Delhi District Court
Sc No. 57634/16; Fir No.18/12; Ps. ... vs . Devender Kumar Kaushik; Page No. 1 Of 41 on 12 October, 2018
-1-
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..................................57634/16
FIR No. 18/12
PS Shahbad Dairy
U/s: 506/188 IPC & 3 (i)(v)(x)
SC/ST Act
State
Versus
Devender Kumar Kaushik
S/o Sh. Chander Singh Kaushik,
R/o H. No. 83, Gali no. 3, Pooth Kalan Road,
Prahlad Pur Village, Delhi42.
Date of institution: 28.08.2012
Judgment reserved on: 25.09.2018
Judgment delivered on: 12.10.2018
ORDER/JUDGMENT: The accused stands acquitted of the
offence(s) u/S 188/506 IPC as well as for
offence(s) punishable u/s 3(i)(v) of
SC/ST (Prevention of Atrocities) Act,
1989 & 3(i)(x) of SC/ST (Prevention of
Atrocities) Act, 1989.
J U D G M E N T
1.Brief facts, as stated in the chargesheet are that on 13.01.2012, Sh. Shiv Charan, President Bhartiya Bodh Sabha (Regd.) branch Prahlad Pur, Delhi filed a complaint to the Deputy Commissioner, SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 1 of 41 -2- NorthWest District, Kanjhawala, Delhi. In the said complaint, the complainant alleged as under:
"That a person namely Devender Kaushik was constructing a factory of flammable products outside the Lal Dora falling in agricultural land. He was trying to make a road on the land of Harijans meant for live stock in khasra no. 52/01. He had laid the pipes of sewer lines in the intervening night without seeking permission of the competent agency and in order to make road, he had made a bridge (pulia) on the drain with the help of cement and concrete. The complainant also alleged that he he was refrained from doing so, by the local police of PS S. B. Dairy, PCR staff including Inspector Jai Prakash, despite it, he raised construction during night hours. The complainant further alleged that Devender Kaushik had abused by calling their community as chamar and also threatened to kill them by saying he keeps police in his pocket. The complainant further alleged that they all were poor people, whereas Devender Kaushik was a rich man. The complainant thus requested that order may kindly be issued to stop Devender Kaushik for constructing the road in khasra no.52/01 (livestock) and the illegal construction be removed through concerned officers.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 2 of 41 -3-
2. On the said complaint/ application, Deputy Commissioner / North West, Kanjhawala endorsed it to SDM / ML / STF. On this SDM made his noting "ACP/Bawana/BDO (NW) please immediately start action under SC/ST (Prevention of Atrocities) Act and also lodged for trespassing and criminal conspiracy as the FKG Sh. Praveen Bhardwaj has primarily reported the land of factory to be of gram sabha land" and also gave noting "tehsildar to immediately report and take NA / FIR, if the land is agricultural".
3. On this ACP Bawana made his endorsement "SHO Shahbad Dairy to register the case and investigation be handed over to Sh. Hem Chand, ACP/PG as ordered by Addl. DCP, Outer District.
4. On receiving the said complaint with the aforesaid endorsement, SHO Shahbad Dairy made endorsement that "DO to register a case u/s 3 (i)(v), 3(i)(x), 3 (i)(xv) of SC/ST Act, 1989 and 506 IPC. And as per the direction of senior officers, investigations of case be handed over to ACP Sh. Hem Chand. Accordingly, DO registered FIR No. 18/12 and investigations were entrusted to ACP Sh. Hem Chand.
5. During the course of investigations, place of occurrence was examined and photographs of khasra no. 52/01 and 52/02 were obtained indicating the act of accused and site plan was prepared. From the spot, a Tata 407 tempo, two iron sheets, one fiber sheet, SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 3 of 41 -4- two sewer covers, two wooden fatta and documents of Tata 407 were seized through seizure memos.
6. During investigations, IO recorded the statement of witnesses and effected the arrest of accused Devender Kaushik. IO also sent the information regarding the land of harijans community to SDM office, civic agencies and to get it fenced, ear marked and for its demarcation and to ascertain the title of the land in question. During investigations, IO also collected the report of tehsildar bearing no. F. No. MICE (317)/THE (NL)/2012/1605 dated 12.02.2012. During investigations, joint inspection pertaining to khasra no. 52/01 and 52/02 was carried out on 22.02.2012 by the team formed by SDM Narela. During investigations, IO also collected notification dated 13.12.2010 and 05.01.2011.
7. During investigations since accused Devender Kaushik was found constructing his factory and road etc. on agricultural land, therefore, he was also found liable for the offence punishable u/s 188 IPC.
8. After completion of investigations, a chargesheet for offence punishable u/s 506/188 IPC and 3(i)(iv)(v)(x)(xv) of SC/ST (POA) Act, 1989 was filed against the accused Devender Kaushik.
9. On committal of the case to the Court of Sessions, vide detailed SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 4 of 41 -5- order dated 25.10.2013, a charge(s) for offence(s) punishable u/s 188/506 IPC as well as for offence(s) punishable u/s 3(i)(v) of SC/ST Act, 1989, 3(i)(x) of SC/ST Act, 1989 was framed against the accused to which he pleaded not guilty and claimed trial.
10. Thereafter, prosecution in support of its case has examined 25 witnesses :
a) PW1 is complainant Sh. Shiv Charan, who has deposed on the lines of his complaint. PW1 has also exhibited the complaint lodged by him as Ex. PW1/A. However, during examination, PW1 was declared hostile by Ld. Addl. PP for the State and was cross examined. In the said crossexamination, PW1 has deposed it to be correct that he had mentioned in his complaint Ex. PW1/A that accused Devender Kaushik had abused him and other members of the community by using castiest words (chamar) in the presence of public persons.
b) PW2 is Sh. Ram Niwas deposed himself to be the General Secretary of Shakha Bharitya Mahasabha, Delhi Pradesh and has narrated the about the incident dated 06.01.2012. He also deposed that on 12.01.2012, accused forcibly threw the turban of Sh.
