Delhi District Court
State vs . Pradeep Dhama on 25 July, 2008
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IN THE COURT OF SH. RAJNEESH KUMAR GUPTA, ASJ,
TIS HAZARI COURTS, DELHI.
SC No. 17/2000
FIR No. 498/99
PS Shahdara
U/s 323/324/504/506/509/
34/147/148/149/427 IPC
and U/s 3(1)(x) & 3(1)(xi) of
SC/ST (POA) Act, 1989
State Vs. Pradeep Dhama
S/o Sh. Raj Pal Singh
Dhama
R/o 459-B/1, Dalhari
Mohalla, Bhola Nath
Nagar, Delhi.
Purshottam
S/o Sh. Kishan Lal
R/o B-142, Gali No. 7,
Hardev Puri, Shahdara,
Delhi.
Vishal Saxena
S/o Sh. B.C. Saxena
R/o A32/105, Gali No.
10, Bhikam Singh
Colony, Vishwas Nagar,
Delhi.
Anil Chaudhary
S/o Sh. Virender Singh
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R/o X-35/10, Gali No.
10, Brahm Puri, Delhi.
Dinesh Chaudhary
S/o Sh. Prem Raj
R/o Village Dayalpur,
Delhi.
Virender
S/o Sh. Sukh Ram
R/o V-170, Arvind
Nagar, Ghonda,
Maujpur, Delhi
Vinod
S/o Sh. Dharamvir Singh
R/o 1/11337, Subhash
Park, Shahdara, Delhi.
Girish
S/o Sh. Dharamvir Singh
R/o 1/11337, Subhash
Park, Shahdara, Delhi.
Sushil Kumar
S/o Sh. Chaman Singh
R/o A-28, Gali No. 2,
Karawal Nagar, Gokal
Puri, Delhi.
Sanoj
S/o Sh. Munni Singh Bhati
R/o D-87,Dayal Pur, Delhi
Rishi Verma
S/o Sh. B.P. Verma
R/o 4/748, Street No.13,
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Bhola Nath Nagar,
Delhi.
Regon Singh Nagar
S/o Sh. Satbir Singh
R/o A84, East Nathu
Colony, Mandoli Road,
Delhi.
Date of receiving in Sessions : 15.09.2000
Court
Arguments heard : 17.07.2008
Date of judgment : 25.07.2008
JUDGMENT
In brief the case of the prosecution is that on 17.12.99 complainant namely Ms. Shanti Kiran, Ms. Geeta Devi, Ms. Bhawna, Ms. Laxmi, Naveen Chander and Ms. Bhupinder made complaint to the police of PS Shahdara on the basis of which the FIR was registered. The allegations are that on 16.12.99 complainant Shanti Kiran and Geeta were abused and beaten in the Shyam Lal College by the accused Sushil Kumar along with other boys. In the protest of this incident, complainants had started a signature campaign 4 in the college on 17.12.99. At about 12.35 pm on 17.12.99, when they were taking the signatures of the students in the campaign, complainant Naveen was beaten by the accused Virender who was accompanied by 2-3 other boys and he was saved with the intervention of the teachers/staff and by the Shanti Kiran along with her friends. Thereafter, complainant Naveen was taken to the room of the Principal. Shanti Kiran along with her friends also came in the office. Accused Pradeep, Virender along with 8 to 10 other boys came in front of the room of the Principal and started shouting "IN CHURE CHAMARON KO BAHAR NIKALO. IN GANDI NALI KE KEEDON KO HUM KATKAR RAKH DENGE" and started beating Naveen and Shanti Kiran and they were saved by the staff/teachers and they were sent to room adjoining the room of the Principal. All the boys came inside that room and broken the glass of the table and other furniture lying in the room of the Principal. Shanti Kiran was attacked with a piece of glass. Accused persons has caused simple injuries on the person of Shanti Kiran, Naveen, Bhupinder, 5 Bhawna, Geeta and Laxmi.
