Delhi District Court
State vs . (1) Virender Sharma S/O. Sh. Vijay Pal ... on 9 September, 2014
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R0231162008
Sessions Case No. 06/13
Date of Institution: 29.03.08
Date of transfer to this court: 22.01.13
Date on which reserved for orders: 08.08.14
Date of delivery of order: 09.09.14
State v/s. (1) Virender Sharma S/o. Sh. Vijay Pal Sharma
R/o. C60, Gali No.2, Ganga Vihar,
Gokul Puri, Delhi94.
FIR No. 23/08
PS. Vivek Vihar
U/s. 3 (1) (x) SC/ST (POA) Act
JUDGMENT:
1. Prosecution case is that a complaint was received at P.S. Vivek Vihar on 29.01.2008, which was addressed to ACP, was filed in the office of DCP East District on 06.10.2007, on which enquiry was ordered by the ACP, PG Cell, and thereafter, the same was sent to the P.S. for registration of FIR under the provisions of SC/ST Act. FIR No. 23/08, PS. Vivek Vihar Page 1 of 35 St. Vs. Virender Sharma The complaint was that complainant Salekh Chand was an Instructor in ITI, Shahdara, Vivek Vihar and belongs to Schedule Caste. On 25.09.2007 at about 11.15 am, when he was taking practical of trainees in workshop no.1, Virender Sharma, the accused, forcibly entered the workshop and started abusing him. He called him 'SAALE CHUDE CHAMAR, TU BAHAR CHAL AAJ MAIN TUJHE JAAN SE KHATAM KAR DUNGA'. He also said SAALE CHUDE CHAMARON KO KISNE MASTER BANA DIYA'. The complainant told him to sit down but he did not sit and levelled various allegations using abusive and castist remarks. Hearing the noise, Rajender Singh foreman, Dharambir Singh, Instructor, Rakesh Kumar Instructor and other staff came there and saved him. Accused also threatened him in presence of these persons while moving out. Allegations were levelled against Deepak Sharma of having conspired with the accused. Investigation was conducted and charge sheet u/s 3 (1) (X) SC ST (POA) Act and 186/504/506/120B IPC was filed.
2. Deepak Sharma was discharged, which order is final as on date. Charge was framed against accused Virender Sharma u/s. 3 (1) (X) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act. Accused pleaded not guilty and claimed trial.
3. Prosecution, to prove its case, examined 20 witnesses.
4. PW1 HC Rajender Kumar was the duty officer and had registered the FIR FIR No. 23/08, PS. Vivek Vihar Page 2 of 35 St. Vs. Virender Sharma based on the complaint received at the P.S. The complaint is Ex. PW1/B and the FIR is Ex. PW1/A.
5. PW2 is Smt. Prabha, who used to run canteen at ITI in the year 2007. She deposed that she used to supply food items to the staff as per their order. No student ever took any food item from her canteen to the teachers and she and her canteen boy used to deliver the food items. She said that she did not know any Keshav Sharma.
In her cross examination by Ld. Addl. PP, the witness stated that it was correct that no student used to take food from her canteen for the teachers and stated that she could identify Keshav Sharma if he were produced before her. She, however, denied the suggestion of prosecutor that she knew Keshav Sharma.
6. PW3 is the complainant. He has deposed that he was working as an Instructor in ITI Shahdara in the year 2007. On 25.09.2007, around 11.15 am, he was busy imparting practical training to the trainees in workshop no.1. Accused Virender Sharma entered his workshop and started abusing him. He abused him and stated 'SAALE CHUDE CHAMAR KE BACHE TUJHE JAAN SE KHATAM KAR DUNGA', 'BAHAR CHAL TUJHE JAAN SE KHATAM KAR DUNGA, 'SAALE CHUDE CHAMAR KO KISNE MASTER BANA DIYA. When the complainant asked him to sit down, the accused did not sit down and told him 'TERI KAISE HIMMAT HO GAI MERE BACHE SE KAAM KARANE KI'. The complainant deposed that he told the accused and he used to provide education to the children and FIR No. 23/08, PS. Vivek Vihar Page 3 of 35 St. Vs. Virender Sharma he never asked any child to do any work. Accused again started abusing him. Hearing the noise, Rajender Singh foreman, Dharambir Singh Instructor, Rakesh Kumar Instructor and other staff came and saved him. At that time also, Virender Sharma was saying CHUDA CHAMAR to him. He threatened the complainant by saying that he was saved by these persons but he will see him outside. While he was being taken away by Rajender Singh, accused stated 'TU RAKSHAS HE TUJHE KISNE MASTER BANA DIYA'. Thereafter, the complainant spoke about Deepak Sharma who has been discharged and there was no sufficient evidence to summon him u/s. 319 Cr.P.C either nor any such application was ever filed. The witness deposed that he came to know that accused was father of his trainee Keshav Sharma and when he came to ITI, he first met Deepak Sharma, who disclosed to him that the complainant was of CHAMAR JAATI. The witness deposed that he immediately informed the head of institution and P.S. Vivek Vihar but no action was taken. He deposed that Virender Sharma had forcibly obstructed him from conducting the official duty and had used derogatory language against his caste in public place before other staff of ITI to humiliate him. He deposed that on 05.10.2007, he gave his complaint to ACP (PG Cell). The complaint is Ex. PW3/A. He received the copy of FIR from the P.S. on 12.02.2008 which is Ex. PW3/B. He deposed that IO had seized his caste certificate vide memo Ex. PW3/C. He proved his complaint given to the principal as Ex. PW3/D. The witness produced the caste certificate, copy of which is Ex. PW3/E. The witness also tendered some documents showing complaints against Keshav Sharma son of accused and the apology letter written by him. The documents FIR No. 23/08, PS. Vivek Vihar Page 4 of 35 St. Vs. Virender Sharma are Ex. PW3/F1 to Ex. PW3/F4.
