Delhi District Court
Sc No. 59439/16; Fir No.548/2016, Ps ... vs . Vijay Kumar Page No. 1 Of 26 on 13 December, 2018
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No...................................59439/16
FIR No. 548/2016
P.S. Bhalaswa Dairy
U/s. 3 (1) (r) of
Schedule Caste and
Schedule Tribes
(Prevention of
Atrocities) Act
State
Versus
Vijay Kumar
S/o. Sh. Mange Ram
R/o. H. No. 38, Main Road,
Mukundpur Village, Delhi.
Date of institution: 21.12.2016
Judgment reserved on: 05.12.2018
Judgment delivered on: 13.12.2018
ORDER/JUDGMENT :
J U D G M E N T
1.The prosecution story as set out in the chargesheet is that a written complaint was lodged by complainant Sh. Pradeep S/o Sh. Jai Singh R/o H. no. 83, Balmiki Mohalla. The gist of the said written complaint is as under:
SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 1 of 26 2 "That Vijay Rajput S/o Mange Ram Rajput and Balbir have uttered chura, bhangi and alleged the complainant to be the police dalal and the said persons have used abusive language against the complainant and also passed castiest remarks and thus he prays that appropriate action be taken under SC/ST Act and the complainant further alleged that the said persons had also threatened to kill him".
2. On the basis of contents of said complaint, an inquiry was conducted and prima facie offence punishable u/s 506 IPC and 3(1) (r) SC/ST Act was found made out. Accordingly, SHO, PS Shahbad Dairy made an endorsement for registration of a case under Section 506 IPC and 3(1) (r) SC/ST Act and for handing over the investigation to Sh. Prashant Gautam, ACP (Jahangir Puri). During investigation, IO has prepared the rough site plan of the place of occurrence and also recorded the statements under Section 161 Cr.P.C. of the witnesses.
3. During investigation complainant had produced his caste certificate which was seized through seizure memo. The said caster certificate was also got verified from SDM Civil Line and was found correct and genuine.
During investigation accused Vijay Rajput moved an application for anticipatory bail before the concerned court and accused was SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 2 of 26 3 directed to surrender before the concerned court and accordingly accused Vijay Rajput surrendered himself on 16.11.2016 and was arrested. After completion of investigation, chargesheet was filed.
4. After hearing arguments on charge vide order dated 22.02.2018, a charge for offence(s) u/s Section 3 (1)(r) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act was framed against accused Vijay Rajput to which he pleaded not guilty and claimed trial.
5. Thereafter, prosecution has examined 6 witnesses in support of its case.
6. PW1 is W/ASI Runa Rathore i.e. the Duty Officer, who registered FIR Ex.PW1/A. She also made endorsement Ex.PW1/B on rukka. She also issued certificate u/s 65B of Indian Evidence Act Ex. PW1/C.
7. PW2 is Sh. Balbir who deposed as under:
"That he is a Jaat by caste. He knew accused Vijay Kumar and Pradeep, who is the complainant of the present case. Accused Vijay Kumar was having a property dealing office in the Guru Nanak Dev Colony, Village Bhalaswa and he has visiting terms with him. Pradeep used to sit in his office and deal SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 3 of 26 4 with the property dealing business from his office. He also deposed that initially, Pradeep had made complaint against him and accused Vijay to the police under SC/ST Act and thereafter he contacted him and asked him to become a false witness against Vijay, if he wanted to save himself from the legal consequences. Pradeep terrorized him. Pradeep took him to the police station in pursuant to the complaint filed by him. On the asking of the Pradeep, he had signed some blank papers at the police station under the pressure of Pradeep. He also deposed that after 1 or 2 two days, Pradeep again took him to the police station and on the way he tutored him that he had to make a false complaint to the police by saying that on the way Vijay had used castiest word against him (Pradeep) in public. He also deposed that however, no such incident had taken place and Vijay had never used any castiest word against Pradeep. By putting pressure upon him, Pradeep made him to state forcibly before the police that on the way accused Vijay had used castiest word against Pradeep. He also deposed that he asked from Pradeep "chacha hamare saath aisa kyun kar rahe SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 4 of 26 5 ho, kya galti ho gayi". Under the pressure, his statement was got recorded by Pradeep before the police, however, Vijay never insulted Pradeep nor he used any castiest word against him at any point of time.