All the accused persons were the members of the unlawful assembly and their common object was to cause injuries on the person of complainants and in prosecution of that common object, they caused injuries on their person and had insulted Shanti Kiran who belongs to Scheduled Tribe "Oraon" and Laxmi who belongs to the Scheduled Caste sub caste Jatav Chamar with castiest words.
2. After investigation of the case, IO has filed the charge-sheet against the accused persons U/s 323/324/504/506/509/34/147/148/149/427 IPC and U/s 3(1)(x) & 3(1)(xi) of Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter be referred as SC/ST Act] and charge U/s 147/148/149/427 IPC and U/s 323/324 r/w sec. 149 IPC and U/s 3(1)(x) SC/ST Act and 3(1)(xi) of SC/ST Act r/w sec. 149 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
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3. In order to prove its case prosecution has examined 19 witnesses and statement of accused persons U/s 313 Cr. P.C. were recorded in which they had denied the case of the prosecution and had not examined any witness in their defence.
4. I have heard the Ld. APP for the state and Ld. counsel for the accused persons and perused the evidence on record.
PW1 SI Dharamvir Singh had deposed that on 17.12.99 he received the complaint Ex. PW1/A and made his endorsement Ex. PW1/B and on the basis of which the FIR Ex. PW1/C was registered. He inspected the scene of occurrence and prepared the rough site plan Ex. PW1/E. PW6 R.C. Sharma, S.O. of Shyam Lal College proved the copy of the complaint made by the Shanti Kiran as Ex. PW6/A. PW7 Dr. Sanjay Nigam has proved the MLC of 7 Bhupender, Bhawna and Laxmi as Ex. PW7/A to C respectively. He has also proved the MLCs of the accused persons Vishal Saxena, Purshottam, Vinod and Girish as Ex. PW7/D to G respectively.
PW8 SI Pratap Singh had deposed that on 17.12.99 on receiving of DD no. 6-B Ex. PW8/A he went to the spot i.e. Shyam Lal College and at the spot no quarrel was going on and DD no. 6-B was kept pending and thereafter the same was handed over to SI Dharambir along with the MLCs of the injured persons.
PW9 Ct. Padam Singh has proved the photographs of the place of occurrence as Ex. PW9/A1 to A20 and negatives as Ex. PW9/A21 to A40.
PW10 SI Narender Kumar has deposed that on 31.12.99 Shanti Kiran had handed over her caste certificate to the IO which was seized vide memo Ex. PW 5/B and on 20.01.2000 Laxmi had handed over her caste certificate to the IO which was seized vide memo Ex. PW10/A. PW11 SI Ramesh Singh had deposed that on 8 28.12.99 Shanti Kiran had handed over a copy of her complaint to the Addl. DCP which is Ex. PW11/A and which was marked to SHO Shahdara for necessary actions. SHO has sent his report which is Ex. PW11/B and the Addl. DCP had ordered investigation to be conducted by the ACP Prabhati Lal vide order Ex. PW11/C. PW12 HC Ami Chand has proved the FIR as Ex.
PW1/C and DD no. 6-A as Ex. PW8/A and DD no. 14-A as Ex. PW12/A. PW13 Dr. T. Gupta has also proved the MLC of Shanti Kiran, Geeta and Naveen as Ex. PW8/B, Ex. PW8/C and Ex. PW8/D respectively.
PW15 Mohd. Khalik from the SDM Court Ranchi has proved the caste certificate of Shanti Kiran as Ex. PW5/A. PW16 Surender Prasad from the SDM office Sadar Ranchi had also proved the caste certificate of Shanti Kiran as Ex. PW5/A. PW19 Prabhati Lal, who is investigating officer of the case, has deposed that the investigation was handed over 9 to him. He inspected the place of occurrence and prepared the site plan of the scene of crime as Ex. PW5/C and recorded the statement of the complainant and other witnesses. He also seized the photocopy of the caste certificate of Shanti Kiran and Laxmi Devi. He also got the photographs of the place of occurrence and accused persons were arrested.