In his cross examination the witness stated that student Rashid had given an oral complaint against Keshav on 10.11.2006 and apology of Keshav was taken in writing. He himself had not written the enquiry report and the matter was not communicated to the principal. He denied that Ex. PW3/F1 to F4 were manipulated in support of his case. He denied the suggestion that he had obtained signature of accused on Ex. PW3/F2 on the promise to give high grades to his son Keshav Sharma since 400 marks were at his discretion. He denied that on 24.09.2007 accused had moved an application seeking transfer of his son from the institute to Nand Nagri or that he had made complaints that his son was made to wash utensils, deposit the electricity bills and telephone bills and do other private work of the complainant. He denied that since Keshav Sharma refused to do these works, he was beaten by him and so his father had moved the transfer application. A suggestion was given to the witness that a committee was constituted on the complaint of Virender Sharma and the attested copy of enquiry report was shown to him in the evidence. He did not deny the report which is Ex. PW3/B1 but stated that he had challenged the formation of committee since one of the committee members was closely related to Deepak Sharma. He admitted that brother of Rakesh is his SAADHU. He admitted that the words stated by him in the complaint were not mentioned in his complaint to the principal. He admitted that he had given his phone number to the accused without clarifying when, why and how. The attendance record machine generated of 25.09.2007, attested by the principal was shown to the witness. Without denying the FIR No. 23/08, PS. Vivek Vihar Page 5 of 35 St. Vs. Virender Sharma document, he stated that he cannot say how the timings of his coming and going is not mentioned in the document. The document was marked as Mark D2.
7. PW4 Rakesh Kumar, Fitter Trade Instructor at ITI, Vivek Vihar, deposed that on 25.09.2007, around 11.30 am, he had come to the workshop no.1 where he found accused shouting loudly and abusing Salekh Chand 'SAALE CHUDE CHAMAR KE BACHE BAHAR NIKAL ME TUJHE JAAN SE MAAR DUNGA'.
He deposed that accused was abusing Salekh Chand even when he was taken away by Rajender Singh. The incident was seen by Rajender Singh, Karambir and Suresh Kumar alongwith other colleagues and students. He deposed that he had seen accused talking to Deepak Sharma Instructor outside workshop no.2. In his crossexamination he stated that there were four instructors, however, he could not tell name of any other Instructor. He said that he does not know since how long accused was insulting Salekh Chand, however in his presence the incident continued for 57 minutes. He categorically stated that accused had not manhandled Salekh Chand. He stated that he cannot tell why Rajender Singh did not take accused to the office of principal and again volunteered that Principal was on leave that day. He stated that general public did not have free access to the spot. A suggestion was given to him that there was groupism in the institute. He pleaded ignorance about the application of accused seeking transfer of his son .
8. PW5 Dharambir Singh was an instructor. He has also deposed in the same FIR No. 23/08, PS. Vivek Vihar Page 6 of 35 St. Vs. Virender Sharma terms stating that when he was passing through workshop no.1 he heard one person abusing Salekh Chand saying 'Sale chude chamar ke bachche tu bahar nikal aaj tujhe jaan se maar dunga'. Rajender Singh was already present there. He later came to know the name of the person as Virender Sharma. In his crossexamination he said that Suresh Kumar and Ashok Kumar were also present when he went there and Ishwar Singh, Sunil Mishra, Yogender Singh and Mahender Jayant were present there.
9. PW6 Rajender Singh has deposed on the same terms as above witnesses.
He says that on hearing the noise from workshop no.1, he saw instructor Dharamvir was going so he also went to the workshop no.1 and found several teachers and student as also the accused were present there. The accused was uttering 'Chure Chamar tu teacher par kalank hai bahar nikal main tujhe jaan se khatam kar dunga'. Rakesh and Suresh also came inside the workshop, where students were doing their work. He took the accused to his room and made enquiries from him and came to know that he was father of Keshav Sharma. He stated that accused had uttered castiest remarks in his office. He stated in his crossexamination that Instructor Rakesh and Dharambir came to the spot and other staff members & students were already present there. He deposed that when attendance taking machine is not working or there is no electricity, a manual entry used to be done for the attendance of instructors, however, admitted that there was no written order for maintaining manual register. He stated that he did not have the job of taking disciplinary action. FIR No. 23/08, PS. Vivek Vihar Page 7 of 35 St. Vs. Virender Sharma
10. PW7 Subash Singh deposing in above terms said that he was the student of Salekh Chand when Virender Sharma came and stated to Salekh Chand ' Chure Chamar Bahar Nikal main tujhe jaan se maar dunga, you are kalank in the name of master. He admitted that he belongs to SC community but denied that he was deposing at the instance of Rakesh Sharma and Salekh Chand. A suggestion was given to him that they used to work for teachers as the teachers had discretionary 400 marks in their hands.
11. PW9 Pawan Kumar Gupta was also a student and has deposed on the same terms as above. He says that he was in the room of Rakesh, however, volunteered that student of any group used to take training from any instructor in any workshop and he was taking training from Salekh Chand. He said that Salekh Chand did not offer chair to the accused as he had started shouting immediately on coming. Though no question was asked from the witness directly, he volunteered that he had arrived in the institute late about 10.30 am and so his attendance was not marked but Salekh Chand had allowed him to take the class without any written application and that he had not told this fact to the police. This part, therefore, is an improvement and without corroboration. He denied the suggestion that he was assured 400 marks in lieu of false statement.
12. PW10 Ajay Kumar son of Shiv Nandan has also deposed on same terms as above witnesses. He says that accused was asked to take chair by the complainant. FIR No. 23/08, PS. Vivek Vihar Page 8 of 35 St. Vs. Virender Sharma He said that the complainant was threatened but not beaten by the accused. He does not say that Rajender Singh took the accused from spot or that accused was abusing complainant while being taken away. He says in his crossexamination that foreman Rajender and Dharambir came at the spot at the time of incident and thereafter, Suresh also reached there. He does not speak when Rakesh came. PW11 Ajay Kumar S/o. Dharampal also deposed in the above terms. He stated that while going from there accused was abusing Salekh Chand but does not mention the words and does not say that Rajender Singh took him away. PW15 Sunil Kumar was also present in the workshop. He says that the accused had told complainant' Chamar Chura' and ' I will see you '.
13. PW8 Rajeshwar Dayal deposed that the police had taken from record complaints of Virender Sharma and Salekh Chand. The complaint of Salekh Chand was Ex.PW3/D and of accused as Ex.PW8/A.
