Delhi District Court
State vs Avnish on 25 October, 2024
IN THE COURT OF DR. SAVITRI
ADDL. SESSIONS JUDGE-02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
SESSIONS CASE No. 442/19
FIR No. 03/17
PS. Karawal Nagar
U/s. 279/337/323/341 IPC and section 3/181 M.V. Act
Instituted on 12/12/2019
Argued on 18.10.2024
Decided on 25.10.2024
Final Order Acquitted u/s 3(1) (r) & (s) r/w section 3(2) (va) of
the SC/ST Act and u/s 337 IPC and convicted u/s
3/181 Motor Vehicles Act, u/s 279/323/341 IPC.
State Vs. Avnish S/o Sh Chattar Singh Pradhan
R/o. H. No.D-5, Gali No.1, Dayalpur
Delhi.
JUDGMENT
FIR No. 03/17 State Vs. Avnish page 1 of 22
Digitally
signed by
SAVITRI
SAVITRI Date:
2024.10.25
16:26:37
+0530
Prosecution case:-
1. Chargesheet has been filed in the present case for the offences under section 279/337/323/341 IPC and 3/181 Motor Vehicles Act based on the FIR that was registered on the statement of complainant Jatin. In his statement to the police, he mentioned that on 02.01.2017, in the evening time, he was going to his house located at Roshan Vihar, Sadatpur on his scooty bearing registration No. DL-12-SH-8254 after attending coaching class. When he reached Sadatpur Tiraha, accused came there driving a Swift car of light silver colour. He was driving at high speed and swirled the car at high speed, as result the car hit the side of his scooter and he fell down on the road. When he asked the accused to drive slowly, he got down his car and beat the complainant with kicks and punches saying, " Tum chamaro ki ye aukat hai ki tum hamein gaadi chalana sikhaoge".
2. When the complainant tried to see the number of the vehicle of accused, accused again assaulted him and said, "Tum jante nahi ho mein Chattar Singh Pradhan ka ladka hoon" . While going away from the spot, he attempted to run his car over the victim. After registration of the FIR, IO/ASI Harbir Singh reached at the spot. Neither accused nor complainant nor any public witness was present there.
3. On 04.01.2017, IO went to the house of complainant and recorded his statement wherein complainant stated that he had identified the accused as Avnish Gurjar and the number of his car make Chevrolet, colour metallic silver, was either DL8CV-3270 or 3220. Accused was admitted to bail as offences involved were bailable.
4. On 11.01.2017, section 3(x) of SC/ST Act was added in the present FIR No. 03/17 State Vs. Avnish page 2 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:26:50 +0530 case by the police. Thereafter, remaining investigation was conducted by ACP Sudhir Kumar, who did not charge-sheet the accused qua the offence under the provisions of SC/ST Act. It is mentioned in the charge-sheet that allegations with respect to offences under provisions of SC/ST Act could not be substantiated during the investigation, hence, charge-sheet was not filed under SC/ST Act and allegations qua SC/ST Act were dropped. Since the accused did not produce his driving license, he was charge-sheeted under section 3/181 of the Motor Vehicles Act as well apart from under sections 279/337/323/341 IPC.
5. Chargesheet was filed before Ld. Ilaka M.M. Matter was committed for trial to the Sessions court. My Ld. Predecessor had heard on charge and ordered to be framed charge under section 279/337/341/323 IPC and under section 3/181 M.V Act, additionally, ordered to be framed charge under section 3(1)(r)(s) of SC/ST (POA) Act, as offence under section 323/341 IPC are scheduled offence under SC/ST Act, charge for the offence under section 3(2) (va) was also ordered to be framed against the accused.
Prosecution Evidence:-
6. In order to prove its case, prosecution has examined the following seven witnesses :-
A) Public witnesses:
(i) PW1 Reshpal
(ii) PW2 Jatin FIR No. 03/17 State Vs. Avnish page 3 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:26:57 +0530
(iii) Rajender Singh (B) Police witnesses:
(i) PW3 ACP Sanjeev Chahar
(ii) PW5 retired SI Harbir Singh
(iii)Retired SI (MT) Tech. Manohar Lal Dhyani
(iv) Retired ACP Sudhir Kumar
7. PW1 is Reshpal. He deposed that police had asked his name at the time of incident (as he was present there). He deposed that he did not remember anything about the case due to lapse of time.