PW2 Ms. Laxmi has deposed that she belongs to Scheduled Caste sub caste Jatav Chamar. In protest of the incident of 16.12.99 in the Shyam Lal College, she along with Bhawna, Bhupender, Shanti Kiran and Geeta started getting the signatures of the students. When they were near the Library, they came to know that some students were beating Naveen and they went there. Accused Pradeep Dhama snatched the papers from their hand and torn them. Some other students of the college were also present with the accused at that time. They went to the room of the Principal and they were narrating the incident. Accused Pradeep Dhama and all the students of his group started manhandling 10 with them and forcibly tried to drag Naveen Kumar and Shanti Kiran. They started breaking the articles of the Principal's room. College authorities tried to save them and they were taken to the computer room by the college authorities. They had broken the doors of the computer room and entered in that room also. They tried to beat them and abused them and uttered the words, "IN NALI KE KIRON KO COLLEGE SE NIKALO, IN CHAMAR CHUDON NE COLLEGE KA ATMOSPHERE KHARAB KAR KE RAKHA HAI." Accused Purshottam had broken the table glass. College authorities tried to save them again and informed the police. Police reached there and they were taken to the PS Shahdara. They lodged the report to the police in writing. Copy of her caste certificate is Ex. PW2/A. They lodged the complaint with the Principal of Shyam Lal College. All the accused persons are the same students who are the authors of the crime of this case. She do not remember the name of all those students whose name they had mentioned in the complaint Ex. PW2/B. She identify them as she had seen them.
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In cross-examination she had deposed that she was not sure that the accused persons had knowledge about her caste. Her statement was recorded by the police after about one week. She is the student of Delhi University.
PW3 Ms. Bhupinder Kaur had deposed that on 17.12.99 she along with Bhawna, Laxmi, Shanti Kiran and other girl students of the college decided to obtain the signatures of other students to protest the incident happened on 16.12.99 with the Shanti Kiran and when they were present in the library, all the accused persons along with other students followed them in the library and threatened them and they came out the library. Naveen came there and told them that some students of the college had given beatings to him. They went in the room of the Principal where Vice-Principal was found and they narrate the entire incident. Vice-Principal advised them to lodge their complaint in writing. They came out of the room of the Principal. One of them was writing the complaint and she was busy in obtaining the signatures of the other students, accused Virender snatched the papers and 12 torn the same. They went to the Principal's office and were discussing the matter. In the meantime accused Pradeep Dhama along with other accused persons entered in the principal office and started abusing them. They had started throwing computer chairs and other articles in the principal room. Some of the accused persons started abusing by saying that "YEH GANDI NALI KE KIRE KAHA SE AA GAYE". She cannot tell the name of those students who had uttered those words to them. When the accused persons started to beat them, teachers saved them and took them in a small room in the principal office for their safety. Accused persons broke the door of the small room and entered in that small room and started beating them with hand blows. One or two accused persons had broken the table glass and tried to hit the broken glass in the stomach of Shanti Kiran. Accused persons caught hold the head of Naveen and struck his head against the wall. She know the accused persons by face as well as by names. Names of some of the accused persons are Pradeep, Virender and Rishi and she do not 13 recollect the names of the other students. She identified all the accused persons. Accused persons had uttered the words to Shanti Kiran by saying that "YE GANDI NALI KE KEEDE KAHAN SE AA GAYE, YE CHUDE CHAMAR KAHA SE AA GAYE, BHAGAO INKO".
In cross-examination she had deposed that she was the student of Vivekanand College during those days. Complaint Ex. PW1/A does not bear her signatures. She did not know the accused persons prior to 17.12.99. She had visited the Shyam Lal College after the incident for 2-3 times. She had seen the accused persons in the college as well as at the gate of the college. She came to know the name of the accused persons Pradeep Dhama and Virender at the time of incident but the names of other accused persons were not known to her.
PW4 P.C. Jain, Retired Principal had deposed that on 17.12./99 he was officiating as Principal in Shyam Lal College and was present in the staff room at 10.30 am. Two groups of students came in his office and some discussion 14 started between them. He had directed the group of girl students to sit in the small room which was adjoining to his office. The group of male students broken the outer door of the small room and entered into that room. He came to know that male students have given beatings to the girl students and thereafter he informed the police from his office. He know all the accused persons present in the court and they were all sitting with him in his office room. The mob containing other students had broken the door of that small room and had given the beatings to the girl students. Accused persons had not caused any damage to the property of the college as they were with him at the time of incident.
