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SURYA PARTAP SINGH, J. (ORAL) –

1. This is a revision petition against the judgment of acquittal. A trial for the commission of offence punishable under Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989, hereinafter being referred to SC & ST Act, and Section 506 of Indian Penal Code, hereinafter being referred to as IPC, was conducted by the Court of learned Special Judge, designated under SC & ST Act, hereinafter being referred to as ‘trial Court’ only.

2. The above-mentioned trial culminated into acquittal of the respondents-accused hereinafter being referred to as respondents only. Aggrieved of the above-mentioned judgment of acquittal this revision petition has been filed by the aggrieved person, i.e. the complainant, namely ‘Balwinder Singh’, hereinafter being referred to as petitioner only.

3. In nut-shell the facts emerging from record are that for the commission of aforementioned offences one FIR, i.e. FIR No.266 dated 19.12.2001 was lodged in Police Station Jandiala District Amritsar. The abovementioned FIR was lodged at the instance of petitioner and few other persons. It was alleged by the petitioner that they were resident of village Gehri Mandi and were members of scheduled castes. According to complainant the respondent No.2 ‘Mohan Singh’ (now deceased) was Sarpanch of their village, and that the residents of the locality, where the complainants were residing, did not support the respondent No.2 ‘Mohan Singh’ in the election, and therefore, the respondent No.2 ‘Mohan Singh’ was nursing a grudge against them and threatened them to teach a lesson. It was further alleged by the complainant that when ‘Mohan Singh’ was successful in the election, and elected as Sarpanch of the village, by hurling abuses derogatory in the name of caste of the petitioner (and other complainants), ‘Mohan Singh’ proclaimed that he would teach a lesson to them. According to complainant in view of opposition to his candidature in the election, the respondent No.2 ‘Mohan Singh’ was full of vengeance against the petitioner & other complainants, and was having a hostile animus attitude towards them.

4. The petitioner, & other complainants, had further alleged that for the last more than fifty years there was a drain, wherein dirty water was flowing towards Dhirekot road. As per complainant on 11.10.2001 at about 12 noon ‘Mohan Singh’ (the respondent No.2) alongwith his henchmen namely ‘Pal Singh’ (respondent No.7) ‘Vir Singh’ (respondent No.6), ‘Jangi Shah’, ‘Manjit Singh’ (respondent No.5), ‘Bhupinder Singh’ (respondent No.3) ‘Narinder Singh’ (respondent No.4) came on the turning point of Dhirekot road in Kallar Mohalla. According to petitioner, the respondent No.2 and his abovenamed henchmen, i.e respondent No.1 and 3 to 7 diverted the flow of dirty water towards ‘Kallar Mohalla’ by placing wooden logs, and that due to above-mentioned diversion of drain there was water logging in ‘Kallar Mohalla’ and foul smell started emitting from the same. As per petitioner he alongwith other residents of the locality namely ‘Balwinder Singh’, ‘Chanchal Singh’, ‘Balwinder Kaur’, ‘Amrik Kaur’, ‘Gurmeet Kaur’ and ‘Sukhdev Singh’ etc. stopped the respondents from putting wooden logs in the drain, but the respondent No.2 ‘Mohan Singh’ called them with bad names, derogatory in the name of caste and then threatened to kill them.

5. It was the case of the prosecution that in view of above-mentioned complaint, formal FIR of this case was lodged and the investigation taken up. According to prosecution during the course of investigation requisite formalities of investigation were completed and further investigation taken up. Once the entire proceedings were complete the final report under Section 173 Cr.P.C. was filed in the Court which led to initiation of trial.

6. To discharge its burden, of proving charges against the respondents/accused persons, the prosecution in the instant case had relied upon oral and documentary evidence, both. The documents proved and marked with exhibits, by the prosecution, were:-

7. To provide support and corroboration to the above-mentioned documentary evidence, as many as four witnesses were examined by the prosecution. They were:-

8. Once the prosecution evidence was over, the learned trial Court completed all the formalities, enshrined under Section 313 CrPC. Thereafter, opportunity to lead defence evidence was afforded to the respondents. In his defence evidence, the petitioner had examined three witnesses. They were:-

9. The petitioner in the instant case had relied upon documentary evidence also. The documents proved and marked with exhibit, by the appellants, were:-

10. When the evidence of both the parties was complete, the learned trial Court gave opportunity to the learned public prosecutor and the learned counsel for the petitioner to address arguments. Thereafter, a judgment of acquittal of the respondents was pronounced.