Chander Bhan in garbage and threatened "kamine yahan se chale jao, tum jaise bude ko main thik kar dunga". He also deposed that accused Devender Kaushik caught hold his neck and also threatened him "chamar ke tu jyada padha likha ban raha hai, SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 5 of 41 -6- teri akad main nikalunga, chal ja yahan se" and he threatened to kill him. He also deposed that on 13.01.2012, he alongwith complainant visited the office of DC NorthWest, Kanjhawala and narrated all the facts to him in writing alongwith the documents and requested to take appropriate action and to save them. He also exhibited the copy of his original caste certificate as Ex. PW2/A, true copy of demarcation as Ex. PW2/B and four photographs regarding the demarcation process as Ex. PW2/C1 to Ex. PW2/C4.
c) PW3 is Sh. Balbir Singh, who deposed to have taken 24 photographs of the spot and truck on 14.01.2012 with digital camera. He also exhibited the said photographs as collectively Ex. PW3/A and handed over the said photographs to IO vide seizure memo Ex. PW3/B. He also deposed to have taken four photographs by digital camera in respect of the demarcation process and exhibited the said photographs as Ex. PW2/C1 to Ex. PW2/C4.
d) PW4 is Sh. Suresh Kumar, who has deposed to have sold one plot area 345 Sq. Yards khasra no. 52/2, Village Prahladpur Bangar to accused Devender Kaushik.
e) PW5 is Sh. Om Prakash, who has deposed himself to be a permanent resident of Village Prahladpur. He also deposed that in village Prahladpur, people belonging to SC community are also residing and the land was alloted to the scheduled caste landless persons of the village for cultivation purpose in 1976. Since this SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 6 of 41 -7- witness has turned hostile, he was crossexamined by Ld. Addl. PP for the State, but despite crossexamination he failed to support the statement mark PW5/A made before the police.
f) PW6 is Sh. Nanak Chand has deposed that accused Devender Kaushik was laying the water pipe and sever line in khasra no. 52/1 belonging to harijan community. He also deposed that police restrained accused from raising construction. He also deposed that accused Devender Kaushik had insulted the harijan community by passing castiest remarks to them and threatened the members of SC/ST community who were residing in his village. He also deposed that on 01.02.2012, police officials and officers of SDM office inspected khasra no. 52/2 and 52/1. He also deposed regarding the inspection conducted on 22.02.2012 as well as on 24.02.2012. He also deposed to have signed the said proceedings. He also deposed that during inspection and demarcation, it was confirmed that khasra no. 52/1 belongs to harijan community. He also identified CD of the videography of the demarcation process held on 24.02.2012 as Ex. PW6/A and photographs of the said demarcation process as Ex. PW6/B (colly). He also deposed that in photograph Ex. PW6/B5, accused Devender Kaushik was found present and in photograph Ex. PW6/B3, Om Prakash was found present. He also identified his signatures at point B on demarcation proceedings dated 24.02.2012. He also deposed that on the evening of 12.01.2012, on hearing about quarrel, he went near SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 7 of 41 -8- khasra no. 52/2 and 52/1 and found the quarrel and abuses were being hurled by accused Devender Kaushik to Ram Niwas masterji, Shiv Charan and Chander Bhan i.e. all members of SC/ST community by calling them chamar. He also exhibited the copy of his caste certificate as Ex. PW6/C, seizure memo Ex. PW6/D of tempo bearing no. DL1CK7402. He also exhibited the photographs of said tempo as Ex. PW6/E1 to Ex. PW6/E7 and the seizure memo Ex. PW6/F vide which iron sheets, wooden fattas, two sewer covers were seized.
g) PW7 is Sh. Ajit Kumar, who brought the original LR form 38 register maintained by BDO Alipur containing the resolution dated 28.05.88, whereby in the meeting of village panchayat under pradhan Rajender, khasra no. 52/1 and 52/10 were alloted to harijan community (jaatav). He exhibited the copy of the relevant page of said register as Ex. PW7/A and the copy placed on file record as Ex. PW7/B. He also exhibited the demarcation report dated 24.02.2012 as Ex. PW2/B bearing the signatures of Sh. Jitender Yadav, the then BDO at point E.
h) PW8 is Sh Praveen Bhardwaj, who had brought the original record i.e. khasra girdwari for the year 199697, 199798, 1999 2000. He exhibited the attested copies of the said record as Ex. PW8/A, Ex. PW8/B and Ex. PW8/C respectively and also exhibited the relevant copies on record as Ex. PW8/D, Ex. PW8/E and Ex. PW8/F respectively.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 8 of 41 -9- I) PW9 is HC Braham Swaroop, who on 12.01.2012 on receipt of DD No. 20A Ex. PW9/A as well as DD No. 21A alongwith Ct. Amit Kumar reached at Ambedkar Park, Shahbad Dairy, Village Prahlad pur, where he met complainant Shiv Charan as well as accused Devender Kaushik. He deposed that there was a dispute regarding construction of pulia by accused Devender Kaushik and the construction work of said pulia was stopped. Thereafter, PW9 returned back to PS and lodged DD No. 39A Ex. PW9/B.
j) PW10 is Ct. Ravinder i.e. photographer Crime Team Outer District, who on 24.02.2012 took 15 photographs from digital camera and exhibited the said photographs as Ex. PW6/B (colly).
k) PW11 is Ct. Kamal i.e. videographer Crime Team Outer District, who on 24.02.2012 took the videography of the demarcation programme and exhibited the CD on record as Ex. PW6/A.
l) PW12 is ASI Satyaveer, who was posted in PCR Outer Zone and who on 12.01.2012 on receipt of information about quarrel at khasra no. 52/1, Village Prahladpur went to the spot, where he met caller Shiv Charan. He also found accused Devender Kaushik present over there.