8. He was cross-examined by Ld. Addl. PP for the State. During the cross-examination by the State, he admitted that on 02.01.2017, at about 8.00 pm, there were hot talks and altercation between the drivers of a scooty and a car when the vehicles touched. Thereafter both of them had gone their own ways. He admitted that he did not hear any caste remark during the incident. He was not cross-examined by Ld. Defence Counsel.
9. PW2 Jatin is the complainant. He has supported the case of the prosecution and he has deposed on the same lines as his statement to the police that accused Avnish had assaulted him with kicks and punches and had uttered caste remarks against him.
Additionally, he mentioned that after the incident, he had started online petition to raise his voice against the incident and on 04.01.2017, he informed the police that he had identified the accused on social media and handed over his photographs to the police disclosing his name as Avnish S/o. Pradhan Chattar Singh. He also identified the person accompanying the accused at the FIR No. 03/17 State Vs. Avnish page 4 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:27:13 +0530 time of incident as one Jitender. He has further deposed that thereafter he mailed a complaint to the Police Commissioner and attached online petition. He also contacted Indian Express Newspaper to publish the incident and to highlight the police inaction. He was given a notice to present two high caste witnesses. After news was published, notice was revoked. He has further deposed that he was called for inquiry at the office of ACP, Khajuri Khas. There ACP asked him as to how the accused knew him. He told him that his mother was a native resident of Harijan Basti located by the side of Sadatpur Gujaran Gaon within 200 meters from the spot. There is a practice to identify the dwellers with their caste identity in that area.
10. During his entire examination-in-chief, the witness did not mention anything about the accused driving his car in rash and negligent manner and hitting his scooty and he falling down due to impact of hit. He also did not mention about the accused uttering derogatory caste remarks to him. These facts were admitted by him only when Ld. Addl. PP for the State put leading questions to him. He had identified accused before court and also produced his own caste certificate.
11. Witness has further deposed that on 04.01.2017, IO had visited him, he informed him that he had got the photographs of accused from social media i.e. facebook. On face book, photograph of the car of the accused was available and on seeing the same, he had informed the IO about the details of the car as Chervolet. Since the picture of the car was not very clear on face book, later on, he came to know that vehicle No. DL-1CR-7317 make Ford Figo silver colour was already seized by the IO in this case as offending vehicle. He identified his scooty as well as the car of the accused.
12. During his cross-examination by Ld. Defence counsel, he deposed that FIR No. 03/17 State Vs. Avnish page 5 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:27:21 +0530 he had mentioned about the assault as well as derogatory caste remarks made by him against the accused when he called PCR at 100 number. Witness stated in response to cross-examination by defence counsel that he did not know accused before the accident. He further deposed that he had mentioned to the doctor the injuries suffered by him due to assault by the accused and admitted that he did not mention any injury suffered on account of accident. Regarding the details of the vehicle of the accused, witness admitted that he had mentioned as Maruti Swift in the FIR but in his evidence mentioned as Cheverolet. He voluntarily stated that he found all the details of accused from social media. He had admitted that he had mentioned the number of car of accused as DL8CV3270 or 3220, make Cheverelot to the police, after seeing the car on social media. In notice under section 133 of the Motor Vehicles Act, IO had mentioned the details of the car as DL-1CR-7317 make Ford Figo silver colour. The witness denied any knowledge about the same.
13. He admitted that he did not tell the name of any public witnesses who witnessed the incident, to the IO. He has deposed that there were many public persons present at the time of incident but none of them came in his support as witness. He admitted that he had reported the present mater in the newspaper as well as on social media in order to run a campaign against accused. He denied the suggestion that since he cooked up a false story against the accused, he published everything on social media and in newspapers in order to highlight the incident and garner public support He denied the suggestion that he wanted to gain public sympathy while doing so.
14. Witness admitted that he did not pursue his MACT claim and withdrew the same. He denied the suggestion that no such incident as alleged by him had taken place or that accused had not made any insulting case FIR No. 03/17 State Vs. Avnish page 6 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:27:28 +0530 remark against him as none of them knew each other prior to the incident. He denied the suggestion that no accident had taken place with him as alleged. Regarding MACT claim, witness voluntarily stated that he withdrew the same as he had demanded apology from the accused which he had complied.
15. PW3 is ACP Sanjeev Chahar who was the then SHO, PS Karawal Nagar, He deposed that in his presence, caste certificate of the complainant was seized by the IO. He was not cross-examined by the defence.
