Delhi District Court
Fir No. 352/2014 Ps Ambedkar Nagar State vs Faisal 25.02.2023 Pg No. 1 Of 36 on 25 February, 2023
IN THE COURT OF MS. VRINDA KUMARI
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CNR NO. DLST01-001007-2014
IN THE MATTER OF
SESSIONS CASE NO. 7459 of 2016
FIR NO. 352/2014
POLICE STATION : AMBEDKAR NAGAR
UNDER SECTION : 341/323/354 IPC & 3 OF SC/ST ACT
State
Versus
Faisal
S/o Sh. Jaan Mohammad
R/o House No. E-460,
Dakshinpuri, New Delhi. ......Accused
DATE OF INSTITUTION : 22.09.2014
DATE OF COMMITTAL : 20.12.2014
DATE OF RESERVING ORDER : 09.02.2023
DATE OF PRONOUNCEMENT : 25.02.2023
JUDGMENT
1. The case of the prosecution is that on 08.06.2014 at about 09:00 PM near Aggarwal Sweet Store, Gali No. 42, Madangir, accused wrongfully and voluntarily restrained prosecutrix 'DK' and prevented her from moving into direction in which she had a right to move. Accused caused voluntarily simple injury by slapping the FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 1 of 36 complainant. Accused also humiliated / intimidated complainant who belongs to a Scheduled Tribe community by passing remarks related to her tribal identity by calling her with offensive words as 'chinky' and by grabbing her breast.
2. After conclusion of investigation, the charge-sheet was filed against the accused persons before Ld. MM concerned on 22.09.2014. Cognizance was taken. Vide Order dated 20.12.2014, matter was committed to this Court for trial.
CHARGE
3. Charge for the offences punishable u/s 341/323/506 IPC and Section 3 of the Scheduled Castes and the Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC & ST Act) was framed against accused Faisal on 06.01.2015. Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Prosecution examined thirteen (13) witnesses in its favour.
5. PW1 is HC Mukesh Kumar who deposed that on 08.06.2014 at about 10:15 PM, a call was received from PCR that the caller's sister had been slapped. This information was recorded FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 2 of 36 vide DD No. 47A (Ex. PW1/A) and was entrusted to SI A. K. Jha for taking necessary action. On 08.06.2014 itself at about 11:35 PM, SI A. K. Jha handed him a written complaint duly endorsed by him for registration of FIR. He registered case FIR No. 352/2014 u/s 323/341/354 IPC vide DD No. 54A and investigation was marked to SI A. K. Jha. PW1 proved the endorsement on rukka regarding registration of FIR as Ex. PW1/B. He proved the computerized copy of FIR as Ex. PW1/C and certificate u/s 64B of the Indian Evidence Act as Ex. PW1/D.
6. PW2 W/Ct. Rakmesh deposed that on 08.06.2014, she was posted at PS Ambedkar Nagar. She had got the complainant 'DK' medically examined at AIIMS Hospital. He brought her back to police station and handed over the complainant to the IO/SI A. K. Jha. IO recorded the statement of PW2.
7. PW3 is prosecutrix/complainant 'DK' who deposed that she was a permanent resident of Oinam Hill Village, Senapati District, Manipur. She belonged to Poumai Naga Tribes which is scheduled in the list of Scheduled Tribes. She was working as a beautician and make-up artist at Worship Salon in Imporio Mall, Vasant Kunj, New Delhi. On 08.06.2014 at about 09:00 PM, she was coming from her workplace and returning home at Madangir. When she reached near a Aggarwal Sweets, Gali No. 42, Madangir, accused came on his white scooty bearing no. DL-1SW-0672 and came in front of her and tried to jump upon her. There was another FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 3 of 36 boy on the same scooty which was being driven by the accused. PW3 confronted accused Faisal. Upon this, accused and the other boy jumped upon her. She further deposed that accused came down from the scooty and started slapping her. Accused slapped the complainant five times, put his hand on her chest and abused her by saying "sale tere maa ki" and "chinki people" . Local people including fruit vendors gathered there and they helped her and caught hold of the accused along with his scooty. The second boy, however, fled from the spot. PW3/Complainant 'DK' further deposed that she made a call to the police. When the police reached there, PW3 made a written complaint (Ex. PW3/A). The public persons who had apprehended the accused with scooty handed him to the police. Accused was arrested vide arrest memo Ex. PW3/B. The complainant pointed out the place of incident to the police. The Scheduled Tribe Certificate of the complainant (Ex. P1) was seized by the police vide seizure memo Ex. PW3/C. The site plan is Ex. PW3/D. The complainant was also taken for medical examination at Trauma Centre, AIIMS. The complainant proved her statement u/s 164 Cr.P.C. as Ex. PW3/E.