m) PW13 is HC Rajesh Kumar i.e. DO, who had recorded FIR Ex. PW13/A and also made endorsement Ex. PW13/B on rukka and also issued certificate Ex. PW13/C u/s 65B of Indian Evidence Act.
n) PW14 is Ct. Manish Joshi i.e. crime team photographer who on 14.01.2012 took 29 photographs of the place of occurrence. He SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 9 of 41 -10- exhibited the said photographs as Ex. PW14/A1 to Ex. PW14/A19 and their negatives as Ex. PW14/B1 to Ex. PW14/B19.
o) PW15 is Sh. Sanjeev Kumar, who fixed demarcation programme of khasra no. 52/1 on 24.02.2012 at 4:00 pm vide demarcation programme Ex. PW15/A and conducted demarcation proceedings and thereafter prepared demarcation report Ex. PW2/B. He also filed parawise reply to the questions of IO Ex. PW15/B.
p) PW16 is ASI Pawan Kumar, who had collected the set of photographs of the inspection proceedings from office of crime team and handed over the same to IO, who seized the same vide seizure memo Ex. PW16/A.
q) PW17 is Sh. Shamsuddin, who during investigation produced resolution passed in respect of property bearing khasra no. 52/1 and 52/10, Village Prahladpur Bangar. He exhibited the photocopy thereof as Ex. PW17/A and its seizure memo as Ex. PW17/A. He also provided demarcation report and exhibited the copy thereof as Ex. PW17/B which IO seized vide seizure memo Ex. PW17/C. He also signed the demarcation report as Ex. PW2/B at point X.
r) PW18 is ASI Mahavir, who on 12.01.2012 recorded DD No.20A Ex. PW9/A.
s) PW19 is Sh. Subhash Chand, who deposed that on 12.01.2012 he alongwith many persons of their Jatav society were present at the place of occurrence and accused extended threat to them by saying that he has a gun in his house and he would kill all of them.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 10 of 41 -11- During crossexamination by Ld. Addl. PP, he deposed it to be correct that accused Devender called him and his committee members as a chamar and extended threats.
t) PW20 is Sh. Rajender Singh, who has exhibited the LR form 38 as Ex. PW7/B as well as another LR form no. 38 as Ex. PW20/A. u) PW21 is retired ACP Kishan Mohan to whom complaint dated 13.01.2012 was marked by the then SDM Narela. He deposed to have sent the original complaint to SHO, PS Shahbad Dairy for registration of FIR vide his endorsement Ex. PW21/A.
v) PW22 is ACP Pradeep Kumar, who had joined the investigations on 14.01.2012 with IO ACP Hem Chand. He deposed that in his presence, tempo bearing no. DL1LK7402 was seized vide seizure memo Ex. PW6/D, LR forms 38 were seized vide seizure memo Ex. PW17/A, sheets were seized vide seizure memo Ex. PW6/F, documents of aforesaid tempo were seized vide seizure memo Ex. PW22/A. The documents produced by Shiv Charan were seized vide seizure memo Ex. PW22/B, the demarcation report of khasra no. 52/1 was seized vide seizure memo Ex. PW17/C, photographs produced by Balbir Singh were seized vide seizure memo Ex.PW22/C. He also deposed that accused Devender Kaushik was arrested vide arrest memo Ex. PW22/D and his personal search was conducted vide memo Ex. PW22/E. w) PW23 is Inspector Jai Prakash, who deposed that on 12.01.2012 he was on patrolling duty in the area and at about SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 11 of 41 -12- 12:30 pm, when he was passing Pooth Kalan Road, he saw local police and PCR staff. He found some dispute arose between accused Devender and the members of SC community regarding the digging of the road from his factory to main hole to the sewer line. However, the said construction work was got stopped at the instance of police. He also deposed that on 13.01.2012, an application from the office of SDM Narela was received which was made by Sh. Shiv Charan. He made endorsement Ex. PW23/A on the said complaint and handed it over to DO for the registration of FIR and after registration of FIR, investigations was handed over to ACP Hem Chand.
x) PW24 is Dr. B. M. Mishra, who made endorsement Ex. PW24/A and Ex. PW24/B on a letter received in his office DC NorthWest and marked it to ACP Bawana and tehsildar Narela. y) PW25 is retired ACP Hem Chand, who deposed regarding the investigations conducted by him. He exhibited the site plan Ex. PW25/A and got the place of occurrence photographed. He also seized the case property vide seizure memo Ex. PW6/A, Ex. PW22/A, Ex. PW25/B and Ex. PW25/C respectively. He also effected the arrest of accused Devender Kaushik vide memo Ex. PW22/D and conducted his personal search vide memo as Ex. PW22/E. He also collected the caste certificate of Ram Niwas as Ex. PW2/A, of Chander Bhan Ex. PW25/D, of Subhash Chander as Ex. PW25/E as well as Shiv Charan as Ex. PW25/F. He also SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 12 of 41 -13- seized the LR form 38 vide seizure memo Ex. PW7/A. He also collected demarcation report Ex. PW2/B and Ex. PW17/B as well as CD Ex. PW6/A prepared at the time of demarcation. He also obtained the complaint Ex. PW25/G u/s 195 Cr.P.C. from DC Kanjhawala. He also added offence u/s 188 IPC in terms of the order u/s 133 Cr.P.C. Ex. PW25/X passed by revenue department. He also seized the revenue record vide seizure memo Ex. PW22/B and exhibited the revenue record as Ex. PW25/H. He also collected the document Ex. PW15/C in respect of khasra no. 52/1. He also seized photographs taken by Balbir Singh as Ex. PW22/C, CD recorded by crime team vide memo Ex. PW16/A, photographs taken during demarcation vide memo Ex. PW3/B. Upon completion of investigation, he prepared the chargesheet.
