IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 172 of 2003 Date of Decision: 24.05.2010 __________________________________________________________ Sh. Guddu ….Petitioner. Versus Sh. Tara Chand and another. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes __________________________________________________________ For the Petitioner: Mr. M.S. Guleria, Advocate. For the Respondent No. 2: Ms. Ruma Kaushik, Additional Advocate General, with Mr. R.P. Singh, Assistant Advocate General. __________________________________________________________ Dev Darshan Sud, J. (Oral) The petitioner challenges the judgment and sentence of the learned Additional Sessions Judge, Mandi affirming the judgment and sentence passed by the Sub Divisional Judicial Magistrate, Karsog, sentencing the petitioner to undergo simple imprisonment for a period of one year, fine of Rs. 1000/- for offence under Section 7 of the Protection of Civil Rights Act, 1955 (herein after referred to as “Act”) and sentence of one month for offences under Section 506 of the Indian Penal Code (sic of imprisonment). The Court has not clarified whether it is rigorous or simple imprisonment. In appeal, the learned 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Additional Sessions Judge, Mandi has affirmed this finding on the basis that the petitioner and four of the witnesses produced by the complainant substantiate the commission of offences. 2. Learned Counsel for the petitioner submits that the evidence of prosecution on record, even if taken on its face value, does not prove any offence under Section 7 of the Act which reads:- “7. Punishment for other offences arising out of “untouchability.”—(1) Whoever— (a) prevents any person from exercising any right accruing to him by reason of the abolition of “untouchability” under article 17 of the Constitution; or (b) molests, injures, annoys, obstructs or causes or attempts to causes or attempts to cause obstruction to any person in the exercise of any such right or molests, injures, annoys or boycotts any person by reason of him having exercised any such right; or (c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice “untouchability” in any form whatsoever; [or] (d) insults or attempts to insult, on the ground of “untouchability”, a member of a Scheduled Castes”. The prosecution has tried to bring offence within sub sections (c) and (d) of Section 7 of the Act. 3. I have been taken through the evidence by learned counsel appearing for the petitioner. Ordinarily, exercising jurisdiction in Revision, it would not be for this Court to re-appreciate the entire evidence. However, this Court at the same time can not shut its eyes to the fact that if the findings are 3 perverse, this Court can interfere. Considering the statement of PW-1, complainant, who says that he had gone to attend the wedding of Nidia Ram’s son on 3.12.2001 and was sitting to take food alongwith 18/100 people, the accused came there, looked at him in a threatening manner and told him that he would finish him. He also said that the complainant belonged to Koli cast, as such could not participate in the wedding ceremony of Rajputs and partake food with them. 4. PW-3 Sh. Nand Lal (who was also examined as CW 2 before issue of process) who according to the complainant was also present at that time and intervened in the verbal altercation between the petitioner and the complainant, has not supported the case of the complainant. All he says is that he was also invited to the wedding and around 4.00 P.M. in the evening, the petitioner herein came and started quarreling with the Pradhan (complainant). He then says that one Sh. Man Dass, who was also sitting there, separated both of them. Sh. Man Dass has not been examined as a witness. PW-3 Sh. Roop Lal states that he was also present at the wedding and when all of them were taking food, accused started quarrel with the complainant. PW-4 Sh. Hira Singh also does not support the case of the prosecution. All he says is that the petitioner started quarreling, pushing the complainant and shouting at him and told that he would finish him. All the witnesses say that both the complainant and the accused entered into a quarrel and used some hot words in anger. 5. So far as the allegation against the petitioner is concerned, it seems that it is only the complainant, who has deposed against him. The other persons whose evidence as noticed above, also interfered in the fight, have not corroborated the statement of the complainant. Learned counsel appearing for the petitioner places reliance on decision of Madhya Pradesh High Court in Phulsingh Vs. State of Madhya Pradesh, 1991 Cri. L.J., 2954 holding: “6. Coming to the first submission made by Shri Datt, a perusal of S. 7 (1) (d) of P.C.R. Act would 4 show that it punishes insult or attempt at insult of a member of Scheduled Caste “on the ground of untouchability”. S. 12 speaks of presumption, laying down that where any act constituting an offence under the Act is committed in relation to a member of a Scheduled Caste, the Court shall presume, unless the contrary is proved, that such act was committed on the ground of “untouchability”. That presumption is a rebuttable presumption. It deals only with special rule of evidence and provides for burden of proof. Keeping aside that provision for a moment, it is clear that insult simpliciter of a member of Scheduled Caste is not within the mischief of cl. (d) of sub-sec. (1) of S. 7. It is further necessary that the insult must have been committed “on the ground of untouchability”. The question is what is the test to determine whether the insult was or was not “on the ground of untouchability”? It is possible in my view to conceive of a test. The test is to ask the question, whether insult would have taken place irrespective of the fact whether the victim was or was not a member of the Scheduled Caste. If yes, the insult was insult simpliciter outside the ambit of cl. (d). On the other hand, if insult had taken place only because the victim was a member of Scheduled Caste and it would not have taken place if he had been of higher caste, then insult was insult on the ground of untouchability. Another rough and ready test, though not very infallible, would be to ask the question whether insult was part of personal quarrel which took place between a person of higher caste and a member of scheduled caste; or was the insult offered in cool and studied manner in the absence of any quarrel. In the first situation, the insult would most likely be insult simpliciter while in the second situation it would be insult on the ground 5 of untouchability. That is not to say that a person insulting on the ground of untouchability would be allowed to get away by merely picking up a quarrel. An instance may be given to make the propositions clear. A, a member of Scheduled Caste, is using a public bathing ghat. B, an obscurantist higher caste Hindu insults A and evicts him from that ghat saying that the ghat is reserved for higher caste people. This will be a case of insult on the ground of untouchability. In the same case, B’s clothes lying on the ghat get trampled and soiled by the feet of A. B, getting annoyed because of spoiling of his clothes insults A even calling him a Chamar. No- doubt, calling Chamar a Chamar would be insulting a member of scheduled caste but that would be a case of insult simpliciter of a member of scheduled caste but not of insult on the ground of untouchability.” (Page 2956, emphasis supplied) To similar effect is the decision of the Bombay High Court in Sugdeo Ramchandra Tayade Vs. State of Maharashtra, 1994 CRI. L.J. 2150, wherein the accused in an agitated state of mind abused the entire office. The court held that the determinative test is as to whether the words attributed would constitute an offence under the Act and were deliberately made to insult the individual on the ground of untouchability or caste or the words spoken were in a fit of anger in which case no offence under the Act would be made out. 6. The evidence on record is clear and conclusive. There seems to have been a heated altercation between the accused and the complainant, as substantiated by the evidence and tampers were frayed. The so called words attributed to the complainant, which according to the prosecution constitute the culpable offence, have not been corroborated by any other witnesses who were admittedly present on the spot and witnessed the entire incident. In these 6 circumstances, I do not find that any offence under Section 7 of the Act has been committed by the petitioner. I also can not persuade myself to hold on the evidence on record that any offence under Section 506 of the Indian Penal Code is made out. The learned Sessions Judge, who was exercising powers of the first appellate Court should have paid more attention to the analysis of the entire facts, evidence and law and not proceed in a mechanical manner. This Revision Petition is accordingly allowed. The conviction and sentence imposed upon the petitioner is set aside. The bail bonds furnished by the petitioner shall stand discharged. The fine, if deposited be refunded to the petitioner. May 24, 2010 (Dev Darshan Sud), (KRS) Judge