8. PW4 Ct. Samit deposed that on 08.06.2014 at about 10:15 PM, SI A. K. Jha entrusted a call regarding assault and manhandling and then they reached at the spot i.e. near Aggarwal Sweets, Gali No. 42, DDA Flats, Madangir, New Delhi where the victim girl as well as accused and PCR official were present. The victim girl was got medically examined. The victim and accused FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 4 of 36 were brought to PS and victim "DK" made a written complaint on which present FIR was registered. The victim and accused were taken to the spot where the victim had pointed out the spot and accused had also pointed out the place of incident. IO prepared site at the instance of the complainant. PW4 Ct. Samit further deposed that the complainant had pointed out one scooty bearing no. DL- 1SW-0672 lying there. The scooty was taken into police possession vide memo Ex. PW4/A. Accused was interrogated. His disclosure statement (Ex. PW4/B) was recorded. He was arrested vide arrest memo Ex. PW3/B and his personal search was conducted vide memo Ex. PW4/C.
9. PW5 Yadh Mohan @ Sunny deposed that it might be 7th or 8th June, 2014, he was going to purchase ice-cream from his house. When he reached Aggarwal Sweets, Gali No. 42 where ice- cream vendor was present, he noticed that accused was assaulting a girl who might have been from North-East. He separated the accused. After sometime, PCR van reached there and took the victim and accused from there.
10. PW6 Dr. Arvind P. deposed that he was posted as Senior Resident in Department of Orthopaedics, JPNA Trauma Centre, AIIMS since March 2014. He proved the MLC No. 432089/09 dated 09.06.2014 of patient 'D', female aged about 30 years which was prepared by Dr. Kanika Solanki as Ex. PW6/A. He also proved the attested copy of MLC from the medical record as FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 5 of 36 well as discharge summary which are Ex. PW6/B and Ex. PW6/C and the attested relevant record regarding Dr. Kanika Solanki bearing her specimen signatures as Ex. PW6/D.
11. PW7 SI Dara Singh deposed that on 23.06.2014 IO/ACP Abhay Singh called him in his office where complainant was present with her relatives and had produced her caste certificate which was taken into police possession vide memo Ex. PW3/C. He was directed to get the statement of complainant u/s 164 Cr.P.C. recorded. He took the complainant to Saket Courts and moved an application for recording of statement of complainant u/s 164 Cr.P.C. Statement of complainant u/s 164 Cr.P.C. was recorded. He proved the carbon copy of his application as Ex. PW7/A and carbon copy of the application for supply of copy of statement as Ex. PW7/B.
12. PW8 Ld. MM Ms. Shreya Arora Mehta proved the proceedings u/s 164 Cr.P.C. during which statement of the victim was recorded. She proved the statement of IO regarding identification of the prosecutrix as Ex. PW8/A. She proved the statement u/s 164 Cr.P.C. of victim/complainant as Ex. PW8/B. She further proved her affidavit of correctness of the statement as Ex. PW8/C. She further proved her endorsement (Ex. PW8/D) directing the Ahlmad to send original proceedings in a sealed cover to the Court concerned through the office of Ld. CMM South.
FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 6 of 36
13. PW9 SI A. K. Jha deposed that on 08.06.2014 Duty Officer entrusted him a call vide DD No. 47A that some woman from Manipur had been slapped by a person. He along with one Constable reached at the spot where he came to know that complainant and accused were already taken by the PCR van to police station. He came back to police station where complainant had given a written complaint (Ex. PW3/A) on which he made endorsement (Ex. PW9/A). He handed over the same to DO for registration of FIR. Thereafter, accused and complainant were taken to AIIMS Trauma Centre and were got medically examined. PW9 SI A. K. Jha further deposed that DO handed over original rukka along with copy of FIR No. 352/2014 to him. He along with accused and complainant reached at the spot where complainant pointed out the place of incident and he prepared site plan (Ex. PW3/D) at the instance of complainant. The complainant pointed out the Vespa scooty bearing no. DL-1SW-0672 parked near the spot. He inspected the scooty, the key and RC were found there. He took RC and key of scooty into police possession (Ex. PW4/A). He interrogated the accused and recorded his disclosure statement (Ex. PW4/B). Accused was arrested vide arrest memo Ex. PW3/B and personal search of accused was conducted vide memo Ex. PW3/C. PW9 SI A. K. Singh further deposed that on 10.06.2014, he recorded complainant's statement where she stated that she belonged to Naga Tribe. He added Section 3 of SC/ST (POA) Act and submitted the fact to SHO. The file was then handed over to ACP for further investigation.
FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 7 of 36
14. PW10 Sh. Rocky Peshai deposed that on 08.06.2014 at about 09:30 PM, his cousin sister "DK" called him up and told him that there was a guy who had assaulted her and also abused her verbally by calling her chinky etc. He made call at 100 number for PCR as well as at number 1093, North-East helpline. Thereafter, he rushed to the spot i.e. in front of 441, DDA Flats, Madangir where she was assaulted and his cousin met him there. The police had reached there and there was lot of crowd and the crowd apprehended the person who assaulted his sister.