11. Thereafter, statement of accused u/s 313 Cr.P.C. was recorded in which the entire incriminating evidence appearing against the accused was put to him, in which the defence of the accused was that he had been falsely implicated in this case by the complainant in connivance with other members of his community, as he refused to fulfill their illegal demand of giving Rs. 50,000/ as donation to their community. He also stated that the entire evidence appearing against him was false. However, he chose not to lead any evidence in his defence.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 13 of 41 -14-
12. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP for the State and Sh. Pradeep Rana, Ld. Counsel for the accused.
13. It was contended by Ld. Defence Counsel that in the present case, there is no evidence that accused was trying to make a road or pulia for repairing pulia or was constructing new pulia on the disputed land bearing Khasra No. 52/1. He has further argued that it has been proved from the testimonies of PW15 Tesildar and PW17 BDO and PW8 Kanoongo that the said land is a Gram Sabha land and does not belong to SC / ST community. He has also argued that there is no evidence whatsoever that the alleged castiest words were uttered by the accused against the complainant or the other members of SC / ST community in pubilc view, as PW1 Shiv Charan, PW2 Ram Niwas, PW6 Nanak Chand and PW19 Subhash Chand all belong to SC community, therefore, even if the said words for the sake of arguments, were uttered by the accused, the same cannot be said to have been said in public view i.e. in the view of persons who are impartial or unconnected with the complainant party in view of the settled law.
He further submits that only independent witness PW5 Om Prakash has not supported the prosecution story. He further submits that though the prosecution has relied upon an order u/S. 133 CrPC passed by DC North Ex. PW25/X for not raising any construction, however, neither the said order has been proved nor it has been SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 14 of 41 -15- proved that the said factory had been constructed by the accused in contravention of said document, as the original author of the said document has not been produced in the witness box and PW4 Suresh stated that the land belonged to him and he later on sold the same to the accused and there are number of other factories situated nearby. Therefore, no offence(s) u/S. 188 IPC / 506 IPC or under SC / ST Act are made out against the accused, who is liable to be acquitted. In support of his contentions, he has relied upon following judgments :
a) Resham Vs. Devender K.Yadav and Ors. MANU/DE/0576/2018;
b) D. P. Vats Vs. State and Ors. MANU/DE/0837/2002;
c) Kusum Lata Vs. State and Ors. MANU/DE/0517/2016.
14. On the other hand, Ld. Addl. PP for the State has argued that from the testimonies of PW1, PW2, PW6 and PW19, it has been established that the accused was trying to make a road and was repairing a pulia on the disputed land, bearing Khasra No. 52/1, which land was allotted to SC / ST community for Pashu Marghat and when the above witnesses objected to the construction of the pulia on the said land, the accused uttered castiest and derogatory words against them, which were made in full public view as well as intentionally and in this regard, the testimonies of PW1, PW2, PW6 and PW19 converges with each other and reinforce the said fact. He has further argued that in view of the said testimonies of the said prosecution witnesses, the prosecution has been able to prove that SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 15 of 41 -16- the accused had uttered castiest and derogatory words intentionally in public view, therefore, the prosecution has been able to make out the offence u/S. 3(i)(v)(x) SC / ST Act. He further submits that the accused had also threatened the above witnesses, when they objected to the construction of the above pulia with dire consequences, therefore, the prosecution has been able to make out a case u/S. 506 IPC.
He further submits that the prosecution has relied upon an order dated 13.12.2010 passed under 133 CrPC marked as Mark PW25/X passed by DC NorthWest prohibiting the carrying out of unauthorized construction in rural as well as urban areas, which is a public document and since the accused had constructed his factory and had also carried out repair of the pulia on the Khasra No. 52/1, therefore, the prosecution has also been able to prove its case u/S. 188 IPC.
15. I have gone through the rival contentions.
16. PW1 Shiv Charan in his testimonial deposition in the Court has deposed as under :
"I am residing at the above mentioned address and belongs to Jatav Chamar castes which is notified as Scheduled Castes. Accused Devender Kaushik present in the court today belongs to Brahmin Castes and he is also SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 16 of 41 -17- resident of my village. I am the President Bhartiya Bodh Mahasabha (Regd.), Delhi Pradesh and our branch office is situated in Ambedkar Bhawan, Village Prahladpur Bangar. Land situated in Khasra No. 52/1 in Village Prahaladpur Bangar was allotted to our community for Pashu Marghat by Gram Sabha since so many years back. The said land was also used by our Jatav community for marriage purpose and one Bodh Mandir was also constructed on the said land. Accused Devender Kaushik is running a factory which is producing refined oil in a land situated in Khasra No. 52/2 about one year prior to registration of the present case. Accused started making road forcibly from our community land i.e. Marghat Land in Khasra no. 52/1 for his factory. I along with other members of Jatav Chamar community had objected for the same and requested the accused not to make road from the said Khasra. But he did not pay any heed to our request. Thereafter, we called the police and police directed the accused not to make the road from the said land and we also told the accused that a case is already pending regarding the said land in Tis Hazari court. Thereafter, accused has stopped the work of the road at that time in the presence of the police. However, accused had not lifted the construction material i.e. cement, dust and concrete from there which were kept by him for the purpose of making the road. In the same night, accused had constructed the Pulia on the newly constructed road SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 17 of 41 -18- from our community land. In the morning of 13.01.12 when I along with Ram Niwas, Chander Bhan, Subhash, Tilakraj, Satprakash and other members of our community went to accused who was standing near the Pulia and we asked the accused why he has constructed the Pulia in the night despite assurance given by him to us and police in the day. However, accused abused us by using castiest words "Bahan Chod, Tumhe Jaan Se Maar Dunga Aur Jaida Bakwas Karoge Mere Father Police Me Hai Aur Kitna Kuch Kar Lo Police Hamari Jeb Me Hai Tum Kuch Nahi Bigad Sakti". This is what accused had said to us. These words were said in the presence of 50/100 public persons present there. We informed the PCR. PCR reached at the spot. By that time, accused had escaped from there. I had made a written complaint on the letter head of Bhartiya Bodh Mahasabha to DC, North West District, Kanjhawala on 13.01.12 and the same is Ex.PW1/A which bears my signatures at point A. Accused has installed submersible motor in his factory and lay drinking water pipeline till his house. My statement u/s. 161 Cr.P.C. was also recorded by the IO in this case.