Since this witness has turned hostile, he was crossexamined by Ld. Addl. PP for the State, but despite crossexamination, he failed to support statement mark PW2/A. PW3 is complainant Sh. Pradeep, who deposed that he belong to Valmiki Caste. On 11.03.2016, at about 2:00 pm, he alongwith Balbir went to the property office of Vijay Rajput i.e. accused. The said office is situated at Jhimar Village. In fact, he had only accompanied Balbir to the office of accused Vijay Rajput, as he had to talk to accused Vijay Rajput in relation to some property. At the said office, Balbir talked to accused Vijay Rajput for some time in regard to some plot. During conversation, Balbir and Vijay at some distance from him talked with each other. He was not aware as to what was the said conversation about. Thereafter, he returned back to his house. He also deposed that on 12.03.2016, Balbir made a phone SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 5 of 26 6 call to him and called him at his office at Main Road Radha Vihar. Accordingly, he went to the said office. There he met Balbir. At the said office, Balbir informed him that accused Vijay Rajput had been using abusive language against him, when they visited at his office on 11.03.2016. He also deposed that Balbir further informed him that he had recorded the said conversation which took place between him and accused Vijay Rajput. Balbir also played the said conversation over his phone and he heard the said conversation, which he played for a brief duration and thereafter he had not made him heard the complete conversation recorded in the said mobile. He also deposed that thereafter, on 13.03.2016, he had again visited the office of Balbir. In the said office, he found the mobile phone of Balbir put for charging. At that time, Balbir went to his house for taking lunch. In the said office, he picked up the mobile phone of Balbir and heard the complete conversation recorded in the said mobile. In the mobile phone, it was recorded that accused Vijay Rajput was saying Balbir not to remain in his (PW3) company and he further uttered the words regarding him SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 6 of 26 7 (PW3) "Wo chura hai, bhangi hai, police ka dalal hai, mukhbir hai aur hamare level ka nahi, iske saath mat baitha kar". Thereafter, he transferred the said recording / conversation over his mobile phone. Upon the return of Balbir to his office, he had informed him that he had heard the conversation recorded in his mobile and thereafter, he had accompanied Balbir to the office of accused Vijay, but on the way they met accused Vijay and he inquired from accused Vijay as to how he uttered the said words. Accused Vijay threatened him as to how dare he was making such inquiries from him and he uttered the words "Teri aukat hai mere samne bolne ki, chala ja warna marwa dunga". Thereafter, he had discussed the said occurrence with his family members. He also deposed that he had lodged a complaint to SHO concerned on 19.03.2016 and on 21.03.2016, he had lodged complaints before ACP/DCP/Commissioner of Police/SC/ST Commission as well as to Home Ministry. He also exhibited copy of said complaint as Ex. PW3/A. He also deposed that after lodging the complaint, Balbir met him at his office and informed him that SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 7 of 26 8 accused Vijay alongwith his 3 to 4 associates had visited his house and threatened him that in case he would depose against him, he would have to meet with dire consequences. Thereafter, Balbir had also lodged a complaint to concerned SHO regarding the said criminal intimidation by accused. He also deposed that on 27.03.2016, when he left his house for a morning walk and was present at near Bhalaswa Jheel during the morning hours, 4 boys came there and gave beatings to him and threatened him for withdrawing the complaint against accused Vijay Rajput and in case he would depose against him he would have to meet with dire consequences. On the same day, he had made a call at number 100 and PCR officials took him to BJRM Hospital, where he was medically examined and on his complaint police registered the complaint and lodged Non Cognizable Report. He also deposed that during investigation, he had handed over his caste certificate to the police which IO had seized vide seizure memo Ex.PW3/B. He also exhibited the copy of the caste certificate as Ex. P1. He also deposed that during investigation, he had transferred the said SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 8 of 26 9 conversation in a DVD and handed over the said DVD to IO. He also deposed that he has not brought his mobile phone, as his said mobile instrument has been stolen and thus the said conversation/recording is not available.