15. PW11 Retired ACP Abhay Singh Yadav deposed that on 12.06.2014, investigation of this case was marked to him after imposing Section 3 of SC/ST Act in the charge-sheet. He verified the age of the accused and found that he was 22 years old at that time. PW11 ACP Abhay Singh Yadav further deposed that on 23.06.2014, complainant came at Police Station and handed over her SC/ST certificate which was taken into police possession vide seizure memo Ex. PW3/C in presence of SI Dara Singh. He got recorded the statement of complainant u/s 164 Cr.P.C. through SI Dara Singh. On 09.09.2014, he also recorded supplementary statement of complainant u/s 161 Cr.P.C. wherein complainant told that accused had addressed her by saying "Chinki" at the time of incident. During the course of investigation, he recorded statement of witnesses and placed the relevant documents with charge-sheet including caste / tribe certificate (Ex. P1) of the complainant. On FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 8 of 36 completion of investigation, he prepared the present charge-sheet.
16. PW12 W/Ct. Kamlesh deposed that on 08.06.2014 at about 09:55 PM, she received an information from 100 number and caller informed that "caller Manipur se hain, uski sister ke saath unknown person se jhagda hua hain aur us person ne caller ko chata maara hain" . She recorded the above-mentioned information in PCR form. She also informed to the Commandant of PCR and also to PS Ambedkar Nagar. She proved the attested copy of the PCR form as Ex. PW12/A.
17. PW13 Sh. Somorjit Salam had brought the issuing register w.e.f 20.11.2010 of scheduled tribe certificate issued to the respective persons. As per the record, the Scheduled Tribe Certificate was issued to prosecutrix 'D' D/o Sh. 'K' of Oinam Hill, Village Parul, District Senapati dated 20.06.2021. As per record, the above-mentioned person belongs to Poumai Naga Community which is a scheduled tribe community in Manipur. She proved the photocopy of the same as Ex. PW13/A. STATEMENT OF ACCUSED U/S 313 Cr.P.C.
18. Statements of Accused Faisal u/s 313 Cr.P.C. was recorded on 04.04.2022. Accused stated that on 08.06.2014, he was going on his scooty and when he reached in Gali No. 42, Madangir, DDA Flats, the complainant suddenly came in front of his scooty FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 9 of 36 and his scooty touched the complainant. The complainant started using abusive language against him. He apologized to the complainant. He was beaten up by persons present there. Some persons saved him from the complainant. He denied slapping the complainant or calling her by any racial slur or tribal name or having outraged her modesty. Police came at the spot and he was arrested. Accused claimed innocence and stated that he had been falsely implicated in the present case. Accused preferred to lead DE.
DEFENCE EVIDENCE
19. Accused Faisal examined himself as DW1. He deposed that on 08.06.2014 at about 9:00 PM, he was going towards Madangir, DDA Flats. At Aggarwal Sweets, near Gali No. 42, complainant came in front of his scooter. He applied brakes but his scooter touched the complainant. The complainant spit on his face. When he protested, the complainant started abusing him. He said sorry to complainant. DW1 further deposed that the complainant grabbed him by his collar and hit him on his face several times. The people gathered over there and they also gave beatings to him. Police came and took DW1 and complainant to police station. The complainant blamed that DW1 had called the complainant chinki, but he had not called her chinki. DW1 further deposed that the complainant also blamed that he had put his hand on her breast but he had not put his hand on the breast of the complainant. From police station, they were taken to hospital. From hospital, they were FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 10 of 36 taken back to police station. In police station, his personal search was conducted and his mobile and scooty were seized.
20. DW2 Kamal deposed that on 08.06.2014, he was standing on Agarwal Sweet at DDA Flats, Madangir. He saw that people were making noise near the Agarwal Sweet. He saw that accused was there and one lady was shouting upon the accused. The complainant caught hold of the collar of the accused and started beating the accused and using abusive language against the accused. Other people who gathered there also gave beatings to the accused. Police came and took the complainant and accused with them.
21. I have heard detailed final arguments and have perused the record carefully.
DISCUSSION
22. My findings on the points in issue in the present case are as follows :
Section 323/341/354 IPC
23. In her complaint (Ex. PW3/A) dated 08.06.2014 at 11:30 PM addressed to SHO PS Ambedkar Nagar, the prosecutrix submitted as follows :
"My name is 'DK' D/o FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 11 of 36 Mr. 'K' (names withheld to protect the identity of the prosecutrix) age 30. I hail from Senapati District, Manipur under Senapati Police Station. I worked as a Beauty and Make- up artist at Worship Saloon at Vasant Kunj, Emporium Mall. On the faithful day of 8th June, 2014 at 9 PM, as I was walking towards home from work, at Madangir, Gali No. 42, near Agarwal Sweet Store, a scooty bearing no. DL1SW0672 tried to jump on me. There were two of them. When I confronted them, the driver by the name Faizal slapped me 5 times and put his hands on my chest. For a moment, I lost consciousness. The fruit vendors and few local people helped me and caught the driver of the scooty. "
24. Ld. Additional PP for State has pointed out that in her supplementary statement u/s 161 Cr.P.C. dated 10.06.2014, the victim gave a statement to the police that at the time of incident on 08.06.2014, she was nervous because of which she could not inform that accused Faisal had hurled casteist slurs at her while abusing her and in presence of the crowd that had gathered there, accused called her 'chinki'.