At this stage, ld. Addl. PP wants to put a leading question to the witness with regard to alleged castiest words used by the accused at the time of incident. The request of ld. Addl. PP is opposed by ld. defence counsel on the ground that crux of the matter revolves around the use of casties words as witness has not uttered single SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 18 of 41 -19- castiest word which was alleged to have been used by the accused. It is submitted by ld. defence counsel that ld. Addl. PP cannot be allowed to put the words in the mouth of witness. The contention of ld. defence counsel appears to be forceful. The request of ld. Addl. PP is declined.
At this stage, ld. Addl. PP seeks permission to crossexamine the witness as the witness is resiling from the earlier statement made to the police. Heard. Allowed. XXXXX by Sh. Ram Pyara, Addl. PP for the state.
It is correct that I had mentioned in my complaint Ex.PW1/A that accused Devender Kaushik had abused me and other members of the community mentioned above by using castiest word "Chamar" in the presence of public persons. It is correct that I had also mentioned in my complaint Ex.PW1/A that accused had laid sewer pipes through our Marghat land in Khasra No. 52/1 prior to construction of Pulia. It is correct that I had forgotten abvoe said facts due to lapse of time."
17. The above witness did not say about the castiest words in his examination in chief and only on being declared hostile, he stated those words in his crossexamination by public prosecutor, as stated above. In his crossexamination, he has stated that he handed over document showing Khasra No. 52/1 was alloted to Jatav Samaj. Later on he said that no document was given. He further stated that one Bigha seven Biswas was alloted to Jatav Community in 52/1. The land was never demarcated or bounded. He has further stated SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 19 of 41 -20- that he had not handed over any document to the IO showing that it was allotted for Pashu Marghat. He further stated that it is correct that he had not mentioned in his statement Ex. PW1/A that accused specifically addressed him by calling him Chamar. He further stated that Ex. PW1/A was written by one Ram Niwas in his own handwriting. He further stated that he did not reveal name of any non schedule caste person present in gathering there at the time of hearing to the IO.
18. PW2 is Ram Niwas, who has claimed himself to be a general secretary of shakha Bhartiya Bodh Sabha and was schedule caste that, that further one Bigha seven Biswas in Khasra No. 52/1 was allotted to Harijan Committee in Village Prahladpur Bangar for Pashu Marghat. He further stated that the accused was trying to grab the land of harijans by making a way to his factory from the aforesaid Khasra No. 52/2 while passing from Khasra No. 52/1. When they objected to the same, accused used castiest remarks against them on 12.01.2012 and in this regard, he has more or less corroborated the testimony of PW1.
In his crossexamination, after being shown the site plan Ex. PW25/A, he stated as under :
"It is correct that the service road at point A shown in the site plan MarkA, is coming from Bawana Prahladpur Main Road and going to Pooth Kalan Village towards A SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 20 of 41 -21-
1. The Bawana Prahladpur road is about 100 mtrs away from the Khasra No. 52/1. There are three factories on the said service road upto khasra no. 52/1. It is correct that the service road which has been at point A is having nalas on the both sides of the said road. It is correct that the said nalas and the service road at point A have been constructed by the government. The nala towards the factories is at point B, which is going besides the said road towards the Pooth Village. It is correct that all the factories constructed or situated on both the sides of the road evict their wastes and water in the nala which has been shown at point B on markA. It is correct that all the factory owners have constructed their respective pulias/ramp in front of their factories so their vehicles can cross the said nalas and their water can safely come in the said nala without spreading here and there by putting their respective pipes inside the ramps."
19. He further stated in his crossexamination that it was correct that the factory of Devender Singh falls in Khasra No. 52/2, which has been purchased from the previous owner, situated at point E. He further stated that accused used the castiest remarks on 12.01.2012 in presence of Shiv Charan, Ghasi Ram, Mahender Singh, all belonging to their community. He further stated that he did not name any non schedule caste person, who witnessed the incident. He also stated that it was Shiv Charan, who had made a complaint Ex. PW1/A and not him.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 21 of 41 -22-
20. PW4 is Suresh Kumar, who had sold the plot in question in Khasra No. 52/2 to accused in the year 2010. In his cross examination, he has deposed as under :
"It is correct that when I purchased the said land, the pulia shown at point J on site plan mark A, was existing and it was built up by the government. It is correct that I alongwith the other factory owners used to use the street/road from F1 to F2 in order to reach our factories from the main service road. There are 100s of factories situated on the road i.e. F1 to F2 and thereafter, the factory of Devender who all, used to use the said street and pulia as there was no other way for those factory owners. I am resident of the village Prahladpur Banger since by birth and as per my knowledge, the road shown in the MarkA from F1 to F2 and pulia at point J used to be used by all the villagers and factory owners and laboureres and their vehicles for their ingress and outgress. It is correct that the pipeline was already installed under the street of F1 and F2 when I purchased the said land that used to carry the water and wastage of the factories to the nala under the point of J in site plan. It is correct that in 2012, the pulia at point J in site plan and the sewage pipe under the street of F1 and F2 got dilapidated/damaged/leaked so factory owners of the area were repairing the pulia and SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 22 of 41 -23- the pipe of the said road for the purpose of smooth vacating of their wastage and water into a nala to which some dispute arose between the factory owners and the Schedule Caste Community of our village."