8. PW4 is Sh. Rajender Kumar, who has brought the summoned record and deposed that the said caste certificate was issued to Sh. Pradeep Kumar. He also exhibited the copy of said caste certificate as Ex. P1.
9. PW5 is SI Rajender, who on 15.11.2016, on the instructions of IO went to the house of accused Vijay Kumar and made inquiries about his residence.
10. PW6 is Sh. Prashant Gautam, who had conducted the investigations and seized the caste certificate vide seizure memo Ex. PW3/B. He also effected the arrest of accused Vijay vide arrest memo Ex. PW6/B and conducted his personal search vide memo Ex. PW6/C and upon completion of investigations prepared chargesheet.
11. After the conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. However, accused chose not to lead any evidence in his defence.
SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 9 of 26 10
12. I have heard Sh. Gaurav Bhatia, Ld. Counsel for the accused as well as Ld. Addl. PP for the State.
13. The Ld. Defence Counsel has argued that there are only two public witnesses examined during trial. However, PW2 Balbir has not supported the case of the prosecution and was declared hostile by Ld. Addl. PP for the State, but despite detailed cross examination, PW2 has failed to support the statement mark PW2/A. He also argued that in fact PW3 Sh. Pradeep Kumar i.e. complainant has got registered false case against the accused and has also deposed falsely as the complainant was having personal grudge against the accused, as there was a rivalry due to the business of property dealing between the accused and the complainant and in order to teach accused a lesson, complainant created a concocted story, as the accused had sold so many plots in which the negotiations talks were going on with the complainant.
Ld. Defence counsel has also argued that the complainant i.e. PW3 had also roped / arrayed PW2 Sh. Balbir who is a prosecution witness as an accused in complaint Ex. PW3/A on the basis of which the present case was registered. Ld. Defence counsel has also argued that even complainant has not been able to provide his mobile instrument to the investigation agency and thus Ld. Defence counsel prays that accused be acquitted.
SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 10 of 26 11
14. On the other hand, Ld. Addl. PP for the State has vehemently opposed the above contentions, stating that the complainant i.e. PW3 has supported the case of the prosecution and has categorically deposed against the accused, therefore, the prosecution has been able to prove its case u/S. 3(1)(r) of SC & ST (Prevention of Atrocities) Act, 1989, beyond any shadow of doubt.
15. With regard to the charge(s) u/S. 3 (i)(r) of SC/ST Amendment Act, 2015, which was earlier an offence u/s & 3(1) (x) & (xi) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act 1989, 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 SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 11 of 26 12 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 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 subsection 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 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).
SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 12 of 26 13 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 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 SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 13 of 26 14 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 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 SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 14 of 26 15 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 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"
occurring 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 SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 15 of 26 16 Kumar vs. State and Anr.
Proposition of law thus is clear. Simply because section 3 (1) (x) of SC/ST Act finds 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 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 SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 16 of 26 17 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.
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 SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 17 of 26 18 at the house of the victim, by itself, cannot be disqualified.
16. As per the case of the prosecution only one independent public witness had been cited in the chargesheet and was examined during trial i.e. PW2 Sh. Balbir Singh, however, PW2 has not supported the case of the prosecution in any manner. Rather he deposed as under:
"That he is a Jaat by caste. He is in the property dealing business. He know accused Vijay Kumar as well as Pradeep, who is the complainant of the present case. Accused Vijay Kumar was having a property dealing office in the Guru Nanak Dev Colony, Village Bhalaswa and he has visiting terms with him. He also deposed that Pradeep used to sit in his office and deal with the property dealing business from his office.