25. The statement u/s 164 Cr.P.C. (Ex. PW8/B) of the prosecutrix was also recorded on 23.06.2014 wherein she stated as follows :
"08.06.2014 raat ko FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 12 of 36 09:00 baje jab main apne kaam se wapas aa rahi thhi, main Vasant Kunj Imporio Mall mein kaam karti hoo, ek scooty samane se aa rahi thhi jo ki ek dam mere samane aa gayi balki maine unnko jaane ka rashta diya thha. Mujhe koi chhot nahi lagi par maine uss scooty par baithe dono ladko ko kaha ki dhayan se chalao. Iss par jo scooty chala raha thha uss ne mujhe 05 thhapad maare aur meri chest jor se pakadi. Iss ke baad main behosh ho gayi mujhe nahi malum mujhe aur maara ya nahi. Yeh vakaya Madangiri, Gali No. 42, near Aggarwal Sweets par hua thha."
(Translation:
On 08.06.2014 at around 09:20 PM, I was returning from my work. I work at Vasant Kunj Imporio Mall. When I was returning from work, one scooty was coming from front and suddenly it came in front of me even though I had given it the way to pass. I did not suffer any injury because of this but I told both the boys on that scooty to drive carefully. Upon this the one who was driving the scooty slapped me five time and he grabbed my chest with force. After that I fell unconscious and, therefore, I do not know if he continued to beat me further. This incident took place at Madangiri, Gali No. 42, near Agarwal Sweets.)
26. In her testimony, prosecutrix PW3 'DK' has deposed FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 13 of 36 that when she was returning home at Madangir, accused Faisal who was riding a white colour scooty bearing registration no. DL-1SW- 0672 came in front of her and tried to jump upon her. There was a pillion rider also on the scooty. When she confronted the accused, both he as well as the pillion rider jumped upon her. The prosecutrix has specifically deposed that accused Faisal alighted from the scooty and started slapping her. Accused slapped her five times after which he put his hand on her chest and also abused her by saying, "sale tere maa ki" and "chinki people".
27. Examination-in-chief of PW1 shows that accused deliberately obsructed her path with his scooty which he was riding and on her protest, he slapped her and outraged her modesty. He also hurled racial slur upon her. During her cross examination, PW3 stood firm on her stand and could not be shaken. She denied that because of accident, the scooty had touched her upon which she abused the accused and caught his collar. She also stated in her cross examination as follows :
"I do not know whether the accused was beaten by the crowd which had gathered there as I was slightly semi-conscious. I regained consciousness after about five minutes of the incident. It is incorrect to suggest that after regaining my consciousness I had seen accused Faisal bleeding from his ear."
FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 14 of 36 She also denied the suggestion that the accused felt sorry after the incident and that despite tender of apology by him, she continued to abuse him.
28. During the course of final arguments, Ld. Counsel for the accused relied upon a part of the cross-examination of an independent witness PW5 Sh. Yadh Mohan @ Sunny which reads as follows :
"The incident took place at about 09:30 PM. In my presence accused Faisal had not slapped the complainant.
Accused had not used abusive language against the complainant in my presence. The accused had not passed any caste remark. In my presence complainant had not become unconscious. I had intervened and separated the accused from the complainant. The complainant had caught hold of accused from his collar. I myself had caught hold the accused and separated from complainant."
While appreciating the testimony of PW5, it is important to note that his examination-in-chief was recorded on 16.05.2015 and his cross examination was recorded on 20.05.2015 i.e. after a gap of four days. He supported the case of prosecution in his examination-in- chief. In his examination-in-chief, PW5 deposed that at the time of incident in question, he was going to purchase ice-cream and when he reached Agarwal Sweets, Gali No. 42 where ice-cream vendor FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 15 of 36 was also present, he noticed that the accused was assaulting a girl who might have been from North-East. He separated them. PW5 also identified accused Faisal as the assaulter. During his cross examination, on one hand, PW5 stated that in his presence, accused Faisal did not slap the complainant, on the other hand, he denied the suggestion of the accused that accused Faisal had not assaulted the complainant. He also denied the suggestion that he had not separated the accused and the complainant or that he had not reached the spot.
