Delhi District Court
Fir No.720/2014 State vs Narender Kumar Jain Etc. Page No. 1 Of 44 on 24 August, 2020
IN THE COURT OF SH. AJAY GUPTA,
SPECIAL JUDGE(SC/ST ACT)
KARKARDOOMA COURTS, DELHI
S.C.No.1166/2016
FIR No. 720/2014
U/s 3(1)(X) SC/ST Act
PS Gandhi Nagar
State
Versus
(1) Narender Kumar Jain
S/o Sh. Trilok Chand Jain
(2) Saurabh Jain
S/o Sh.Narender Kumar Jain
(3) Gaurav Jain
S/o Sh. Narender Kumar Jain
All residents of
R/o X2221 Mahila Colony
Hathi Wala Park
Gandhi Nagar
Delhi ......Accused Persons
Date of Institution: 22.12.2014
Arguments heard on: 10.08.2020
Judgment pronounced on: 24.08.2020
JUDGMENT
1. Prosecution case in brief is that on 20.09.2014, on receipt of DD no.59B, SI Om Prakash reached at H.No.X2220 FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 1 of 44 Mahila Colony, Hathiwala Park, Gandhi Nagar where he came to know that the complainant has gone to Police Station. SI Om Prakash came back to PS. In the PS, complainant Sushma w/o Deepak Kain and her mother Sarojbala w/o Ved Prakash met him who stated that they have brought a written complaint and they have lodged the same vide DD no.28A. SI Om Prakash conducted the preliminary enquiry and submitted the same to ACP, Gandhi Nagar. As per complaint and enquiry, a case u/s 3(x) SC/ST Prevention of Atrocities Act was made out and accordingly on 03.10.2014, a case was registered. The complainant has alleged in her complaint that she is residing at X2220 Mahila Colony, Gandhi Nagar Delhi for about 40 years. In her neighbourhood, in the H.No.X2221, Narender Kumar Jain is running a ready made garments factory. In the said factory, the workers use abusive language and disturb peace due to which the environment gets spoiled. On 20 th September 2014 at about 6.45 p.m, she alongwith her daughter Sushma went to the house of Narender Kumar Jain to complain that due to his workers, the neighbourhood environment is getting spoiled and he should stop his workers from doing so. It is averred in the complaint that instead of making his workers understand, Narender Kumar Jain called his sons Gaurav Jain and Saurav jain and told them "sale chamaron ki itni himmat ho gai ki hamare darwaze per chale aaye, inhe foren dhakke deker gali se bahar nikal ker aao". Thereafter, Narender Kumar Jain, and his sons pushed them out of gali saying FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 2 of 44 "sale chamaro ki itni himmat ki hamare barabar mei rehne ke baare mei soch rahe hai". Thereafter, a call at 100 number was made. At the time of incident, public persons had gathered there. It was stated that action may be taken against the accused persons. IO/ACP made enquiries from the complainant. He asked about the caste certificate from the complainant but complainant was not having any caste certificate. However, caste certificate of her husband was collected in which his caste was mentioned as 'Jatav'. Caste certificate of Mahavir, brother of the complainant was obtained which was got verified. Complainant Saroj Bala also produced a copy of caste certificate from the Numberdar of her village which was got verified and it confirmed that she belonged to 'Jatav' community. All the witnesses were examined and their statements were recorded. After going to the spot, the nearby people were enquired who told that they have heard about the incident but they were not present there. Notice u/s 41(a) Cr.P.C was given to the accused persons. They alleged that they were not present at the spot on that day but they could not produce any evidence. Charge sheet was prepared and filed before the court without arrest of the accused persons. The caste certificate of the husband of complainant could not be verified as it was reported that the record is very old. Sushma and Saroj Bala had no caste certificate. Caste certificate of brother of the complainant was got verified and it was revealed that he belonged to Jatav Community. After completion of the investigation, charge FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 3 of 44 sheet was prepared and filed before the Court.
2. After compliance of Section 207 Cr.P.C, the case was committed to Sessions Court. Charge u/s 3 (1) (x) SC/ST Act was framed against all the accused persons to which they pleaded not guilty.
3. In order to prove its case, prosecution has examined 16 witnesses. PW1 is HC Kali Charan. He is the duty officer. He recorded the FIR of this case. Copy of FIR is Ex.PW1/A and endorsement on rukka is Ex.PW1/B.
4. PW2 is Saroj Bala. She is the complainant of this Case. PW3 is Sushma Kain, is the daughter of PW2.
5. PW4 is Ved Prakash. He is the husband of PW2 and father of PW3. He stated that on 20.09.2014, in his absence, all the three accused made caste remarks to his wife and daughter and this fact was revealed to him later on. He is chamar by caste. He handed over the photocopy of the caste certificate to IO which was seized vide memo Ex.PW4/A. Copy of the certificate is Ex.PW4/B.
6. PW5 is Smt. Saya Devi. PW7 is Umakant Sharma.
PW8 is Om Praksah. PW9 is Sunil Upadhyay. All these witnesses have deposed more or less as per the complaint of the complainant, FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 4 of 44 detailed in para '1' of the Judgment and the same is not being repeated for the sake of brevity.
7. PW6 is Mahavir Singh. He is the brother of complainant. He was informed on 20.09.2014 by his sister that she was humiliated by Narender Jain and his sons by making castiest remarks. He handed over his caste certificate to the police, the photocopy of the same is Ex.PW6/A, seizure memo of which is Ex.PW6/B. He also stated that Jage Singh Numberdar issued certificate to Saroj, the said certificate is Ex.PW2/C.
8. PW10 is W/Ct Rakhi. She received a call regarding quarrel and recorded the information and forwarded the same on net. PCR form is Ex.PW10/A.
9. PW11 is Jage Singh. He deposed that Saroj Bala belongs to his village and she belongs to schedule caste(chamar). He was numberdar of village and on 14.10.2014, he had issued a certificate regarding the caste which is Ex.PW2/C.
10. PW12 is Rahul. Mobile no. 8459752916 is registered in his name and it was given to his mother for use. His mother had called at no.100 through this mobile.
11. PW13 is Mukesh Pal. He is UDC from SDM Office. He FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 5 of 44 produced the record of caste certificate issued to Ved Prakash. The certificate has been issued for caste 'Jatav Chamar'. The copy of the relevant entry is Ex.PW13/A. The verification report of the said certificate is Ex.PW13/B.
12. PW14 is SI Om Prakash. DD no.59B was marked to him and he reached at the spot from where he came to PS where complainant and her daughter met him and told him that they had given written complaint to DO which was lodged in DD no.28A. On 03.10.2014, he was called by ACP who handed over rukka to him and he got the case registered. Thereafter, he alongwith ACP went to the spot but the house was found locked.
