Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 927 (HP)

Beli Ram v. State of Himachal Pradesh

2012-12-04

DEV DARSHAN SUD

body2012
Judgment Dev Darshan Sud, J. This appeal has been preferred against the judgment of the learned Special Judge, Mandi acquitting the respondent-Prabh Dayal for offences under Section 3(I)(v)& (x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities )Act, 1989 (hereinafter referred to as ‘Act’). 2. The case of the complainant-Beli Ram was that on 8.3.2006 at around 8.30 a.m. when he was repairing the Kuhal (water channel) channeling the water from Gugali Khud to his land, the accused started blocking the flow of water and started diverting the same to their field. When the complainant objected to this, accused Prabh Dayal caught hold of him from his beard and shouted “Saale Dagi Chamar Tum Pani Kyon aage le gaye. Ham Tumhari Zamin ko panni Nahin Lagne Deinge. Saale Dagi Chamaron Ka Damaag kharab Ho Gaya Hai Tumhare Saare Parivar Ko jann se maar Deinge. 2-4 Lakh Rupaye kharch Bhi Ho jaye to koi Parwah Nahin.” 3.. The mater was reported to police station Joginder Nagar. The statements of the witnesses were recorded but no action was taken. The case was committed for trial to the Special Judge against the accused. The accused was charged under the provisions of the ‘Act’ aforesaid. 4. In order to prove its case, three prosecution witnesses were examined. Complainant Beli Ram stated that he belongs to the Harijan Chamar Caste and accused is a Rajput. On 8.3.2006 at around 8.30 a.m., accused blocked the flow of water of the Kuhal (water channel) and diverted it towards his fields. When the complainant objected to it, filthy invectives were used against the caste and community of the complainant. According to accused Prabh Dayal, the words uttered were “Daagi Tujahe Jann Se Maar Dunga, 5/7 lakh Lag Jayega, Koi Baat Nahi” The complainant thereafter went to the Police Station but no action was taken and thereafter filed an application in the office of D.G.P., Shimla. He states that this incident was witnessed by PW3 Guddu and PW2 Saran and proceedings under Section 107 Cr.P.C. were started on the same day. 5. PW2 Saran states that complainant Beli Ram is a Harijan by caste and accused Prabh Dayal is a Rajput. He states that there is a dispute between the two with respect to the water channel. He was declared hostile as he had resiled from his earlier statement. 5. PW2 Saran states that complainant Beli Ram is a Harijan by caste and accused Prabh Dayal is a Rajput. He states that there is a dispute between the two with respect to the water channel. He was declared hostile as he had resiled from his earlier statement. In his cross-examination, nothing has been elicited from him, which would in any manner implicate the accused. In fact in cross-examination, he says that he is an old and find it difficult to speak and is also hard of hearing. He says that the complainant is not in his relation. However, both are from the same caste. He completely denied the statement in question having been made and the whole incident. 6. PW3 Guddu states that the accused was known to him and the complainant belongs to Harijan caste and the accused is Rajput. On 18th March, 2002, he was on his way to attend duty. He noticed that the complainant was lying on the road and accused Prabh Dayal had caught hold the complainant from his beard. He uttered the words “Chamar and Daggi”. He also threatened to kill him saying that even if 5/7 lakh spent by him, he would kill him. He did nothing to rescue the complainant though he admits in his cross examination that 30/35 persons were gathered at the spot. He was confronted with the statement Ex.DX where it was not recorded that the complainant had, in fact, been pushed to the ground by the accused. This is the entirety of the evidence on the record. 7. Learned Special Judge adverting to the provisions of Section 3 of the ‘Act’ holds that it has to be established that the accused was not the member of the “Scheduled Caste” and the complainant is a member of such caste. Relying upon the judgment of this Court in State of H.P. Vs. Rajeev Kumar and others, 2010 (1) SLC 469, the Court holds: “10. In order to attract the offence under Section 3(x) of the Act, it is incumbent upon the prosecution to prove that the offence was committed by the accused persons against the members of the Scheduled Castes and Scheduled Tribes. In the instant case, the complainant party is from Dumna caste, which is stated to be a “Scheduled Caste”. 11. In order to attract the offence under Section 3(x) of the Act, it is incumbent upon the prosecution to prove that the offence was committed by the accused persons against the members of the Scheduled Castes and Scheduled Tribes. In the instant case, the complainant party is from Dumna caste, which is stated to be a “Scheduled Caste”. 11. Section 2(1)(c) of the Act says that the “Scheduled Castes” and “Scheduled Tribes” shall have the meanings assigned to them respectively under Clause 24 and Clause 25 of Article 366 of the Constitution of India”. (P.471) 8. The court also relied upon the decision in Gorige Pentaiah Vs. State of Andhra Pradesh and others, (2008) 12 SCC 531 , holding: “6. In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law. (P.534) 9. It is in this view of the matter, the accused was acquitted. True it is that the High Court being a final Court of fact, it is for it to re-appreciate the evidence when it finds that such appreciation has been perverse. The evidence in the present case what I find is the essential ingredients of the offence has not been established. It is not possible to conclude that the complainant was, in fact, entitled to the protection of the ‘Act’ as his caste was not proved. The evidence in the present case what I find is the essential ingredients of the offence has not been established. It is not possible to conclude that the complainant was, in fact, entitled to the protection of the ‘Act’ as his caste was not proved. All that I need say is that there should and ought to have been some evidence to show that the complainant belongs to the Scheduled Caste and that the accused was of different caste in which eventuality, he would be entitled to the protection, as prayed for. I find that this is a serious lacunae in this case. There is, thus, no merit in this appeal which is accordingly dismissed. 10. A submission has been made on behalf of the appellant that respondent-Prabh Dayal only becomes emboldened by the inaction of the prosecution and in this eventuality would pose serious threat to the safety of the appellant. All that I need say is that the dispute seems to have emanated from the use of a water channel with each person jockeying for position of superiority. It will be open to the appellant to approach the authorities in accordance with law.