In cross-examination by the Spl. PP he had denied that accused persons along with other associates had entered into his office and had damaged the property of the office.
In cross-examination by the Ld. counsel for the accused he had deposed that there was a dispute between two rival political groups of college students union.
PW5 Shanti Kiran had deposed that in the year 15 1999 she was the student of Shyam Lal College in B.A first year. On 16.12.99 when she after attending her class reached near the class room, accused Sushil pushed her and abused her and had also uttered, "CHUDE CHAMARON KI AB HIMMAT HO GAI HUM SE SAWAL PUCHANE KI.
Accused Girish and Vinod were accompanying accused Sushil and abused her. She felt humiliated and insulted and when she fainted, accused kicked her. Geeta tried to save but she was also beaten. She lodged the complaint with the principal. On 17.12.99 in protest of this incident she along with Laxmi, Geeta, Bhawna and Bhupinder started the signature campaign. She was getting the signatures of the students in the campaign. She went to the library where Naveen told her that the posters affixed in the college had been torn by the accused persons. Accused, thereafter, started abusing Naveen. Thereafter, she came out of the library and went to different classes to get the signatures. She went back to the library when she heard noise and saw Naveen being beaten by some of the boys. Accused Virender 16 and Dinesh were out of those persons who were beating Naveen but she cannot identify the other boys. They took Naveen to the Principal and lodged the complaint. They left Naveen with the Principal and came out in the lawn. Accused Pradeep Dhama was accompanied by accused Virender and Sanoj and torn their papers and they returned back to the Principal room. All the accused persons entered into the office and started throwing chairs on them. Accused Purshottam had said that, "IN CHUDE CHAMARON KO MARO, IN GANDI NALI KE KIRON KO KAAT KE RAKH DENGE" All the boys accompanying the accused Pradeep Dhama started repeating the same. Teachers and staff came there and saved them and they took them in the room adjoining to the room of the Principal. Accused persons after breaking open the room had entered inside the room and started beating them. Some of the boys broke the glass of the table and used it as knife. Accused Sanoj had attacked her with a piece of glass. Accused Regan Nagar and Virender had also piece of glass in their hand and attacked her. Accused Pradeep 17 Dhama had also a piece of glass in his hand. They had beaten her with kicks and fists. After sometime police came at the spot and took them to GTB Hospital. She lodged her complaint which is Ex. PW1/A and given copy of her caste certificate to the police which is Ex. PW5/A. She had shown the place of occurrence to the police and site plan was prepared at her instance which is Ex. PW5/C. The complaint regarding this incident was also given to the Principal which is Ex. PW2/B. In cross-examination by the Ld. counsel for the accused she had deposed that there were number of students on the lawn when they came out from the Principal office. It is possible that they were 100. Signature campaign was initiated by her. She had denied the suggestion that at the instance of Geeta on account of the election defeat of her, she made the false complaints against the accused persons to take revenge of her defeat. She had also denied the suggestion that outsiders were creating disturbance and were also pasting posters which was objected by the student 18 union and on that her associates attacked the accused persons in the presence of the Principal in the room of the Principal and injuries were also caused to some of the accused persons and as such just to escape from the same a false complaint was made against the accused persons. She had also denied the suggestion that she had contested the election and to take revenge she had lodge the complaint. She has been confronted with her statement Ex. PW1/A. PW14 Naveen had deposed that on 16.12.99 he was studying in Shyam Lal College. On 17.12.99 a signature campaign was initiated against the incident of 16.12.99. During the process of campaign accused Virender had snatched the campaign papers and torn them. When he had put his signatures on the signature campaign paper, accused persons Girish, Vinod and Sanoj gave beatings to him. These three accused persons were associated with some other persons but he could not identify those persons. Thereafter, he along with other girls went in the office of the Principal to lodge the complaint. When they were in the process of writing 19 the complaint, all the accused persons namely Pradeep Dhama, Purshottam, Vishal , Anil Chaudhary, Dinesh, Virender, Vinod, Girish, Sushil, Sanoj and Rishi along with others forcibly entered into the office. He cannot identify the accused Rishi Verma by face and also cannot identify Regon Singh. Accused persons picked up chairs and attacked upon them. He received injuries on his head. Laxmi had also received injury on her head. Shanti Kiran had received the injuries on her abdomen as a result of throwing chairs by the accused persons. Accused persons were abusing Shanti Kiran and Laxmi with castiest remarks by uttering, "IN CHUDE CHAMARON KO COLLEGE SE BAHAR NIKALO". Accused persons had also beaten them with slaps. Accused Sanoj had broken the glass which was lying on the table in the room adjoining to the Principal room and tried to hit the glass on the person of Shanti Kiran. Accused Purshottam had hit the glass which was lying in the Principal room on their person but they had saved themselves. Accused Rishi Verma and Regon Singh were also present in that episode 20 but he know them by name and did not know them by their faces.