He also deposed that initially, Pradeep had made complaint against him and accused Vijay to the police under SC/ST Act and thereafter he contacted him and asked him to become a false witness against Vijay, if he wanted to save himself from the legal consequences. He also deposed that complainant terrorized him and took him to SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 18 of 26 19 the police station in pursuant to the complaint filed by him. On the asking of the Pradeep, he had signed some blank papers at the police station under the pressure of Pradeep.
He further deposed that after 1 or 2 two days, Pradeep again took him to the police station and on the way he tutored him that he had to make a false complaint to the police by saying that on the way Vijay had used castiest word against him in public. However, no such incident had taken place and Vijay had never used any castiest word against Pradeep. By putting pressure upon him, Pradeep made him to state forcibly before the police that on the way accused Vijay had used castiest word against Pradeep. He further deposed that he asked from Pradeep "chacha hamare saath aisa kyun kar rahe ho, kya galti ho gayi". Under the pressure, his statement was got recorded by Pradeep before the police, however, Vijay never insulted Pradeep nor he used any castiest word against him at any point of time.
SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 19 of 26 20 This witness was declared hostile by Ld. Addl. PP for the State and was crossexamination with the permission of the court. However, in the said crossexamination, this witness has denied to make statement mark PW2/A before the police and remained hostile despite the detailed cross examination by the Ld. Addl. PP".
17. That complainant PW3 Pradeep Kumar has deposed in corroboration to the complaint Ex. PW3/A, but during cross examination he admitted prior to doing the property dealing business, he was working with accused Vijay, as his collection agent, as accused Vijay was having business of construction material and he was employed by accused Vijay to collect the payments.
He also deposed that he had worked with accused Vijay for about one year and thereafter left the said job. No money was due from accused. He also volunteered that accused had paid him more than the salary. He also deposed that after leaving the said job, he started working with Balbir in the property business by making a group. He also deposed that there were 4 to 5 boys in the said group doing property business together. He also deposed that accused Vijay and Dharambir Yadav were doing separate property business from them.
He also admitted it to be correct that on 11.03.2016, he had not SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 20 of 26 21 heard any conversation which took place between Balbir and accused Vijay, he also admitted that he himself had not heard as to what conversation / talks were exchanged between accused Vijay and Balbir.
He also admitted to be correct that he is not in a position to produce the said mobile in which the said conversation was recorded by him as claimed by him.
He also admitted to be correct that in complaint Ex. PW3/A, he had arrayed Balbir as an accused. He showed his ignorance if Balbir had been cited as witness in this case. He also admitted to be correct that in his complaint Ex. PW3/A, he had not named any person, who might have heard the conversation which as per his claim took place between accused and him.
He also deposed that he had made statement before the IO of the present case regarding the incident dated 27.03.2016. This witness was also confronted with his previous statement i.e. complaint Ex. PW3/A where the word "Wo chura hai, bhangi hai"
has not been found so recorded.
Thus, from the crossexamination of PW3 Pradeep Kumar, it is clear that the testimony of PW3 is hearsay evidence which is not admissible. Though this witness has claimed that he had loaded the said conversation into his mobile phone from the mobile phone of PW2 Balbir, but he categorically admitted and deposed that he is not in a position to produce any such recording, as the mobile SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 21 of 26 22 phone in which the said recording was contained had been stolen and thus the said conversation/recording is not available with him. The very fact that this witness had also arrayed Balbir in the array of accused, in his complaint Ex. PW3/A, discredited the evidence of PW3, as Balbir has been cited as prosecution witness by the investigation agency. Therefore, it would be pertinent to observe here that PW2 Sh. Balbir only became witness under coercion to save himself from being chargesheeted in this case lest he would have also been facing trial alongwith the present accused. Therefore, even otherwise PW2 cannot be said to be an independent witness.