13. PW15 is Retired ACP Rajesh Kumar Sharma. He prepared rukka on the complaint of complainant after making endorsement Ex.PW15/A and got the case registered. He recorded the statements of witnesses. Complainant provided the caste certificate of her husband and brother on 16.10.2014. The caste certificate of Ved Prakash was seized vide memo Ex.PW2/B and of Mahavir Singh vide memo Ex.PW2/C. Copy of the caste certificate was seized vide memo Ex.PW15/B produced by complainant. He prepared the site plan Ex.PW15/B1. The copy of DD no.59B is Ex.PW15/B2. The copy of caste certificate of Mahavir Singh is Ex.PW6/A. He got verified the certificate of Ved Prakash vide report Ex.PW13/B, request letter in this regard is Ex.PW15/C. Caste FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 6 of 44 certificate of Mahavir Singh was also got verified vide report no.656 which is Ex.PW15/D. He collected the CDRs and CAF of mobile no. 8459752916. He served notices u/s 91 Cr.P.C upon accused and interrogated them. Notice u/s 91 Cr.P.C is Ex.PW15/E, Ex.PW15/E1 and Ex.PW15/E2.
14. PW16 is Amit Kumar Sharma. He produced the record of mobile no. 8459752916 in the name of Rahul. CAF alongwith ID is Ex.PW16/A. He stated that CDRs for the period 19.09.2014 to 20.09.2014 is not available with the company.
15. Arguments were heard from the Ld. Counsel for the accused persons, Ld. Addl.PP for the State and Ld. Counsel for the complainant. Ld. Counsels for the accused persons submitted that the accused persons have been falsely implicated in this case. They have not committed any offence. The relations between the parties were strained before registration of the present case because accused had lodged a complaint in the MCD regarding unauthorized construction made in the house of the inlaws of the complainant which was demolished. It is also submitted that civil case is also pending. It is submitted that there was animosity between the parties therefore, the evidence has to be properly scrutinized to test the veracity of allegations. It is further argued that as per complaint, the complainant was perturbed due to the filthy language being used by the workers of the accused but she herself stated that she was FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 7 of 44 residing at the different address though, in cross examination of Ld. Addl.PP, she stated that she was residing there. Her examination in chief shows that she was not residing there and thus, the foundation of her case is doubtful that she went to the premises of accused as she was disturbed due to filthy language of workers. Complainant has only examined one Numberdar however, she has not brought on record her caste certificate which is mandatory and thus, the alleged offence is not proved. It is further stated that the caste of the complainant cannot be made out from the name and thus complainant was required to show as to how the accused persons were aware about her caste. Ld. Counsel submitted that there are 45 witnesses to the incident, PW5 is the vegetable vendor who resides nearby and knows the complainant. Thus, she is not an independent witness. Further, she is not a reliable witness as she stated that only Narender Jain used remarks and his sons were abusing and even during crossexamination, she stated that only Narender Jain used castiest remarks. Further, she has specified different remarks than the complainant which shows that she was not present there. It is further stated that PW7 is a hostile witness and according to PW8, he was present near the spot but as per site plan the place where he stated to be present is quite far of from the spot and thus, could not have seen the incident. Further, according to him, he saw the public gathered thus, it cannot be assumed that the pushing as well as the use of castiest remarks were continuously going on and even when FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 8 of 44 PW8 reached there crowd had already gathered which shows that incident had already taken place. According to PW8, he gave his mobile number to the complainant and her daughter for future purposes and he went back to his home. As per the case of the prosecution, PW2 made the complaint Ex.PW2/A on the same day which consists the address of PW8 and does not have his mobile number. Further, as per PW8, he was present there and made call at 100 number while as per PW3, she made a call at 100 number. Moreover, as per record and PCR form, the call was made from the phone number which belongs to the son of the complainant. In his cross examination, PW8 stated that he had gone to the PS on the same day at about 9/9.30 p.m, gave statement which was signed by him and he stated that his other statement was recorded on 14.10.2014 but no such statement is available on record. He stated that all three uttered the said words which are omnibus allegations. It is further argued that PW9 stated regarding omnibus allegations. Castiest remarks mentioned by the witnesses are different. He also stated that public had gathered at the spot which shows that incident had already occurred. As per complaint, she had gone to make a complaint about the conduct of the workers but as per PCR form Ex.PW10/A, it is clear that after call when beat police official reached there, he made enquiries and came to know that the quarrel was about the unauthorized construction and as per call also quarrel took place with the lady and the incident was not about the castiest FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 9 of 44 remarks by accused and thus, the genesis of the case was not about the happening of a quarrel when she made complaint about the conduct of workers while the actual reason of the quarrel was unauthorized construction. Ld. Counsel relies upon the case laws State Vs. Om Praksh & ors. Crl.Rev.P 622/2013, Daya Bhatnagar & Ors. Vs. State 109 (204) DLT 915, Asha Aggarwal Vs. State, Crl. MC No.2757/2009, Rekha Aggarwal & Anr Vs. State Crl.Rev.P 142/2005, Komal Vs. State of Madhya Pradesh Crl. Rev.No.281/2014 and Deepa Bajwa Vs. State & Ors. Request has been made for acquittal of the accused.
16. Per contra, Ld. Addl.PP and Ld.Counsel for the complainant argued that the complainant as well as other witnesses have made specific allegations against the accused persons in their statements recorded before the Court and the prosecution with the testimony of complainant, her daughter and other witnesses have proved the allegations beyond doubt and that they may be punished as per law. It is further argued that the accused persons have intentionally insulted and intimidated the complainant within public view and the witnesses in this respect have already been examined. The defence could not discredit the testimony of PW2 and other public witnesses. Pendency of civil case does not indicate that the instant case is false. It is stated that through the testimony of village Numberdar Jage Singh, it is proved that PW2 belongs to Jatav caste.
FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 10 of 44 It is also submitted that the brother of PW2 has been examined who also proved his caste and thus, the caste of PW2 (complainant) stands proved. It has also been submitted that the accused persons were very well aware of the caste of the complainant since the complainant was residing in H.No. X2220 for last about 40 years which is near to the house no.X2221 of accused and also because accused Narender Jain has also filed a civil suit against the husband of the complainant. Request has been made for punishing the accused persons as per law.
17. PW2 Saroj Bala is the complainant and PW3 Sushma Kain is the daughter of the complainant. As per prosecution case, these two witnesses were present at the spot with whom the incident had occurred. PW4 Ved Prakash is the husband of the complainant. PW5 Saya Devi, PW7 Umakant Sharma, PW8 Om Prakash and PW9 Sunil Upadhyay are the public witnesses. They are the star witnesses of the prosecution in this case.
