IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.96 of 2003. Date of Decision: 16th March, 2010. State of Himachal Pradesh .. Appellant. Versus Rajeev Kumar and others .. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. J.S. Rana, Assistant Advocate General. For the respondent: Mr. Ajay Kumar, Advocate. Surinder Singh, J (oral) . The State has challenged the acquittal of the respondents for the charges framed against them under Section 3 (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘the Act’) and also under Sections 147 and 323 read with Section 149 of the Indian Penal Code, passed in Sessions Case No.3-B/VII/2002 on 2nd December, 2002. In short, the prosecution case can be stated thus. According to the prosecution, PW-2 Bishna Devi is stated to be a lady of Dumna caste. She alongwith other women of the same caste, namely, Kirna, Arna, Mahindra, Sudesh, Pawna, Sunita and Soma Devi went to fetch the water from a village “Bauli”. It is alleged that the respondents except respondent Manglan Devi, who are from upper caste, i.e., Rajput were found present. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - As soon as the aforesaid ladies took water from the “Bauli” in their respective vessels, the respondents threw their water out of the vessels on the pretext that they would not permit the members of the Dumna Caste to take water from there. Respondent Rajeev picked up a quarrel with Bishna Devi. It is alleged that he caught her from the neck and also kicked her, thereafter dragged her to some distance. She sustained injuries on her leg. Bishna Devi went to report the matter to Pradhan, Gram Panchayat, but he was not found present in his shop. Thereafter she approached to Up- Pradhan Sanjeev, but he did not intervene because of paucity of time. The complainant then told Ajay Kumar to inform her husband. He reached the spot and the complainant narrated the entire incident to him, the police was accordingly informed. The information given by the complainant was recorded in the daily diary Ext.PW-6/C. Sub Inspector Om Parkash (PW-7) proceeded to the spot, recorded the statement of Bishna Devi Ext.PW-2/A. She was got medically examined by PW-1 Dr. Rajesh, who issued MLC Ext.PW-1/B. Dy.S.P. Gurmeet Singh (PW-8) took up further investigation in the matter and collected copies of Shajra Nasab of the complainant and respondents [Exts.PW-7/A to PW-7/G]. It is alleged against the respondents that they have formed an unlawful assembly with a common object to beat the members of the “Dumna” and debarred them from taking water from the village “Bauli”, insulted them and caused annoyance to the said community. Respondents except respondent Manglan Devi were charge sheeted for the offence punishable under Sections 147 and 323 read with Section 149 of the Indian Penal Code and under Section 3 (x) of the Act, whereas Manglan Devi was charged for the offence punishable under Section 323 read with Section 149 of the Indian Penal Code. - 3 - The respondents adjured the guilt and claimed trial. The prosecution examined PW-2 Bishna Devi, PW-3, Sunita Devi, PW-4 Pawna Kumari, PW-5 Soma Devi, besides examining the other official witnesses and also PW-1 Dr. Rajesh to prove the charges. The respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the allegations made against them and also that the complainant party was the members of the “Scheduled Caste”. Respondents did not lead any evidence in defence. At the end of the trial, they were acquitted on the ground that there are material contradictions in the statements of the witnesses and the prosecution failed to prove that it was a public “Bauli” from where the complainant party had a right to fetch the water and also that the earlier report lodged by the husband of PW-2 Bishna Devi, which was incorporated in the daily diary Ext.PW-6/C, the name of none of the respondents was also mentioned and there was also no reference of any male member having committed the alleged offence, therefore, prosecution story did not inspire confidence. I have heard the learned Counsel for the parties and have reappraised the evidence. 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”. 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. - 4 - Clauses 24 and 25 of Article 366 of the Constitution of India reads as under:- “(24) “Scheduled Castes” means such castes, races, or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution. (25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution.” In the instant case, Dumna is alleged to be the “Scheduled Caste”. The definition of “Scheduled Caste” as contained in Article 341 of the Constitution of India reads: “341. Scheduled Castes.- (1) The President may with respect to any State [or Union territory], and where it is a State,, after consultation with the Governor [thereof,] by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State [or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification”. The notification as required under the above provisions of the Constitution has not been produced to prove that the complainant party belongs to the Caste which is declared to be a “Scheduled Caste” in order to attract the provision of this Act. Therefore, the provisions of Section 3(x) of the Act are absolutely not applicable in the present case. Otherwise also, there is contradictory evidence on record which throws a doubt on the - 5 - correctness of the prosecution case. Complainant PW-2 Bishna Devi stated that when they reached village “Bauli” they found the respondents already standing there and after taking the water from the “Bauli” when she alongwith other ladies were returning back, the respondents snatched and emptied their vessels on the ground and the complainant was given beating as a result of which she sustained injuries. If the version of the complainant is presumed to be correct that the respondents were already present there when the complainant reached near the “Bauli”, they could have easily stopped them from taking the water and would not have allowed them to enter in the “Bauli”. This fact was rightly taken note of by the learned trial Court and came to the conclusion that her version lacked probity in view of the statements of PW-3 Sunita Devi, PW-4 Pawna Devi and PW-5 Soma Devi. On the top of it the prosecution also failed to prove that it was a public “Bauli” from where every one including the complainant could have taken the water. Rather PW-4 Pawna Devi stated that from the said “Bauli” only the respondents had been taking the water, which means that there appears to be a dispute with respect to the use of water from the “Bauli” irrespective of the caste. Further, in so far as the injuries caused to the complainant Bishna Devi are concerned, according to PW-1 Dr. Rajesh Kumar there was only a swelling on the middle part of lateral aspect of the left leg, which could be sustained while doing the manual work and this injury is alleged to have been caused by respondent Rajeev alias Raju on her leg, but the presence of Rajeev alias Raju on the spot becomes doubtful for the reasons that in the earlier version recorded by the police in the daily diary rapat Ext.PW-6/C none of the male members finds mentioned. There is also no reference of the name of male members having caused the injuries. - 6 - Further it has also come in the evidence that there was also a public tap in the village and the village people including the complainant party used to take water from the public tap. When the public tap went dry, they had gone to the “Bauli” to fetch water. When no objection was raised by the respondents for the use of the water from the public tap, there was no reason that they could have objected to the complainant party to take the water from the “Bauli” on caste basis. For the reasons aforesaid, in my opinion, the prosecution case is bound to fail for want of requisite notification and the learned trial Court has taken note of the above material contradictions appearing in the statements of the witnesses, thus prosecution failed to prove its case against the respondents beyond a reasonable doubt. The findings recorded by the learned trial Court do not call for any interference, as such, the appeal is dismissed. The respondents are discharged from the bail bonds entered upon by them at any time during the proceedings of this case. Records of the Court below be sent back forthwith. March 16, 2010. (Surinder Singh), (rc) Judge.