16. PW4 Rajender Singh is the father of the complainant. He is the owner of the scooty and produced its photographs. He identified the photographs of the scooty on record of the case file. He was also not examined by the defence as defence did not insist for production of scooty and did not dispute its identity.
17. PW5 SI Harbir Singh is the IO to whom the call regarding information received in PS about the incident vide DD No. 74B was assigned. DD No.74B was recorded to the effect that " karawal nagar pehchan patra office ke bahar scooty va scorpio walo ka touching ko lekar jhagda hua hai".
18. He has deposed that he along with Ct. Sandeep went to the spot. There neither the vehicles involved in the accident nor the injured met them. He got to know that the complainant was removed to GTB Hospital through CATS Ambulance. They went there and collected the MLC of the injured. Thereafter he made inquiry from the complainant and recorded his statement. He prepared rukka and on the basis of the same, he got FIR registered through Ct. Sandeep. Thereafter he came at the spot and prepared site plan.
19. On 04.01.2017, he met two public witnesses namely Reshpal and Vinod. He inquired from them and recorded their statements. Later on, the investigation was assigned to ACP Khajuri Khas on 11.01.2017 as provisions FIR No. 03/17 State Vs. Avnish page 7 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:27:34 +0530 of SC/ST Act were added in this case and the investigation was assigned to ACP Khajuri Khas. In his presence, IO/ACP Khajuri Khas seized the caste certificate of the complainant and gave same to him for verification and he got it verified.
20. He further deposed that IO/ACP Sudhir Kumar handed over a notice under section 133 of Motors Vehicle Act to accused and he had produced his car bearing registration No. DL1CR-7317 along with RC and photocopy of insurance. The car was seized. Witness proved his signature on seizure memo of car and its documents i.e. RC and insurance papers. He also proved his signature on seizure memo of scooty of the complainant. Thereafter, as directed by the IO, he handed over the vehicle for mechanical inspection. Thereafter he served three notices under section 160 Cr.P.C. to the complainant on directions of the IO. He identified the car and scooty before the court. He also identified complainant as well as accused.
21. During his cross examination, the witness deposed that he did not come to know about any details of incident at the spot as no witness was present there. Also, there was no witness regarding allegations of caste related derogatory remarks allegedly made by the accused against the victim. Further, he has deposed that when he recorded initial statement of the victim in hospital, witness did not mention any registration number of the offending vehicle nor its make or model. Details were supplied later on after gathering the same from social media. Witness admitted that victim had mentioned two different registration numbers of the offending vehicle but the vehicle is bearing either of the two numbers and make of Swift/Cheverlot. Witness denied the knowledge as to how the vehicle number mentioned in section 133 of M.V. Act was procured while stating that he was handed over section 133 FIR No. 03/17 State Vs. Avnish page 8 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:27:56 +0530 M.V. Act notice by the IO/ACP to be served upon the owner of the vehicle. He denied the suggestion that site plan was not prepared at the instance of the victim but his own accord.
22. PW6 Retired SI(MT) Tech. Manohar Lal Dhyani is the mechanical inspector. He deposed that he received request from IO for conducting mechanical inspection of a car bearing registration No. DL1CR-7313( Ford Figo car of silver colour ) and one scooty bearing registration No. DL12SH- 8254. No fresh damage was found at the time of inspection of the aforesaid car. The vehicle was fit for road test. On the scooty, fresh damage was found i.e. right side mirror was broken. He proved the mechanical inspection reports of the car and the scooty as Ex. PW6/A and Ex.PW6/B respectively. He was not cross examined by Ld. Defence counsel.
23. PW7 is retired ACP Sudhir Kumar. He has deposed that he was posted as ACP Khajuri Khas, Delhi at the time of incident and the investigation of the case was marked to him on 11.01.2017. He sought caste certificate of the complainant and got the same verified. On 07.01.2017, he seized the car of the accused (make Ford Figo) and its documents. Vehicle was produced after serving notice under section 133 of the M.V. Act. He also got verified the ownership proof and insurance from the concerned authority.
24. He deposed that thereafter he had made local inquiry to ascertain about the incident from public witnesses who had seen the accident. After conclusion of the investigation, he was of the view that SC/St Act provisions were not attracted in this case and filed charge-sheet under the provision of only IPC and motor vehicles Act.
