IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 459 of 2001. Judgement reserved on: 25.7.2008. Date of decision: July 31, 2008. State of H.P. ….. Appellant. Vs. Roshan Lal & ors. …. Respondents-accused. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondents : Mr. Romesh Verma, Advocate. Kuldip Singh, Judge. The State has come in appeal against judgement, dated 24.5.2001 passed by the learned Special Judge, Mandi, in Case No. 2 of 1997, acquitting the respondents- accused under Sections 341, 149, 147 IPC read with Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act). 2. The prosecution case in brief is that respondents- accused were tried for having committed offence punishable under Sections 341, 149, 147 IPC read with Section 3 of the Act, on the allegations that accused constituted an unlawful assembly and in Whether the reporters of the local papers may be allowed to see the Judgment? …2… furtherance of their common intention wrongly restrained PW 1 Karam Chand while he was moving, paraded him in the market, cut his hairs, spat on his face and called him Dagi, Dumna etc. and insulted him with intent to humiliate him on 16.6.1996 at 10.00 a.m. at village Chandruhi. 3. The further prosecution story is that on 14.6.1996 PW 1 Karam Chand, Chamar by caste was talking to Meena Kumari and her sister, the accused Roshan Lal and Hari Singh (died during trial) caught hold PW 1 and gave him beatings. He narrated the incident to Panchayat Pradhan. On the next day accused Panjabi alias Parkash Chand, Babli alias Ashwani Kumar came to his house with Drat and gave him beatings. On 16.6.1996, he was called by the Pradhan near Pipal tree at Behna, 70-80 persons had gathered there, Meena Kumari stated that PW 1 Karam Chand had not misbehaved with her, but despite that he was asked to apologize and he apologized and was sent with Vice President. Six accused named by him, blackened his face, gave him beatings with fists and kicks, his hairs were cut by accused Vipin Kumar who also spat on his face, a garland of shoes was also put around his neck, accused Hari Singh called him Dagi, Dumna. The matter was reported to the police on 8.8.1996 vide FIR Ex.PW 1/A. PW 12 Sher Singh, SHO, Police Station, Sarkaghat handed over the file to PW 9 Chain Singh, Dy. Superintendent of Police, who went to the spot, prepared spot map, recorded statements of some of the witnesses, took into possession pair of shoes and Kurta. Further investigation in the case was conducted by PW 12 Sher Singh SHO, who recorded the disclosure …3… statements of accused Vipin Kumar and Parkash Chand, recovered scissors and Drat and arrested the accused. On completion of investigation, challan was presented, the accused were charged, under Sections 341, 149, 147 IPC read with Section 3 of the Act. The prosecution examined twelve witnesses, the accused were examined under Section 313 Cr.P.C., they were heard under Section 232 Cr.P.C. and were given opportunity to lead defence evidence, but no defence evidence was led by the accused. The learned Special Judge acquitted the accused on 24.5.2001, hence this appeal. 4. I have heard learned Additional Advocate General for the appellant, Mr. Romesh Verma, learned counsel for the respondents and gone through the record. The learned Additional Advocate General has submitted that learned Special Judge has not properly appreciated the material on record and has erred in acquitting the respondents even though the prosecution has fully proved the case against the accused. He has submitted that acquittal recorded by the learned Special Judge requires interference. On the contrary learned counsel for the respondents while supporting the impugned judgement has submitted that there is delay in lodging the FIR, the investigation in the case was done in violation of the mandate of law by an officer, who was not competent to investigate the case. In fact, defect in the investigation has been noticed by the learned Special Judge and impugned judgement requires no interference. 5. PW 1 Karam Chand has stated that he is Chamar by caste, he narrated the incident of 14/15.6.1996. He has stated that …4… on 15.6.1996 some accused came to his house and he was given beatings with Drat. The charge against the accused is for the incident dated 16.6.1996 at about 10.00 a.m. and there is no charge against them for the occurrence dated 14.6.1996 and 15.6.1996. PW 1 has stated that Babli accused came to his house and informed him that Pradhan had summoned him near Pipal tree at Behna. There were 70-80 persons from the community of the accused on 16.6.1996 where Meena Kumari had stated that PW 1 had not misbehaved with her. He has initially stated that six persons blackened his face, but again said that Babli and Ramesh Kumar blackened his face. He was given beatings by fists and kicks and a garland of shoes was put around his neck, his hairs were cut by Vipin who also spat on his face. He was abused by all of them. Hari Singh called him Dagi, Dumna. He was threatened to be killed in case he would report the matter. He has stated that the matter was reported to the police on 8.8.1996 vide FIR Ex. PW 1/A. 6. PW 2 Mahant Ram is the father of PW 1 Karam Chand. He has named Pradhan, Roshan and Bankaura, who talked something. They blackened the face of Karam Chand, again said Babli blackened the face of Karam Chand. Punjabi was not present, but other were present and Karam Chand was garlanded with shoes. The hairs of Karam Chand were cut, but he does not know who cut the hairs of Karam Chand. Ramesh spat on the face of Karam Chand. PW 3 Kuldip Singh has stated that Vipin Kumar had handed over the pair of scissors Ex. P 2 from his house to police, Parkash Chand handed over drat Ex. P 1 to the police. Ex. PW 3/A is the …5… recovery memo of drat and Ex. PW 3/B is the recovery memo of pair of scissors. PW 4 Kashmir Singh did not support the prosecution and he was declared hostile. PW 5 Smt. Suresha Kumari, ward member, Behna Panchayat has stated that Karam Chand was caught at Behna, but she does not know who caught hold him nor she could recognize. Karam Chand was given beatings, she could recognize only Jogi and Hari Ram at a considerable distance from Karam Chand. She did not see them beating, one of them was Babli. He was standing in a house. Hari Ram was not there. PW 6 Santosh Kumar has stated that he does not know Karam Chand or Mahant Ram. He did not support the prosecution and was declared hostile. 