14. PW12 Devki Nandan proved the attendance register of the accused showing that he was on leave from his office on the said date. PW13 also proved the official record to show that Virender Sharma had not gone to his office on the date of incident.
15. PW14 Vinod Kumar stated that complaint of Salekh Chand was received in the office vide entry no. 1832 and in crossexamination he admitted that FIR No. 23/08, PS. Vivek Vihar Page 9 of 35 St. Vs. Virender Sharma application of one Virender Sharma was received vide entry no. 1827. The two entries were exhibited as Ex.PW14/A and Ex.PW14/DA.
16. PW16 ACP Kapoor Singh deposed that the investigation of the matter was initially with Ajeet Singh, ACP Vivek Vihar and was later on transferred to him. He said that he inspected the site and proved site plan as Ex.PW16/A. He had searched for Virender Sharma and Deepak Sharma but they were not found. He proved the enquiry report filed by K.L.Meena as Ex.PW16/B; copy of caste certificate of Salekh Chand as Ex.PW16/C; his letter seeking verification of the caste certificate as Ex.PW16/D; the documents seized from the concerned clerk of ITI including E.L application of Deepak Sharma vide memo Ex.PW16/E. He proved the arrest memo of Virender Sharma as Ex.PW16/F and personal search memo as Ex.PW16/G. The seizure memo of documents seized from the office of accused was proved as Ex.PW16/J. In his crossexamination he stated that he is not aware if accused had given a complaint on 24.09.07 or 25.09.07 to the principal ITI Shahdara and denied the suggestion that he did not take the complaint intentionally to favour the complainant. He stated that he had met the principal and vice principal but did not record their statements. He stated that position of PW Rajender and students is shown in the site plan but admitted that positions of Rakesh and Dharamvir is not shown in the site plan. He denied that their position is not shown because they did not witness the incident. He said that he did not check the attendance register to see the attendance FIR No. 23/08, PS. Vivek Vihar Page 10 of 35 St. Vs. Virender Sharma of witnesses at the spot nor did he check the biometric record of complainant. He said that he was not aware if the principal was present on the day of incident or not. He was not aware if the principal had called the parties on the complaint of accused on 26.09.07 for a compromise. He stated that he was not aware if Salekh Chand was related to Rakesh and Rajender. He denied that an enquiry was conducted by SI Ashok Kumar, wherein statement of many witnesses was recorded but the same were not placed on record.
17. PW17 ACP K.L.Meena proved his enquiry report and stated that he had recommended registration of FIR. In his crossexamination he stated that he was not aware about the complaint of the accused. He stated that he did not know if SI Ashok Kumar was posted in PS Vivek Vihar. He did not make any enquiry from him and he was not aware if he had conducted any enquiry in this case. After seeing his enquiry report, however, he admitted that he had mentioned about to the enquiry conducted by SI Ashok Kumar. He denied the suggestion that he had recorded the statement of interested witnesses.
18. PW18 Yugal Kumar produced the attendance record of Deepak Sharma and Salekh Chand. He also proved the E.L application of Deepak Sharma as Ex.PW18/A; the attendance register of September, 2007 Ex.PW18/B and of February, 2008 as Ex.PW18/C. FIR No. 23/08, PS. Vivek Vihar Page 11 of 35 St. Vs. Virender Sharma
19. PW19 Inspector Pawan Kumar had arrested the accused on his surrender. He deposed about the stages of investigation where Deepak Sharma had surrendered and documents of office of accused obtained. PW20 Kamlesh Kumar has proved the caste certificate of the accused alongwith enquiry report.
20. SA was recorded, wherein the accused stated that he had left his son in the institute at 8.30 am and was not present at the spot at the stated time. He denied all the allegations. He stated that he had faxed one complaint to the principal of school on 24.09.07. He stated that Salekh Chand is complainant, Rakesh is his brother in law, Rajender is his Fufa and Dharamvir is his cousin brother. They all are of same community and all the children except Pawan are of same community. PW Pawan Kumar Gupta was absent on the date of incident. He is a planted witness.
21. After seeking permission of the court, accused deposed as DW1. He stated that he had given a complaint to the principal on 24.09.07 stating that Salekh Chand was exploiting the children by asking them to prepare tea, wash utensils and by sending them to deposit his electricity, water bills. He proved his complaint as DW 1/A. He also proved original bill, which was given to his son by the complainant for depositing. The bill is Ex.DW1/B. On 26.09.07 he had received the letter from the principal asking him to meet him on 27.09.07. He went to the office of principal where he met Shashi Vasudewan the principal and Prem Kumar, the Vice Principal. The principal called Rajender Singh, Salekh Chand, Dharamvir and Rakesh Kumar. FIR No. 23/08, PS. Vivek Vihar Page 12 of 35 St. Vs. Virender Sharma Salekh Chand was asked to seek apology from him for his conduct telling him that otherwise his application will be forwarded to higher authorities. Salekh Chand sought apology and thereafter, he gave his phone number to him in his own handwriting. Rakesh Kumar also gave his number. Rajender Singh, who is fufa of Salekh Chand also gave the number in presence of principal and vice principal. He tendered his diary containing handwriting of aforesaid persons as Ex.DW1/C. He says that he was assured that his son will continue to study in the school without any harassment.