21. PW5 is Om Prakash, who has not supported the prosecution version regarding the saying of castiest words by the accused being the sole independent witness, despite being declared hostile by Ld. Addl. PP for the State, he did not say a single incriminating fact against the accused. Rather, in his examinationinchief, he stated that Khasra No. 52/1 belongs to Gram Sabha Village Prahladpur Bangar and one Mahavir S/o. Hem Chand had illegally occupied some portion of the same and after a court case, a portion of land was taken back by the office of BDO. The other portion of khasra no. 52/1 was lying vacant and villagers used to throw garbage there. In his crossexamination by the defence, he stated that it was correct that Ram Niwas and Shiv Charan have made an organization in the name of Bhartiya Budh Maha Sabha Delhi Pardesh and it is correct that the members of Bhartiya Budh Maha Sabha demanded an amount of Rs. 50,000/ from Devender Kaushik and on his refusal to make that payment, they made a false complaint against him in order to extort money from accused Devender Kaushik.
22. PW6 is Nanak Chand, who has deposed on the same lines, as has been deposed by PW1 and PW2. In his crossexamination, he SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 23 of 41 -24- stated that the abuses were hurled by accused to Ram Niwas Masterji, Shiv Charan and Chander Bhan, who were all members of SC / ST community by saying "chamaar" and one Karan Singh Kaushik was also present there, but he did not disclose the name of the said person during the investigations.
23. PW19 is Subhash Chand, who had also deposed on the lines of PW1, PW2 and PW6. However, he did not say the castiest words used by the accused in his examinationinchief and only on being declared hostile by the Ld. Addl. PP for the State, he stated that accused said castiest words including the words chamaar to their community. He explained that he forgot to tell those words and recollected the same later on.
In his crossexamination he stated that on 12.01.2012, he was having two mobile phones, but he did not make a call at 100 number from his mobile and did not make any written complaint to the police that accused passed castiest remarks on 13.01.2012 in the morning in the presence of himself, Ram Niwas, Shiv Charan, Jagbir, Rattan Singh, Jitender apart from Jatav community members, there were other community members also present, when the accused made those remarks, but he cannot tell their names.
24. PW8 is Sh. Praveen Bharadwaj, Kanoongo, who stated that as per the records for the year 199697, 199798, Khasra No. 52/1 land SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 24 of 41 -25- was shown as Gram Sabha Marghat and for the year 19992000, the said khasra no. 52/1 is shown as Temple Jatav Samaj. In his cross examination, he stated as under :
"I do not have any knowledge as to what is the basis of entry of jatav samaj temple in khasra no. 52/1 as mentioned in Ex. PW8/C. I cannot tell whether the said temple was made after taking the permission from the competent authority or it was unauthorized construction. I do not know whether any such temple exists actually at the spot or not. At present I do not have any document to show the existence of temple in khasra no. 52/1.
I cannot comment to the suggestion that no such jatav samaj temple is exists in khasra no. 52/1 or that a false entry has been shown in order to support the case of prosecution."
25. Further, PW15 is Sh. Sanjeev Kumar, who was working as Tehsildar, who stated that on 23.02.2012 on the request of the IO, he fixed demarcation programme of Khasra No. 52/1, village Prahaldpur Bangar and the vide demarcation programme Ex. PW15/A. In his crossexamination, he has stated that it was correct that khasra no. 52/1 is a land of Gram Sabha i.e. Government land.
26. PW17 is Sh. Shamshuddin, BDO, who had stated that he was working as VLW in the office of BDO, NorthWest and on the notice of the IO u/S. 160 CrPC, he produced one copy of resolution passed SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 25 of 41 -26- in respect of Khasra NO. 52/1 and 52/10, village Prahaladput Bangar. As per the resolution the land bearing khasra no. 52/1 and 52/10 was allotted to schedule caste (Jatav) for construction of Bodh Temple. The copy of the same is Ex. PW7/C and he has also provided demarcation report Ex. PW17/B. However, in his crossexamination he had stated that he cannot tell the date, month or the year when the said resolution register was deposited in the office of BDO and it was correct that no such resolution can be passed without the prior permission of LG. Vol. during those days Director Panchayat and the Pradhan were the competent authority to pass such resolution. He further stated that on 03.02.2012, when his statement was recorded by the IO, as per his knowledge, the land bearing Khasra No. 52/1 was in the name of Gram Sabha.
27. PW20 is Rajender Singh, who has claimed himself to be the Pradhan of the village in question, who has stated that the land in khasra no. 52/1 was allotted to Schedule Caste community of the village by Delhi Administration and on 02.04.1988 the resolution was not passed for allotment of land in khasra no. 52/1 and 52/10 for the construction of Bodh Temple. In his crossexamination, he stated that he has no documentary proof to show that he was Pradhan of the village from December 1983 to 1989. He also admitted that in order to allot the land to any community, the permission of L.G. is SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 26 of 41 -27- required.
28. From the analysis of the above evidence of the prosecution witnesses, as discussed above and from the perusal of the site plan Ex. PW25/A, it is apparent that there was a service road at point A, as shown in the said site plan coming from Bawana Prahaladpur main road and going towards Pooth Kalan village and there are factories on the service road up to khasra no. 52/1 and the service road is having nalas on both sides of the said road and the said nalas and the service road have been constructed by the Government. Further that there are various factories constructed on both sides of the road and all the factory owners have constructed their respective ramps / pulia in front of their factories, so that vehicles can cross the nalas and that the factory of the accused is situated in khasra no. 52/2 at point E and the street road has been shown at point F1 to F2 and that there was a street connecting the service road at point G going towards Harijan Basti and there is a pulia on the nala at point H for smooth ingress and egress. The disputed pulia is at point J and no document has been shown that the said pulia at point J, falls in khasra no. 52/1.
