Delhi District Court
State vs . Abdul on 2 April, 2009
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SC / ST No. 07/08.
IN THE COURT OF SH. GURDEEP KUMAR :
D.J.-V-CUM-ASJ / I/C (SOUTH) P.H.C., NEW DELHI
SC / ST No. 07/08.
FIR No. 819/98.
PS : Okhla Industrial Area
U/s 7C PCR Act & 3/4 SC / ST Act.
State Vs. Abdul
S/o Shri Iliyash
R/o Village Madhopura, PS Orai
Distt. Muzaffar Pur (Bihar)
Date of institution : 01.04.2004.
Date on which arguments
have been heard : 23.03.2009.
Date of judgment : 02.04.2009.
J U D G M E N T:-
Accused Abdul has been sent up for trial by the S.H.O, Police Station Okhla Industrial Area under Section 7C PCR and Section 3 of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the Act).
2. The brief facts of the case are that on 09.11.1998 at about 2.00 p.m. an information was received from lady Constable Manju No. 3654 - PCR Contd...
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regarding a quarrel at Shed 7, Okhla Industrial Area, Part
- II. On that information, DD No. 14 was recorded and its copy was handed over to Head Constable Ram Chander. The said Head Constable Ram Chander alongwith Constable Hasim Khan No. 1947/SD went to the place of occurrence where the complainant Mr. Rameshwar Dyal Tanwar met them. He made a statement to the police stating inter-alia; that he is resident of house No. 42/1936, Nai Wala, Karol Bagh, New Delhi where he resides alongwith his family; that he has got a factory at S-7, Okhla Industrial Area which he has let out except top floor; that the top floor is in his possession. Besides, he has got two rooms on the ground floor, out of which one is used by the security guard and he has got his office in the other room on the ground floor; that accused Abdul, who is resident of Madhopura, Muzaffar Pur, Bihar, used to sleep in his office in the night and during the day time he used to work as Electrician outside. He himself Contd...
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generally used to remain outside as his children are settled abroad; that a few days back he had asked the security guard Shashi Bhushan to tell accused Abdul to talk to him but he did not do so. However, on the next day accused telephoned him and uttered "TUM NEECHI JAATI KE HO AUR APNE AAP KO JYADDA BANTE HO"
and thereupon he disconnected the telephone. On the next day, he handed over all his belongings to the accused and told him to work and stay elsewhere; that he never used to charge any rent from the accused. In his statement, the complainant further stated that on 09.11.1998 at about 1.30 p.m while he was talking to the Security Guard Incharge, Balwinder Singh regarding payment to the guards, accused Abdul came there and uttered "CHURE CHAMAR FACTORY KE MALIK BAN GAYE HAIN." He objected to the same and asked the accused not to misbehave with him but he continued to repeat the same utterances and thereupon he informed Contd...-:4:-
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the Police Control Room.
3. The accused Abdul was also handed over to the police officials stating that he had insulted and humiliated him by his aforesaid utterances which emanates untouchability. On the basis of the said statement by the complaint, accused was arrested, site plan was prepared on the pointing out by the complainant. Statements of the witnesses were recorded. Accused was arrested and after completion of the investigation, chargesheet was filed before ld. M.M.
4. The case was committed to the Sessions Court by ld. M.M. vide orders dated 28.03.2002. After hearing both the parties on the point of charge, my ld. Predecessor vide orders dated 17.07.2002 discharged the accused on the grounds that in the entire record nothing had been shown to which caste the complainant Contd...-:5:-
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Rameshwar Dayal belongs; that the complaint had not claimed himself either of Scheduled Caste or Scheduled Tribe; that the Court could not take any presumption with regard to caste of the person; that if a person wants to register a case under the Act, he supposed to claim and file evidence to show that he belongs to a Scheduled Caste or Scheduled Tribe which is the basic requirement to frame the charge for the alleged offence under the Act.
5. After further investigation, the prosecution filed a supplementary challan alongwith the Caste Certificate of the complainant. The said supplementary challan was filed before ld. M.M. on 01.04.2004. The case was transferred to the Designated Court vide orders dated
10.08.2006 by ld. District and Sessions Judge.
6. After hearing both the parties, my ld. Predecessor vide orders dated 31.10.2007 held that there Contd...
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was no material on record to show prima facie that accused had committed offence under Section 7C PCR Act. However, it was observed that there is sufficient material on record to frame charge against the accused under Section 3(1)(x) of the Act. Accordingly, charge under Section 3(1)(x) of the Act was framed vide orders dated 31.01.2007. Accused pleaded not guilty and claimed trial.