29. Keeping in view the nature of testimony of PW5 as discussed above, it cannot be concluded that the alleged incident of assault and sexual assault did not take place.
30. PW10 Sh. Rocky Peshai is the cousin brother of the prosecutrix. He deposed that on 08.06.2014 at about 09:30 PM, his cousin sister/prosecutrix 'DK' called him up and told her that she had been assaulted, abused and verbally called 'chinki' by a guy. He called the police by dialing no. 100. The Delhi Police Control Room Form I (Ex. PW12/A) proves that it was PW10 who had called the police. When PW10 rushed to the spot, he found the prosecutrix present there and that the crowd had apprehended the accused.
31. Coming back to the testimony of prosecutrix PW3 'DK', her MLC dated 09.06.2014 (Ex. PW6/B) at 12:17 AM i.e. during the intervening night of 08/09.06.2014 shows that the prosecutrix suffered swelling on left side of cheek. The MLC FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 16 of 36 corroborates the testimony of the prosecutrix.
32. Ld. Counsel for the accused has submitted during the course of final arguments that it was the prosecutrix who had held the accused by his collar and had also given him beatings. It is has further been argued that the hand of the accused may have touched the breast of the complainant accidently but it was not intentional. Reference has also been made to the testimony of DW1 / accused Faisal where he has deposed that as follows :
" On 08.06.2014 at about 9PM, I was going towards Madangir, DDA Flats. There is a Aggarwal Sweet near Gali No. 42, complainant came in front of my scooter. I applied the brake but my scooter got touched the complainant. The complainant spit on my face. I protested why the complainant is behaving in such a way. She started abusing me. I said sorry to complainant. She took me by my collar and hit me on my face several times. The people gathered over there and they also gave beating to me. Police came and took me and complainant to police station. The complainant blamed that I had called the complainant chinki, but I had not called her chinki. The complainant also blamed that I had put my hand on her breast but I had not put my hand on the breast of the complainant. From police station, we were taken to FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 17 of 36 hospital. From hospital, we were taken back to police station. In police station, my personal search was conduced and my mobile and scooty were seized."
33. Accused also produced DW2 Sh. Kamal who deposed that on the date of incident, he was standing at Agarwal Sweet Shop when he saw that the complainant had caught hold of the collar of the accused and had started beating him up. She also abused the accused. Other people who had gathered there also gave beatings to the accused. MLC of the accused (Ex. PW9/B) dated 09.06.2014 at 12:18:39 AM does not show any injury on his person.
34. Ld. Counsel for the accused has tried to raise the defence that it was the complainant who had manhandled the accused, beaten him up, abused him and spit on his face. The cross examination of prosecutrix PW3 would show that there is no specific suggestion put to her that she had spit on the face of the accused. To a specific question of Ld. Counsel for accused, PW3 replied that she did not know whether the accused was beaten up by the crowd which had gathered there as she was slightly semi- conscious. In fact, DW2 has also stated that the people gathered there had beaten up the accused. In his cross examination by State, DW2 stated that he knew accused since childhood and that he had come to depose in the Court at the instance of accused. Even though FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 18 of 36 DW2 has deposed that the complainant caught hold of the collar of the accused, beat him up and used abusive language against him, he remained silent in respect of the incident of slapping and outraging of modesty of the complainant by the accused. He has also not explained in his testimony as to what circumstances led the public to give beatings to the accused.
35. While the testimony of PW3 is material, consistent and well corroborated by MLC and testimony of PW10, that of DW1/Accused and DW2 are weak with no corroboration. PW3 has also stood steadfast on her stand from the initial stage when present FIR was registered on her complaint till recording of her testimony in the Court. PW3 is a credible and trustworthy witness whose credibility could not be impeached by the accused during her cross examination. In State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575, it has been held by Hon'ble Supreme Court of India as follows:
"29. It is now well-
settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence (Vishnu v State of Maharashtra (2006) 1 SCC 283 ). It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 19 of 36 that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming [State of Rajasthan v NK (2000) 5 SCC 30]."
On the basis of the steadfast testimony of PW3/prosecutrix, prosecution has proved the charge of offences punishable u/s 323 IPC, 341 IPC and 354 IPC against the accused beyond any doubt.
Section 3 of the SC & ST Act, 1989
36. Charge for the offence punishable u/s 3 of the SC & ST Act, 1989 was also framed against the accused. In the formal charge, it was specifically mentioned that by my Ld. Predecessor as follows :
"Thirdly, at the aforesaid date, time and place you being not the member of SC/ST Community, in order to insult / humiliate / intimidate Dinah Kho, who belongs to a schedule tribe community, in public view, passed remarks relating to her tribal identity by calling her with offensive words as 'chinky' FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 20 of 36 and assaulted Dinah Kho with an intention to outrage her modesty by grabbing her breast and thereby, you committed an offence punishable under section 3 of SC/ST (Prevention of Atrocities) Act, 1989 and 354, IPC and within my cognizance."
