Delhi District Court
Mange Ram vs . Sushma Yadav & Ors on 25 August, 2018
IN THE COURT OF SH. DEEPAK KUMAR II, METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI.
CC No. 4988784/16
PS. J.P. Kalan
U/s. 500/506/120B/34 IPC
Mange Ram Vs. Sushma Yadav & Ors
JUDGMENT
A. SL. NO. OF THE CASE : 4988784/16
B. DATE OF INSTITUTION : 21.05.2011
C. DATE OF OFFENCE : In the month of August
2009.
D. NAME OF THE : Mange Ram
COMPLAINANT S/o Sh. Ram Pat
VPO Surehra,
New Delhi.
E. NAME OF THE ACCUSED : 1)Sushma Yadav D/o
Durga Prasad
2)Durga Prasad S/o Late
Sh. Roop Chand.
3)Sudhir Kumar S/o Sh.
Durga Prasad
4)Naresh Kumar S/o Sh.
Durga Prasad
F. OFFENCE
COMPLAINED OF : u/s 500/506/120B/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : All the accused persons
are convicted for the
offences punishable under
CC No. 4988784/16
PS J.P Kalan,
Mange Ram vs Sushma
U/s 500/509/120B/34 IPC Page No. 1/29
section 500/120B IPC and
are acquitted of the
offences punishable under
section 506/34 IPC.
I. DATE OF SUCH ORDER : 25.08.2018
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the complainant are that in the month of August 2009, all the accused persons criminally conspired to defame him and his sons and in that conspiracy they filed false complaints before various authorities viz. Commissioner, Delhi Police; Addl. Commissioner, Delhi Police; DCP, SouthWest and State Women Organization of Delhi which they knew to be false and knowing that such circulation will harm the reputation of the complainant and his sons. They all circulated above said complaints in the locality of Village Surhera to various persons so as to defame the complainant and his sons. Moreover, it has also been alleged that all the accused persons in furtherance of their common intention had threatened the complainant herein to involve him in false criminal cases and thereby they criminally intimidated him and accordingly, they committed offences punishable under section 500/506/120B/34 IPC. Complainant accordingly filed a complaint under section 200 CrPC and got pre summoning complainant evidence recorded.
2. In his presummoning evidence complainant examined CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 2/29 three complainant witnesses namely CW2 Ram Kumar, CW3 Vinod Kumar and himself as CW1. On 22.06.2012 the pre summoning evidence was closed and the matter was listed for arguments on the point of summoning. Vide order dated 05.07.2012 all the accused persons namely Sushma Yadav, Durga Prasad, Sudhir Kumar and Naresh Kumar were summoned by the Ld. Predecessor of this court for the offences punishable under sections 500/506/120B/34 IPC. On 07.08.2012, all the accused persons entered their appearances before this court and were admitted to bail.
3. Notice under section 251 CrPC for the offences punishable under section 500/506/120B/34 IPC was framed against the accused persons on 03.09.2012, to which they all pleaded not guilty and claimed trial. Thereafter, the complainant in support of his case examined as many as six CWs at the post notice complainant evidence stage.
4. CW1 Ram Kumar in post summoning evidence had deposed that in the year 2009 Sushma Yadav along with her father and brothers distributed a copy of complaint made by her against the complainant and his son in the village; they were also telling the villagers that complainant and his son had tried to molest and outrage the modesty of Sushma; they also told that complainant and his sons are not good persons and they remain involved in criminal activities; the gossips spread in the entire village and all the villagers started telling that the complainant and his sons are not good persons as they CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 3/29 misbehaved with the daughter of the village; the police officials also visited their village many times in respect of above said complaints and whenever they visited the gossips/ rumours spread; many of the villagers stopped visiting the complainant and also stopped giving invitations to the complainant and his family in their family functions; in the year 2010 Sushma along with his father and brothers again distributed the copy of same complaint in the village and he saw the same which was distributed and the same is Ex.CW1/1; he visited complainant and inquired about the complaints and rumours to which the complainant replied that the same are totally false and have been made by the accused persons to put pressure upon him because a civil case is pending between them; later on he came to know that the complaints made by Sushma Yadav were false and were closed by the department concerned; the accused persons by making false complaint have lowered the reputation of complainant and his sons in the entire village.