7. The prosecution has examined PW1- Constable Surender Singh, PW2 - S.I. Ajay Shukla, PW3 - R.D. Tanwar, PW4 - Balwinder Singh, PW5 - H.C. Hashim Khan, PW6 - Constable Shubh Ram, PW7 - Deep Narayan Bharti Podar, PW8 - H.C. Ram Chander & PW9
- Vijay Malik retired A.C.P.
8. On the basis of the incriminating evidence that came on record, statement of accused under Section 313 Contd...
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Cr.P.C was recorded wherein he denied the entire incriminating evidence but preferred not to lead any evidence in his defence.
9. PW1 - Constable Surender Singh proved the DD entry No. 14 Ext. PW1/A stating that original has been destroyed.
10. PW2 - S.I. Ajay Shukla deposed that on 09.11.1998 he was posted at Police Station Okhla Industrial Area as Duty Officer; that at about 8.10 p.m. he received a rukka from H.C Ram Chander through Constable Hasim Khan and on that basis he recorded formal FIR No. 819/98 Ext. PW2/A.
11. PW3 - R. D. Tanwar is the complainant and he has reported the facts as spelled out in his complaint which form the basis of the FIR. Besides, he further Contd...
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stated that he belongs to Scheduled Caste Community and his sub-caste is Jatav Chamar whereas the accused is not Scheduled Caste. He also produced the original Caste Certificate issued to him by the Government, copy of which is Ext. PW3/A.
12. PW4 - Balwinder Singh deposed that in the year, 1998 he used to provide security guards in the factory of the complainant; that on that day at about 1.00 p.m he went to the building / factory of the complaint; that some union persons were abusing the complainant and that accused was also standing in between them. He did not know if the accused had abused the complainant. He had heard nothing from the mouth of the accused and thereafter he alongwith the complainant went to the Police Station where the complaint was lodged by the complainant. He denied to have made a statement to the police. He was declared hostile and then cross examined Contd...
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at length by special PP for the State. In his cross examination by special PP for the State, he admitted that the date of occurrence was 09.11.1998. However, he did not support the prosecution version with regard to the alleged objectionable utterances by the accused to the complainant. He also denied to have made a statement to the police during investigation of the case.
13. PW5 - H.C. Hashim Khan deposed that on 09.11.1998 on receipt of DD No. 14, he accompanied H.C. Ram Chander to Okhla Industrial Area, factory No. S-7; that at the spot, H.C. Ram Chander recorded the statement of R.D. Tanwar and made his endorsement and he brought the same to the Police Station for registration of the case and on the basis of that complete FIR was recorded by the Duty Officer.
14. PW6 - Constable Shubh Ram deposed that on Contd...
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12.11.1998 he was posted at Police Station Okhla Industrial Area when accused was arrested in his present in PP Okhla Phase - II by H.C. Ram Chander. His personal search memo Ext. PW6/A was prepared which is signed by him.
15. PW7 - Deep Narayan Bharti Podar deposed that he knew nothing to this case. He did not know even the accused facing trial herein. He was declared hostile and then cross examined at length by special PP for the State. He denied to have made statement mark PW7/A to the police. He denied that the alleged occurrence had taken place in his presence.
16. PW8 - H.C. Ram Chander deposed that on 09.11.1998 while posted at Police Station Okhla, he was present in the area when he received copy of DD No. 14 dated 09.11.1998 which is Ext. PW8/A. On receipt of the Contd...
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DD, he went to the factory where the complainant Rameshwar Dyal met him and made statement Ext. PW3/A which is signed by the complainant. He made his endorsement Ext. PW8/B and sent to the Police Station through Constable Hasim Khan on which FIR Ext. PW2/A was recorded by the Duty Officer. Constable Hashim Khan returned to the place of occurrence with copy of the FIR and original rukka. On the pointing out of the complainant, he prepared site plat Ext. PW8/C. Accused was arrested and his personal search was taken vide memo Ext. PW6/A. He was also given the notice of his arrest which is Ext. PW8/D. After completion of the investigation, the accused was challaned through S.H.O.
17. PW9 - Vijay Malik retired A.C.P. deposed that while posted as A.C.P Kalkaji, he took over further investigation of this case by the order of Additional DCP, South District vide orders Ext. PW9/A. He received the Contd...
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case file from S.H.O. Okhla Industrial Area, perused the same and found that the accused had been earlier discharged by the Court due to lack of Caste Certificate of the complainant. During further investigation, he collected Caste Certificate Ext. PW3/A, seized it vide memo Ext. PW3/B, recorded supplementary statement of the complainant and other witnesses and after complete investigation prepared and filed supplementary challan.