25. During his cross examination, witness deposed that the vehicle No. DL1CR-7313 was produced by the accused on notice under section 133 of the FIR No. 03/17 State Vs. Avnish page 9 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:02 +0530 M.V.Act. He further deposed that complainant had not mentioned any particulars of offending vehicle. He deposed that he did not remember if the exact number of the vehicle was furnished by the complainant but he identified the offending vehicle after its seizure. He denied the suggestion that he is deposing falsely in this case.
Admissions:-
26. The defence has admitted the following on 09.08.2024:-
(i) The facts mentioned in 161 Cr.P.C. statements of witness Vinod Kumar dated 04.01.2017 and 12.01.2017 recorded by police.
Accordingly, witness Vinod was not examined since the truth of his statement to the police was admitted by defence. I have seen the statements on record of case file.
The witness has stated to the police in statement dated 04.01.2017 that in the evening of 02.01.2017, there had been verbal altercation between a scooty and a car driver due to the touching of two vehicles. The car driver had assaulted the scooty rider. The victim was sent to hospital by ambulance. The mother and mama of victim were abusing the caste of accused as stated by this witness "mauke par ladke (victim) ki maa or mama gaali galoch kar rahe the or sabhi gujjaro ko gaali de rahe the, jo mojud logon ne unko samjhaya ki tum sabhi gujjaro ko gaali kyu de rahe ho. Jisne tumhare sath maarpeet ki hai, usko jaakar bolo". The witness further stated to police that " jhagde ke dauran koi jaati suchak shabdo ka prayog nahi kiya gaya" . The fact that mother and mama of the victim were so abusing was mentioned FIR No. 03/17 State Vs. Avnish page 10 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:07 +0530 by witness Reshpal as well in his 161Cr.P.C. statement.
In supplementary statement dated 12.01.2017 he stated that on 02.01.2017 at about 8:00pm, a scooty and a car had touched near sadatpur tiraha and some verbal altercations took place between them. The boy who drove the car had assaulted the other boy who drove scooty. After that both had gone from there. He further stated no derogatory caste remarks were uttered by the car driver to the scooty rider or any other person though there had been maarpeet and gaali galauch.
Statement of Accused:-
27. After conclusion of entire evidence, statement of accused under section 313 Cr. P.C was recorded wherein he denied the same and stated that he has been falsely implicated in the present case. He further stated that he is on social media and used Facebook. It is possible that the complainant might have taken his photographs from social media and handed over the same to the police. Since he did not want to lead any DE, hence matter was fixed for final arguments.
Arguments and Appreciation of Evidence:-
28. I have heard the arguments advanced by Ld. Counsel for accused persons and also perused the file.
29. Admittedly, the victim had suffered two superficial injuries (abrasion and tenderness) during the incident and stated before the IO during the investigation and also admitted before the court that injuries suffered by him were on account of beating by accused and he did not FIR No. 03/17 State Vs. Avnish page 11 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:12 +0530 mention that the injuries were due to accident. Under these circumstances, offence under section 337 IPC is not proved against the accused, therefore, I acquit him of the same.
30. Coming to the offence under section 279 IPC, the complainant has alleged that accused was driving his car at a very high speed and hit his scooty by suddenly taking turn. As per mechanical report of the scooty, it had sufficient damage and its right side mirror was broken.
Under these circumstance, accused is held guilty under section 279 IPC for driving in rash and negligent manner.
31. As per the medical opinion furnished by the treating doctor of the victim, he had suffered simple injury as seen in the MLC which is not disputed by the defence. He has categorically deposed in his evidence that he was assaulted by the accused with kicks and punches, though allegations have been denied by the defence, defence could not show as to how the victim was deposing falsely on this aspect nor any other plausible explanation has been offered by the defence for the said injury. Under these circumstances, accused is held guilty of the offence under section 323 IPC.
32. So far as the offence u/s 341 IPC is concerned, the complainant has deposed that accused had restrained him from seeing the registration no. of his car. No suggestion has been put to the witness during his cross-examination to the contrary. Under these circumstances, the accused is liable to convicted u/s 341 IPC. Accordingly, I convict him of the same.
33. Accused was charged for the offence under section 3/181 Motor Vehicles Act. Therefore, it was his responsibility to show that he was FIR No. 03/17 State Vs. Avnish page 12 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:17 +0530 holding a valid driving license on the day of the incident. Since no driving license valid on the date of incident could be produced by the accused, he is held guilty of the offence under section 3/181 Motor Vehicles Act.