18. PW2 Saroj Bala has deposed that on 20.09.2014, she alongwith her daughter Sushma went to the house of Narender Kumar Jain and complained him that his workers were spoiling the atmosphere by hurling abuses loudly and requested him to stop them from doing so upon which accused Narender Kumar Jain called his sons Gaurav and Saurabh and said "saley chamar ab itni himmat ho gaye ki hamare ghar aa gaye aur chamar hamari brabari karne lag FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 11 of 44 gaye, darwaje pe char ke aa gaye" and pushed and manhandled them in the gali. Someone informed the police. Lots of people had gathered at the spot. She does not remember the names of the people who gathered at the spot. Police came at the spot. They were taken to the Police station. Her statement Ex.PW2/A was recorded. PW2 was declared hostile by the prosecution and cross examined by the Ld. Addl.PP wherein she admitted that when she requested accused Narender Kumar Jain then he called his two sons namely Gaurav and Saurav and instead of his making workers understand, he said to his sons "Saley chamaro ki inti himmat ho gaye ki hamare darwaze per chale aaye, inhe foran dhakke deker gali se bahar nikal kar aao" and thereafter, accused persons took them by pushing and saying "chamaro ki inti himmat ki hamare brabar mei rehne kay barey mai soch rahe hain" and thereafter they pushed them outside. She admitted in further cross examination that at the time of incident Smt. Saya Devi, Sunil Upadhyay, Umakant Sharma and Om Prakash were also present. She showed the place of occurrence to the police. The copy of her caste certificate issued by Sh. Jage Singh, Numberdar on 14.10.2014 was seized vide seizure memo Ex.PW2/B and her caster certificate was seized vide memo Ex.PW2/C. In cross examination, she stated that after marriage she came to X320 and since then she has been residing at the above address. Again said, she has been residing at X320 as well as X 2220 Mahila Colony, Gandhi Nagar, Delhi. She denied that she FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 12 of 44 encroached the public land infront of the factory of accused Narender Jain and started construction on it and joined their land with it. She further denied the suggestion that when accused Narender Kumar Jain objected for the same then she said that they would remove the same and that her husband Ved Prakash was also present there. She does not know if accused persons had made any complaint regarding the said encroachment anywhere. She admitted that the MCD officials had come and demolished the lanter (roof) of house no.X2220 in the year 2014, prior to the date of incident. She does not know if any civil suit is pending between the accused persons and her husband. She does not know if any local commissioner was appointed and he inspected the property in dispute or not. She denied the suggestion that she alongwith her husband threatened the accused persons that if they did not take the case back, they would be falsely implicated in any case. She does not know if the accused persons made any complaint against them to DCP on 16.06.2014, 01.07.2014 to MCD, 04.07.2014, 21.07.2014 and 29.09.2014 to SHO. She cannot tell the name of the person who had written her complaint Ex.PW2/A. Saya Devi is her neighbourer and so she knew her. Sunil Upadhyay is also known to her being resident of their locality. She denied the suggestion that she does not belong to chamar caste. She denied that she does not have any caste certificate.
19. PW3 Sushma Kain is the daughter of PW2. She stated FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 13 of 44 that she had come to her parents house at 2220, Mahila Colony. Workers of Narender Kumar frequently used abusive language and they were disturbing the atmosphere and therefore, she and her mother went to the house of accused Narender at 6.307.00 p.m to complain about the workers. PW3 further stated that accused Narender Jain and his two sons Saurabh and Gaurav started laughing and when she questioned them as to why they were laughing, all the accused made caste remarks. They said 'saley chamaron ki intni himmat ho gaye ki hamare darwaze tak chale aaye, saalon ko dhakke dekar nikalo'. In cross examination, she stated that she got married in the year 2008. She is aware about the court case between her parents and the accused. About two years ago, the MCD officials had punctured their lanter(roof). She denied the suggestion that because such action was taken by the MCD on their complaint, due to this reason with a view to take revenge, they have lodged false case against the accused.
20. PW5 Saya Devi has been introduced by the prosecution as witness of public view. She stated in her examination in chief that she knows Saroj Bala as she belongs to her basti. She is jatav chamar by caste. She also belongs to the same caste.
21. PW7 Umakant Sharma is a hostile witness. He did not state anything against the accused persons. He was declared hostile by the prosecution. He denied the suggestion put by the Ld. Addl.PP FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 14 of 44 with respect to castiest words used by the accused persons.
22. PW8 Om Prakash stated that he saw two ladies were being beaten by three persons. All the said persons were also uttering the words "saley chamaron ki itni himmat ho gayi ki hamare darwaze per aa gaye, in chamaron ko nikalo yahan se, chamaron ko yahan nahin rehne denge, chamaron ko yahan se bhagao". In cross examination, he stated that prior to the incident, he had never visited the spot. He denied the suggestion that the incident took place in gali which is closed from one side. He denied the suggestion that he alongwith Sunil Upadhyay and Ved prakash had gone to the house of accused Narender Kumar Jain and requested him to compromise the civil matter or that when accused Narender Kumar Jain refused to compromise the matter, Ved Prakash had threatened him to falsely implicate in SC/ST Act case or that accused persons have been falsely implicated by him through his wife and daughter. He had only provided his mobile number, written on a slip. He had also made complaint to the police at no.100 from his number 8447069189. He had told to the police that two ladies were being beaten by some persons and quarrel was going on. Police had not come in his presence. On the same day, police had called him back and at about 9.00 - 9.30 p.m., he had gone to PS Gandhi Nagar. IO met him and recorded his statement in the PS which was signed by him. The said statement was recorded by the IO on 20.09.2014 in the PS. His other statement was recorded on FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 15 of 44 14.10.2014. He denied the suggestion that Ved Prakash and his son are known to him and that is why he had come to depose against the accused persons. He stated that he does not know if Smt. Saroj Bala belongs to Rajput caste and she had a love affair with Ved Prakash and had married with him. He stated that he is Kashyap by caste.
23. PW9 Sunil Upadhyay has deposed that on 20.09.2014, at about 7.00 p.m., when he reached near Mahila Colony, he saw 10 15 persons gathered there and three persons were abusing two ladies in filthy language. The offenders uttered castiest words against those two ladies stating "in chamaron ko yahan nahi rehne denge". The young lady asked his name, address and mobile number and then he came back to his house. He further deposed that on 14.10.2014, he received a telephone call from PS Gandhi Nagar. He went there and his statement was recorded by the IO. Leading question was put to this witness by Ld. Addl.PP wherein he admitted that accused persons uttered the words "chamaron ko yahan nahin rehne denge, chamaron ko yahan se bhagao". In cross examination, he stated that he does not know any person by the name Rahul s/o Ved Prakash. He denied that he had personal relations with Ved Prakash or that he is intentionally telling a lie in this regard. He remained at the spot for about half an hour. He denied the suggestion that he is a witness in the civil case pending between the accused and Ved Prakash. He denied the suggestion that Ved Prakash had threatened the accused persons that if they do not compromise or take the case FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 16 of 44 back, they would falsely implicate him in SC/ST Act case. He does not know if accused Narender Kumar Jain had made any complaint against him alongwith Ved Prakash. He does not know Saroj by name or about her caste.