18. I have heard special PP for the State and ld. counsel for the accused. I have also gone through the evidence and other relevant material on record.
19. It is not in dispute that basic ingredients of the offence under Clause (x) of Sub-section (1) of Section 3 of the Act are that (a) there must be an "intentional insult" or "intimidation" with "intend" to humiliate SC / ST member of a non-ST / SC member; (b) and that insult must have Contd...
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been done in any place within the "Public view". The use of expression "intentional insult or intimidation" with "intention" to humiliate, makes it abundantly clear that the mens rea is an essential ingredient of the offence and it must also be established that the accused had the knowledge that the victim is the SC / ST and that the offence was committed for that reason.
20. Our own Hon'ble High Court in the case reported as Daya Bhatnagar & Ors. Vs. State 109 (2004) DLT 915 has laid down as under :-
"Basic ingredients for the offence under Clause (x) of Sub-section (1) of Section 3 of the Act, revealed through the bare reading of this section are as follows: (a) there should be intentional insult or intimidation by a person, who is not a member of SC or ST; (b) the insult must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from Contd...-:14:-
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long association; and (c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view" as long as it is within the "public view".
The requirement of "public view" can be satisfied even in a private place, where the public is present."
Their Lordships have further held that "Public view" envisages that public persons present there should be independent, impartial and not having any commercial or business relationship, or other linkage with the complainant. It would also not include persons who have any previous enmity or motive to falsely implicate the accused persons. However, merely because a witness, who is otherwise neutral or impartial and who happens to be present at the house of the victim, by itself, cannot be disqualified.
Our own Hon'ble High Court in another case reported as Usha Chopra (Smt.) Vs. State & Anr. 2004 VIII AD Delhi 74 has laid down that "public view" means Contd...
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persons from Public should be present however small in number to attract Section 3(1) (x) of the Act. Same is the proposition of law laid down by our own Hon'ble High Court in the case of Mukesh Kumar Saini and others Vs. State (Delhi Administration) 2001 CRI. L.J. 4587.
21. It is not the case of the accused that he belongs to Scheduled Caste or Scheduled Tribe. The Caste Certificate Ext. PW3/A proved by the complainant proves beyond any doubt that he belongs to Scheduled Caste being Sub-caste Jatav Chamar. According to the prosecution, the accused rightly, with a view to humiliate and insult the complainant, uttered the derogatory words "CHURE CHAMAR FACTORY WALE BAN GAYE HAIN"
(hereinafter to be referred as the "offending words"). Therefore, first of all the prosecution has to prove that on the given date, time and place accused had uttered the aforesaid "offending words" to the complainant. If the answer to that question is in positive, then whether the Contd...-:16:-
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accused had uttered those "offending words" with intention to insult, intimidate and humiliate the complainant. Besides, the prosecution is required to prove that the said "offending words" were uttered by the accused with the said intention within public view.
22. Deposing as PW3 - complainant R.D. Tanwar has deposed that at the time the accused had uttered the aforesaid "offending words", Security Incharge, Balwinder was present. He immediately informed the Police Control Room and the Police came there and accused was apprehended by the Police and at that point of time he made his statement Ext. PW3/A. However, in his cross examination, the complainant stated that the accused was not arrested from the spot nor he was arrested from somewhere else on his identification. He simply deposed that police had gone to factory S - 51 or S - 52 from where the accused was taken into custody. He also Contd...
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stated that he had not gone to that factory from where the accused was arrested by the Police. In his complaint Ext. PW3/A, he had narrated different facts. Therein he had stated that after the accused had uttered the "offending words" to him, he informed the Police Control Room on which the Police came there and he handed over the accused to the Police who arrested him and then recorded his statement. His admission in his cross examination that the accused was not arrested from the spot or from somewhere else on his pointing out clearly goes to prove that accused was not apprehended by the complainant nor was handed over to the Police and arrested at the spot. This further goes to show that the presence of the accused at the relevant time and the utterances of the "offending words" is highly doubtful.
23. As mentioned earlier, use of expression "intentional, insult or intimidation" with "intention" to Contd...
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humiliate makes it abundantly clear that mens rea is an essential ingredient of the offence and it must also be established that the accused had the knowledge that the victim is the SC / ST and that the offence was committed for that reason. The complainant PW-3 R.D. Tanwar in his cross examination specifically stated that he had never told about his caste to the accused. He further stated that his caste was known to other owners of the adjoining factory as he was allotted that plot of the factory out of the Scheduled Castes Quota. He further stated that no workman of the labour community, who was working in that factory area, had knowledge about his caste. All these admissions by the complainant in his cross examination clearly point out that accused Abdul did not have the knowledge that the complainant R.D. Tanwar is Scheduled Caste by caste. The complaint has tried to attribute knowledge to the accused about his caste stating that his caste was known to other owners of the adjoining Contd...