34. Statement of the complainant is that during the quarrel, accused had uttered caste based derogatory remarks against him. Accordingly, the Ld. Predecessor Court had charged the accused for the offence under section 3(1) (r) & (s) and r/w section 3(2) (va) of SC/ST Act. Coming to the same, it would be worthwhile to discuss the relevant case law on the aspect.
(i) It has been held by Hon'ble High Court of Delhi in the matter of case titled Rajbir Singh Vs Commissioner of Police & Anr.
2018 IX AD(Delhi) 314 that before a person can be charged under section 3(1)(x) of the SC/ST Act, it is essential to show that the incident in question had taken place in public view. Further, there should be some material on record to show that accused had knowledge about the complainant belonging to SC/ST community. It was also held that complaint in such cases must be lodged promptly as delay gives rise of apprehension of concoction.
(ii) In Swaran Singh & Ors Vs. State & Anr., 2008 CRI.L.J. 4369, it has been held that the expression 'public view' in section 3(i)(x) of the Act should not be confused with public place as there is clear difference between two expressions. If the alleged offence has been committed inside a building, it might not be in public view. However, if the offence is committed inside a building but some members of public are present there, it will be an offence within public view. Place FIR No. 03/17 State Vs. Avnish page 13 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:22 +0530 can be a private place but still in public view. For example a lawn outside a house, the lawn can be seen by some one from the road outside the boundary wall, therefore, it would be a place within public view. The Hon'ble Court has further observed that calling a person 'chamar' today is an abusive language and highly offensive and it is generally used to intentionally insult and humiliate someone. Of course, it will depend in the context in which the word was used as to whether there was an intention to insult and humiliate someone by using this word.
(iii) In Gorice Pentaiah Vs. State of A. P. & Ors, VII(2008) SLT 776, it was observed by the Hon'ble Supreme Court that where the allegations were that complainant was only called by the accused by his/her caste and had not intentionally insulted or intimidated him/her with intention to humiliate him/her within pubic view, provisions of section 3(1)(x) were not attracted.
(iv) In Narad Patel Vs. State of Chhattishgarh (2019) Supreme Court cases 268, it was held by the Hon'ble Supreme Court that where it was not recorded in the version of the complainant that the accused made any reference to the caste or tribe of complainant, the offence under section 3(1)(x) of the Act is not attracted even if the complainant belonged to such caste.
(v) In Asmathunnisa Vs. State of AP AIR 2011 SC1905, it has been held by the Hon'ble Supreme Court that the expression within public view means that public must view the person being insulted. It requires that the person insulted must be present there and no offence under section 3(1)(x) of the Act is attracted if the person is not present FIR No. 03/17 State Vs. Avnish page 14 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:29 +0530 there.
(vi) In Hitesh Verma Vs. State of Uttarakhan, Supreme Court (2020)11SC CK0013, it has been held by the Hon'ble Supreme Court that all insults or intimidation to a person will not be an offence unless such insult or intimidation is on account of the victim belonging to SC/ST. Filing a civil or criminal complaint against the members of SC/ST caste does not attract the provisions of the Act, rather it means that concerned party is availing its remedies in accordance with the procedures established by laws. Such action by the concerned party is not for the reason that other side belonged to SC/ST. Further, it was observed that expression 'public view' implies that there must be any member of public present at the time of incident who had seen the incident. This person should be an independent public person not merely friend or relative. The offence should have been committed because complainant belonged to SC/ST. Offence under the Act is not established merely on the fact that informant is the member of SC/ST unless there is intention to humiliate the members of SC/ST community because the victim belonged to such caste. In this case, there was a property dispute between two sides. It was held that the property dispute between the parties was not on the account of the fact that other party belonged to SC and the very fact that accused was aware of the caste of the victim is of no effect because the knowledge of other party belonging to SC(Scheduled caste) cannot bar a person from protecting his rights by following the procedure established by law. Hence, FIR lodged by the petitioner was quashed by the Hon'ble Supreme Court holding that the property dispute between a person belonging to SC/ST FIR No. 03/17 State Vs. Avnish page 15 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:34 +0530 Community i.e vulnerable section of the society and a person of upper caste will not disclose any offence under SC/ST Act if a person is merely availing his remedy under the law.