24. In her examinationinchief, PW2 stated that Narender Kumar Jain said "saley chamar ab itni himmat ho gaye ki hamare ghar aa gaye aur chamar hamari brabari karne lag gaye, darwaje pe char ke aa gaye". As per her version, only Narender Kumar Jain has used such words. She has not stated about uttering such words by accused Gaurav and Saurav. Further, as per her version, police was informed by someone at no.100 while as per complaint Ex.PW2/A, she stated that thereafter, they made a call at no.100. From the cross examination conducted by the Ld. Addl.PP, it is revealed that Narender Kumar Jain has not stated any castiest words against PW2 as she stated in cross examination conducted by Ld. Addl.PP that Narender Kumar Jain said to his sons "Saley chamaro ki inti himmat ho gaye ki hamare darwaze per chale aaye, inhe foran dhakke deker gali se bahar nikal ker aao". Thus, castiest words were not stated by accused Narender Kumar Jain to PW2. However, she stated that thereafter, accused persons pushed them by saying "chamaro ki itini himmat ki hamare barabar mei rehne kay barey mai soch rahe hain" and thereafter they pushed them outside. It seems that PW2 wanted to say that accused Gaurav and Saurav who are sons of Narender Jain had used these words against her.
FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 17 of 44
25. In cross examination, she stated that after marriage she came to X320 and since then she has been residing at the above address. Again she stated that she has been residing at X320 as well as X2220 Mahila Colony, Gandhi Nagar, Delhi. The place of incident is X2221, Mahila Colony, Hathiwala Park, Gandhi Nagar, Delhi. Perusal of the testimony of PW2 Saroj Bala reveals that in the very first line of her examinationinchief, she stated that she has been living in aforesaid house (means address mentioned on top) i.e. F/320 (should be X320) since last about 40 years. She stated that her parentsinlaw used to reside at X2220, Mahila Colony, Delhi. From this version of PW2, it is crystal clear that on the day of incident, she was not residing at the place of incident i.e. X2220. Further, PW12 Rahul who is the son of PW2 has stated that he alongwith his family members have been residing at X2220 Hathiwala Park, Mahila Colony, Gandhi Nagar Delhi. In cross examination he stated that he is presently residing at X320, Gandhi Nagar for last about many years. X2220 is also their house and presently nobody is residing in this house. As per statement of PW12, he has given his mobile no. 8459752916 to his mother for use. This Court has perused the CAF Ex.PW16/A placed on record. As per CAF, PW12 Rahul has himself mentioned his address as X 320, Gandhi Nagar, Delhi at the time of filling up the CAF i.e. on 01.01.2014. ID proof i.e. election ICard given by PW12 alongwith CAF also bears the same address i.e. X320, Gandhi Nagar, Delhi.
FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 18 of 44 From CAF, Election ICard, it is apparent that PW12 was residing at X320, Gandhi Nagar as on 01.01.2014 and even prior to that as election Icard bears the date of issued as 20.10.2008. He has stated that he was residing with his family. Thus, it can be inferred that PW12 alongwith his family i.e. PW2, PW3 and PW4 were residing at X320 Gandhi Nagar and that they were not residing at the place of incident i.e. X2221 on the date of incident.
26. Further, PW14 SI Om Prakash when on receipt of call reached at the spot, he did not find the complainant there. On 03.10.2014, he alongiwth IO ACP Rajesh Sharma (PW15) went to H.No.X2220 Haathiwala Park, Mahila Colony, Gandhi Nagar but it was found locked and nobody was present there. The evidence on record shows that on the alleged date of incident, complainant did not meet PW14 at the spot and even thereafter, during the investigation on 03.10.2014, the said house was found locked and none was present. This also shows that complainant was not residing at the said house.
27. Further, PW4 Ved Prakash husband of PW2 and father of PW12 has given his caste certificate Ex.PW4/B to the police. This Court perused the same and found that this certificate was issued to PW4 on 27.04.1988. The address of PW4 is mentioned on the said certificate which is X320 Raghuvarpura Gandhi Nagar.
FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 19 of 44 Thus, even from this certificate, it is crystal clear that the PW4 had been residing at X320 since 1988 and therefore, his wife PW2 and son PW12 must also be living alongwith him at the said address being family members.
28. All the documents on record shows that complainant does not reside at X2220, Gandhi Nagar, Delhi. Even this fact is clear from the statement made by PW2 during cross examination conducted by the Ld. Addl.PP that "thereafter accused persons took them by pushing and saying "chamaro ki itni himmat ki hamare brabar mei rehne kay barey mai soch rahe hain". This version also shows that complainant were not residing at X2221 on the date of incident. Since the complainant was not residing at the place where the castiest words were used, it is highly improbable that the accused persons were aware about the caste of the complainant.
29. PW3 Sushma who is the daughter of the complainant is the married daughter (married in the year 2008 as per cross examination) as she has stated that she came to her parents house on 20.09.2014. She further stated that workers of Narender Jain were frequently using abusive language and they were disturbing the atmosphere. Admittedly, PW3 is the married daughter. She was not residing at the place of incident. She came to her parents house only on 20.09.2014. It is therefore, not understood as to how she can say that workers of accused Narender Kumar Jain were frequently using FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 20 of 44 abusive language and disturbing the atmosphere. On the other hand, PW2 stated that she was residing at X320 for last 40 years and thus, there was no occasion for PW3 to state that she came to her parents house at X2220 Mahila Colony on 20.09.2014.