37. From the above-said charge, it is clear that Section 3 of the SC / ST Act had been pressed against the accused not only for intentionally insulting or intimidating the victim belonging to ST Community with intent to humiliate her in a place within public view but also for assaulting or using force to such woman with intent to dishonour or outrage her modesty. Thus, I shall consider whether the prosecution has proved commission of offences u/s 3(1)
(x) (xi) of the SC & ST Act, 1989 (prior to the amendments of the years 2016 & 2018) against the accused beyond reasonable doubt.
38. Section 3(1)(x)(xi) of the SC & ST Act, 1989 provides as follows :
"3. Punishments for offences atrocities.--
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 21 of 36 Tribe with intent to dishonour or outrage her modesty."
39. One of the contentions of Ld. Counsel for the accused is that the term 'chinky/chinki' is not a casteist slur. It is further submitted that accused was not aware that the victim belonged to ST category. Ld. Counsel for the accused has relied upon Shri D P Vats Vs State & Ors. 99 (2003) DLT 167 vide which Hon'ble High Court of Delhi held in its Judgment dated 15.05.2002 regarding offences punishable u/s 3(1)(x)(xi) of the SC & ST Act, 1989 (prior to the amendments of the years 2016 & 2018) as follows :
"9. A plain reading of the two sub-sections brings out the following ingredients which are common to these in the present context:-
(a) A person making the alleged derogatory utterance must know that the person whom he was intentionally insulting, intimating with intent to humiliate him was a member of SC/ST.
(b) Such intentional insult, intimation or humiliation must be directed against and made to a member of SC/ST and for being member of SC/ST. (C) The utterance must be made at any place within "public view".
10. In the present case, we are concerned with the first two ingredients and it emerges there from that a case would fall under the first sub-section only FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 22 of 36 when the person making the derogatory utterance knows that the person whom he was intentionally insulting or intimidating or humiliating in the name of the caste was a member of SC or ST. If he had no knowledge of his caste status, the offence under Sub-section (1)(x) would not be constituted.
Similarly if his utterance was not directed against a member of SC/ST in contradistinction to a group of members of SC/ST or the community as a whole, it would not again make out an offence under Sub-section (1)(x).
The word "a member" occurring in the provision assumes crucial importance in this context and leaves no scope for doubt that it must be directed against the individual member and not against a group of members or the crowd or the public in general though these may comprise of SC/ST. If it is made in generalised terms against all and sundry and is not individual specific in the name of caste, it would not make out an offence under the first sub-section, the rationale being that intensional insult, intimidation and humiliation made in the name of case was liable to be caused to a person and in this case to an individual member of SC/ST and not to a group of members or public in general.
11. The second Sub-section (xi) also requires that if a non-SC/ST member assaults or uses force to any women belonging to SC/ST FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 23 of 36 with intent to dishonour or outrage her modesty, it would amount to an offence of atrocity.
Here also, the person assaulting and using force must know that the woman against whom he was doing belonged to SC/ST. If he did not know that the woman belonged to SC/ST, the offence under Sub-section (1)(XI) would not be attracted.
12. That being so, we hold that derogatory utterance made in generalised terms in a public gathering, even in the name of caste would not attract an offence Under Section 3(1)(x) unless it was directed against an individual member of the caste/Tribe and the person making it knew that the victim belonged to SC/ST. For Sub-
section (xi) also, it was an essential requirement that the person using force or assaulting a women of SC/ST must know that she belonged to that caste/Tribe.
13. It does not, therefore, appear to us that uncontroverter allegations contained in FIR No. 678/01, even if taken on face value, would attract an offence under Sub-sections (1)(x) or (1)
(xi) of SC/ST (POA) Act 1989.
This is so because petitioner had made the utterance "CHUDE CHAMARON TUMHE MAAR DUNGA MAIN TUMSE NAHIN DARTA" in generalised terms. It was not directed against any particular member of SC/ST to attract the offence Under Section 3(1)(x) of the Act. Nor FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 24 of 36 was it shown or known whether he knew anyone in the group or crowd to be a member of SC or ST to whom the utterance could be linked. The same holds true of the alleged offence under the other sub-section. The allegations in the FIR nowhere disclose that petitioner had assaulted or used force against any woman in the gathering whom he knew to be belonging to SC/ST. That is not to suggest that allegations made in the FIR had to state all the ingredients of the offence. But the allegations were required to lay at least the factual foundation for attracting the offence under Section 3(1)(x) and (xi) which is lacking in the present case. "
40. Coming to the facts of the case present case, the Tribe Certificate (Ex. P1) shows that the victim 'DK' hails from Oinam Village, Purul Sub-division, Senapati District of State of Manipur and belongs to Poumai Naga Tribe.