11. Heard.

12. It has been contended by learned counsel for the petitioner that instant case was the classic example of mishandling of prosecution by the state machinery, and that the proceedings conducted by the learned Public Prosecutor before the trial Court was in such a bad manner that it was bound to fail. According to learned counsel for the petitioner glaring mistakes were committed by the learned Public prosecutor, while conducting trial in the Court of learned Special Judge under SC & ST Act, and that on account of abovementioned lapses, committed by the Public Prosecutor, the above-mentioned trial failed in the Court. It has been further contended by learned counsel for the petitioner that once the record proved that knowingly or unknowingly glaring mistakes/lapses were committed in the conduct of trial by the prosecution, which were prejudicial to the valuable rights of the petitioner and other complainants, the call of justice demanded that the case should be sent for fresh trial.

13. The learned counsel for the petitioner has further contended that in the present case the most glaring defect which cropped up during the course of trial, and served as a foundation for the verdict of acquittal, was that the caste certificate of the petitioner was not proved. As per learned counsel for the petitioner a perusal of trial Court record would go to show that to fill up the above-mentioned gap an application under Section 311 of Code of Criminal Procedure (Cr.P.C.) was filed by the learned Public Prosecutor at a belated stage, i.e. at the stage when after recording of statement of accused under Section 313 Cr.P.C., the case was fixed for defence evidence. According to learned counsel for the petitioner unfortunately the learned trial Court failed to appreciate the necessity behind the above-mentioned request and dismissed the application filed by the State under Section 311 Cr.P.C, vide order dated 10.12.2004. While claiming that the dismissal of above-mentioned application by the learned trial Court was responsible for the failure of prosecution in producing relevant evidence in the Court, the learned counsel for the petitioner contended that for the lapse of state machinery the victim, i.e. the petitioner and other complainants, should not be forced to suffer.

14. By claiming that miscarriage of justice has taken place due to lapses committed by the prosecuting agency, the learned counsel for the petitioner has contended that instant case is a fit case, wherein there is need for re-appreciation of evidence, and also the permission to the prosecution to bring requisite evidence on record. In view of above, the learned counsel for the petitioner has contended that by accepting this revision petition the case should be remanded back to the learned trial Court with a direction to allow the prosecution to lead requisite evidence and then decide the case afresh.

15. The learned counsel for the respondents No.1 and 3 to 7 has controverted the above-mentioned arguments. The learned counsel for the respondents No.1 and 3 to 7 has contended that no ground for re-appreciation of evidence is made out in the instant petition. While defending the impugned judgment of acquittal, it has been contended by learned counsel for the respondents No.1 and 3 to 7 that on proper appreciation of evidence a right conclusion was drawn by learned trial Court while recording the judgment of acquittal of respondents No.1 and 3 to 7. According to learned counsel for the respondents No.1 & 3 to 7 there is no scope for interference in the findings of acquittal recorded by the learned trial Court.

16. It has been further contended by learned counsel for the abovementioned respondents that in the present case there were glaring defects which were rightly pointed out by the learned trial Court, such as the prerequisite for maintaining a prosecution under Sections-3 and 4 of SC & ST Act, i.e. caste of the complainant being scheduled caste, was not proved, secondly this fact was concealed while filing the complaint, under Sections 3 and 4 of SC & ST Act, that two of the respondents, i.e. respondents No.6 and 7 were members of Scheduled Caste, and therefore, provisions of Sections 3 and 4 of SC & ST Act could not have been invoked against them. As per learned counsel for the respondents No.1 & 3 to 7 the above-mentioned conduct of the petitioner, rendered their claim for the commission of aforesaid offences, to be doubtful.