30. PW3 further stated that accused Narender Jain and his two sons Saurabh and Gaurav started laughing and when she questioned them as to why they were laughing, all the accused made castiest remarks. They said 'saley chamaron ki intni himmat ho gaye ki hamare darwaze tak chale aaye, saalon ko dhakke dekar nikalo'. The version of PW3 regarding laughing of accused persons had not been corroborated by PW2(complainant). She has also given contradictory version regarding the castiest remarks. She did not corroborate the version of PW2 that accused Narender Jain called his sons and said 'saley chamar ab itni himmat ho gaye ki hamare ghar aa gaye aur chamar hamari brabari karne lag gaye, darwaje pe char ke aa gaye'. PW2 stated in examination in chief that only accused Narender Jain uttered these words while PW3 stated that all the accused made castiest remarks. On the other hand, as per the cross examination of PW2 conducted by the Ld. Addl.PP, accused Narender Jain said to his sons 'saley chamaron ki itni himmat ho gaye ki hamare darwaze per chale aye, inhe foran dhakke deker gali se bahar nikal ker aao'. It means that the words admitted by PW2 in cross examination were the words said by accused Narender Jain to his sons. PW2 has further stated that thereafter, accused persons, FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 21 of 44 meaning thereby accused Saurav and Gaurav took them (PW2 and PW3) by pushing and saying "chamaro ki itni himmat ki hamare brabar mei hehne kay barey mai soch rahe hain" but this version of PW2 regarding use of these castiest remarks by accused Saurav and Gaurav has not been corroborated by PW3 Sushma in her statement. Further, as per statement of PW2, accused persons have together stated that "chamaro ki itni himmat ki hamare brabar mei hehne kay barey mai soch rahe hain". All the accused persons are not supposed to utter the omnibus words simultaneously. In this regard, Court is supported by the Judgment titled Mukesh Kumar Saini Vs. State (Delhi Administration) 2001 (60) DRJ 65 wherein Hon'ble High Court been held that : 'the basic ingredients under Section 3(1)(x) of the Act are that there must be an "intentional insult" or "intimidation" with "intend" to humiliate SC/ST member by a nonSC/ST member and the insult must have been done in anyplace within "public view".... Merely calling a person by caste would not attract the provisions of this Act. There must be specific accusations alleged against each of the accused. Section 34 of the Indian Penal Code cannot be pressed into service. Omnibus statement that all the accused persons uttered allegedly humiliating word may not be enough. This being a penal provision has to be given a strict interpretation. If any ingredient is found lacking, it would not constitute an offence.'
31. In the matter of Pandurang, Tukia and Bhillia Vs. The State of Hyderababd AIR 1955 SC 216, it has been held FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 22 of 44 that : '....People do not ordinarily act in a unison like a Greek chorus and, quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say "all" even when they only saw "some" because they are too lazy mentally to differentiate. Unless therefore, a witness particularizes when there are a number of accused, it is ordinarily unsafe to accept omnibus inclusions like this at their face value'.
32. It is clear from the aforementioned discussions made in regard to the testimonies of complainant and her daughter that the allegations against the accused persons are not specific as laid down in the above noted Judgements. The statements made by PW2 and PW3 are not consistent. In view of the settled law, it cannot be assumed that all the accused persons had made identical remarks. Thus, on this ground also the allegations seems to be unreliable.
33. Further, as per the statement of PW5, she belongs to the same caste to which PW3 complainant belongs. Even otherwise, she stated that accused Narender Jain was saying 'chure chamar kaha se aa gaye hain' while his son was abusing. Her statement is not in consonance with the statement of PW2. After she was declared hostile, in her cross examination, firstly she denied the suggestions put by Ld. Addl.PP regarding use of castiest remarks by the accused persons but subsequently, she admitted about the same.
FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 23 of 44 She therefore, herself is not sure and certain about the use of castiest remarks.
34. PW8 Om Prakash stated that all the accused persons were uttering the words "saley chamaron ki itni himmat ho gayi ki hamare darwaze per aa gaye, in chamaron ko nikalo yahan se, chamaron ko yahan nahin rehne denge, chamaron ko yahan se bhagao". PW9 Sunil Upadhyay stated that the offenders uttered castiest words against those two ladies stating "in chamaron ko yahan nahi rehne denge". These versions of PW8 and PW9 are contradictory to the statement of PW2 Saroj Bala as the castiest words used by PW2 in her statement are different from the words stated by PW8 and PW9. Even PW8 and PW9 both stated different words. Further, PW2 has never stated that all the accused persons used the said castiest words. As per her statement, it seems that she wanted to say that only accused Gaurav and Saurav uttered the castiest words but she herself contradicted her initial statement and the statement made by her after she was declared hostile by the prosecution. The statements of PW2, PW8 and PW9 have also not been supported by PW3 Sushma Kain who was present with complainant at the time of alleged incident. They all have mentioned different castiest words at the time of their statements before the Court. Thus, their statements are not consistent. The date of incident is 20.09.2014. Further, as per the statement of PW8 and PW9, PW8 FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 24 of 44 had written his mobile number on a slip of paper and PW9 stated that he told his mobile number to a lady who wrote on a piece of paper and they told the said ladies that if their presence was required, they would come to help them in this regard and then they went to their respective homes. As per their statements, PW8 & PW9 were not known to the complainant. Neither PW2(complainant) nor PW3 (daughter of PW2) had corroborated the version of PW8 & PW9 that they had given their mobile numbers to them by writing on a slip of paper or that the same was handed over to the police by them to associate them as witnesses in this case. When there is no such evidence, it is not understood as to how PW8 and PW9 were associated as witnesses in this case. Further, PW8 stated in his examination in chief that he was called by the police at the PS on 14.10.2014 and his statement was recorded. However, in cross examination he stated that he had told to the police that two ladies were being beaten by some persons and quarrel was going on. Police had not come to the spot in his presence. On the same day, police had called him back and he had gone to PS and IO recorded his statement which he signed. Perusal of the file reveals that there is no statement of PW8 dated 20.09.2014 available on file. Only statement dated 14.10.2014 is on file which is recorded by IO/ACP and the same statement has been made by him before the Court. In the said statement, it is recorded that "ki agar jarurat pade toh mai bhi gavahi de dunga aur iske FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 25 of 44 pashchat police mauke per aa gaye". Similar words regarding reaching of police at the spot is found mentioned in the statement of PW9. It appears from this statement that the police had come to the spot in the presence of PW8 & PW9 while in cross examination, PW8 stated that police had not come in his presence at the spot. If police had arrived at the spot in the presence of PW8 and PW9 then there was no need for them to give their mobile numbers to the complainant and her daughter and their statements could have been recorded then and there but there is no statement of dated 20.09.2014 available on record and it seems that both PW8 and PW9 are introduced witnesses. Further, PW8 stated in cross examination that he made complaint to the police at no.100 through his mobile and he had told to the police that the two ladies were being beaten by some persons and quarrel was going on. As per version of PW8, he has not stated that he made complaint to the police regarding use of castiest remarks against the ladies but he stated that he made complaint regarding ladies were being beaten which is not the case of the prosecution. Further, PW2 (complainant) has clearly stated in cross examination that she knew PW9 Sunil Upadhyay being resident of locality. Considering the contradictory castiest words as well as other evidence of PW8 and PW9, they cannot be regarded as reliable witnesses.