41. The acts of the accused of obstructing the way of the prosecutrix with his scooty and of slapping and outraging her modesty when she objected to it are intentional. Calling out the victim as 'chinky/chinki' which is a derogatory racial slur used exclusively for our countrymen hailing from North-East India was also intentional and deliberate. There is no dispute that the incident took place within public view on an open street/road.
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42. Regarding the racial slur which is the subject matter of the present case, judicial notice is taken of the Office Memorandum dated 10.05.2012 F No. 15011/34/2012-SC/ST-W issued by Ministry of Home Affairs, Government of India wherein it has been observed as follows :
"1. xxxx
2. A sizeable number of persons belonging to the North Eastern States are residing in metropolitan cities and in major urban areas in the country for education and employment. It is reported that people originating from these North-Eastern States are facing discrimination as they are addressed with derogatory adjectives or face discrimination in the form of targeted attacks, assault, molestation and other atrocities. This has caused considerable anguish and distress in the minds of the people from the North East. Hence, it is of utmost importance that this feeling of insecurity and negativity in the minds of these people should be assuaged by an adequate and pro-active response that would not only reassure them but would also prove that the Government would not tolerate discrimination in any form. A significant number of citizens from the North East also belong to the Scheduled Tribes and any atrocity against them should also be dealt with under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 26 of 36 Act.
3. xxxx
4. xxxx
5. Through the aforesaid advisories, the State Governments were also requested to undertake a comprehensive review of the effectiveness of the machinery in tackling the issues of SCs / STs and to take appropriate measures aimed at increasing sensitivity and responsiveness of the law enforcement / law and order machinery. No doubt, State Governments / UT Administrations have taken some measures in this regard but these measures need to be strengthened, so that citizens from the North East feel secure, enjoy their human rights and live their lives with dignity and respect that every citizen of India deserves.
6. The Government of India is deeply concerned by the discrimination and crimes against the weaker sections of society, particularly those originating from the North East, and would therefore emphasize that urgent action should be taken by the Police as they have a major role to play as first responder. Hence immediate action is required to be taken by the State Governments and UT Administrations on the following matters :
A xxxx B xxxx FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 27 of 36 C xxxx D xxxx E xxxx F. Area Security Committee comprising community leaders and stakeholders, representing both the local residents as well as citizens from the North East, should be constituted to meet regularly under the aegis of the area police.
G. Where necessary, action under the law or preventive action under the Cr.P.C. should be initiated and, if the victim is a ST, then section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act can be invoked.
When a case is made out, it should be immediately registered and investigated on a day-to-day basis and finalised.
H. Where a complaint or if any information is received from a citizen hailing from the North East, regarding a cognizable offence and no follow-up action is taken, then a serious view should be taken against the police officer concerned and also against the Officer-in-charge of the Police Station and if the complainant is a member of Scheduled Tribe, then the provisions of section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act should be invoked.
7. xxxx "
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43. I shall also refer to the Report of the Committee under the Chairmanship of Shri M. P. Bezbaruah to Look into the Concerns of the People of the North East Living in Other Parts of the Country. This Committee was constituted and notified on 05.02.2014 by the Ministry of Home Affairs under the Chairmanship of Shri M. P. Bezbaruah, IAS (Retd.) Member, North Eastern Counsel to look into the various kinds of concerns of the people hailing from North Eastern States of India who are living in different parts of the country especially the Metropolitan cities and to suggest suitable remedial measure which could be taken up by the Government in light of the unfortunate death of Sh. Nido Tania, a student from Arunachal Pradesh. The relevant portion of this report is as follows :
"5(a) Legal Measures 5(a)(1) The Committee received many suggestions for a stringent law to be put in place.
There were many writings in newspaper and magazines drawing attention to the importance of legal measures. As a representative sample of the views we can quote an article in Times of India on February 10, 2014 titled "Racism, our dirty secret" "For the 'social mindset' to change, the law must first treat, and be seen treating, crimes - including FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 29 of 36 non-racist crimes - against northeast Indians seriously. It is how law enforcers deal with cases in which ethnic or racial minorities are victims and complainants that will determine whether India confines itself to benign discrimination."
5(a)(2) The Committee has examined at great length the need for a suitable law that take care of the incidents of racial nature that the people from the North East experience. The Committee also had detailed discussions with Secretary Legislative, Govt, of India and other officials of the Ministry and also with other organizations. Shri Jamatia, member of the Committee who is also Secretary, Law, Govt of Tripura and Dr Bhutia another Member and Advocate and the North East India Forum Against Racism were requested to help the Committee with their inputs on the subject. Their reports are placed at Annexure 8 (a) and
(c). The Delhi Policy Group also submitted, on our request, a summary of the existing provisions and also a note on the anti racial laws provision in other countries. The legislative department of government of India also furnished a summary of all the existing laws relating to crime of racial nature. This is placed at Annexure 9.