29. It has also been established that the place where the accused was constructing the pulia was already having the pulia, which was dilapidated with the passage of time. Initially the said pulia was SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 27 of 41 -28- constructed by the Government. This fact has been admitted by PW2 in his crossexamination. However, there is no evidence that accused was constructing the said pulia, as no construction material has been seized by the investigating agency. In any case, the said pulia was already existing prior to the lodging of present FIR.
30. Regarding the fact that the land was allotted to Pashu Marghat for SC / ST community, as already discussed in the testimonies of PW5 Om Prakash, PW8 Praveen Bharadwaj, Kannongo, PW15 Sanjeev Kumar, Tehsildar, PW20 Shamshuddin, BDO and from the documentary evidence produced by those witnesses, it appears that the land in dispute for the purpose of adjudicating the present case was allotted to Gram Sabha Marghat. As relevant khasra girdwaries and the other documents produced on the record shows the same. In fact PW8 in his crossexamination has admitted that he does not have any knowledge, as to what was the basis of the entry of Jatav Samaj temple in khasra no. 52/1 as mentioned in Ex. PW8/C and he also stated that he cannot comment to the suggestion that no such temple exists in khasra no. 52/1. However, the Tehsildar PW15 has categorically stated that the khasra no. 52/1 is a gaon sabha land. Same is the testimony of PW8. Therefore, from the above analysis of the testimonies of the official prosecution witnesses belonging to the revenue department and the documents produced in support thereof, it appears that the khasra no. 52/1 was a Gram Sabha land.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 28 of 41 -29- This limited finding has only been given for the adjudication of the present dispute.
31. However, no conclusive finding can be given by this Court on this issue, as this Court is ill equipped to do so, as it is a question of title which can only be adjudicated by a civil court of competent jurisdiction. Therefore, this issue is left open to be adjudicated in such proceedings. Nothing observed herein above shall be construed as conclusive finding on this issue.
32. However, in view of the above discussion the very genesis of the dispute in question as projected by the prosecution is itself in grave doubt.
33. There is no evidence that the accused constructed his factory in violation of the notification dated 13.12.2010 Mark PW25/X, as the said notification has not been proved as neither the author of the said notification has been produced nor the certified copy of the said notification or the original there of has been proved on the record. Therefore, there is no evidence on the record that accused had constructed his factory in the agricultural land in khasra no. 52/1, village Prahladpur Bangar and was trying to make a road and was laying sewage pipe in contravention of the above said notification. Therefore, prosecution has failed to make out a case u/S. 188 IPC.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 29 of 41 -30-
34. With regard to the charge(s) u/S. 3 (i)(v)(x) of SC/ST Act and 506 IPC, the relevant law in this regard is as under :
It has been held in W.P (Crl.) 3083/2016 decided on 03.07.2017, titled as Gayatri vs. State and ors that: "3. (1) whoever, not being a member of 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;
Shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
II "15. Basic ingredients for the offence under Clause (x) of Subsection (1) of Section 3 of the Act, revealed through the bare reading of this section are as follows: (a) there should be intentional insult or intimidation by a person, who is not a member of SC or ST; (b) the insult must be with an intent to humiliate the member of the SC or SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 30 of 41 -31- ST As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST this can be inferred even from long association; and (c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view" as long as it is within the "public view". The requirement of "public view" can be satisfied even in a private place, where the public is present....."
III " In the present case, we are concerned with the first two ingredients and it emerges therefrom that a case wold fall under the first sub section only 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 subsection (1) (x) would not be constituted. Similarly if his utterance was not directed against a member of SC/ST in SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 31 of 41 -32- 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 generalized terms against all and sundry and it is not individual specific in the name of caste, if would not make out an offence under the subsection, the rationale being that intentional insult, intimidation and humiliation made in the name of caste 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.
IV. Daya Bhatnagar (Supra) was a decision rendered by the learned Single Judge on a reference being made to him on account of a difference of opinion between two learned judges constituting the Division Bench. The learned single SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 32 of 41 -33- Judge S.K. Aggarwal, J. concurred with the view of B.A. Khan, J and disagreed with the view of V.S. Aggarwal, J. S.K. Aggarwal J. approved the following observation of B.A. Khan, J. in his opinion:
"If the accused does not know that the person whom he was intentionally insulting or intimidating or humiliating is a member of SC or ST, an offence under this section would not be constituted. Similarly, if he does not do all this at any place within "place view", the offence would not be made out. Therefore, to attract an offence under section 3 (i) (x), an accused must know that victim belongs to SC/ST caste and he must intentionally insult, intimidate him/her at a place within "public view". The place need not be a public place. It could be even at a private place provided the utterance was made within "public view".
V. S.K. Aggarwal, J. proceeded to examine the meaning of the expression "public view" used in section 3(1) (x) of the SC/ST Act. He referred to the meaning of the word "public" found in legal SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 33 of 41 -34- dictionaries, and also referred to the statement of Object and Reasons of the SC/ST Act. After analyzing the provisions of the SC/ST Act and in particular subclause (X) of Section 3 (1) of the said Actwhich makes "utterances punishable", he observed:
"The Legislature required 'intention' as an essential ingredient for the offence of Insult', "Intimidation" and "humiliation" of a member of the Scheduled Casts of Scheduled Tribe in any place within "public view". Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking at the aims and objects of the Act, the expression "public view" in Section 3 (i) (x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 34 of 41 -35- association with the complainant, would necessarily get excluded. I am again in agreement with the interpretation put on the expression "public view" by learned Mr. Justice B.A Khan. The relevant portion of his judgment reads as under: "I accordingly hold that expression within "public view" occuring in section 3 (i) (x) of the Act means within the view which includes hearing, knowledge or accessibility also, of a group of people of the place/locality/village as distinct from few who are not private and are as good as stranger and not linked with the complainant through any close relationship or any business, commercial or any other vested interest and who are not participating members with him in any way. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view, within the meaning of the expression used. It has been held in W.P (Crl) no. 1593/2006 and Crl. M.A. No. 6859/2006, decided on 09.01.2009, titled as Ashwani Kumar vs. State and Anr. Proposition of law thus is clear. Simply because section 3 (1) (x) of SC/ST Act finds SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 35 of 41 -36- mention in the FIR by itself cannot be a ground to conclude that prima facie an offence under the alone said Section of SC/ST Act has been made out. Judicial scrutiny of the documents in such like cases is permissible to evaluate whether the material relied upon by the prosecution revealed that existence of basic ingredients of the offence or not. For that limited purpose, the Court can sift and weigh the material placed before it, before examining the question whether on the allegations made in the FIR, prima facie any offence under section 3(1) (x) act is made out.