35. PW2 complainant stated in her cross examination that FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 26 of 44 she knew Saya Devi (PW5) being neighbour and Sunil Upadhyay (PW9) being resident of the locality. She stated in cross examination that she does not know Umakant and Om Prakash. However, in her cross examination conducted by Ld. Addl.PP, she stated that when the accused persons had used the castiest words and pushed them outside, Saya Devi w/o late Sh. Murari Lal, Sunil Upadhyay, Umakant Sharma and Om Prakash were also present. From the said admission of PW2 during her cross examination conducted by Ld. Addl.PP, it seems that PW2 already knew all these witnesses of public view. In the matter of Kusum Lata Vs. State and Ors. [2016 IVAD (Delhi) 362, it was held 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 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." In view of the above cited case law and the evidence on record, the witnesses of public view introduced by the prosecution in this case cannot be regarded as independent witnesses of public view. The case of the prosecution is therefore, doubtful.
FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 27 of 44
36. Information about the incident was given to police by PW2 through mobile phone of PW12 Rahul. PW16 Amit Kumar Sharma, Nodal Officer stated that the said number was issued to Rahul. PW12 Rahul stated that he had given the mobile no. 8459752916 to his mother for use. His mother had given the information to the police from the said mobile. However, PW2 who is mother of PW12 stated that someone had informed the police at no.100. PW10 W/Ct Rakhi received the call at CPCR. The CPCR form is Ex.PW10/A. Perusal of the said form Ex.PW10/A reveals that the call was made at no.100 regarding quarrel with a lady at H.No.2220 Mahila Colony, Hathiwala Park, Gandhi Nagar, Delhi. As per PW12, the said call was made by his mother PW2 (complainant) with whom the incident had taken place. PW3 who is the daughter of PW2 was also with her at the time of incident and as per her statement, she deposed that she made call to the police at no.100 from the mobile phone of her brother. Both PW2 and PW3 were together and aware about the entire incident. It was not mentioned by them to the police at the time of passing the information on phone that castiest words were also used against them. Thus, the use of castiest words as alleged, seems to be doubtful.
37. In the statements of accused, accused have taken the FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 28 of 44 defence that accused Narender had filed a civil suit against the husband of the complainant for demolishing the unauthorized construction on public land before lodging of the present FIR and the said suit is still pending and MCD has partly demolished the same. Reverting back to the evidence, PW2 has denied the suggestions of Ld. Defence counsel regarding encroachment on public land. She stated that she does not know if the accused persons had made any complaint regarding the encroachment. However, she admitted that MCD officials had come and demolished the latern(roof) prior to the incident. She does not know if any civil suit is pending between the accused persons and her husband. She denied that she threatened the accused persons that if they did not take the case back, they would be falsely implicated in any case. She does not know if accused persons made complaints to DCP, SHO, Lt. Governor. PW3 Sushma stated in cross examination that she is aware about the court case between her parents and the accused. About two years ago, MCD officials had punctured their lanter. PW4 Ved Prakash (husband of PW2) admitted in cross examination that Narender Kumar Jain had filed a civil suit against him in respect of the said house for stay against unauthorized demolition. He admitted that on 13.08.2014, Local commissioner visited the said spot and videography and photography was done. He admitted that on 14.08.2014 MCD staff had demolished the newly constructed part of the said building. It is not in his knowledge that another case FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 29 of 44 is pending against them in the court. He admitted that on 16.06.2014, a complaint was lodged against him to the DCP East and MCD. He does not know if the complaint regarding unauthorized construction was made vide DD no.38B to SHO PS Gandhi Nagar by accused Narender Jain. From the above statements, it seems that PW2 has intentionally not stated about complaints made by accused persons against the unauthorized construction. However, PW2 and PW3 have admitted about demolition of the latern as well as pendency of civil suit against PW4. In cross examination, PW15 ACP Rajesh Kumar Sharma admitted in cross examination that accused persons had produced him the copies of complaint made by them, the copies of the court cases alongwith stay orders etc. He had not attached the said copies alongwith the charge sheet as the same were not relevant. He denied the suggestion that the said copies of the documents were relevant to the present case and the same were not submitted by him with the chargesheet intentionally. The statement of IO/ACP Rajesh Kumar Sharma (PW15) indicates that all the documents related to the complaints and case/stay order were handed over to the IO by the accused persons. However, PW15 has not placed the same on record. Thus, it is clear that accused Narender Kumar Jain had made complaints against the husband of the complainant prior to the alleged incident of the present case due to which the latern of the house of the husband of the complainant was also demolished. The FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 30 of 44 evidence indicate that the complainant was not residing at the place of incident and that they were in the process of construction by encroachment which on the complaint of the accused was demolished. Thus, there was animosity between the complainant and accused persons and therefore, possibility of false implication of accused persons in the present case cannot be ruled out.
38. Section 3 (1) (X) SC/ST Act, makes intentional insults or intimidations with intent to humiliate a member of a SC or ST in any place within public view, a punishable offence if such insult or intimidation was committed by a person not being a member a SC/ST. To constitute the offence under this section, the necessary conditions are (1) the affected person should be a member of SC/ST, (2) The offender should not be a member of a SC/ST, (3) There must be an intentional insult or intimidation with intent to humiliate a member of a SCT/ST and (4) such insult or intimidation should have been made in any place within the public view.
39. In the present case, there is no evidence on record to show that the accused persons were aware about the caste of PW2/PW3. PW2 Saroj Bala stated that she is residing at H.No.F/320 Gali no.4 Raghver Pura since last about 40 years. Her parentsinlaw used to reside at X2220 Mahila Colony, Delhi. Since PW2 was residing at different address for last 40 years, there was no occasion for the accused persons to know the caste of complainant. PW2 FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 31 of 44 herself stated in cross examination conducted by Ld. Addl.PP that "chamaro ki itni himmat ki hamare brabar mei rehne kay barey mai soch rahe hain". This version also shows that complainant was not residing at the given address. Son of PW1 i.e PW12 has filled up the form for issuance of SIM no.8459752915 which shows that he was residing at X320 and not at the place of incident. Caste certificate of PW4 Ved Prakash also shows that he was residing at X320 since 1988. Thus, it is clear that the complainant was not residing at the place of incident and therefore it can be inferred that accused persons were not aware about the caste of the complainant. In the matter of In the matter of D.P.Vats vs. State & Ors. (2003) 99 DLT 167, it has been observed by Hon'ble High Court that '....if he had no knowledge of his caste status, the offence under sub section (1) (x) would not be constituted. Similarly, if his utterance was not directed against a member of SC/ST in contradistinction to a group of members of SC/ST or the community as a whole, it would not again make out an offence under sub section (1) (x). The world "a member" occurring in the provision assumes crucial importance in this context and leaves no scope for doubt that it must be directed against the individual member and not against a group of members or the crowd or the public in general though these may comprise of SC/ST. If it is made in generalised terms against all the sundry and is not individual specific in the name of caste, it would not make out an offence under the firstsection, the rationale being that FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 32 of 44 intentional insult, intimidation and humiliation made in the name of case was liable to be caused to a person and in this case to an individual member of SC/ST and not to a group of members or general public'. In the matter of Deepa Bajwa Vs. State & Ors, it has been held by the Hon'ble High Court that where in the FIR, the complainant does not state that the petitioner knew his caste when the remarks in question was made, the basic ingredients of section 3 (1) (x) of SC&ST Act are not made out. It was also held that the first version in the complaint is always important and subsequent filing of lacunae is not permissible. In the present case also, complainant did not mention in the complaint that she belongs to SC/ST community. She also did not state in the complaint that accused knew her caste when the remarks in question was made. Evidence on record indicate that the complainant was not residing at the place of incident as on the date of incident and therefore, accused persons were not aware about her caste. In view of the evidence on record, complainant has not mentioned in her statement that she belongs to SC/ST community or that accused persons knew her caste. Thus, the case of the prosecution is doubtful.