17. It has been further contended by learned counsel for the respondents No.1 and 3 to 7 that for the sake of argument, if the contents of the complaint would have been accepted on their face value, the contents of complaint Ex.PA would go to show that the entire allegations contained in the complaint were against the respondent No.2 the then Sarpanch of the village namely ‘Mohan Singh’, and that no active or passive role, whatsoever, was attributed to the respondents No.1 and 3 to 7. The learned counsel for the respondents No.1 and 3 to 7 has also contended that the respondent No.2 ‘Mohan Singh’ is no more, and therefore, no ground for accepting the present petition and conducting fresh trial is made out. In view of above the learned counsel for the respondents No.1 & 3 to 7 has contended that a right verdict was announced by the learned trial Court, and that the instant petition has got no merits, at all.

18. The record has been perused carefully.

19. A perusal of record shows that to prove the allegations contained in the complaint, four witnesses were examined by the prosecution. First amongst them was ‘Balwinder Singh’ the petitioner/complainant himself. The PW-1 in his examination-in-chief had supported the prosecution case, by deposing the facts identical to the contents of the complainant. However, in his examination-in-chief the PW-1 made an improvement in his stand, in comparison to the allegations contained in the complaint. It was deposed by the PW-1 that derogatory language in the name of caste of the petitioner and other complainants were used by all the respondents, whereas in the complaint it was mentioned that it was by the resplendent No.2 only.

20. To provide support and corroboration to the above-mentioned deposition of PW-1, ‘Avtar Singh’ was examined by the prosecution as PW-2. It was deposed by the PW-2 that he was resident of the same locality, and that on 11.10.2001 at about 11:30 P.M. when he came to his home, he found that a dispute was going because of diversion of dirty water towards the locality of ‘Mazhbi Sikhs’. According to PW-2 the respondents had made the same dispute as their prestige issue and they were bent upon to divert the dirty water towards the locality, whereas residents of the above-mentioned locality were requesting them not to divert the water. The PW-2 further deposed that thereafter the respondents used caste slur, derogatory in the name of caste of the petitioner, and other residents of the locality, and declared that the resident of the locality would be kept in unhygienic conditions forever.

21. The next witness examined by the prosecution, to provide support and corroboration to the testimonies of PW1 and PW-2 was ‘Amrik Kaur’. She was examined as PW-3. The PW-3 had supported the prosecution case by deposing the fact that the respondents had visited their locality at about 12 noon on 11.10.2001 and when they were diverting the dirty water of the drain towards the locality of PW-3, the above-mentioned endeavour of respondents was resisted by the residents of the locality. As per PW-3 at that juncture, by using words derogatory in the name of caste of PW-3 and other residents of the locality, the respondents had proclaimed that come what may, they would divert water towards the above-mentioned locality.

22. The Investigating Officer of the case was examined by the prosecution as PW-4. The PW-4 had proved various steps taken by him during the course of investigation. As far as the allegations with regard to allegations contained in the FIR were concerned, in order to prove those allegations, there were three pre-requisites, supposed to be proved by the prosecution before inviting a judgment of conviction for the commission of offence punishable under Sections 3 and 4 of the SC & ST Act and Section 506 IPC against the respondents. Those were:-

i. that the petitioner and other complainants were member of      Scheduled Caste;

ii. that the respondents did not belong to Scheduled Caste;

iii. that abuses derogatory in the name of caste of petitioner, and other complainants, were hurled by the respondents.

Point No.I

23. As far as the first point was concerned, first of all it was incumbent upon the petitioner to allege that the respondents were not the members of the scheduled caste and secondly that the petitioner and other complainants were members of Scheduled Caste.

24. With regard to above-said component there was neither any allegation nor any evidence to show that all the respondents were belonging to higher caste. To the contrary as recorded by the learned trial Court in its judgment, on the basis of evidence adduced by the accused in their defence, two respondents, i.e. respondents No.6 and 7 were members of Scheduled Castes. The failure of petitioner, and other complainants, to plead the abovementioned fact in their complaint and their failure to disclose that two of the respondents were member of Scheduled Caste was fatal for their case, with regard to proving of charges for the offence under Sections-3 & 4 of the SC & ST Act.

25. With regard to second aspect, i.e. proof of caste of petitioner, and of other complainants, the best evidence available with the prosecution was caste certificates (of the petitioner and other complainants), but the abovementioned evidence was withheld by the prosecution.