As an adjective, 'public' wold have meaning upon the subjects to which it is applied. SC/ST Act has been enacted with a view to protect a weaker section of the Society from various kinds of atrocities that might be perpetrated against SC/STs which find enumeration in section 3 of the SC/ST Act as Constituting an offence court has to keep in mind that offence under the SC/ST Act are quite grave and provide stringent punishment an therefore, stronger proof is required, Court has to adopt an interpretation which suppresses or SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 36 of 41 -37- evades the mischief which might have been played and advances the object of the Act. Therefore, 'public view' appearing in section 3(1) (x) of SC/ST Act has to be interpreted to mean the presence of the public persons, however small may be, and those persons are 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 have to be excluded from the definition of 'public view'. I accordingly hold that expression within 'public view' occurring in Section 3 (1) (x) of the Act means within the view which includes hearing, knowledge or accessibility also, of a group of people of the place/locality/village as distinct from few who are not private and are as good as strangers and not linked with the complainant through any close relationship or any business, commercial or any other vested interest and who are not participating members with him in any way. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view' within the meaning of the expression used.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 37 of 41 -38- Public view. envisages that public persons present there should be independent, impartial and not having any commercial or business relationship, or other linkage with the complainant. It would also not include persons who have any previous enmity or motive to falsely implicate the accused persons. However, merely because a witness, who is otherwise neutral or impartial and who happens to be present at the house of the victim, by itself, cannot be disqualified.
35. As already discussed during the testimonies of PW1 Shiv Charan, PW2 Ram Niwas, PW6 Nanak Chand and PW19 Subhash Chand, there is no independent witness in whose presence or in whose view or audience, the alleged castiest and derogatory remarks were uttered by the accused. The only independent witness in this case namely PW5 Om Prakash has turned hostile and has not supported the prosecution story with regard to the utterance of castiest / derogatory remarks. The IO PW25 Retd. ACP Hem Raj stated in his crossexamination that during entire investigations, complainant Shiv Charan and Ram Niwas had not produced any witness, who did not belonged to SC community with regard to the incident. Even in his investigations, he tried to search such witness, SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 38 of 41 -39- but none came forward.
36. As already discussed above, PW1 had not even stated regarding the castiest remarks in his examination in chief and only on being declared hostile, he stated those words and PW2 has stated that he does not know the name of non scheduled caste persons, who witnessed the incident and PW6 Nanak Chand stated that the abuses were hurled in the presence of members of SC / ST community by saying "chammar". He also mentioned the name of one Karan Singh Kaushik, but the said witness was not produced. PW19 Subhash Chand in his crossexamination stated that when the said castiest remarks were made apart from Jatav community members, there were other community people, but he cannot tell their names.
37. PW5 rather made allegations in his crossexamination that the members of the complainant used to demand donations from the factory owners of the area and they had also demanded Rs. 50,000/ from accused and on his refusal, falsely implicated him in this case.
38. As already discussed above, the expression public view is to be interpreted to mean that the public persons present should be independent and impartial and not interested in any of the parties by close relationship or association with the complainant.
SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 39 of 41 -40-
39. As already discussed above, all the relevant prosecution witnesses with regard to this charge i.e. PW1, PW2, PW6 and PW19 belong to the same Jatav Samaj and were members of Bhartiya Bodh Maha Sabaha, therefore, they cannot be said to be independent witnesses. Therefore, the said words cannot be said to have been made in public view, which is the most necessary ingredient of the above section.
40. Even otherwise, the words allegedly used by the accused were said to be of general nature and were not directed against any specific member of SC / ST community, which is sine qua non of the ingredient of above section.
41. Further, even otherwise no call was made to the police immediately at the time of the incident or thereafter and therefore, the chances of false implication of the accused in this case due to land dispute is highly probable. Therefore, the probative force of the defence version is quite high on the probative scales, where the probability of happening of any event is measured or assessed.
42. In nut shell, taking the probative force of the prosecution evidence as a whole on the probative scales, where the probabilities of happening of any event is measured or assessed, the same is on the lower side, whereas the defence version on such scale of 0 to 1 SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 40 of 41 -41- is on the higher side. If the same has to be quantified on the said scale, it can be numbered randomly to around .7 or 70%, whereas the prosecution version would be around .3 or 30%. On such kind of scanty or inconclusive evidence the accused cannot be convicted. In these circumstances, the accused stands acquitted of the charge(s) under Section u/s 188/506 IPC as well as for offence(s) punishable u/s 3(i)(v) of SC/ST (Prevention of Atrocities) Act, 1989 & 3(i)(x) of SC/ST (Prevention of Atrocities) Act, 1989.
43. Accused is directed to furnish his personal bond for the sum of Rs.25,000/ with one surety of like amount in compliance of Section 437A Cr.P.C. Documents, if any be returned after cancelling the endorsement, if any, on the same, to the concerned person.
44. File on completion be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal) th on 12 day of Oct. 2018 Addl. Sessions Judge02,North Rohini Courts, Delhi 12.10.2018 SC No. 57634/16; FIR No.18/12; PS. Shahbad Dairy; State Vs. Devender Kumar Kaushik; Page No. 41 of 41