5. In his crossexamination CW1 deposed that he cannot tell the date or day and the time when the copy of complaints were distributed; the complaints were distributed by Sudhir and Naresh outside the Panchayat Ghar where he was present with few members of the village; he do not remember the names of all persons but one Ajeet S/o Mamchand and Vijay S/o Bharat Singh were amongst them; he had read the complaint at that time after taking the same from Ajeet and returned the same to him after reading it. He had not kept any complaint CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 4/29 with him; No copy was circulated to me by Sudhir or Naresh; in the month of June, 2010 he was told by Balwant, Ishwar, Sree Bhagwan, Mohanlal Tractorwala regarding the recirculation of above complaints; accused Sudhir and Naresh had in my presence stated that the complainant and his sons are bad persons and they tried to molest Sushma; at that time Ajeet and Vijay were present; it is correct that complainant and his father have filed a civil suit against accused Durga Prasad; he had heard that there is a association of RWA but he do not know about that in detail; he do not know if complainant was holding any position in that association or not.
6. CW2 Sabita Das was the summoned witness and he filed on record the copy of complaint no.130/2009 bearing registration no. 9086118 filed by Sushma Yadav against the complainant and others which ran into 05 pages and is Ex.CW2/A (OSR). This witness was not crossexamined by the learned defence counsel despite opportunity being afforded to him.
7. CW3 Mange Ram i.e. the complainant herein deposed that all the accused persons are residents of his village and their agricultural land is adjacent to his agricultural land; in the year 195253 during the consolidation proceedings a passage was left by the revenue authorities for ingress and egress to his agricultural land through the land of Durga Prasad bearing khasra no. 29/6/1 and through the land of Bhagwana bearing khasra no. 29/50/2; he filed on record the certified copy showing CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 5/29 that passage as Ex.CW1/15; in the year 2008 the accused persons tried to block the above said passage for which he had to file civil suit against them; the concerned court granted stay in his favour vide order dated 06.10.2008; accused persons filed appeal but the same was dismissed by Ld. ADJ as well as by Hon'ble High Court of Delhi; he filed a contempt petition against the accused as they violated the stay order dated 06.10.2008 and blocked his passage by cultivating the said passage; when the accused persons did not get any favourable decision from the concerned courts, they intimidated me that they will implicate him and his sons in the false cases and will see how he get the said passage; the accused persons by the name of Sushma Yadav got filed several false and frivolous complaints against him before various authorities alleging false allegations of molestation; the said complaints dated 04.08.2009 are Ex.CW1/1, Ex.CW1/2 and Ex.CW1/3; she also made another complaint to DCP SW on 17.08.2009 which is Ex.CW1/4; she also filed a false complaint before Sh. Ajay Makan, Union Minister, Government of India on 24.08.2009 which is Ex.CW1/5; accused persons also filed two false complaints in PS J P Kalan in August, 2009 and on 23.10.2009 which are Ex.CW1/6 and Ex.CW1/7; all the above said complaints were closed by the concerned departments vide orders Ex.CW1/12, Ex.CW1/13 and Ex.CW1/14; accused persons after filing the said false complaints distributed the copies of the same in the village and also spread the false news in the entire village that he and his sons are hard core criminals and have molested the daughter of the village; accused Sushma filed various complaints against him but no CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 6/29 action was taken as they were false, however, they were called by vigilance department on various occasions for inquiry of that complaint and subjected to harassment; Notice of vigilance is Ex.CW1/9; on complaints of accused, police had visited his house on several occasions and whenever the police visited their house, the entire village gathered there; police also recorded the statement of villagers which are Ex.CW1/10 and Ex.CW1/11; because of the false complaints filed against them and news spread by accused persons, it became very difficult for him and his family members to get out of his house; whenever they meet any villager, they used to keep asking as to what had happened and what they had committed, even his relatives stopped visiting their house; it became a matter of shame for him in his own department as he was retired police officer and the complaints were made by the accused persons in his department also; villagers stopped giving invitations to him and his family members in their small functions because of the false news spread by accused persons; accused made a representation before Delhi Commission for Women on 07.08.2012 and he was called by the commission vide notice Ex.CW1/16 annexed with the complaint Ex.CW1/17; he came to know that said complaint has also been disposed off.