26. With regard to second component a stand was taken by learned counsel for the petitioner, during the course of argument in this petition, that to prove caste of the petitioner and other complainants an application under Section 311 Cr.P.C. was filed by the prosecution, and the same was dismissed. With regard to above-mentioned arguments of learned counsel for the petitioner it is relevant to mention here that the application seeking for permission to lead additional evidence, by invoking Section 311 Cr.P.C., was dismissed by the learned trial Court on 10.12.2004, and thereafter, the learned trial Court adjourned the case on six occasions, in the span of two months, and then passed the final verdict.

27. The above-mentioned chronology of event was reflective of the fact that if the petitioner or the prosecuting agency were aggrieved of the order dated 10.12.2004, they had ample opportunity to challenge the abovementioned order, before the appellate forum, but they deliberately did not opt for that. The above-said inaction on the part of petitioner & other complainants and the Investigating Agency invites inference against the prosecution with regard to proof of caste of the petitioner and other complainants.

Point No.II

28. As far as the point of determination No.II was concerned it was incumbent upon the petitioners or the prosecution to prove that respondents did not belong to Schedule Caste. As observed by the learned trial Court, two of the respondents, i.e. respondents No.6 and 7 were members of scheduled caste. The above-said fact was concealed by the petitioner, which amounted to concealment of true facts by the petitioner or the prosecution from the learned trial Court. The above-said act of the petitioner/prosecuting agency, too, was responsible for inviting adverse inference against them.

Point No.III

29. As far as this point was concerned in order to prove that caste slur was used by the respondents firstly there were contradictory stands in the contents of complaint and the deposition of witnesses secondly three eyewitnesses examined by the prosecution, i.e. PW-1 to PW-3 had narrated different words, which were allegedly used by the assailants at the time of incident.

30. The contents of the complaint Ex.PA would reveal that only respondent No.2-Mohan Singh had used caste slur, against the petitioner and other complainants, but as per deposition of PW-1 to PW-3 all the respondents had jointly used the above-mentioned caste slur. The above-mentioned deposition of PW-1 to PW-3 with regard to using caste slur against the petitioner (and other complainants jointly) was very unnatural and unable to convince a prudent manner that same set of words would have been spoken by seven persons simultaneously, against the petitioner and other complainants. Secondly the above-mentioned deposition of PW-1 to PW-3 being contrary to the contents of complaint Ex.PA, wherein it was mentioned that only respondent No.2 had used derogatory language in the name of caste of the petitioner (and other complainants) rendered the deposition of PW-1 to PW-3 doubtful with regard to identity of the persons, who had used derogatory language in the name of caste of the petitioner.

31. The second aspect to be taken into consideration was that the words allegedly used by the respondents were duly explained by all the witnesses, i.e. PW-1 to PW-3 and the contents of testimonies of PW-1 to PW-3 would go to show that they had stated different words which were allegedly used by the respondents at the time of incident. Since the actual wording used by the assailants at the time of incident was of utmost relevance, and in the instant case the PW-1 to PW-3 had deposed different words, used by the respondents, in my considered opinion on the above-mentioned ground also the testimonies of PW-1 to PW-3 were rendered doubtful.

32. In addition to above, it shall not be out of place to mention here that as per allegations contained in the FIR, the incident had taken place on 11.10.2001, but the complaint before the Human Rights Commission was filed on 23.10.2001, i.e. after a gap of 12 days. This delay was not explained by the prosecution in any manner, whatsoever and therefore, it was another factor which adversely impacted the prosecution story.

33. The another relevant aspect to be taken into consideration was that the evidence adduced by the respondents in their defence showed that the drain was in existence since long and had been engaging attention of the village authorities since 1985. Thus, the prosecution version that respondents tried to divert the drain on 11.10.2001 was doubtful.

34. Taking into consideration the above-mentioned facts and circumstances, prevailing in the present case, in my considered opinion while analyzing the evidence led by the prosecution a proper analysis was made by the learned trial Court and it was rightly observed, by the learned trial Court, that the evidence adduced by the prosecution was not sufficient to bring home guilt of the respondents.

35. In view of above-mentioned observations in my considered opinion, there is no scope for indulgence or interference in the verdict of acquittal, rendered by the learned trial Court. Thus, it is hereby held that present revision petition is devoid of merits and deserves dismissal.

36. As a sequel to above-mentioned observations, the present petition being devoid of merit, is hereby dismissed, accordingly.

Petition dismissed.

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