In cross-examination by the Spl. PP he had deposed that at the first instance accused Purshottam uttered to Shanti Kiran, "CHUDE CHAMAR HAS COME IN THE COLLEGE FROM RANCHI AND THEY HAVE DARED TO SPEAK BEFORE US" and he also uttered, "INKI ITNI AUKAT HO GAI" and on hearing the above said remarks all the accused persons had jointly used these words and also uttered, "AAJ HUM IN GANDI NALI KE KEERON KO KAAT KAR RAKH DENGE".
In cross-examination by the Ld. counsel for the accused he had denied the suggestion that he along with Geeta, Bhupinder, Laxmi and Shanti Kiran with some other students had attacked the accused persons on 17.12.99 in the room of the Principal. He was saved by one K.D. Sharma and by one Krishan Pal Singh when he was beaten by the accused persons. At the time of incident accused Pradeep Dhama was the President of Union, accused Virender was the Vice- 21 President, accused Sushil was Central Counselor and accused Purshottam was the treasurer of the College Union.
PW17 Geeta had deposed that on 16.12.99 at about 12.45 am she heard the voice for help of Shanti Kiran. Accused Sushil had slapped Shanti Kiran. She and Shanti Kiran had tried to apprehend Sushil and at that time accused Girish, Vinod and Rana were also present. She on behalf of Shanti Kiran made a complaint mark PW17/A with the Vice- Principal. On 17.12.99 they had launched the signature campaign for taking action against those boys. Accused Virender, Girish, Vinod and Dinesh had beaten Naveen and he received injuries on his head. They took him to the room of the Principal. Thereafter, they came out and started the signature campaign. They heard the noise from the room of the principal and immediately went there and saw that Naveen was again beaten by the accused persons and there were about 100 students present in front of the room of the Principal. Accused Rishi whose name was written in the complaint is not the accused present in the court. Accused 22 Purshottam raised the slogan "IN CHUDE CHAMARON KO MARO" and thereafter the accused persons Pradeep Dhama and Sushil raised this slogan. The mob also started raising the slogan, "IN GANDI NALI KE KEERON KO KAAT DALENGE". Accused Purshottam had hit kick to Shanti Kiran and had also dragged her from the room. Accused Sanoj had picked up table glass of the Principal room and picked up a piece of glass andhit in the abdomen of Shanti Kiran.
In cross-examination by the Spl. PP she had deposed that accused Purshottam and other accused persons were uttering castiest remarks while aiming Shanti Kiran. She had been confronted with her statement In cross-examination by the Ld. counsel for the accused she had deposed that she had contested the election of Students Union of Shyam Lal College for the post of President as a candidate for Democratic Students Union. Accused Pradeep Dhama also contested the election against her and he was elected. She was also suspended from the college after the incident of 16.12.99 and 17.12.99. No 23 castiest remarks were passed by the accused persons on 16.12.99 against Shanti Kiran.
