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2017 DIGILAW 482 (HP)

State Of Himachal Pradesh v. Dharmender Singh

2017-05-05

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. (Oral) - By way of instant petition under Section 378 (3) CrPC, the State has sought leave of this Court to file appeal against judgment dated 30.11.2016 passed by the learned Special Judge, Hamirpur, Himachal Pradesh in Sessions Trial No. 04 of 2015, whereby respondent-accused (hereinafter, ''accused''), who was charged with and tried for the commission of offence punishable under Sections 354, 323 and 504 IPC and, Section 3(1)(x)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter, ''Act''), has been acquitted of the aforesaid charges. 2. Briefly stated the facts as emerge from the record are that the complainant is wife of one Shri Kulwant Rai Sandhu, who is running ''Sandhu Health Clinic'' at Village Mair and accused is also running Dental Clinic in the shop adjoining to that of the husband of complainant. Both are tenants of one Shri Sansar Bandhu son of Shri Ram, resident of village and post office Mair, Tehsil and District Hamirpur. Complainant is a ''Chamar'' by caste, which is recognized as Scheduled Caste under the Constitution (Scheduled Caste) Order, 1950 and Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976. It is alleged that on 15.9.2013, at about 3 pm, accused came to the shop of the complainant and started abusing her, tore her clothes and made unwelcome and explicit overtures causing her sexual harassment and also caused simple hurt to the complainant. It is further alleged that accused intentionally insulted the complainant by abusing her with an intent to humiliate her in public place and in public view. Complainant filed complaint on the aforesaid allegations in the Police Station Hamirpur. FIR No. 257/2013 dated 16.9.2013 under Sections 354 and 504 IPC and Section 3(1)(x)(xi) of the Act was registered against accused at Police Station Sadar, District Hamirpur. Complainant was medically examined. Statement of complainant under Section 164 CrPC was recorded before Judicial Magistrate 1st Class, Court No. IV, Hamirpur on 26.9.2013. Spot map was prepared and statements of witnesses were recorded under Section 161 CrPC. Challan under Sections 354, 323 and 504 IPC and Section 3(1)(x)(xi) of the Act, was prepared against accused and case was committed by the Chief Judicial Magistrate, Hamirpur on 28.11.2014. Spot map was prepared and statements of witnesses were recorded under Section 161 CrPC. Challan under Sections 354, 323 and 504 IPC and Section 3(1)(x)(xi) of the Act, was prepared against accused and case was committed by the Chief Judicial Magistrate, Hamirpur on 28.11.2014. Learned Special Judge, below, on finding a prima facie case against accused, charged him for the commission of offence punishable under Section 354A and 323 IPC and Section 3(1)(x)(xi) of the Act, to which accused pleaded not guilty and claimed trial. 3. Subsequently, the Special Judge below, vide judgment dated 30.11.2016, acquitted the accused of the aforesaid charges by concluding that the prosecution has not been able to prove the case beyond all reasonable doubt. In the aforesaid background, State preferred instant petition, seeking leave of this Court to file appeal against the judgment of acquittal passed by learned Special Judge. 4. Mr. P.M. Negi, learned Additional Advocate General, vehemently argued that impugned judgment passed by the learned trial Court is not sustainable in the eye of law as the same is not based upon correct appreciation of evidence adduced on record by the prosecution and as such same deserves to be set aside. Mr. Negi, while inviting attention of this Court to the impugned judgment passed by learned trial Court vis-a-vis evidence led on record by the prosecution, strenuously argued that prosecution proved beyond reasonable doubt that the accused intentionally humiliated the complainant by calling her bad names. Mr. Negi, further contended that there is ample evidence, be it ocular or documentary, adduced on record by the prosecution, suggestive of the fact that on 15.9.2013, accused entered the shop of complainant and abused her in the presence of certain persons, as a result of which, great humiliation was caused to the complainant. In the aforesaid background, Mr. Negi, prayed that leave to appeal may be granted and accused may be convicted for the charges framed against him, after setting aside the judgment of acquittal. 5. Since the matter has come up before this Court for the first time today, as such, learned Additional Advocate General was requested to make available record of the State, in the case i.e. pleadings of the parties, statements of witnesses and exhibits, relied upon by the Court below. The record provided by the learned Additional Advocate General, was perused. 6. Since the matter has come up before this Court for the first time today, as such, learned Additional Advocate General was requested to make available record of the State, in the case i.e. pleadings of the parties, statements of witnesses and exhibits, relied upon by the Court below. The record provided by the learned Additional Advocate General, was perused. 6. With a view to ascertain the genuineness and correctness of the aforesaid submissions having been made by Mr. Negi, learned Additional Advocate General as well as to ensure that impugned judgment passed by learned trial Court is not perverse, this Court carefully examined and perused impugned judgment as well as record maintained by the office of Advocate General, perusal whereof, certainly does not suggest that learned court below mis-appreciated, misconstrued or misread the evidence led on record by the prosecution, rather this court, after having carefully perused impugned judgment, has no hesitation to conclude that prosecution failed to prove its case beyond reasonable doubt and, as such, learned Special Judge rightly acquitted the accused of the charges framed against him. Close scrutiny of impugned judgment passed by learned Court below clearly suggests that no evidence worth the name was led on record by prosecution to prove that accused was not a member of the scheduled caste community, because, as per Section 3(1)(x) of the Act, it was incumbent upon the prosecutrix/complainant to prove that accused was not a member of scheduled caste or scheduled tribe and he intimidated the complainant with an intent to humiliate her in public place and within public view. 7. In the instant case, prosecution though proved on record that complainant is a member of Scheduled Caste community, as defined under the under the Constitution (Scheduled Caste) Order, 1950 and Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, but, certainly, no evidence is made available on record to conclude that accused was not a member of the aforesaid community and he intentionally insulted or intimidated complainant with an intent to humiliate her in public place and within public view. 8. 