8. In his crossexamination CW3 deposed that he had a good reputation in his village and hence, he was nominated as one of the vice president in RWA of their villager along with Kanwal Singh Yadav, Ex. MLA and president retired SDM Kripa Ram Sharma; there were 12 CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 7/29 members in the RWA and all the members except Om Parkash and Ganga Bishan invited him in their family functions; he was having normal terms with Prabhu Dayal; he had never seen any of the accused distributing the copies of complaint but had heard the same from the villagers namely Ram Kumar Patwari, Prabhu Dayal, Shri Bhagwan; Prabhu Dayal had told him that Durga Parshad was distributing copies at Holi Chowk; copy of complaint Ex.CW1/1 was handed over to him by Ram Kumar which he later obtained under RTI; he was inquired about the complaint from the police officials; he did not inquire from Ram Kumar as to from where he procured the copy of above said complaint; RWA of their village in which he was Vice President was formed on 10.03.2010; he voluntarily deposed that Kripa Ram was President in said RWA who resigned on 15.09.2011; he had normal relations with the members of RWA except few; he had sent the reminder Ex.CW3/D1 of the complaint made by the villagers to Divisional Commissioner for which no resolution was ever passed; he had told his counsel about the fact that false complaints were made against him in his department which fact is mentioned in para 24 of the complaint; 3 FIRs of years 1973, 1981 and 1992 were registered against him as a cross case, two were proved to be false and action was taken against the complainant and IO, and one was quashed; he denied the suggestion that he propagated against accused Sushma or that he defamed her or threatened to kill her; accused Sushma filed a complaint Ex.CW1/2 and Ex.CW1/3 before DCP; he voluntarily deposed that all these complaints were false and later they were found false and were closed.
CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 8/29
9. CW3 in his further cross examination deposed that the copy of complaint filed on record i.e. Ex. CW 1/1 was taken by him from the office of DCP and Delhi Commission for Women through RTI; he denied that main dispute between him and accused persons was of passage only; he denied that he filed this complaint in order to harass the accused persons as a counterblast to complaint Ex. CW1/1, CW 1/2, CW1/3 and CW1/5 made by one of the accused namely Sushma against him for defamation and harassment.
10. CW4 Prabhu Dayal deposed that he remained as Pradhan of 18 villages in Najafgarh and in the year 2009 and 2010 Durga Prasad, Sushma, Sudhir @ Ashok and Naresh distributed the copies of complaint Ex.CW1/3 in the village and while doing so they were telling the villagers that the complainant and both of his sons have molested and did wrong acts; because of the above said acts of the accused persons the reputation of the complainant and his family lowered in the village and the villagers avoided to visit the complainant and his family members; in the year 2009 and 2010 police officials visited the village in respect of the above said complaint and recorded his statement which is already Ex.CW1/10; he further deposed that the complaints made by the accused Sushma are baseless and because of the same reputation of the family of the complainant was lowered in their village as well as nearby villages.
CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 9/29 11. In his cross examination he deposed that the
distribution had taken place in the month of August 2009 but he cannot tell the date, time and day of the same; he correctly identified the accused Sudhir and Naresh; accused Sushma and Durga Prasad were exempted on that day; at the time of distribution of the copy of the abovesaid complainant Mange Ram was not present at that time; Mange Ram and his family members are having good reputation in the village and are all are educated; everybody from the village are having good visiting terms with the complainant; people from the area invite Mange Ram very much in social gathering and for function but for some time they stopped calling Mange Ram; he remained Pradhan of 18 villages from 1999 upto 2008; marriage functions of daughter and son of Mange Ram were either attended by him me or his family.
12. CW5 Vinod Kumar deposed that in the month of August 2009 and in the summer season time of the year 2010 accused Sushma, Durga Prasad, Sudhir and Naresh had been circulating the copy of complaint Ex.CW1/1 in the village; the police also visited his village on those complaint and the villagers stop communicating with Mange Ram and his family members and also stopped inviting them in their family functions; because of the distribution of the above said complaints by the accused persons the reputation of Mange Ram and his family members deteriorated in their village and in nearby villages; people used to call that Mange Ram is the dirty man as he has misbehaved with a woman; later he came to know that a civil case is CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 10/29 pending between Mange Ram and above said accused persons regarding passage.
