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Delhi District Court

State vs . on 15 October, 2011

                                                1

             IN THE COURT OF SH. RAJNISH BHATNAGAR, 
           ADDL. SESSIONS JUDGE ­II,  OUTER DISTRICT 
                               ROHINI COURTS : DELHI      

IN RE :                           Sessions Case No. :  118/09    
                                       FIR No.  :      41/09
                                       P.S.       :      Aman Vihar                    
                                       U/s         :     3, 10 SC/ST Act
                                       Date of registration : 13­10­2009                 
                                      Reserved for Judgment on: 20­09­2011  
                                      Judgment Announced on : 15­10­2011         
          State             
            
           Vs.
  
1.  S.P. Sahni S/o Late Sh. Thakur Das  Sahni
     R/o A­25,  Rajiv Nagar,  Phase­2, 
     Behind English Wine Shop,  Delhi.

2.  Rachna Sahni W/o S.P. Sahni
     R/o A­25,  Rajiv Nagar,  Phase­2, 
     Behind English Wine Shop,  Delhi.  
            
JUDGMENT

1. Briefly stated the facts of the case are that the FIR in question was registered in this case on the basis of complaint made by complainant Inder Singh Guran, a member of Scheduled Castes who stated that he had given a room to Sh. S.P. Sahni and his family since 25.09.06 on his humble request @ Rs.

Contd....

1,200/­ (including electricity and water charges) per month. Sh. Sahni gave him the rent 5 to 6 months only and behaved very good, but now he is not giving rent and not vacating the room despite of several requests. That complainant living in a single room on first floor and when he comes for taking water on the ground floor, his tenant abused him "CHURA CHAMAR" and throw his utensils by saying that how can this"CHURA CHAMAR "

put this utensils at our home and he usually calls the police.

2. SH. S.P. Sahni being a senior citizen and his family is getting benefit of the same, he demands a lot of money to vacate the room. The complainant has given many complaints against his tenant and on 24.03.2008, he again gave a complaint on the letter pad of RWA in this regard. The complainant further written in his complaint that a mutual agreement was executed between him and his tenant on 02­01­2008 to vacate the room till 29­02­2008, but he did not vacate the same. The complainant has further stated that he had filed a complaint case in the Rohini Court against his tenant regarding vacating the room and next date of hearing was on 12­02­2009.

3. Again on 22­01­2009, Sh. Inder Singh had moved a complaint stating therein that he had made a number of Contd....

complaints against Sh. S.P. Sahini and others but local police has not taken any action so far. The complainant has cited 21 witnesses in his complaint.

4. The inquiry in the complaint was conducted by ACP/Sultan Puri and after taking approval a case was registered against accused S.P. Sahni and Smt. Rachna Sahni. The IO of the case examined 21 witnesses cited by the complainant out of which five witnesses namely Rajiv Gupta, Om Prakash, Dalip Singh, Suresh Kumar and Mukesh Sharma supported the allegations. All these witnesses have stated before the IO that both the accused persons are habitually abusing the complainant daily by using words CHURA CHAMAR.

5. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.

6. On 19­01­2010, charge U/s 3 (1) (x) of SC/ST (POA) read with Section 34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.

7. I have heard, Ld. APP for the State and counsel for the accused persons and have also gone through the records of the Contd....

case.

8. It is submitted by the Ld. APP for the state that on the basis of the evidence recorded and the material available on record accused persons be convicted.

9. On the other hand, counsel for the accused persons has made two fold submissions. Firstly, the counsel for the accused persons made submissions on the facts of the case. It is urged by the counsel for the accused persons that the entire allegations are false and frivolous and basically it is a landlord and tenant dispute and since the complainant who is the landlord failed to get his house vacated from the accused persons, he resorted to the filing of this false complaint under SC and ST Act.

10. It is further submitted by the Ld defence counsel that if at any point of time the accused persons were making castiest allegations then what prevented him from mentioning this fact in the three notices which were given by the complainant to the accused for vacating the tenanted premises.

11. On the legal front it is submitted by the Ld counsel for the accused persons that it has not been proved on record by the prosecution that the accused are not the members of SC or ST community. It is further submitted that there is violation of Rule Contd....

7 and Rule 7 (2) of the SC and ST Act. It is further submitted that as per Section 3 (1) (x) of the Act, the intentional insult or intimidation has to be within full public view which is not the case herein as the complainant has not mentioned a single name in his complaint so the basic ingredients of Section 3 (1) (x) of the Act is not fulfilled.

12. Now coming to the first submission which revolves around the facts of the case. It is the admitted case of the prosecution as well as the defence that the complainant is the landlord and the accused persons are the tenants. It is further the admitted case of both the parties that 3­4 litigations are going on between them.

13. In order to prove the charges the prosecution has examined PW 2 Dalip Singh, PW 3 Susheel Kumar, PW 4 Inder Singh (complainant), PW 5 Omprakash, PW 6 Rajiv Gupta and PW 7 Mukesh Kumar Sharma who all are public persons.

14. The complainant in this case has been examined as PW

4. He has made the complaint which is Ex. PW 4/A which forms the basis of the present case. In his examination in chief he has deposed about the tenancy dispute between him and the accused persons and has even stated that on 12­1­2008 Contd....

SHO Rajbir Singh told the accused to take Rs. 20,000/­ and vacate the house. Its clearly shows the desperation of the complainant in getting the house vacated. It is further stated in his examination in chief that thereafter every day there use to be arguments between him and accused S.P. Sahni who used to say him "CHURA CHAMAR, Bhangi, Kanjar and used to abuse him in very filthy language."