8. At this stage, this Court deems it fit to reproduce provisions of Section 3(1) of the Act as under: "3(1) Whoever, not being a member of Scheduled Caste or Scheduled Tribe: (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within the public view; (xi) assault or uses force to any woman, belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty. (xii) to (xv)x x x x x x 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 fine" 9. Aforesaid provision of law, as reproduced herein above, certainly suggests that, if a person, not belonging to the community of Scheduled Caste or Scheduled Tribe, intentionally insults or intimidates, with an intent to humiliate a member of the Scheduled Caste or Scheduled Tribe, in any place, within the public view, shall be liable to be punished in terms of provisions of aforesaid Act, meaning thereby, it was incumbent upon the prosecution to prove in the first place that accused was not a member of the Scheduled Castes and Scheduled Tribes community. But, in the instant case, as clearly emerges from the record, no evidence worth the name has been led on record by prosecution to prove the caste of accused, rather, there is total variation in the oral evidence as well as documentary evidence led on record by the prosecution qua the caste of accused. Complainant, in her statement, has alleged that accused is a Brahmin by caste, whereas prosecution, with the help of Ext.PW-8/A, has made an endeavour to prove on record that the accused was Rajput by caste, otherwise also, none of the prosecution witnesses has stated anything specific with regard to the caste of accused, as such, learned Court below rightly rejected the case of the prosecution on this ground. 10. Otherwise also, this Court had an occasion to peruse statements of prosecution witnesses, perusal whereof nowhere suggests that prosecution was able to prove its case strictly in terms of Section 3(1)(x)(xi) of the Act. 11. 10. Otherwise also, this Court had an occasion to peruse statements of prosecution witnesses, perusal whereof nowhere suggests that prosecution was able to prove its case strictly in terms of Section 3(1)(x)(xi) of the Act. 11. Though, PW-1, in her statement stated that on 15.9.2013, at about 3 pm, accused entered the clinic being run by her husband, in his absence and started abusing her, but there is no independent witness as such to corroborate the aforesaid version put forth by the complainant. No reliance, if any, could be placed upon PW-2, husband of complainant, who was not present at the place of occurrence. PW-3 Raj Kumar though corroborated the version put forth by the complainant that he found accused calling the complainant bad names but if his statement is read in its entirety, it certainly suggests that he was not present at the spot at the time of alleged incident, rather he came little late because, he categorically stated that he intervened and went inside the shop, where accused again called complainant by bad names. 12. This court, finds that there is complete variation in the statements of complainant made before the Court and the statement made before the police, at the time of recording statement under Section 154 CrPC. Conjoint reading of aforesaid prosecution witnesses, certainly suggests that there is complete variation with regard to details of actual words and caste related remarks, if any, uttered by the accused, as such, learned Court below rightly concluded that it was difficult to infer as to what words were actually uttered by accused in order to insult the complainant in a public place within the public view. This Court also finds from the record that it has come in the statement of the complainant that she also filed such cases against Shri Sansar Bandhu, who happened to be landlord of her husband. Both, PW-1 and PW-2, have admitted in their crossexamination that they have also filed cases under the Act against Sansar Bandhu and in that regard, they received compensation and monetary relief under the Act. 13. Interestingly, prosecution has made endeavour to prove that the incident occurred in the main Bazaar, wherein admittedly, more than 50-60 shops exist, but, no independent witness from that locality/bazaar was associated by the prosecution to prove its case beyond reasonable doubt. 13. Interestingly, prosecution has made endeavour to prove that the incident occurred in the main Bazaar, wherein admittedly, more than 50-60 shops exist, but, no independent witness from that locality/bazaar was associated by the prosecution to prove its case beyond reasonable doubt. Plea put forth by PW-3 Raj Kumar, so called eye witness is also doubtful in view of statement Ext. DL, recorded by the police during investigation, one Shri Ajay Kumar, in his statement recorded by the police during investigation, categorically stated that aforesaid Raj Kumar PW-3 was present in the Hotel on 15.9.2013 and was offered money by the husband of complainant for deposing falsely, in his favour. True it is, that no reliance could be placed upon the statement of aforesaid Ajay Kumar, Ext. DL, but, keeping in view the material on record, wherein, it clearly emerges that complainant as well as husband of the complainant have been filing complaints under the Act against other persons also, learned Court below, rightly placed reliance upon the statement of Ajay Kumar. It also emerges from the record that during the investigation, investigating officer, had recorded statement of Sansar Bandhu, landlord of the husband of complainant, as well as accused Kuldeep Singh alias Bantu and Suresh Kumar, Exts. DG, DH and DJ, respectively but, for the reasons best known to the prosecution, none of these witnesses was cited as prosecution witness. 14. Hence, this Court is compelled to draw adverse inference against the prosecution for withholding evidence, which could be material in deciding controversy at hand. Apart from above, this Court had an occasion to peruse MLC, Ext. PW-4/A, which nowhere suggests that injury, if any, was found on the person of the complainant. Though, complainant, in her statement, claimed that she was not taken for medical examination by the Police, but perusal of MLC, Ext. PW-4/A, which has been duly proved on record by PW-4, Dr. Vinod Gupta shows that false stand has been taken by the complainant. Dr. Vinod Gupta, PW-4 has specifically stated that medical examination of the complainant was carried out by him and it failed to suggest any external injury sustained by the complainant. 15. Consequently, in view of discussion made herein above, this Court sees no illegality or infirmity in the impugned judgment passed by learned Special Judge, as such, same is upheld. Leave to appeal is rejected. Petition is dismissed.