13. In his cross examination he deposed that he has witnessed the above named accused circulating the copy of complaints at Holi Chowk and second time Sushma was circulating the copy of complaints near firni of the village; he could not tell the date and time of circulation of copy of complaint as its being a long time; copy of complaint which was circulated was also given to him; the copy was given to him in the year 2009 only by Sh. Durga Prasad; at that time Prabhu Dayal, Shri Bhagwan and Chand son of Ram Kumar along with various other person whose name he do not remember were present; the reaction of Prabhu Dayal and other persons who were there was that Mange Ram has done a very bad thing; when the copies of complaint Ex.CW1/1 was circulated near firni, two three ladies were also present to whom Sushma was showing the copies of complaint; he do not know whether Prabhu Dayal is friend of Mange Ram or whether the complainant is the office bearer of RWA of village; he admitted that he never considered that Mange Ram has committed any wrong and he did not believe any allegation mentioned in the complaints; he denied that after circulations of complaint there was no adverse affect on the reputation of complainant; people stopped talking to Mange Ram for about 45 months after the complaint.
14. CW6 Inderpal Mann deposed that it was the month of CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 11/29 August 2009 when had gone to village Surhera for supplying water; there were 1012 persons and they were talking that Mange Ram Thanedar has molested/misbehaved with girl of village namely Sushma; they were also talking that a complaint was filed against Mange Ram and copy of the complaint has been circulated in the village after hearing this he was shocked as Mange Ram was a reputed person of village and he could not believe that he would do such acts; on the same day in the evening he left his house to Ravta Mor Bazar where at the shop of Phool Singh Fauji some persons were present, some of them playing cards and some were enjoying hukka; he asked them about the rumour of Mange Ram molesting Sushma to which they replied that they have even received copy of complaint.
15. In his cross examination CW6 deposed that he knew 23 respected persons from each village; he has no relation with the complainant Mange Ram neither acquaintance except the fact that he know him as a Mange Ram Daroga of Surhera Village who was retired from Delhi Police nobody has told him as to what he have to depose before the court.
16. Thereafter, post notice complainant evidence was closed and the statements of accused persons were recorded under section 313 CrPC wherein all of them stated that they are innocent and have been falsely implicated by the complainant. Accused Sushma Yadav, Sudhir Kumar and Naresh Kumar stated that there was a land CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 12/29 dispute between their father and complainant and the present case was instituted in order to teach lesson to them. Accused Durga Prasad also stated that there was also a land dispute between him and the complainant and this case has been filed to teach him a lesson. After that matter was listed for recording of defence evidence and in his defence accused persons examined two witnesses.
17. DW1 Daya Kishan deposed that he is resident of village Surerha; a civil case is pending between the complainant and the accused pertaining to some passage; he came to know this case is a defamation case alleging therein that all the accused persons distributed pamphlets containing allegation regarding molestation of Sushma by Mange Ram in village chaupal and public crossing; as he is an active resident of the village and his house is adjacent to chaupal, if any pamphlets had been distributed, then it would have been in his knowledge; no such pamphlets had ever been distributed in the village; Mange Ram is having reputation in the village and because of that he has been elected as Vice President of RWA of the village; this case by Mange Ram has been instituted only to pressurize to accused persons to settle the dispute regarding the passage.
18. In his cross examination he deposed that Sushma told him that Mange Ram has instituted a case of defamation against him regarding distribution of pamphlets in the village and asked him to depose in this respect before the court; Sushma told him about this CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 13/29 case 12 months back and that this case was in respect of distribution of pamphlets; no pamphlets had ever been distributed in the village as alleged in the present case; he do not know as to what complaint were made by Sushma against Mange Ram; Sushma never distributed the pamphlets in the village nor they were distributed by Mange Ram; his village is smaller in size and 0810 people used to sit daily in chaupal and at his residence which is adjacent to chaupal and therefore if there had been any distribution of any kind of pamphlets it would have been definitely in his knowledge; he further voluntarily deposed that several things happen in the village and is not obliged to keep records of each and everything; he know that police visited the village and inquired about the complaint made by Sushma against Mange Ram; he do not know anything about the fact that Sushma made a complaint of molestation against Mange Ram; those 0810 persons who used to sit with him daily did not tell him that Sushma filed any complaint of molestation against Mange Ram; Mange Ram's agricultural field is adjacent to the fields of accused persons; Mange Ram has instituted a civil suit asking for passage from the field of accused persons; the house of Prabhu Dayal is in front of Yadav Chaupal and the Chaupal referred by him in his examination in chief is main Chaupal/Yadav Chaupal; he do not know whether the police visited the house of Prabhu Dayal and recorded his statement in respect of complaint made by Sushma against Mange Ram; Mange Ram is the Vice President of the society; he do not know as to who is the President or Vice President of RWA; he is the active member of the village and he had not given any CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 14/29 representation on behalf of his village with any authority for any welfare activity; he denied that there was a civil dispute between him and Mange Ram since the year 19952005; the witness admitted the factum of civil case between him and his brothers in view of Ex.DW1/C2; he voluntarily deposed that he forgot the same earlier as being the old case now and after seeing the copies of the case he recollected that the said case has been filed; Mange Ram putting pressure on him in order to not to depose against him
19. DW2 Sant Lal deposed that around 1015 days back Sudhir @ Ashok came to his tea shop and told him that Mange Ram has filed some defamation case; he also told him that Mange Ram had alleged in his complaint that accused persons had circulated some pamphlets/ hand bills in the village to which he told him he never saw any hand bills or pamphlets nor he heard about the circulation of the same from anybody.