The complainant, however, gave complaints to Lieutenant Governor, Chief Minister & Principal. ACP Ajeet Singh was posted in the PS. He and SI Ashok conducted an enquiry and SI Ashok reported that no such incident had taken place. This fact was so recorded in the report of ACP K.L.Meena, which is Ex.PW16/D. Thereafter, one BC of the area Ajab Singh alongwith complainant went to the PS and pressurised the police. They surrounded (Gherao) SI Ashok, who went to ACP Ajeet and ACP Ajeet directed him to arrest those persons. After which all these persons left the spot. Thereafter, complainant prepared fresh complaint and sent it to PG Cell of DCP office. The FIR was registered with the intervention of Buta Singh after five months of the incident. Thereafter, fresh enquiry was conducted by ACP Kapoor Singh, who recorded the statement of fourfive students, who were close to the teachers and were given assurance of good marks. The statement was recorded inside the room of foreman. No enquiry was conducted in the classroom. ACP did not involve the principal and Vice Principal in the enquiry. He did not even verify the FIR No. 23/08, PS. Vivek Vihar Page 13 of 35 St. Vs. Virender Sharma presence of complainant in the institute on the day of incident. The attendance report was obtained by him vide RTI, the RTI receipt and the RTI report are Ex.DW1/E and D. He deposed that the document shows presence of all the employees, however, complainant is shown absent in the morning as well as in the evening. He had also given a complaint after this against the complainant and an enquiry was conducted against complainant, Rakesh Kumar, Rajender Singh and Dharmavir Singh, who were found guilty of misconduct. He proved the copy of enquiry report received by him through RTI as Ex.DW1/G. All the aforesaid persons were transferred from the institute. He had also obtained the attendance sheets of PW Pawan Kumar and found that Pawan was also absent from the school. Record has been proved as Ex.DW1/I. In his crossexamination by Ld. Counsel for complainant, he stated that he had personally seen his son preparing tea for Salekh Chand on a Tuesday, when he had visited the school and the tea was being prepared on a heater. He stated that the signature of his son were obtained on Ex.PW3/F1 by force. He denied the suggestion that he used to visit the institute frequently as his son used to commit mistake and quarrel with classmates. He admitted his signatures and handwriting on Ex.PW3/F2 and of his son on Ex.PW3/F3. He denied that the bills, which he tendered in evidence were false. A suggestion was given to the witness that Salekh Chand and Rakesh Kumar gave their phone numbers to the accused so that he could make enquiries about his son. He denied that Salekh Chand had not sought an apology or that he had sought apology from Salekh Chand. He denied the suggestion that no report was given by ACP Ajeet Singh or ASI Ashok and stated that in fact his FIR No. 23/08, PS. Vivek Vihar Page 14 of 35 St. Vs. Virender Sharma statement was also recorded in presence of ACP Ajeet Singh. He stated that he does not have any proof that Rajender Singh is Fufa of Salekh Chand but stated that he was told so by the complainant. He denied that the report of SI Ashok Kumar was given up as he had been won over. He stated that about 12 persons were present in PS Vivek Vihar including Rajender, Dharamvir, Rakesh and Salekh Chand and also Ajab Singh Bagi. He denied the suggestion that ACP had not directed the arrest of these persons because they were witnesses of this case.
22. After the conclusion of trial, Ld. Counsel appearing for complainant moved an application u/s. 311 Cr.P.C seeking summoning of the original record of attendance, photocopies of which were tendered in evidence by the school employee. Ld. Addl. PP, however, conceded that the documents of attendance obtained by the IO have been tendered in evidence without objection from the accused. It was not the claim of the complainant that the documents in original were in any way different from the documents seized by the IO, which were tendered in evidence. The application stated that the original roll register should be summoned, however, it did not say that the biometric attendance register of the school should be summoned, though it is this document genuineness of which was challenged by him in cross examination of the accused. The original roll register as stated above would have been the same as its photocopy tendered in evidence, which has not been disputed by the accused. The salary register does not show the attendance of employee unless the leave taken is without pay or is earned leave. The application accordingly, was FIR No. 23/08, PS. Vivek Vihar Page 15 of 35 St. Vs. Virender Sharma dismissed.
23. Arguments were heard. Record perused.
24. Ld. Counsel for complainant who was assisting Ld. PP for the State argued that PW4,5,6,9,10,12 & 14 are the witnesses of incident and they have given corroborative evidence visavis the incident. All of them have stated that the accused had come at the workshop1 of ITI Shahdara on 25.09.07 at 11.15 am and had used abusive language, castiest remarks and threatening words against the complainant Salekh Chand. The attendance of complainant in the school has been proved by PW18, who brought the attendance register Ex.PW18/A wherein the complainant is shown present in the institute at 8.30 am till 5 pm. PW13 & 14 have proved that accused was not in his office on the date of incident and therefore, he cannot take the plea of alibi. The IO and other witnesses of investigation have corroborated the fact. PW2 the lady who runs the canteen has categorically stated that none of the teachers sent any student to bring tea or other things for them. All the facts have been proved beyond reasonable doubt. The incident had taken place in full public view where other then complainant and accused several public persons including the instructor and students were present. The complainant felt humiliated by the words stated by the accused.
25. Ld. Counsel for the accused on the other hand argued that the complaint is FIR No. 23/08, PS. Vivek Vihar Page 16 of 35 St. Vs. Virender Sharma a counter blast to the complaint which he gave to the principal on 24.09.07 asking her to transfer his child to Nand Nagri Institute as the teachers of this institute were taking personal work from his son. He argued that immediately after the alleged incident an enquiry was conducted by SI Ashok and ACP Ajeet Singh, who gave a report that no such incident took place. The statement of witnesses were recorded, the same, however, have not been placed on record. There is as such manipulation of record. The students, who have deposed in favour of complainant have been influenced by giving inducement of 400 marks which are in the control of instructors. The teachers, who have deposed are related to the complainant. The attendance of the complainant is not marked on biometric system. PW Rajender Singh has specifically deposed that the manual attendance can be taken when there is electricity failure or problem with the biometric machine. DW1 and DW2 have stated that no such incident had taken place.
26. Ld. Counsel for complainant in rebuttal argued that documents given by accused are not proved and cannot be read in evidence.