(vii) In Alkesh & Ors Vs. State of M.P, Criminal Appeal No. 8182/2019, the Hon'ble Court has observed that the caste of the complainant is of paramount importance and is a sine qua non in a case under the SC/ST Act and it cannot be assumed that the complainant would forget to mention in the FIR that the assailants also made aspersions against his caste. Accordingly, charge under SC/ST Act was set aside by the High Court.
(viii) In State Vs. Om Prakash Rana & Others, 2014(1) JCC 657, it has been held by the High Court of Delhi in this case that the original complaint lodged by the complainant did not mention in whose presence the offending words were used by the respondents/accused. There was also nothing on record to show that the respondent/accused persons were having the knowledge that the complainant was a member of SC/ST community. There was also nothing on record to show that offending words were used in full public view. The names of alleged witnesses were not mentioned in the complaint dated 18.07.12. The witnesses i.e Meenakshi and Durga had alleged themselves to be the eye witnesses but their names had not been mentioned by the complainant in her complaint, the supplementary statement dated 27.08.12 of the complainant giving the names of alleged witnesses could not fill up the lacuna. There was also unexplained delay of 3 days in lodging the FIR. It was held that the basic ingredients of Section 3(1)(x) of the SC/ST Act were missing.
FIR No. 03/17 State Vs. Avnish page 16 of 22
Digitally
signed by
SAVITRI
SAVITRI Date:
2024.10.25
16:28:39
+0530
Accordingly, the Hon'ble Court found no illegality in the impugned order which called for interference in the order of Ld. Trial Court. The revision petition was accordingly dismissed.
(ix) In Deepa Bajwa Vs. State & Ors. 115 (2004) DLT 202 it was held by the court that a complaint on the basis of which the complainant seeks registration of FIR, must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceeding to register the FIR. The relevant portion of the judgment is as under:-
35. "After considering the submissions made by the learned counsel for the parties, this court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an FIR, must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the FIR. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence. In the complaint dated 19 th April, 2001, the complainant himself alleged that the councillor Chhannu Mal was FIR No. 03/17 State Vs. Avnish page 17 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:28:44 +0530 introducing him to the petitioner. If that was the case, how could he say later that on that day the petitioner knew that he was a scheduled Caste. This statement, therefore, was a crude falsity introduced at the behest of the police to implicate the petitioner under section 3 of the Act. This effort on the part of the police to supply the deficiency and cover up a lacuna in the complaint in view of legal opinion was totally unwarranted and an abuse of the process of law".
(x) In Kallu @ Donger Singh Vs. State of M.P, (2012)06MPCK, it was held by the Hon'ble High court of Madhya Pradesh that if there was no mention of the caste of the complainant in the FIR and caste certificate is not even obtained during investigation, the accused could not be charged under provisions of SC/ST Act because proof of caste by specific evidence is necessary requirement. In the facts of that case, the parties were not previously familiar with each other. Hence, the Hon'ble court held that the proof the caste not having been collected during the investigation was fatal to the charge under SC/ST Act. It was further held that delay of two days in lodging of FIR was also an important aspect to be considered. This judgment reiterates the mandatory requirement of investigation by an officer not below the rank of DSP/ACP in SC/ST Act cases.
(xi) In 2002(64)DRJ 29(DB) D.P. Vats Vs. State &Others, it was held by the Hon'ble High Court of Delhi that derogatory utterances made in generalized terms in public gathering even in the name of the caste would not attract an offence, unless it was directed against an individual member of SC/ST community and the person making it knew that individual person belonged to SC/ST community. It was FIR No. 03/17 State Vs. Avnish page 18 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:31:47 +0530 observed that the expression public view has to be interpreted that the public persons present should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant will necessary get excluded. These people should be as good as strangers and should not being linked with the complainant either through any close relationship or through any business/commercial relationship nor should have any vested interest and they should not be any participating members with the complainant. If the people present at the time of incident comprised of any of these kinds, it would not satisfy the requirement of public view.
(xii) In Elangovan vs. State (2016) 02 MAD CK 0100, it is held that rule 7(1) of SC/ST Act is mandatory provision and any office below the rank of DSC/ACP is not empowered to conduct investigation in an FIR for the offences under SC/ST Act. It was further held that unexplained delay is fatal to the prosecution case because when there is unexplained delay it shakes the credibility of the witnesses.