20. In his cross examination he deposed that he do not claim to be aware about each and every incident/ activities in his village or any private disputes between the residents of his village; since he run a tea shop his covillagers frequently come to the said shop; the said shop is a common meeting place for his covillager when they come to the shop they discuss current topics due to which he is generally aware of the current topics concerning the natives of his village; he never came across any news regarding distribution of pamphlets either by CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 15/29 Sushma or Mange Ram; he do not know whether the police visited his village in respect of complaint filed by Sushma or that police recorded the statement of villagers; Sushma never came to him or complained about any act done by Mange Ram and his sons; neither any elder of the village discussed the same with him. Thereafter DE was closed and matter was listed for addressing of final arguments.
21. I have heard Ld. Counsels for the complainant and the accused and have also carefully gone through the case file. Written arguments have also been filed on behalf of respective parties. Ld. Counsel for the complainant has relied upon the judgment titled as Kirpal Singh & Ors vs Naib Singh decided on 11.08.2009 by the Hon'ble Punjab and Haryana High Court being Crl. Misc. No. M 49231/2007; Bikramjeet Ahluwalia & Ors vs Simran Ahluwalia decided by Hon'ble High Court of Delhi on 01.05.2015 being Crl.MC No. 447/2013; Sanjay Mishra vs GNCTD & Anr decided by Hon'ble High Court of Delhi on 23.03.2012 being Crl.MC No. 3350/2008; Haribhau vs State of Maharasthra reported as 2001 (2) MhLJ 500; M.A Ruhgam vs Kittu @ Krishna Moorthy reported as 2009(1) SCC 101. Per Contra Ld. Counsel for the accused has relied upon judgement Harbeer Singh vs Sheeshpal & Ors being Crl.A 16241625 of 2013 decided by Hon'ble Supreme Court of India on 20.10.2016.
22. Cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 16/29 reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
23. In the present case the notice was framed against the accused persons for the offences punishable under section 500/506/120B/34 IPC and the complainant was required to prove the same on its own. The principle offence in the present case is 500 IPC.
24. Now before deliberating upon the abovesaid contentions of both the parties, it would be apt to refer to the provisions of defamation as provided in section 499 and 500 IPC.
499 Defamation− Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1−It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2−It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3−An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4−No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 17/29 estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
500 Punishment for defamation− Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
25. It is settled proposition of law that the essence of the offence of defamation consists in its tendency to cause the pain which is felt by a person who knows himself to be the object of unfavourable sentiments of his fellow creatures and those inconvenience to which a person who is the object of such unfavourable sentiments is exposed. In the case titled as Sunil Akhya Vs. H.M. Jadwet AIR 1968 Cr.LJ 736, the three essential ingredients of the offence of defamation is provided as (i) making or publishing any imputation concerning any person; (ii) such imputations must have been made by words either spoken or intended to be read or by signs or by visible representation; (iii) such imputation must have been made with the intention to harm or with the knowledge or having reason to believe that it will harm the reputation of the person concerned. Therefore, the intention to cause harm is the most essential "sine qua non" of an offence u/s 499 IPC.
26. In the present case the principal grudge of the complainant is that accused Sushma had filed false complaints against him before various authorities which included, local police, Delhi commission for women and the then central minister amongst other wherein she has levelled certain CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 18/29 derogatory and defamatory allegations against him which has lowered down his image in the public in as much as all the accused persons including accused Sushma Yadav have also shown copies of the same to the residents of the village of the complainant.