7. PW 7 Prem Singh, Pradhan Gram Panchayat, Behna has stated that he asked Karam Chand to come to near Pipal tree. The girl was also asked to come at that place as the other party had also complained to him. Karam Chand admitted having teased Meena Kumari and apologized in writing vide Ex. PW 7/A. The original of Ex. PW 7/A was taken by the police. PW 8 Gian Singh is Patwari. He issued certificate mark- X. PW 9 Chain Singh, Dy. S.P. has stated that he was posted as Dy. S.P., Sarkaghat on 8.8.1996. The file was handed over to him by S.H.O. for investigation. He investigated the spot on 8.8.1996, prepared spot map Ex. PW 9/A and recorded the statements of nine witnesses. He also took into possession Kurta and shoes from Karam Chand vide memo Ex. PW 9/B and Ex. PW 9/C. Thereafter he handed over the file to S.H.O. The pair of shoes is Ex. P 3 and kurta Ex. P 4. In cross examination, …6… he has stated that Karam Chand or his father did not report to the police on 8.8.1996. 8. PW 10 Amin Chand, Patwari has stated that he issued caste certificate of accused Ex. PW 10/A and the caste certificate of Karam Chand Ex. PW 10/B. PW 11 Gian Chand has stated that he knew only accused Yog Raj and not the other accused. He does not know Karam Chand, no quarrel took place in his presence. He was declared hostile. PW 12 Sher Singh has stated that after recording FIR Ex. PW 1/A, he gave the file to Dy. S. P. who returned the said file to him after conducting investigation next day. He recorded the statements of some witnesses and arrested some accused. He recorded the disclosure statement Ex. PW 12/A of Vipin Kumar, another disclosure statement Ex. PW 12/B of Parkash Chand, recovered drat Ex. P 1 and scissors Ex. P 2. 9. The occurrence took place on 16.6.1996, the FIR was lodged on 8.8.1996. PW 1 Karam Chand has tried to explain the delay in lodging the FIR on the plea that he felt too much ashamed and he did not come out of his house and was warned by the accused. It has come in evidence that before lodging the FIR, the complainant had sent complaints to different authorities. It has also come in evidence that there are many houses of his caste in the village. The complainant is not living alone in the village. The explanation given by the complainant for delay in lodging the complaint is not believable. The learned Special Judge has taken into consideration relevant evidence and has rightly recorded a …7… finding that explanation given by the complainant for not lodging the report for a long period cannot be said to be plausible. 10. PW 1 Karam Chand for the incident of 16.6.1996 has named six persons. He has stated that his face was blackened by only two persons, namely Babli and Ramesh, who also gave him kick blows and put a garland of shoes around his neck. His hairs were cut by Vipin Kumar who spat on his face, Hari Singh used derogatory and objectionable words against him. PW 2 Mahant Ram father of the complainant has stated that face of the complainant was blackened by Babli, but PW 1 Karam Chand has named Ramesh Kumar also for blackening his face. PW 2 Mahant Ram could not identify the persons who put garland of shoes around the neck of his son Karam Chand and cut his hairs. The prosecution story is that many persons were present when the incident took place on 16.6.1996, it is not believable that from such gathering no-one would come forward to help the complainant or at-least dissuade the culprits. PW 4 Kashmir Singh, PW 5 Suresha Kumari and PW 7 Prem Singh have not corroborated the version of the complainant. 11. The perusal of writing Ex. PW 7/A would show that PW 1 Karam Chand has admitted that on 14.6.1996, he teased Meena Kumari. In the writing PW 1 has stated that he had sent a letter of apology and admitted that he teased Meena Kumari and several other girls and assured not to repeat the same, but he has stated that this writing was written under pressure. He has also stated that this letter was written by one Janak Raj who is not an accused. PW 1 has not explained why Janak Raj should write such letter and why PW 1 …8… has signed the letter. Therefore, the explanation given by PW 1 for writing Ex. PW 7/A is not believable. There is contradiction in the prosecution story inasmuch as PW 1 Karam Chand has named only Babli Ram and Ramesh Kumar, Vipin Kumar, Sanjay Kumar, Yog Raj and Hari Singh for the incident dated 16.6.1996 but ten accused were challaned. PW 2 Mahant Ram has named Roshan and Babli for the incident, which took place at Behna. He has also stated that Babli had blackened the face of Karam Chand. He has stated that he does not know who cut the hairs of Karam Chand. Thus the version of PW 1 Karam Chand has not been supported by his father PW 2 Mahant Ram. 12. There is another aspect of the case, the investigation in the case was conducted partly by PW 9 Chain Singh Dy. S.P and partly by PW 12 Sher Singh, SHO. The recovery of drat Ex. P 1 and scissors Ex. P 2 was made by PW 12 Sher Singh. The disclosure statements Ex. PW 12/A and Ex. PW 12/B of Vipin Kumar and Parkash Chand were recorded by PW 12 Sher Singh. As per Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, an offence committed under the Act shall be investigated by a police officer not below the rank of Dy. S.P. In the present case, part of investigation was conducted by PW 12 Sher Singh SHO contrary to Rule 7. Therefore, disclosure statements Ex. PW 12/A and Ex. PW 12/B, recovery of drat Ex. P 1 and pair of scissors Ex. P 2 cannot be looked into in evidence. The learned Special Judge has correctly appreciated the material on record and …9… has rightly acquitted the accused. The learned Additional Advocate General has failed to make out a case for interference. 13. As a result of the above discussion, the appeal fails and the same is dismissed, bail bonds of respondents are discharged. July 31, 2008. ( Kuldip Singh ) (Hem) Judge.