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factory as he was allotted the said plot of factory out of Scheduled Castes Quota; that the owners of the other factories might have told him about his caste to the accused where he used to go for work. The said testimony of the complainant R.D. Tanwar is nothing but a presumption on his part that since he was allotted plot of the factory out of the Scheduled Castes Quota, the neighbouring factory owners might be aware of his caste and they might have told to accused about his caste. This is not substantive evidence to attribute knowledge to the accused about the caste of the complainant Sh. R.D. Tanwar. Besides, in his further cross examination he admitted lack of knowledge which of the factory owner had told about his caste to the accused. He also admitted that he had not made complaint against any of the other adjoining factory owners in that regard. This further confirms that it is only an apprehension in the mind of the complainant that the accused might have been told about Contd...
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his caste by the neighbouring factory owners. The complainant has not disclosed the name of the particular neighbouring factory owner who might have told the accused in that regard nor any such neighbouring factory owner has been examined by the prosecution to prove that the accused had the knowledge that the complainant R.D. Tanwar is Scheduled Caste by caste. In the absence of any evidence to attribute knowledge to the accused of the said fact regarding caste of the complainant, it cannot be said that even if the accused had used the "offending words" against the complainant, the same had been uttered with intention to insult or intimidate the complainant. In other words, the essential ingredients of the offence under Clause (x) Sub-section (1) of Section (3) of the Act is, therefore, not proved by the prosecution.
24. On careful scrutiny of prosecution evidence on the court record, I am of the considered view that Contd...
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prosecution has failed to prove that the aforesaid "offending words", even if used with intention to insult or intimidate the complainant Mr. R.D. Tanwar, were not uttered in public view. As per the case of the prosecution and also deposed by the complainant PW3 - R.D. Tanwar, Security Incharge Balwinder was present and the said "offending words" were used in his presence and, therefore, the "offending words" are claimed to have been uttered by the accused within public view. However, it is important to note that PW4 - Balwinder Singh the said Security Incharge did not support the prosecution and also did not corroborate the statement of PW3 - R.D. Tanwar. As deposed by PW4 - Balwinder Singh, on the day of occurrence i.e. 09.11.1998 he had seen some union persons abusing the complainant while the accused was also standing in between them. He stated that he did not know that if the accused had abused the complainant R.D. Tanwar. He categorically stated that he had heard Contd...
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nothing from the mouth of the accused. The witness was declared hostile and cross examined at length by special PP for the State. However, he denied that the accused had uttered the "offending words" to the complainant in his presence. He also denied that the accused was apprehended at the spot and was handed over to the Police. The witness deposed nothing material in favour of the prosecution and to corroborate the statement of PW3
- R.D. Tanwar despite cross examination at length by special PP for the State.
25. PW7 - Deep Narayan Bharti Podar is claimed to be another witness to prove that the said "offending words" were uttered by the accused with intention to insult and humiliate the complainant in his presence i.e in public view. It is noticed that the said witness PW7 is completely hostile and he did not support the prosecution nor corroborated the statement of the complainant PW3 - R.D. Tanwar in that regard. He was cross examined at Contd...
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length by special PP for the State. He denied to have made statement to the Police in that regard. He denied that on the given date and time accused had uttered the "offending words" to the complainant in his presence or that he had made statement Mark PW7/A to the Police stating so. Since the witness did not support the prosecution version nor corroborated the statement of the complainant PW3 - R.D. Tanwar, his testimony also does not help the prosecution to prove that the "offending words" were uttered by the accused to the complainant R.D. Tanwar in public view. This goes to show that the prosecution has failed to prove another essential ingredients of the offence under Clause (x) of Sub-section (1) of Section (3) of the Act.
26. For the aforesaid reasons and for the reasons narrated above, I am of the considered view that the prosecution has failed to prove the basic ingredients of the Contd...
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offence under Clause (x) of Sub-section (1) of Section (3) of the Act and, therefore, it is held that the prosecution has failed to bring home guilt against the accused for the said offence beyond the shadow of any reasonable doubt. On the basis of the above discussion and for the reasons given therein, accused Abdul is acquitted of the charges under Clause (x) of Sub-section (1) of Section (3) of the Act. His surety is discharged. File be consigned to the record room.
Announced in the open (GURDEEP KUMAR) Court on 02.04.2009. D.J.-V-cum-ASJ I/C(South) P.H.C., NEW DELHI Contd...