40. In this case, one more crucial aspect of the matter has been noticed by this Court regarding rule 7(1) of SC/ST Act. Rule 7(1) pertains to the investigation part which reads as under: 7(1). Investigating Officer. FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 33 of 44 (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government, DirectorGeneral of Police, Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.
41. As per Rule7(1) an officer not below the rank of Deputy Superintendent of Police is to be notified by the State of Government to carry out investigation under SC/ST Act. The State Government has been empowered in Sec 9 of the Act to issue notification under this Act for a District or a part thereof. The Rule 7(1) only talks about the officer who is legally competent to carry out investigation under this act but it doesn't specify the consequences if the investigation is not done by the said officer. Thus, the legal position in this regard has to be gathered from the pronouncements of Hon'ble Apex Court and different Hon'ble High Courts. The compliance of provisions of Rule7(1)is so stringent that it has to be followed in letter and spirit and no departure from these provisions can be made. In the matter of State of MP Vs Chunnilal @ Chunni Singh 2009(12) SCC 649, accused was charge sheeted u/s 376 IPC and Sec. 3 (1)xii of SC ST Act. In this case, the Hon'ble High Court had quashed the entire proceedings against the accused as investigation was conducted by a Sub Inspector who is not authorized under Rule7 to do that. However, State went in appeal FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 34 of 44 before Hon'ble Apex Court wherein it was held by Hon'ble Apex Court that proceedings under SC/ST Act were liable to be quashed as investigation was not done by the authorized officer, however, the case in regard to the offence under IPC was directed to be proceeded with. Relevant para of this case reads as under:
6. By virtue of its enabling power it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer. The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under the Indian Penal Code and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in appropriate Court for the offences punishable under the Indian Penal Code notwithstanding investigation and the charge sheet FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 35 of 44 being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence.
42. In a very recent Judgment titled as State of MP vs Babbu Rathore &ors, decided on 17.01.2020, the Hon'ble Apex Court while relying upon the Chunnilal case, has taken the same view. In this case, accused persons were charge sheeted u/s 302/404/34 IPC and 3(2)v of SC/ST Act. Ld. trial court had discharged the accused from all the offences including IPC as the investigation was conducted by a Sub Inspector and this order was assailed before Hon'ble High Court and Hon'ble High Court had dismissed the petition filed by State. Then State further assailed the order before Hon'ble Apex Court wherein Hon'ble Apex Court again held that the proceedings under SC/ST Act were not sustainable as investigation was not conducted by the officer authorized under Rule7, however, it was held that proceedings under IPC were maintainable.
43. In the case of K. RAGHUPATI VS STATE 2015(1)MLJ (CRL)324, it has been held that even the investigation done by the DSP, who has not been notified by the State Govt. in terms of Rule7(1), has been held to be illegal. So in view of this settled law, not only the officer who would conduct the investigation FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 36 of 44 is to be of DSP rank, simultaneously, he has to have a notification under Rule7(1) in his name. The relevant para of this case reads as under:
9. Point No.(i): (A) It is seen from the evidence of PW.15 to PW.18 that they have not stated that they have been appointed under Rule 7 of the SC & ST Rules. P W.17 admitted that Under Rule 7 of the SC & ST Rules, the case can be investigated only by an officer not below the rank of DSP. PW.18 also admitted the same in evidence. As per the evidence of PW.16, PW.17 and PW.18, at the relevant point of time, they were working as Assistant Commissioners of Police and therefore, they were equivalent to the post of DSP and hence, the question arisen for consideration is whether they were appointed specifically under Rule 7 of the SC & ST Rules or whether it is necessary that to investigate the offence under the provisions of SC & ST (PA) Act, any officer not below the rank of DSP to be specifically appointed under Rule 7 of the SC & ST Rules.
(B) In the judgment reported in (2009) 3 MLJ (Crl) 1071 (SCNOC) : (2010) 1 SCC (Cri) 683 in the case of State of M.P. v. Chunnilal @ Chunni Singh, it is held that reading of Section 9 of the SC & ST (PA) Act, Rule 7 of SC & ST Rules 1995 and Section 4 of the Cr.P.C. jointly read would lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of 7 is illegal and invalid. But when the offence complained are both under the IPC and any of the offence enumerated in Section 3 of the Act, the investigation which is being made by FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 37 of 44 a competent police officer in accordance with the Code cannot be quashed for noninvestigation of the offence under Section 3 of the Act by a competent police officer.
(C) In the judgment reported in (2010) 2 Supreme Court Cases (Cri) 288 in the case of State of Punjab v. Hardial Singh and others, following the judgment reported in (2010) 1 SCC (Cri) 683 supra held that the investigation done by police officer not specifically authorised in terms of Section 3 of the Act is illegal qua the offence relating to SC & ST (PA) Act but the investigation is not illegal in respect of of offence punishable under the provisions of IPC.
(D) In the judgment reported in 2007 (1) MLJ (Crl) 654 in the matter of Sambasivm and another v. State, rep. by Deputy Superintendent of Police, Mannarkudi, the following judgments rendered in (2006) 2 M.L.J. (Crl) 463 and 2002 (4) ALTR in the matter of Viswanadhula Chittibabu v. State of A.P., learned single Judge of this Court held that investigation by police officer not specifically appointed under Rule 7 of the SC & ST Rules is illegal.
(E) Similarly, learned single Judge of this Court, in the judgment reported in 20092L.W.(Crl.) 1347 in the matter of V.P.Kuppurao v. The Director General of Police, Tamil Nadu and others; and (2010) 1 MLJ (Crl) 247 in the matter of V.P.Kuppurao v. Director General of Police, Tamil Nadu Government DGP Office, held the same view.
(F) Therefore, it is clear from the above FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 38 of 44 judgments of the Hon'ble Supreme Court and our High Court that when an investigation under SC & ST (PA) Act was done by an officer though holding the post of DSP is illegal when such officer was not appointed specifically under Rule 7 of the SC & ST Rules.