27. From the material, which has come on record after the culmination of all the procedural requirements as provided under the law, this court is of the considered opinion that the defence taken by the accused persons has been fluctuating during the various stages of trial. When the complainant witnesses were being cross examined the line of defence was that there has not been any defamation of the complainant considering that he has been the vice president of the village RWA; in their statement recorded under section 313 CrPC a complete turn around was taken by them when they all stated that the present case has been instituted by the complainant due to a land dispute pending between them; when defence evidence was being recorded both the witnesses denied the factum of the complaints being circulated by the accused person in the village whereas in written arguments/submissions filed on behalf of the accused persons a completely new defence of exception eight to section 499 IPC was taken.
28. CW1 had in cross examination deposed that Ajeet S/o Mam Chand and Vijay s/o Bharat Singh were also present at the spot when the complaints containing the defamatory articles were being distributed. Though the complainant had not examined them in support of his case. But they were also not summoned by the defence which could have proved that no such CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 19/29 circulation as alleged by the complainant ever took place. If not that then it may have brought on record the inconsistency or contradictions which could have proved helpful for the defence of the accused persons. This was not the only solemn opportunity before the accused, as CW1 again deposed that Balwant, Ishwar, Sree Bhagwan, Mohan lal tractorwala told him regarding the recirculation in june, 2010, though it is hearsay evidence and deserves to be excluded from being considered as evidence in view of section 60 of the Indian Evidence Act but the accused could have examined anyone or all of them to bring forth the inconsistencies or contradictions. At this juncture it would be trite to refer to section 114 of the Indian Evidence Act which lays down as under: "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
illustration (g) to Section 114 Indian Evidence Act provides that "the Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
Since the accused have failed to examine any of the persons whose name had occurred in the testimony of the CWs, which could have helped the accused persons to put forward their defence in better manner but failure on their part to do so have raised presumption of law which goes against them.
29. Accused persons have taken the defence that the no such complaint was ever circulated by them and even if it is presumed that the same was circulated then in that case also the complainant has not been defamed for the reason that the complainant has been elected as the vice CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 20/29 president of the village RWA. This court is not in agreement with the defence taken by the accused persons. There have been unblemished testimony of the CWs on record which proved that the circulation of the complaints by the accused persons indeed took place and by merely taking the defence that even if the same were circulated then also the complainant has not been defamed is without any ground or reason because making of complaint against a person before the appropriate authorities is completely different thing whereas the circulation of that complaint in the locality of that person is altogether different proposition. As making of complaint before the appropriate authorities for the alleged wrong doings of that person is the right of the person aggrieved and is squarely covered within the exception eight of section 499 IPC. But the circulation of the complaints even before the same has been disposed off is nothing but an act of defamation done with the intent to cause harm or injury to the reputation of that person and the same has been done by the accused persons in the present case. Accused persons have failed to explain as to why the complaints which were addressed by accused Sushma to various authorities were circulated even before the same were yet to be disposed off. Pertinently, all the complaints preferred by the accused persons against the complainant herein were disposed off by the authorities concerned by giving variety of reasons which also included the falsity of the allegations levelled in the complaint. This fact also fortifies the allegation of the complainant that the defamatory material was circulated only with the intent to cause defamation to its reputation and that the accused persons were not actually bothered or concerned with the outcome of those complaints which were preferred by the accused Sushma before various CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 21/29 authorities. Moreover, this court cannot be oblivious of the surroundings and setting in which the present offence has been committed. Admittedly, the defamatory material were circulated in a village where the level of education is normally less as compared to the town and possibility of the villagers believing the averments of the complaint without verifying its factum also cannot be ruled out.
30. With respect to the defence taken by the accused person in their statement recorded under section 313 CrPC all the accused persons have categorically deposed that reason for the present case being instituted against them is the fact that there was land dispute going on between them. However the plea of the accused persons seems to be without any basis as there was no occasion for the complainant to do so, in view of the fact that all orders pertaining to the said land dispute were passed in the favour of the complainant and against the accused persons. On the contrary the accused persons were having all the valid reasons to the acts which have been alleged by the complainant in his complaint.
31. The other defence taken by the accused persons is that even if there has been circulation then also there has not been any loss or harm to the reputation of the complainant. To be precise, while taking this line of defence the accused persons some way or the other have admitted the factum of circulation of the defamatory material. Be that as it may, coming back to the defence that there has not been any harm to the reputation of the complainant, this court is of the considered opinion that indeed the reputation CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 22/29 of the complainant had been lowered as CW1 categorically deposed that "many of the villagers stopped visiting the complainant and also stopped giving invitations to the complainant and his family in their family functions; the accused persons by making the false complaints lowered the reputation of Mange Ram and his sons in the entire village" "accused Sudhir and Naresh had stated in his presence that Mange Ram and his sons are bad persons and tried to molest Ms. Sushma. Ajit and Vijay were present at that time". However, defence was unable to impeach the credibility of this witness.