27. Arguments heard. Record perused.
28. The foremost plea of the accused is that the complaint is manipulated and the complainant was not present in the institute on the date of incident at all. In support of this contention he relied upon the biometric attendance sheet, which he FIR No. 23/08, PS. Vivek Vihar Page 17 of 35 St. Vs. Virender Sharma received from the institute on an application under RTI Act. It has been admitted by prosecution witness PW Rajender that the attendance is recorded on biometric and that only in the event of failure of electricity or some problem in biometric machine, the attendance can be taken manually. His version is " sometimes when attendance taking machine not working (Sic) or electricity was not available, in that case a manual entry used to be done for the attendance of the instructors". The evidence categorically shows that the primary mode of recording of attendance was through biometric and manual attendance recording was a substitute in the event of non availability of machine for certain reasons. Strangely the IO did not take the bio metric attendance record from the school, which shows bias in the mind of investigating officer while conducting the investigation. If biometric mode was primary mode of recording of attendance, the IO should have obtained that attendance record leaving on the complainant, the explanation for the discrepancy in his (complainant's) attendance in biometric and manual register. On the contrary, IO chose to take the manual register, which admittedly is not the primary mode of recording of attendance and concealed an important record from the court. The accused has tendered the biometric attendance, which he obtained through RTI Act. Ld. Counsel says that this document cannot be accepted in evidence as it has not been proved. No objection was taken by Ld. Counsel when the document was tendered in evidence by the accused. The accused deposed that he had obtained the attendance of Salekh Chand through RTI and proved the attendance report as Ex.DW1/D and the RTI receipt as Ex.DW1/E. The prosecution having not objected to the tendering of FIR No. 23/08, PS. Vivek Vihar Page 18 of 35 St. Vs. Virender Sharma this record in evidence, cannot say that the accused was legally liable to have brought the original record.
Hon'ble High Court in 119 (2005) DLT 585 (DB) Alacs Finanz Ltd. Vs. Ovsh Technologies, it was held that where secondary evidence admitted without proper objection, it becomes primary. Had objection been taken then and there, party affected could have met it and regularised proceedings.
A question was put to the complainant in his crossexamination regarding his attendance having not been marked in biometric machine and the copy of machine generated attendance record duly attested by Principal mark D2 (later on exhibited as Ex.DW1/E) was shown to the complainant. The complainant/witness stated that he cannot say how his timings of coming and going is not shown in Mark
2. He did not challenge the authenticity of this document and did not say that he had in fact marked his attendance on the biometric system on the day of incident. Nor he said that for certain reasons he could not mark his attendance on bio metric system or that he had marked it only in manual register.
The RTI obtained attendance record Ex DW1/D was proved by the accused. Having not challenged the mode of proof of Ex.DW1/D, if the prosecution claimed that this document was manipulated, onus was on it to have proved that this document was in fact manipulated. The accused has filed an RTI application and this document has been provided to him by the school authorities. It has the stamp of principal of ITI, Shahdara and also his signatures. A simple suggestion was given to the witness in his cross examination that this document is manipulated as it does not tally with FIR No. 23/08, PS. Vivek Vihar Page 19 of 35 St. Vs. Virender Sharma the Ex.PW18/B seized by the IO. No suggestion was given to the witness that the signatures and the stamp on the documents are not of the principal. As stated above, no steps were taken by the prosecution for discharging the onus to prove that this document was manipulated. The original biometric record was not summoned from the school; duly attested copy thereof was not tendered. The principal of the school was not examined, who could have said that this document was not given in RTI. All that Ld. Counsel stressed was that original roll register (i.e the manual register) should be summoned and not that original biometric attendance record should be summoned. In fact the complainant, if he wanted could have summoned the bio metric attendance sheet in original to prove that Ex.DW1/D is manipulated. No such application, however, was filed by him. The document Ex.DW1/D in view of above has been proved as per law.
29. Coming to the contents of documents Ex.DW1/D i.e the biometric attendance sheet and Ex. PW18/B i.e the manual register sheet. Ex.DW1/D has the names of 60 employees mentioned on the first part and six on the second part. Out of sixty six employees, sixteen persons are shown absent from the institute on 25.09.07. Out of these sixteen persons name of six persons i.e Y.K.Jha, Jagwati, Pramod, Madan Lal Sharma, Rudri Dutt and S.A.Rupa are not mentioned in the manual register at all. Out of the other ten, nine i.e Gyan Chand, Jagdish Ram, Jagat Chawla, M.S.Jain, Pukhraj Sharma, Rajbir Singh, Rajeev Kumar, Rajeshwar Singh and Chaman Lal were on leave on 25.09.07 as per manual register. Only the complainant FIR No. 23/08, PS. Vivek Vihar Page 20 of 35 St. Vs. Virender Sharma has been shown as absent in the biometric record but is shown present in the manual attendance sheet, which shows a manipulation in Ex.PW18/B. Apparently, to manipulate biometric record is not easy as the manipulation of manual register and therefore, his attendance in biometric system is more authentic than in the manual register. The probability of manipulation of the manual register is strengthened in view of the fact that IO, who should have obtained the biometric attendance record, did not do so and the complainant also did not seek summoning of the original bio metric record but only original register of attendance roll, which in any case was not disputed by the accused. It is not the prosecution case that no biometric attendance record was being maintained or that it was not mandatory for the employees to mark their attendance on the biometric. In fact the evidence of PW Rajender shows that biometric was the primary mode of marking attendance. The complainant himself did not dispute the document when it was shown to him n his evidence. In view of above discussion, the presence of complainant in the institute at the time of incident therefore, becomes doubtful.
30. Similar is the case of PW Pawan Kumar Gupta. As per the record obtained by accused through RTI and tendered as ExDW1/L, Pawan Kumar Gupta was absent during the first half of the day. His testimony otherwise makes his presence at the spot doubtful. As per the attendance record, he was a student of instructor Rakesh and not complainant Salekh Chand. In his crossexamination he admitted that he was in the group of Rakesh and volunteered that any student can take training under any FIR No. 23/08, PS. Vivek Vihar Page 21 of 35 St. Vs. Virender Sharma instructor. No corroboration in this regard has come from anywhere. It is unbelievable that in an institute where the students are divided in groups and their groups are marked, they would be taking training as per their own choice not following any rules etc. Since his instructor Rakesh was present in the institute as he has deposed in favour of the complainant, a categoric evidence was required on why Pawan was not attending the workshop of his own instructor and why he was in the workshop of complainant Salekh Chand. His evidence is not corroborating the evidence of other witnesses as he categorically said that complainant had not offered chair to the accused, when in fact the complainant stressfully said that on the arrival of accused he had asked him to sit on the desk. This witness appears to be planted for following reasons: his attendance is not marked on the attendance register during the first half; he is not student of complainant Salekh Chand; his own instructor was very much present in the institute and his testimony is not corroborating the statement of the complainant on material aspect.
