA), in which, the name of the Secretary Anoop ::: Downloaded on - 18/07/2024 20:32:41 :::CIS 30 Sharma was mentioned. The statement recorded under Section 161 of Cr.P.C. is not a substantive piece of evidence and can only be .
used to contradict the prosecution witness; therefore, the statement (Ext. DA) cannot be read into the evidence.
33. Even if Anoop Sharma was present, he would have only repeated what the other witnesses stated, therefore, his examination was not essential. If the defence intended to suggest prevented the r accused to that he would not have supported the prosecution case, nothing from summoning him. Thus, the prosecution case cannot be discarded due to the non-examination of Anoop Sharma.
34. It was submitted that the informant was not proved to be Jullaha and the use of the word Jullaha will not constitute an offence. This submission cannot be accepted. The accused admitted in her statement recorded under Section 313 of Cr.P.C.
that the informant is a Kabirpanthi (Jullaha), thus, the accused never disputed the fact that the informant belongs to Jullaha Caste.
35. It was also submitted that the accused belongs to other backward class and no offence would be made out against her.
::: Downloaded on - 18/07/2024 20:32:41 :::CIS 31This submission is not acceptable because Section 3(1) of the Act only exempts the members of Scheduled Castes and Scheduled .
Tribes from being punished under the Act. This protection does not extend to other backward classes, and no benefit can be derived from the caste of the accused.
36. Thus, the learned Trial Court had rightly convicted the accused. Learned Trial Court had sentenced the accused to undergo simple imprisonment for six months and to pay a fine of ₹1,000/- and in default of payment of the fine to further undergo simple imprisonment for 15 days. The imprisonment of six months cannot be said to be excessive keeping in view the fact that the accused had abused the informant in the name of the caste during the meeting of the Panchayat. She had called the informant a person of low intellect like his caste, which shows the contempt she had for a person of a Scheduled Caste. This shows that she intended to lower the estimation of the informant in the eyes of the persons present by attacking his caste and intellect. In these circumstances, the imprisonment of six months cannot be said to be excessive. The fine of ₹1,000/- is also not excessive keeping in view the nature of the offence.
::: Downloaded on - 18/07/2024 20:32:41 :::CIS 3237. Therefore, the judgment and order passed by the learned Trial Court are fully sustainable.
.
38. In view of the above, the present petition fails and the same is dismissed.
39. Registry is directed to transmit the records of the fact to the learned Trial Court forthwith.
18th July, 2024
r to (Rakesh Kainthla)
Judge
(saurav pathania)
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