CW3 i.e. the complainant herein had deposed that because of the false complaints made by the accused persons police visited his house on various occasion and entire village used to gather there and because of the false complaints filed against them the news spread by the accused persons it became very difficult for him and his family members to go out of their house and even their relatives stopped visiting their house; the villagers stopped giving invitations to him and his family members in their small family functions because of the false news spread by the accused persons and their reputation was defamed by them in the village as well as in nearby villages. Though the CW3 has admitted in his cross examination that he has good reputation in his village and due to that he has been nominated as one of the vice president in the RWA of the village. But here this court is of the considered opinion that the date of the complainant being nominated as the vice president of the village RWA is important. However no question was put to the witness regarding that during his cross examination. Rather the CW3 has deposed that the RWA of which he is the vice president was formed on 10.03.2010, so it becomes crystal clear that the act of circulation was committed by the accused persons in the month of august 2009 because of CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 23/29 him the complainant was defamed and therefore the accused persons cannot take the plea that there has not been any harm to the reputation of the complainant in view if the fact that he was nominated as vice president of the village RWA which was actually formed on 10.03.2010. CW4 also deposed on the same lines that the reputation of the complainant and his family lowered in the village and the villagers avoided to visit the complainant and his family members. In his cross examination though he deposed that the mange ram is having good reputation in the area and he is invited by the people in social gathering and functions. But he also voluntarily deposed that for some time they stopped calling mange ram. CW5 also deposed on the same lines as of CW1, CW3 and CW4 in his examination in chief but in his cross examination he deposed that people stopped talking to mange ram for about 45 months after the complaint. Hence the defence that there has not been any loss of reputation of complainant seems to be baseless, in view of thee categorical depositions of the aforesaid CWs.
32. What has astonished this court is the fact that even after preferring complaints against the complainant before various authorities which were rejected as being false, no complaint was ever filed by the accused Sushma before the appropriate court of law so as to justify her action. Even till the writing of this judgment nothing has been brought on record that a single complaint was ever filed filed by her before the court of law. This also fortifies the fact that the intention of the accused persons was only to defame the complainant and they were not bothered or concerned with the outcome of the complaints.
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33. Now, coming to the defence evidence in which the accused persons examined two witness and this court has no hesitation to say that these to defence witnesses seems to be unworthy of credit as DW1 as he deposed that as he is active resident of the village and his house is adjacent to Chaupal and if any pamphlets had been distributed in the village then it would have been in his knowledge and that Mange Ram has good reputation in the village and he has been elected as RWA of the village. This case has been instituted by Mange Ram only to pressurize the accused persons to settle the dispute regarding the passage. Whereas in his cross examination he deposed that Sushma told him about this case which is in respect of distribution of pamphlets around one year back. Here the date of cross examination is relevant as the offence in question took place in the year 2009 and the witness is saying in the year 2016 that incident took place one year back. He further deposed that he is not aware of the complaint made by Sushma against Mange Ram and that several thing happen in the village and he is not obliged to keep records of each and everything. Again this witness deserves to be disbelieved for the reasons that in his examination in chief he deposed that since he is active resident of the village he would have known had any pamphlets been distributed in the village whereas he in his cross examination deposed that he is not obliged to keep record of each and everything which happens in the village. He is purportedly aware of the land dispute between the complainant and the accused persons but his absence of knowledge qua the complaints made by Sushma against the complainant regarding her molestation makes her credibility doubtful. This is not the end of CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 25/29 the doubtful deposition as he also deposed that he knew that the police visited the village and inquired about the complaint made by Sushma against Mange Ram but he also deposed that he do not know about the complaints made by Mange Ram. He also deposed that there was no dispute between him and the complainant but on Ex. DW1/C1 and Ex. DW1/C2 being put to him he admitted that there was a civil case flied by him along with his brother but he forgot due to lapse of time. From his conduct and testimony he appears to be a stock witness who has been made to depose so as to cause favour to the accused persons.