31. Coming to the next big lacuna in the prosecution case. It has come up in evidence that complainant alongwith other persons had gone to PS Vivek Vihar seeking registration of their FIR. The prosecution witnesses tried to suppress the fact of the clean chit given to the accused in the first round of enquiry conducted by SI Ashok and headed by ACP Ajeet Singh, however, the falsity of the prosecution witnesses could not stand in view of its own document i.e the report which was prepared by PW17 K.L.Meena tendered by PW16 ACP Kapoor Singh and admitted FIR No. 23/08, PS. Vivek Vihar Page 22 of 35 St. Vs. Virender Sharma by K.L.Meena in his evidence. The report Ex.PW16/B in concluding para says that SI Ashok of PS Vivek Vihar told him ( ACP K.L.Meena) that a complaint was received by him vide DD No. 728/7. He had asked complainant and witnesses Rajender Singh, Dharamvir, Rakesh Kumar, Ishwar Kumar and Mahender Kumar to give their statements, however, they all came alongwith one BC of the area named Ajab Singh Bagri and they refused to give their statements saying that the case should be registered first. The report says that SI Ashok had gone to ITI Vivek Vihar and had requested these persons to give their statement but they remained adamant that FIR be registered first. Surprisingly no date of when complainant approached PS Vivek Vihar and when SI Ashok went to the Institute has been mentioned anywhere. It is a relevant fact since the complaint was filed much later and as per complainant he was in the Institute from 8.30 am to 5 pm. When did he go to PS, on 25.09.07 or later on? As per the report, SI Ashok had recorded the statements of Deepak Sharma, Sunil Kumar, Udai Veer Singh, Krishan Kumar, Ashish Sharma and students namely Vijay Kumar, Raj Kumar, Anil Sharma, Sunil Kumar, Raj Kumar, Satender, Chander Prakash, Ramdhani, Virender Sharma, Anil Kumar, Jitender Kumar, Satish, Ashu Chaudhary, Parvesh Kumar, Deepak Kumar, Pawan Kumar etc. and came to a conclusion that the allegations levelled in the complaint were not proved. SI Ashok Kumar had also stated that a complaint was pending with the principal of ITI.
32. The level of bias in investigation in this case is so apparent; not only the FIR No. 23/08, PS. Vivek Vihar Page 23 of 35 St. Vs. Virender Sharma original biometric attendance register was not taken and an effort to mislead the court was made by deposing falsely qua the investigation done by SI Ashok; the witnesses who were examined by SI Ashok, were also not enquired into by the subsequent investigating officer; no effort was made to find out the facts related to Ajab Singh Bagri and alleged threatenings given to SI Ashok. The investigating agency in fact went to the extent of removing the record prepared by SI Ashok. Statement of SI Ashok Kumar was recorded, who stated that he could not trace the statements of five teachers, which he had recorded. Was it not the duty of the subsequent IO to have rerecorded the statements of those five teachers, if the original record was misplaced? There names are mentioned in Ex.PW16/D. A deliberate attempt appears to have been made on part of investigating agency to conceal the documents and change the direction of investigation. The extent of effort to conceal is that PW 17 K.L.Meena despite himself having prepared the report and recorded therein that SI Ashok Kumar had enquired into the matter initially, stated in the court that he did not make any enquiry from SI Ashok Kumar and that he was unaware if any enquiry was conducted by SI Ashok. His statement is falsified by the report prepared by him, wherein he mentioned about SI Ashok Kumar and his enquiry report and also what SI Ashok had told him. ACP Kapoor Singh, who was the investigating officer and was supposed to know the facts of the case went to the extent of denying the suggestion that SI Ashok Kumar had conducted any enquiry wherein he recorded the statements of several witnesses including Vijay Kumar, Anil Sharma, Udai Veer Singh, despite himself having tendered the report on these facts in FIR No. 23/08, PS. Vivek Vihar Page 24 of 35 St. Vs. Virender Sharma the court (Ex PW 16/D). The two official witnesses thus gave false statement on oath on the facts which were well within their knowledge. The concealment and manipulation of record is therefore, apparent on several account as stated hereinabove. As per Ex.PW16/D, SI Ashok Kumar had recorded statement of several persons. None of these persons was examined by subsequent IO in his investigation, which shows that the witnesses were selected in a partisan manner and many persons were intentionally not examined, though they were natural witnesses of the incident.
33. Contradictions in the testimony of the witnesses. The requirement of law is that to make an offence under mentioned sections the incident must have taken place in public view. The public view was discussed by the Hon'ble High Court in 94 (2001) DLT 241 Mukesh Kumar Saini and Ors. Vs. State, where the Hon'ble Supreme Court while appreciating the meaning of words ' public view' held that where the humiliating words were uttered while the complainant was being dragged inside before the arrival of neighbours, the words cannot be said to have been uttered in public view. The Hon'ble Supreme Court thus concluded that where the witnesses were not present at the spot, when the utterances were made, they could not be considered the witnesses of incident.