(G) In this case, as stated supra, admittedly, PW.16 to 18 did not state that they were specifically appointed under Rule 7 of the SC & ST (PA) Act. Therefore, in the absence of such evidence, it cannot be held that they were competent to conduct investigation against the accused punishable under the provisions of SC & ST (PA) Act and therefore, the charge levelled against the accused with the offence under Section 3(1)(x) & (xi) of the SC & ST (PA) Act is liable to be set aside.
44. In another case reported as Sambasivam and Another v. State {2007 (1) MWN (Crl.) 69}, it has been held that for the IO, who conducts the investigation for the offences under this act, having a notification in his favour under rule 7 is mandatory. It has been further held that if the investigation has been conducted by any other officer than who ought to have done the same under rule7 then this defect in the investigation is an inherent defect and not a procedural defect. The relevant Para of this case reads as under:
16. A careful reading of the above Rule and its purpose would reveal, that an Investigating Officer has to be appointed to investigate this kind of FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 39 of 44 cases by the State government/Director General of Police/Superintendent of Police, taking into account the past experience, sense of ability, etc. of the officer and this is possible only if the individuals are considered separately. Rule does not say that all the Deputy Superintendents of Police are competent to investigate this kind of cases, irrespective of their experience, sense of ability, etc. Therefore, in my considered opinion, a person, who has been named and appointed, considering his past experience and ability alone is competent to investigate this kind of cases, otherwise, the purpose of the Rule will not be served. If all the Deputy Superintendents of Police of the State are empowered, as observed by the Trial Court, placing reliance upon some circular, which is not available for perusal, before me, then, there may not be any chance for the higher authorities to take into account the past experience, sense of ability and justice to perceive the implications of the case of the officer, which were considered so essential, to investigate this kind of cases, considering the sensitiveness and the caste discrimination prevailed or prevailing throughout, though we have crossed so many years from the date of independence. When the Rules framed under the Act, says how, by whom the case is to be investigated, I am of the view, the same cannot be nullified or overlooked, by issuing a circular, empowering all the Deputy Superintendents of Police, to investigate this kind of cases, forgetting or ignoring the purport of Rule 7, which is mandatory, not challenged. If it is to be taken, all the Deputy Superintendents of Police are empowered, the Rule need not say, past experience, sense of responsibility, etc., simply it FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 40 of 44 would have been stated "by the officer not below the rank of Deputy Superintendent of Police" in general form, which is not the import or purport of Rule 7, as read from its proper perspective.
17. The learned counsel for the appellants, inviting my attention to a decision of the Division Bench of the Andhra Pradesh High Court in Viswanadhula Chittibabu v. State of A.P., 2002 (4) Andhra Law Times Reports 456, would submit that the investigation done by any person, not authorised under Rule 7 of the Rules, should be treated as prejudice caused to the accused, since Rule 7 is mandatory and not directory. It is observed in the above Ruling:
"The Act was enacted in the year 1989, whereas the Rules were framed in the year 1995, under Section 23 of the said Act. There was a delay of about six years in framing the Rules. It has to be considered why the Government framed this Rule. According to our logic, the Government experienced that the Act is being misused and therefore, felt that under such Acts, the investigation has to be done by a responsible Senior Officer and therefore, they chose Dy.S.P. to make an investigation. This Rule does not provide that all Dy.S.Ps. can investigate into the matter but provides that the Dy.S.P., named by the State Government or Director General of Police or Superintendent of Police has to nominate and select a Dy.S.P., with integrity and experience to investigate into such offences, which will prevent the misuse of the Act, and therefore, the provision contained in Rule 7 of the said Rules has to be interpreted as mandatory. In some of the rulings cited, their Lordships held if there were procedural FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 41 of 44 defects, the trial would not vitiate. The procedure means a procedure, which is adopted by the Court. When the investigation has to be done by a Police Officer not below the rank of Dy.S.P. under Rule 7 of the said Rules framed under Section 23 of the said Act, it has some meaning. It is not the procedural defect, it is inherent defect in making the investigation and that would vitiate the entire trial." (Emphasis supplied)
45. Thus, in view of the settled law the investigation has to be done strictly by the notified officer only and if investigation is conducted by any other officer even of the same rank i.e. DSP who doesn't have a notification in his favour, the investigation will be held to be illegal as same was without jurisdiction. In the present matter also, PW14 SI Om Prakash reached at the spot from where he came back to PS where complainant and her daughter met him and told that they had given complaint to Duty Officer which was lodged vide DD no.28A. PW15 ACP Rajesh Kumar Sharma got the case registered and conducted further investigation. The prosecution has failed to prove any notification issued by the State Government in favour of PW15 ACP Rajesh Kumar Sharma. Even no such notification is available on court file. Thus, nonproduction of the same would vitiate the trial.
46. Thus, it is clear from the aforesaid discussions that the words allegedly uttered by accused persons cannot be assumed to FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 42 of 44 have been spoken together. As per story of the prosecution, accused persons and complainant were neighbourers but documents on record as well as evidence reveals that complainant, her son and husband were not residing in the neighbourhood of accused persons. There is nothing on record to show that accused persons were aware about the caste of the complainant. The witnesses of public view are doubtful as discussed in the preceding paragraphs as all the public witnesses examined by the prosecution with respect to the incident were already known to PW2. Further, these witnesses have made contradictory statements to the deposition of PW2 and PW3 and thus, they cannot be regarded as reliable witnesses. No copy of notification empowering PW15 to carry out investigation has been proved/placed on record. In view of the above discussions, the charge u/s 3(1)(X) SC/ST Act cannot sustain against the accused persons.
47. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 43 of 44 acquittal of the guilty is not less than from the conviction of an innocent".
48. Hence, in view of the aforesaid discussions, this Court is of the opinion that the contradictory and uncorroborated testimonies of PW2, PW3, PW5, PW6, PW8 and PW9 have failed to inspire the court to believe their testimonies. Prosecution has thus, failed to prove its case against the accused persons beyond doubt, the benefit of which goes to accused persons. All the three accused namely Narender Kumar Jain, Saurabh Jain and Gaurav Jain are therefore, acquitted. The accused persons are directed to furnish personal bonds in the sum of Rs. 20,000/ each with a surety of like amount each u/s 437A Cr PC. After the bonds u/s 437A Cr.P.C are furnished, file be consigned to record room.
Announced in the open AJAY Digitally signed by AJAY GUPTA Location: court on 24.08.2020 GUPTA Karkardooma Court Date: 2020.08.24 16:25:39 +0530 (AJAY GUPTA) Special Judge (SC/ST Act) KKD COURTS, DELHI. FIR No.720/2014 State Vs.Narender Kumar Jain etc. Page no. 44 of 44