36. Going by the case law, independent witnesses are required to support the allegations of the derogatory caste remarks against the victim. Admittedly, charge-sheet was not filed for any offence under the provisions of SC/ST Act and IO had concluded that the allegations regarding caste derogatory remarks were not substantiated in this regard but the accused was charged for this offence by the predecessor of this court. In this case, prosecution examined PW1 Reshpal who deposed that the accused did not make any derogatory caste remarks against the complainant and there was only hot talks and altercation FIR No. 03/17 State Vs. Avnish page 19 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:32:05 +0530 between the two as their vehicles had touched. During the cross examination by the State, PW1 admitted that he did not hear any derogatory caste remarks during the incident.
37. The other witness is Vinod. He also stated to the police that the accused had not uttered derogatory caste remarks against the complainant though there was exchange of abuses. The witness even stated to the extent that it was the mother and maternal uncle of complainant who had abused the entire gujjar community after incident. This was objected to by the people present there who asked them not to abuse the entire community and to confront and abuse the persons against whom they had a grievance.
38. There is no other witness of caste related derogatory remarks allegations levelled by the complainant. Under these circumstances, after going through settled laws as observed, there was no public witness as required to prove the allegations. Admittedly, the complainant did not know the accused prior to the present incident. It is highly improbable that the accused knew him. It is too far fetched to assume that the accused knew the caste of the victim merely because the mother of the victim was native resident of Harijan Basti located near the village of accused and the people there were identified an address on caste basis. Even if, she was a native resident of Harijan Basti, she must have been married of at least 20 years back and the accused was aged about 18 years at the time of incident as seen from the documents available on record; meaning thereby that she got married even prior to birth of accused. Therefore, there is no basis to assume that the accused knew her. There is all the more reason to FIR No. 03/17 State Vs. Avnish page 20 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:32:11 +0530 believe otherwise. There was no question that the accused knew that the complainant was son of any such woman and that he belonged to SC community. The complainant deposed that while making 100 no. call, he had mentioned about caste related abuses by the accused but no such thing has been proved on record. It is not so mentioned in the DD recorded regarding the incident based on the 100 no. call made by the complainant.
39. Even the details of vehicle of accused were not properly mentioned by the complainant. In the FIR, Swift Car was mentioned. Even after collecting data from social media, in his 161Cr.P.C. statement, he gave a registration no. and brand of car (Cheverelot bearing registration no. DL8CV3270 or 3220) which was different from the car that was seized by the IO. The complainant could not answer as to how the IO seized a third car i.e. DL-1CR-7317 make Ford Figo. The prosecution has not been able to show from the case as to how the identity of offending vehicle was established in this scenario but this defect has been cured as identity of vehicle was not disputed by the defence.
40. In overall circumstances, it seems to me that the matter was blown out of proportion by the complainant in order to teach the accused a lesson as there had been a quarrel between the two. Admittedly, he had approached Indian Express Newspaper and expressed his grievances in front of them. The newspaper published the incident for 3 consecutive dates. He also filed online petition and sent complaint to Police Commissioner in this regard but still he was not satisfied and at his instance the newspaper highlighted 'police inaction' in the matter though the FIR was registered in the first instance itself and FIR No. 03/17 State Vs. Avnish page 21 of 22 Digitally signed by SAVITRI SAVITRI Date:
2024.10.25 16:32:17 +0530 investigation commenced soon thereafter into the allegations made by him in the FIR.
41. Under these circumstances, it seems probable that his ego was bruised when there was exchange of hot words after the accident with the accused and he must have felt humiliated on account of beating by the accused and in order to take revenge, the allegations with respect to SC/ST Act offences were made as has been argued by the Ld. Defence Counsel. Therefore, I am of the considered view that the accused has been able to make out a case of acquittal with respect to the offence u/s 3(1) (r) & (s) and r/w section 3(2) (va) of the SC/ST Act. I accordingly, acquit him for the same.
Conclusion:-
42. Accordingly, I convict the accused for the offence u/s 3/181 Motor Vehicles Act, u/s 279/323/341 IPC and acquit him for the offence u/s 3(1) (r) & (s) and r/w section 3(2) (va) of the SC/ST Act.
Digitally signed by SAVITRI SAVITRI Date:
2024.10.25
Announced in Open Court 16:32:23 +0530
as on 25.10.2024 ( Dr. SAVITRI )
Addl. Sessions Judge-02/North East
Karkardooma Courts, Delhi
FIR No. 03/17 State Vs. Avnish page 22 of 22