34. DW2 also deposed that the he was told about this case by accused Sudhir @ Ashok when he came to his shop 1015 days back and he told the accused that no circulation took place nor he heard about the same from anybody. In his cross examination he deposed the same and also the fact that he do not know whether the police visited the village in respect of the complaint filed by the Sushma or that the police recorded the statement of the villagers. The testimony of DW2 is also liable to be disbelieved for the reason that he deposed that he run a tea shop and the same is meeting place for the co villagers where they discuss the current topics due to which he is generally aware of the current topics concerning the natives of the village. This witness on the one hand is claiming to be aware of the current topics concerning the villagers, on the other he came to know about the present case only when told by accused Sudhir 1015 days back and strangely he remembers that no circulation of the pamphlets took place. Surprisingly he is not aware of the complaints made by Sushma and police visiting the village, though he claimed CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 26/29 that he is aware of the current topics concerning the villagers. Hence the testimony of DW 2 also is unworthy of credit and requires to be disbelieved as he also seems to be stock witness.
35. Therefore, the defence taken by the accused persons that they did not circulated the complaints made by accused Sushma before various authorities appears to be unbelievable. Initially, during the cross examination of the CWs the defence of the accused persons was that there was no such circulation of the complaints by them in the village and that the complainant has not been defamed. Thereafter, at the stage of recording of the statement of the accused persons under section 313 CrPC the defence was that since there was a land dispute between complainant and the accused Durga Prasad, therefore in order to teach lesson the complainant has filed this case against accused Durga Prasad and other accused persons as they being the children of accused Durga Prasad. But in the written submissions/ arguments filed on behalf of the accused persons a completely new line of defence was taken by them that their act was covered under the exception eight as provided under section 499 IPC. This court is of the considered opinion that by claiming that there have not been any defamation and that their case is covered under exception eighth provided under section 499 IPC, the accused persons have somewhere admitted the factum that the complaints were actually circulated in the village. Moreover, by changing the line of defence the accused persons have weakened their own case. The contents of defamatory material in question is sufficient to show that the accused had reason to believe that the imputation made by them would harm CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 27/29 the reputation of the complainant irrespective of whether the complainant had actually suffered directly or indirectly from the imputation. Thus, the offence under Section 499 IPC stands proved against the accused beyond any reasonable doubt.
36. From the evidence and material brought on record nothing has come which could have suggested towards the commission of offence, punishable under section 506/34 IPC by the accused persons against the complainant. None of the complainant witnesses has deposed that the complainant was threatened and criminally intimidated by the accused persons to foist false criminal cases upon him in furtherance of their common intention. No CW has uttered a single word in respect of offence punishable under section 506/34 IPC.
37. However, with respect to the offence punishable under section 120B IPC it is settlement proposition of law that direct evidence to prove conspiracy is rarely available and therefore, the circumstances proved before, during and after the occurrence have to be considered about the complicity of the accused (Pratapbhai Hamairbhai Solanki vs The State of Gujrat 2012(10) SCALE 237). Admittedly in the present case there is no direct evidence against the accused persons with respect of commission of offence punishable under section 120B IPC. However, from the facts and circumstances it is clear that the accused persons had criminally conspired to defame the complainant which is evident from the fact that initially false complaints were made by the coaccused Sushma before the various CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 28/29 government authorities and the copy of those complaints were circulated in the village even before the same were disposed off. Though the said complaints were ultimately closed by the respective authorities despite that the conduct of accused Sushma in not prosecuting those complaints before the appropriate court of law raises doubt on the intention of all the accused persons. This court has to bear the fact in mind that the circulation took place in the village setting and that adverse orders had been passed against the accused persons in a land dispute which was pending between the complainant and accused Durga Prasad. This only process beyond reasonable doubt against the accused persons that they had criminally conspired to defame the complainant.
38. In view of the foregoing discussion all the accused persons are convicted for the offences punishable under section 500/120B IPC. However, the complainant has not been able to prove the under section 506/34 IPC against the accused persons and hence, the accused persons are acquitted of the same.
Let the convicts be heard on the point of quantum of sentence on 24.09.2018. Digitally signed by DEEPAK DEEPAK KUMAR KUMAR Date:
2018.08.25 16:45:31 +0530 ANNOUNCED IN OPEN COURT (DEEPAK KUMARII) Today i.e. 25/08/2018 MM06/DWK/NEW DELHI CC No. 4988784/16 PS J.P Kalan, Mange Ram vs Sushma U/s 500/509/120B/34 IPC Page No. 29/29