IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.Appeal No No. 568 of 2001. Date of Decision: 31-7-2008. _______________________________________________________________ Om Parkash . Appellant.. Versus State of H.P. Respondent. Coram Hon’ble Mr.Justice Surinder Singh ,J. Whether approved for reporting1? No. For the appellant: : Pt. Om Parkash, Advocate. For the respondent :Shri J.S. Guleria, Law Officer. ___________________________________________________________ Surinder Singh , J (oral). Appellants were convicted under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes Act,1989, in short the ‘Act’ and Section 504 of the Indian penal Code and sentenced to under-go rigorous imprisonment for a period of six months and to pay a fine of rupees 2000/- jointly. In default, the appellant was further ordered to under-go imprisonment for a period of one month. No separate sentence was passed under Section 504, I.P.C. as being covered under the above Section. In short, the facts are that the appellant is a resident of village Kuthar Khurd in District Una. He is ‘Bahti’ by caste which is not a ‘Scheduled Caste’. PW1 Amarjit Kaur was the Pradhan of Gram Panchayat Kuthar Khurd. She belonged to ‘Chamar’ caste Whether reporters of the Local papers are allowed to see the judgment? Yes. which is a ‘scheduled caste’. Both are the residents of the same village. It is alleged that on 14-2-1999 at about 5.30 p.m, the appellant was calling bad names to the Harijans of that village while standing in front of the shop of Ram Dass the husband of Amarjit Kaur, on a public road and was calling them ‘chamars’ to come out and face him. PW2 Wattan Chand and PW3 Harnam Dass, both belonging to ‘chamar’ community were also there. PW3 called the Pradhan Amarjit Kaur to the spot. She also noticed the appellant while hurling filthy abuses. She asked him to leave the place but instead of going away, he boasted of his landed property and could set them right and they cannot not cause any harm to him. Thereafter, the appellant went to the roof of his house and started abusing all the members of ‘chamar’ community. PW5 S.I. Sarup Chand happened to be present in village Kuthar Khurd in connection with some inquiry on an application moved by the villagers of the same village on 15-2-1999. Amarjit Kaur met him at 7.00 P.M. and got recorded here statement Exhibit PA on the basis of which FIR Exhibit PB was registered. Thereafter, Deputy Superintendent of Police visited the spot on 14.3.1999 after about a month and recorded the statements of the witnesses and prepared the site plan Exhibit-PF. Police also took into possession the pedigree table etc. pertaining to parties. After completing the investigation, the challan was presented in the Court for the trial of the appellant under the aforesaid Sections. Appellant was charge-sheeted for the aforesaid offences and he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances put to him. His defense was that he was falsely implicated in the case due to a dispute about a Dera of a Sant in their village as he was actively supporting the Sant and the complainant party was against him. At the end of the trial, the appellant was convicted and sentenced as aforesaid. Feeling aggrieved and dis-satisfied by the impugned judgment of conviction and sentence, the instant appeal has been filed on the ground that the learned Special Judge totally ignored material contradictions and there were circumstances to conclude that the complainant Amarjit Kaur had fabricated a case against him in collusion with the witnesses to vindicate her grudge against him, on account of a dispute over the Dera of the ‘Sant’. Pt. Om Parkash, learned Advocate has vehemently argued that the complainant and her witnesses have given different version during the trial as set out in initial prosecution case and considerably improved the story when examined in the Court, but the learned Special Judge conveniently ignored them which otherwise were material and goes to the root of the case. Contra, Shri J.S. Guleria, learned Law Officer for the State has supported the impugned judgment of conviction and sentence passed by the trial Court and argued urged that the version of the Pradhan (PW1) who belongs to a scheduled caste community cannot be dis-believed more specifically when it is supported by independent witnesses of her community. There was no previous enmity or malice brought on record by which it could be said that the complainant and her witnesses were prejudiced against the appellant. Therefore, the testimony of the prosecution witnesses inspires confidence and it was rightly acted upon. I have given my thoughtful considerations to the rival contentions of the parties and have carefully examined the evidence on record. On scanning the evidence, I find that there was a dispute interse the parties over a ‘Dera’ of a Sant located in their village. On the day of the alleged incident, a ‘Bhandara’ was also going on in the said dera. It is also manifest from the evidence on record that the appellant was in favour of the Sant of that Dera, whereas the complainant party was against him. Earlier there was also a dispute and litigation going on between the earlier Sant and the another who settled in their village. The entire evidence has to be appreciated