15. He has further deposed that accused used to utter words "Chure" "Chamar" Bhangi" while standing on the roof of the house as well as in the gali and used to demand money for vacating his premises. In his entire examination in chief the complainant PW 4 has not mentioned the date, time, month and year when the accused persons used castiest words/language against him. His testimony is totally vague on this point.

16. It is further noticed from the examination in chief of the complainant that he has not named a single person of the locality or the gali in which he was residing, in whose presence the castiest words/language were used by the accused persons.

17. When the complainant was cross examined, he stated that his statements were recorded in kalandara proceedings and he stated that accused used to call him "Chura Chamar Bhangi Contd....

etc." His statement dated 19­1­2008, which is Ex. PW 4/DA was put to him and in t hat statement he had not made the allegations of "Chura Chamar Bhangi etc" against the accused persons.

18. In his further cross examination, complainant had admitted to have given legal notices to the accused for vacating the house. He has further stated that he had told his counsel that accused used to call him "Chura Chamar Bhangi" and this fact was mentioned in the notices given by his counsel Sh. Purshotam Dholokiya. Notice dated 4­7­2007 Ex. PW 4/DB, notice dated 7­8­2007 Ex. PW 4/DC and notice dated Nil Ex. PW 4/DD were put to the complainant and he admitted that in these notices there are no allegations of use of words "Chura Chamar Bhangi" though it was told to him by his counsel. It throws doubt on the testimony of the complainant that the accused persons had used the castiest words "Chura Chamar Bhangi, otherwise, there was no reason for the complainant not to mention these words in the above stated notices, although according to him he had disclosed about the use of these words to his counsel and it is to be kept in mind that the accused and the complainant are at logger heads and had the accused used these castiest words, Contd....

there was no reason for the complainant not to get these words mentioned in the alleged notices.

19. The complainant has also examined public persons namely Dalip Singh, Susheel Kumar, Omprakash, Rajeev Gupta and one Mukesh Kumar Sharma. All these witnesses have stated that the accused persons used words "Chura Chamar" against the complainant but none of these witnesses have mentioned a single specific instance with date, month and year when these words were used.

20. From the testimony of the complainant, it is clear that he has not named any of the other public witnesses examined by the prosecution to be the persons in front of whom the accused persons used the castiest words. The public witnesses examined by the prosecution have also not stated in their testimony that the complainant was present or any other person of the locality was present with them when accused used those castiest words. So all the allegations made by these witnesses are bereft of any details.

21. The perusal of the cross examination of the public witnesses examined by the prosecution shows that there was a land lord and tenant dispute and all the residents of the society Contd....

wanted the accused persons to vacate the house of the complainant. So from the discussions herein above the complainant has failed to show as to in whose presence and when the accused persons used castiest words against him.

22. Now I shall deal with the legal objection taken by the Ld defence counsel. The basic ingredients of the offence under clause 10 of sub section (1) of section 3 of the S.C / ST Act are :

(i) that there must be an "intentional insult" or "intimidation" or "intend" to humiliate SC/ST members by the non SC/ST members and be that the insult must have been done in any place within"public view".

23. So it is clear that the mensrea is an essential ingredient of the offence and it must be established that the accused had the knowledge that the victim is SC/ST and that the offence was committed for that reason.

24. None of the witnesses examined by the prosecution has proved that the accused was not a member of schedule caste or schedule tribe. There is no whisper in the statement of any of the witness examined by the prosecution before the trial court to show that the accused belongs to an upper caste and is not a member of schedule caste or schedule tribe.

Contd....

25. In the present case it was argued by the Ld. APP that since the accused persons were tenant of complaint so they were bound to know that he was member of schedule caste. In the instant case the name of the complainant is Inder Singh Guran and it is very difficult to make out which caste belongs to schedule caste or schedule tribe as there are thousands of castes and sub castes in India. Moreover, the complainant is using "Singh" with his name which is also used by upper class people.

26. This is a penal provision and we cannot proceed on presumption and it was incumbent upon the prosecution to prove by positive evidence that the accused persons belongs to upper class or the accused persons had the knowledge that the complaint was a member of SC/ST community. Even the complainant has failed to make any allegations in his complaint that the accused were not SC or ST. So the complaint itself lacks the basic ingredients of offence. Reliance can be placed upon "Gorige Pentaiah Vs. State of Andhra Pradesh and others, 2009 Criminal Law Journal 350".

27. One of the other legal contention raised by the Ld. defencfe counsel is that there is violation of section 7 of SC / ST Contd....

Act as the ACP who had investigated the case was not authorized to conduct the investigation of this case and he relied upon "M Niranjan Ready and others Vs. State of Andhra Pradesh 2000 Criminal Law Journal 3125."

28. As per rule 7 of the SC / ST Act investigation should be done by an officer not below the rank of Deputy Superintendent of Police and it is also laid down that such officer should be specifically appointed by the State Government for investigating the offence under the Act. It is further laid down that while appointing such officer, the Government should take into consideration his past experience, sense of ability and justice to perceive the implications of this case and this Rule of the Act is mandatory.

29. The prosecution has not placed any document to show that ACP who has conducted the investigation of this case was appointed by the Government and no such notification has been placed on record. So there is a clear cut violation of Rule 7 in this case.

30. So in view of the discussions hereinabove, I have no hesitation to hold that the prosecution has failed to prove the case against the accused persons on the legal as well as on the factual Contd....

aspects. The accused persons are, therefore acquitted. File be consigned to Record Room.

(Announced in the open Court on 15­10­2011) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Contd....