18. In his further crossexamination, various improvements, which were made by him in his examination in chief were confronted to him viz a viz his previous statement recorded u/S. 161 CrPC by the Ld. Defence Counsel.
19. The probative force of this witness has been greatly diminished due to the fact that he had an axe to grind against accused due to the admissions made by PW3 that earlier he was working as the employee of accused Vijay Kumar, but he left the said employment and joined some other persons in the property business. He was harbouring a grudge against the accused. Delay in lodging of FIR is also there. He is also a hearsay witness with regard to the alleged conversation which allegedly took place between Balbir SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 22 of 26 23 and accused Vijay Kumar regarding making of castiest remarks as alleged by him in his complaint.
Consequently, probative force of his testimony is reduced to great extent, therefore, he is not a reliable witness. Possibilities of making false complaint against the accused are quite high in the present case.
20. It is pertinent to mention over here that PW3 Sh. Pradeep Kumar in his examinationinchief has deposed that during investigations he had transferred the conversation into a DVD and handed over the said DVD to IO, but IO PW6 ACP Sh. Prashant Gautam has controverted the said version by deposing that during investigations the complainant had not provided any mobile phone containing any conversation containing castiest remarks. IO has also deposed that no transcript of any such conversation was handed over to him by the complainant or by witness Sh. Balbir Singh. Thus, it appears that there was no conversation recorded either in mobile, DVD, CD or its transcript by the complainant, which was placed or produced before the court. The entire story in this regard appears to be fabricated one.
21. 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. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 23 of 26 24
22. As already discussed above, PW2 Sh. Balbir Singh has turned hostile and had not supported the case of the prosecution in any manner, as far as the testimony of PW3 Pradeep Kumar is concerned his testimony regarding incident dated 11.03.2016 is hearsay which is not admissible in evidence and it appears that PW3 Sh. Pradeep Kumar is even otherwise an interested witness either having some score to settle with the accused or having some axe to grind against him due to previous business rivalry with him. Therefore, the said words cannot be said to have been made in public view, which is the most necessary ingredient of the above section.
23. Further, even otherwise no call was made to the police immediately with regard to the incident dated 11.03.2016 or on 12.03.2016 at the time of the incident or shortly thereafter, therefore, the chances of false implication of the accused in this case due to previous enmity is highly probable. Further there is a delay of twenty days in lodging the FIR, which has not been explained. Original complaint was not produced for the perusal of the court nor it has been explained what had happened to the original complaint, which also a serious flaw in the case of the prosecution.
Therefore, the probative force of the prosecution case as a whole is greatly diminished due to all these assorted factors. The SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 24 of 26 25 said probative force lies in the range of highly unlikely region or even doubtful to happened or taken place, as projected, chances of false implication cannot be ruled out as discussed above, it appears the stringent provisions of SC/ST Act have been misused by the complainant to the detriment of the accused.
24. 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 is on the higher side. If the same has to be quantified on the said scale, it can be numbered randomly to around .8 or 80%, whereas the prosecution version would be around .2 or 20%.
On such kind of weak/inconclusive evidence, the accused cannot be convicted. In these circumstances, the accused stands acquitted of the charge(s) for offence(s) punishable u/s 3(1)(r) of SC & ST (Prevention of Atrocities) Act. His previous bail bonds are cancelled. Previous surety stand discharged. Original document(s), if any be returned after cancelling the endorsement(s), if any on the same, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
25. The Accused had already furnished his bail bonds in compliance of Section 437A Cr.P.C, which will remain valid for a SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 25 of 26 26 period of six months from today, as per the provisions of Section 437A CrPC.
26. File on completion be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal) th on 13 day of December 2018 Addl. Sessions Judge02,North Rohini Courts, Delhi 13.12.2018 SC No. 59439/16; FIR No.548/2016, PS Bhalaswa Dairy State Vs. Vijay Kumar Page No. 26 of 26