in this background. Now I proceed to examine how the prosecution witnesses seek to prove the case against the appellant. PW1 Amarjit Kaur has deposed that on 14-9-1999, Harnam Singh PW3 came to her house and informed that the appellant was calling out bad names to her and all Harijans outside his house and he was addressing them ‘chamars-kute’ and daring the people of this community to come out and face him, whereas, in her statement Exhibit –PA recorded under Section 154 of the Code of Criminal Procedure, her earlier version was different than what she deposed in the Court. It was mentioned therein that the appellant was hurling abuses and had raised ‘lalkara’ that he would see the ‘chamars’ on that day as informed by Harnam Singh and when she reached the spot along with Krishan Chand and Watna, she found the appellant standing outside his house hurling the abuses, but she did not say that he was addressing them “Chamar-Kute”. She further stated in the court that the appellant told her that she had become the Pradhan being a ‘chamar’ but he did not care for it. Thus he humiliated her in the public and thereafter she went to the Police Station, Una and made the complaint Exhibit-PA. This portion of her statement is also incorrect because as per Exhibit- PA, her statement was recorded under Section 154 of the Code of Criminal Procedure by PW5 Inspector Sarup Chand, on 15.2.1999 when he was on a tour to the said village where the complainant is alleged to have met him at 7.00 P.M. In her cross-examination, she has stated that on 15.2.1999 Tulsi Ram, Harnam Dass, Kamal Dev and Krishan Ram accompanied her to the Police station which also goes contrary to the version as given by PW5 aforesaid. However, she has stated that during those days, there was a dispute in the village about Dera of Sant Ram Krishan, who was living therein. The Dera was near the shop of Ram Dass, her husband but she expressed her ignorance if there was difference of opinion regarding continuance of Ram Krishan as the Sant of that Dera but admitted that there was some dispute in the village about ousting of the earlier Sant from the Dera whereas, in her statement under Section 154 Cr.P.C. Ext. PA she had stated that a Sadhu used to reside in the Dera in their village and he was ousted by them from that place, whereas, the appellant wanted to keep him there which was the apple of contention. Thus, the witness has contradicted herself materially and has probablised the defense version. PW2 Wattan Chand has stated that he was returning from his field and Tulsi Ram and Harnam Dass (PW3) were ahead of him. The appellant was in the front of the shop of Ram Dass and was abusing and calling ‘Kute-chamar’ and was threatening that their daughters would be abducted. Many people had gathered on the road because there was ‘Bhandara’ in the village. He called out the abuses because they had a Sant in the Dera and he was objecting to the same and humiliated them by calling out the bad names particularly due to Sant and then they sent Harnam Dass PW1 to call the Pradhan. When she came there, she also saw the appellant calling the names and addressing them as ‘chamars’. In cross-examination he stated that his statement was recorded on the third day which is not correct. He also stated that he had gone with the Pradhan Amarjit Kaur on 15.3.1999 to the Police Station and did not tell about the Bhandara on 14.2.1999 being held in his village. He admitted that the dispute in the village about the Dera was going on and the villagers were divided into two factions, one was sponsored by ‘Bahtis’ to which the appellant belonged and the other by Harjans. Earlier Sant was ousted from the Dera by the other Sant who had set up his Dera outside the village. Several civil and criminal cases were going on between the earlier ‘Sant’ and the subsequent ‘Sant’. PW3 Harnam Dass has also made the similar statement but he also stated that dispute about Dera was going on in the village for the last above one and half years. Dispute regarding the Dera has also been admitted by PW7 Dy. S.P. Madhu Sudan. On culling out the evidence of the prosecution as discussed above, it transpires that the real dispute interse the parties was something else than alleged. The conduct of the complainant in the instant case with respect to lodging of the report cannot be taken lightly as there is a major contradiction in her statement and the statement of pW7 regarding the place where it was recorded. Thus against the above background, discussed above, the dispute regarding the Dera of the Sant surfaces which appears to be the actual apple of contention inter-se the parties and the complainant being the Pradhan, has deliberately given a different colour to it to frame the appellant on a different story than what actually had taken place. Therefore, in view of the above, in my opinion, the case against the appellant as alleged is not made out in view of the above contradictions and improvements made in the statements of the witnesses as the defense story stands probablised. Therefore the judgment of conviction and sentence passed against the appellant is hereby set-aside, consequently the appellant is acquitted. Fine if any deposited be refunded to the appellant forthwith. (Surinder Singh) Judge. July 30,2008. (BM)