5(a)(3) The Committee looked at the problem from the following angles:
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(i) What are the existing rules, laws etc to deal with the type of concerns that the people from the North East have or most specifically to deal with acts of racial nature?
(ii) Are these provisions adequate to take care of the concerns of the people from the North East ?
(iii) What more needs to be done?
5(a)(4) The existing legal provisions are broadly summed up as follows: (Ref Note from Delhi Policy Group).
1. The Constitution of India.
a) Article 14-'Equality before law -The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'
(b) Article 15-'Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 31 of 36
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.'
(c) Article 16-'Equality of opportunity in matters of public employment:
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State;
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.' However, there is little legislation to operationalize Constitutional provisions against racism. Amongst the existing laws are:
2. The Criminal Law Removal of Racial Discrimination Act, 1949: Repealing Section 56 of the Indian Penal Code which discriminated between Indian and European/American convicts. The section demanded a sentence of 'transportation for life' for convicted Indians as opposed to the relatively simple manual labour that was awarded to their European counterparts.
3. The Scheduled Castes and Scheduled Tribes (Prevention FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 32 of 36 of Atrocities)Act, 1989: Seeks to prevent the commission of offences of atrocities against members of the Scheduled Castes and Scheduled Tribes.
Recently, several measures have been taken in order to enhance its scope so as to include more persons under its ambit. For instance, the Scheduled Caste/ Scheduled Tribes Amendment Bill of 2013 sought to introduce new offences and new categories of persons under the Act.4 Further, in 2012, the Ministry of Home Affairs recommended that all States notify the term "Chinki" as an offence under the Act.5 Problem : Many citizens from the North East states are not members of the Scheduled Castes or Scheduled Tribes community and hence cannot seek protection under this Act."
44. It is, thus, clear from the reading of Office Memorandum dated 10.05.2012 and the above-mentioned Committee Report that racial discrimination and intentional humiliation of a person belonging to Scheduled Tribe community from North-Eastern States on the basis of their physical attributes amount to intentional humiliation and insult as envisaged under Section 3(1)(x) of the SC & ST Act, 1989 (prior to the amendments of the years 2016 and 2018).
45. Before proceeding further with the issue, I shall FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 33 of 36 consider certain case laws regarding scope of Section 3(1)(x)(xi) of the SC & ST Act, 1989.
46. It has been held by Hon'ble Supreme Court of India in Judgment dated 05.11.2020 in Crl. Appeal No. 707 of 2020 (Arising out of SLP (Crl.) No. 3585 of 2020) titled as Hitesh Verma Vs The State of Uttarakhand that all insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe.
47. In D. P. Vats' case relied upon by Ld. Counsel for the accused and reproduced in preceding paras, Hone'ble High Court of Delhi has held that if the accused had no knowledge of complainant's caste status, offence under Sub-section (1)(x) would not be constituted. Similarly, the person assaulting and using force must know that the woman against whom he used force belonged to SC / ST community.
48. The prosecution must, therefore, prove that the prosecutrix PW3 was subjected to intentional insult or humiliation on account of her being a member of the Scheduled Tribe community.
49. In the present case under consideration, even though racial slur was intentionally hurled upon the prosecutrix on account FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 34 of 36 of her belonging to North-East India but there is nothing to show that the accused had the knowledge that she belonged to Scheduled Tribe community. In her cross examination, PW3 deposed that prior to the incident, she knew accused by face only but had never met him or interacted with him. At this stage, it would be apt to reproduce Section 8(c) of the SC & ST Act, 1989 which provides as follows :
8. Presumption as to offences.--In a prosecution for an offence under this Chapter, if it is proved that--
(a) xxxx
(b) xxxx
(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.
Since prosecution could not prove that the accused had personal knowledge of the victim/prosecutrix or her family, presumption under Section 8(c) of the SC & ST Act cannot be drawn against him.
50. Thus, even though it has been proved that the prosecutrix was intentionally insulted and sexually assaulted on account of her being a woman hailing from North-East India and that the prosecutrix belonged to Scheduled Tribe community, FIR No. 352/2014 PS Ambedkar Nagar State Vs Faisal 25.02.2023 Pg No. 35 of 36 prosecution failed to prove that she was insulted or sexually assaulted on account of her belonging to the Scheduled Tribe community. The present case, therefore, does not fall within the ambit of the SC & ST Act, 1989. It calls for grant of benefit of doubt to the accused in respect of charge for the offence punishable u/s 3 of the SC & ST Act, 1989.
CONCLUSION
51. In view of the above discussion, accused Faisal is is convicted of offence punishable u/s 323/341/354 IPC. He is acquitted of offence punishable u/s 3 of the SC & ST Act, 1989.
PRONOUNCED IN OPEN COURT ON THIS 25th DAY OF FEBRUARY 2023.
(Vrinda Kumari) ASJ-02, South District Saket Courts, New Delhi.
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