Coming to the facts of the present case, three teachers of the school have deposed in favour of the prosecution. They are Rakesh Kumar PW4, Dharambir PW5 & Rajender Singh PW6. It is not a case where all the instructors were present at the spot and more specifically the three above named persons were not present at FIR No. 23/08, PS. Vivek Vihar Page 25 of 35 St. Vs. Virender Sharma the spot when the incident started. As per complainant, the accused came in and immediately started shouting and abusing him. It is only on hearing the noise that the three named witnesses came to the workshop of the complainant. PW4 Rakesh says that when he came the accused was shouting ' Sale chure chamar ke bachche tu bahar nikal main tujhe jaan se maar dunga'. PW5 says that when he heard the voices and went to the workshop no.1, he heard the accused abusing 'Sale chure chamar ke bachche tu bahar nikal aaj tujhe jaan se maar dunga'. PW6 says that when he reached the spot accused was shouting ' Chure Chamar tu teacher par kalank hai tu bahar nikal main tujhe jaan se khatam kar dunga'. The students PW7, PW9, PW10 and PW11 have repeated the sentence 'chure chamar ke bachche tu bahar nikal aaj tujhe jaan se maar dunga'. PW3 complainant has deposed the Virender Sharma entered the workshop and stated ' oh master tu kya chahta hai sale chure chamar ke bachche tujhe jaan se khatam kar dunga and also stated bahar chal tujhe jaan se khatam kar dunga' He also stated that ' sale chure chamar ko kisne master bana diya' and that teri kaise himmat ho gai mere bachche se kaam karane ki'. He says that after hearing the loud voice, Virender, Rajender and Dharmabir came to the spot. Apparently, words Sale chure chamar ke bachche tujhe jaan se khatam kar dunga' were spoken immediately after entering the workshop by the accused. If the three other instructors came at the spot later on, how they heard these very words when there were many other words and sentences spoken by the accused later on. A bonafide doubt arises on if the witnesses have deposed as per what they heard or on the basis of what they were told. PW4 Rakesh Kumar has stated that when he reached the FIR No. 23/08, PS. Vivek Vihar Page 26 of 35 St. Vs. Virender Sharma spot Virender Sharma was shouting loudly and at that time Rajender Singh, Karamvir and Suresh Kumar were already present there. PW5 Dharambir Singh says that when he reached Rajender Singh was already present and Rakesh Kumar and Suresh had reached the spot. Rajender Singh on the other hand says that he heard noises at workshop no.1, instructor Dharambir was going there so he also went there, where several teachers and students were present.
PW 3 complainant says that incident started at 11:15 AM. PW 4 Rakesh says that he reached the spot at 11 :30 AM i.e. 15 minutes after the incident had started. Yet he speaks of the same sentence, which is stated by other witnesses as having been uttered immediately after accused came. Was the accused repeating one sentence constantly for 15 mts. The witnesses have not stated that the accused repeatedly uttered one sentence. Complainant says that accused was abusing him even while PW 6 took him from the spot; no such thing has been stated by PW6 in his evidence. If all the witnesses were not present at the spot from the beginning and it is not the case of complainant that accused was repeatedly saying one sentence i.e Sale chure chamar ke bachche tu bahar nikal aaj tujhe jaan se maar dunga' this particular sentence could have come in the evidence of all the witnesses only if it was told to them by some one. The judgment of Hon'ble Supreme Court in Mukesh Kumar Saini (supra) appears to be applicable to the facts of the case since it is not clear, which of the witnesses were present when specific words were uttered. The witnesses have not clearly stated what they heard themselves but have rather given similar statement with an intention to corroborate each other. Their reliability as eye FIR No. 23/08, PS. Vivek Vihar Page 27 of 35 St. Vs. Virender Sharma witness of the incident becomes doubtful, for they not were not able to segregate what they heard from the mouth of accused with what was told to them by the complainant and others.
Not only there is no clarification on which of the witness came when and what exactly did he hear as against what they were told by the complainant, these three witnesses are also not corroborating the complainant on what the complainant said in his evidence. Complainant says that the accused stated ' sale chure chamar ko kisne master bana diya' the witnesses do not corroborate this and they also do not corroborate the version of the complainant that accused told him 'teri kaise himmat ho gayi mere bachche se kaam karane ki'. They have also not supported the complainant on what the accused was saying while being taken away.
34. The presence of Rakesh Kumar & Dharambir is otherwise doubtful. The IO in his statement admitted that he did not show their presence in the site plan. The IO of the case is senior officer of the rank of ACP and he apparently knew the seriousness of the case, which legislatively provides for an investigation by a Senior Officer. He admits that in the site plan Ex.PW16/A he has not shown the presence of Rakesh and Dharambir. He says that he had shown the position of PW Rajender, however, the document does not support his contention. He says that he has shown the position of the students, which means that he was aware that position of witnesses was an important piece of evidence, to conclude that these witnesses were at a reasonable distance to have heard the communication. As stated above, none of the FIR No. 23/08, PS. Vivek Vihar Page 28 of 35 St. Vs. Virender Sharma teachers has been shown as present anywhere near the spot in the site plan Ex.PW16/A. The presence of the instructors at the spot at the time of actual incident is thus also doubtful.
35. Witnesses were selected in a partisan manner: Accused raised an objection that the witnesses were selected in a partisan manner and only the witnesses, who are related to the complainant and are of his caste, were selected by the investigating officer. In his evidence as DW1 the accused stated that Rajender Singh is Fufa of Salekh Chand and in his crossexamination he stated that complainant himself told him this fact. No suggestion was given to the witness that Rajender Singh in fact was not Fufa of complainant, after the witness stated that he was told this fact by the complainant. The witness not being a friend or family member of the two could not have brought any document to prove the relation. His statement that complainant told him that Rajender was his fufa was not challenged by evidence or even a simple suggestion. Complainant has admitted that Rakesh is related to him as he is Sadu of his brother. Rajender's relation has not been specifically denied. Pawan Kumar Gupta the student of Rakesh Kumar, has gone out of way to become prosecution witness, even though he is not Salekh Chand's student and his presence in the school and that too in the workshop of Salekh Chand during the first half is doubtful.
Why only three witnesses were examined from the staff? Rakesh Kumar had mentioned Karambir & Suresh as the other persons, who were present at the time of incident. They, however, have not been examined by the prosecution. Rakesh FIR No. 23/08, PS. Vivek Vihar Page 29 of 35 St. Vs. Virender Sharma Kumar admitted in his crossexamination that Ishwar Singh, Sunil Sharma, Ashok Sharma, Mahender Jayant and Virender Singh were present at the gate of workshop no.1. These persons have also not been examined by the prosecution.
The IO examined complainant and his two relatives, whose presence at the spot is seeming doubtful but he did not examine independent staff members, who were present at the spot. Not only this he gave a false statement in the court that the other persons (of Staff) did not witness the incident; which is contrary to the deposition of other witnesses.
PW 3 Salekh Chand in cross examination stated that he had challenged the setting up of committee to enquire into the allegations made by the complainant because one of the members of the committee was closely related to Deepak Sharma. He thus feels that relatives tend to support relatives. Two of the staff witnesses are his relatives, there is thus high probability of them supporting him on this account. These two witnesses thus cant be relied on this ground also.
36. The students have supported the prosecution on the aspect of accused having uttered one single sentence i.e 'chure chamar ke bachche tu bahar nikal aaj tujhe jaan se maar dunga'. The complainant, however, says much more was stated than this. If the incident had taken place in presence of students, they would have known all the sentences spoken by the accused and would have corroborated him on these facts. The difference in their versions means that either the complaint has not spoken the truth or the students are tutored. It was argued by Ld. Counsel for FIR No. 23/08, PS. Vivek Vihar Page 30 of 35 St. Vs. Virender Sharma accused that the children were under the influence of the teacher as their marks were in hands of teachers. In Daya Bhatnagar Vs. State 109 (2004 ) DLT 915 the Hon'ble Delhi High Court held that public view contemplated presence of independent and impartial persons not having any commercial, business or family relations with the complainant/informant . Specific suggestions were given to the students that they were under the influence of the teachers as their marks were in the hands of the teachers. The position of teachers apparently is dominant over the students and as stated their testimony appears to be more tutored than factual, they having not supported the version of the complainant fully and completely. With several doubts in the prosecution case including the very presence of the complainant in the institute at the time of incident, it will be unsafe to rely upon the testimony of these students: one of whom has been found to be a planted witness: to convict the accused.
37. Coming to the defence evidence: The accused has examined himself as DW1 and his evidence has already been considered on main aspects hereinabove. The other defence witness is DW2 Raj Kumar. The witness stated categorically that on 25.09.07 he was a trainee at ITI and was being assisted by Sh. Rakesh. The attendance was taken by Sh. Rakesh in the morning and also in the evening. Rakesh Kumar had stated that Salekh Chand will not come and so he was taking the attendance. He said that he belongs to SC caste and he did not see Salekh Chand that day during the entire workshop since morning till evening.
FIR No. 23/08, PS. Vivek Vihar Page 31 of 35 St. Vs. Virender Sharma In his crossexamination he stated that whenever a student is not present or he comes late, he is allowed to attend the class after giving reasonable grounds for his nonappearance. He stated that in such cases a dot is put against his name for that day. Ld. Counsel put this question apparently to stress that Pawan Kumar Gupta was present in the class. The testimony of the witness, however, is that in such cases a dot is put against the name of student and he is not marked absent. Pawan Kumar Gupta, however, has been specifically marked absent during the first half on the day. His presence is otherwise doubtful for the reasons stated and discussed hereinabove. On being asked as to how he came to depose inthe court the witness stated that he met Keshav S/o. accused in a marriage and enquired about his well being. He told that he was preparing for Govt. Job. When he asked about his family, Keshav stated that there were some problems going on in his family. On being asked further he told that a case was going on and then Keshav specifically asked if he was present in the institute on that day. The witness says that he told him that he usually remained in the institute with him (Keshav) and was with him in that class also and he offered his help to Keshav.
Hon'ble Supreme Court in 2002[1] JCC 385 titled State of Harayan vs Ram Singh. The apex court in the said judgment held that the evidence tendered by the defence witnesses cannot be always termed as a tainted one, and the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. It was held that issue of credibility and trustworthiness ought also be attributed to the defence witnesses at par with that of the prosecution. The Hon'ble Supreme Court FIR No. 23/08, PS. Vivek Vihar Page 32 of 35 St. Vs. Virender Sharma in 2004(3)RCR (criminal) 774, Anil Sharma & others versus State of Jharkhand also held that equal treatment has to be given to the defence witnesses.
The testimony of DW1 is corroborative of the record of school as against the evidence of prosecution witnesses. Evidence of DW1 also finds support from EX PW16/D.
38. Prosecution has examined one witness PW2 to prove that the teachers were not using the services of students. This witness merely says that student did not take tea from her canteen for the teachers. The allegations, however, are that the teachers used to make the children prepare the tea on heater. DW1 having categorically stated so in his evidence. This witness therefore, does not help the prosecution on the allegation of the complainant not forcing the son of accused to do the personal works. The accused has taken a specific plea that due to harassment given to his son, he had requested the principal to transfer his son and had given a written application in this regard, which had been tendered and proved in evidence. The argument of accused that complaint is a counter blast to that application cannot be outrightly rejected.
39. Another important aspect is that accused stated that he made a complaint to the principal, who had called him on 27/09/2007 and in the meeting with the principal, complainant apologised and Salekh, Rajender and Rakesh gave their names and phone numbers in his diary. Diary has been tendered in evidence. It was suggested to the accused that these facts were incorrect. One more suggestion, FIR No. 23/08, PS. Vivek Vihar Page 33 of 35 St. Vs. Virender Sharma however, was given to the accused DW1 that these persons gave their numbers to him so that he could ask the progress of his child (though this fact as suggested was denied by complainant in his crossexamination). Prosecution thus admits that numbers were given. When, why and how is not explained. Accused comes more specific that the numbers were given on 27/09/2007 in the office of the principal. Why they met accused in the office of principal on 27.09.07 a doubt arises about the complaint, which is filed much later, being motivated.
40. It is a case of poor and biased investigation all through. When an Act specifies that an offence has to be investigated by officers of specific rank, it does so to ensure that the investigation should be done responsibly and fairly. The investigation in this matter, however, has been partial and biased. The specific instances have been discussed above. There are other grave irregularities committed by the IO, which has made the prosecution case doubtful and benefit of which is to go to the accused. IO said in his crossexamination that he did not check the presence of witnesses and did not verify complainant's presence. He said that he made enquiries from Principal and Vice Principal. He nevertheless, did not verify the presence of principal in the school on the date of incident. He was not aware if principal had called the accused to his office on 27.09.07. What enquiry if at all did he make from the Principal?
41. In view of entirety of facts, there are several doubts in the prosecution case, FIR No. 23/08, PS. Vivek Vihar Page 34 of 35 St. Vs. Virender Sharma benefit of same is given to the accused. Accused is acquitted of the charges framed against him. File be consigned to record room.
Announced in the open court on 09.09.14 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST), SPL. JUDGE, NDPS, KKD COURTS/DELHI FIR No. 23/08, PS. Vivek Vihar Page 35 of 35 St. Vs. Virender Sharma