PW18 Bhawna deposed that she cannot identify the accused persons due to lapse of time. On 16.12.99 she went to Shyam Lal College for the signature campaign regarding the incident in which Shanti Kiran was abused. One boy took the papers from her and torn them. That boy along with some other boys started abusing them. After that they went to the office of the Principal to report the incident. Those boys started abusing physically as well as verbally. At that time about 90-100 people were present and she cannot identify accused persons.
In cross-examination by the Spl. PP she had deposed that she had stated the names of the accused persons which are mentioned in their complaint Ex. PW1/A in her statement recorded by the police which is Ex. PW18/A. Purshottam had uttered Shanti Kiran the words, "CHUDE CHAMARON KI ITNI HIMMAT HO GAI HAI JO HAMARE SAMNE BOLNE LAGE HAIN AUR HAMARI BARABARI KARNE LAGE HAIN". 24 Accused persons had also uttered, "AAJ WEH IN GANDI NALI KE KIRON KO KAAT KAR RAKH DENGE". During beatings the accused persons had removed the wearing jacket and Chunni of Shanti Kiran and had tried to hit the broken glass in the abdomen of Shanti Kiran. She cannot identify the accused persons by name. Perhaps the accused persons may be the same persons who had committed the alleged offences.
In cross-examination by the Ld. Counsel for the accused persons she had deposed that she never visited the college except on 16.12.99 and 19.12.99 pertaining to this incident. She do not know who had uttered the castiest remarks. She cannot identify the persons who had given beatings to them.
5. Ld. counsel for the accused has argued that the prosecution has failed to prove its case against the accused persons. From the evidence on record no offence U/s 3(1)(x) and 3(1)(xi) of SC/ST Act is made out against the accused persons. The evidence of prosecution witnesses is not 25 reliable as they had improved from their statements made to the police. Accused persons has been falsely implicated in this case at the instance of Ms. Geeta who has lost the elections of the Students Union and she wants to take the revenge from the accused persons for her defeat and so false complaint was made to the police. The evidence of the prosecution witnesses is doubtful to prove that they were the members of the unlawful assembly and had beaten the complainants. In fact it is the accused persons who were beaten by the complainants along with their associates and some of the accused persons had also received the injuries.
On the other hand Spl. PP has argued that from the evidence on record, the case of the prosecution stands proved against the accused persons.
6. The expression unlawful assembly is defined in section 141 IPC. To constitute unlawful assembly there must be at least five persons, having the one or more of the common objects as specified in section 141 IPC. 26
The common object of an assembly is to be ascertained from the acts and language of the persons composing it and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the persons of the assembly. [Relied upon (2004) 4 SCC 205.] Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence.
It has been observed by Hon'ble Supreme Court in AIR 1989 SC 754 as follows:
"Section 149 IPC makes every member of unlawful assembly at the time of committing of the offence guilty of that offence. The basis of the constructive guilt under S.149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. Thus, once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the 27 common object of that assembly, or such as the members of the assembly new to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it."
PW2, PW3, PW5, PW14 and PW17 are the material witnesses of the case as they are the injured persons and the eye witnesses to the alleged incident. They all have supported the case of the prosecution to the fact that all the accused were the members of the unlawful assembly and had inflicted injuries to them. They all have identified the accused persons as the persons who were the members of the 28 unlawful assembly. Their evidence that they have received the injuries on their persons is also corroborated by their respective MLCs.
PW18 Bhawna who is also the injured and eye witness to the incident has supported the case of the prosecution on the point that she along with PW2, PW3, PW5, PW14 and PW17 has been physically as well as verbally abused by the boys but she has not identified the accused persons who had given the beatings to them.
The evidence of PW2, PW3, PW5, PW14, PW17 and PW18 proves that they were conducting the signature campaign of the students in protest against the incident of 16.12.99 in which Shanti Kiran and Geeta were abused. During the signature campaign, their papers were torn and PW14 Naveen was beaten by the persons of the unlawful assembly. When the matter was reported to the Vice Principal in the room of the Principal, they were beaten by the accused persons who were the members of the mob. The acts and conducts of the accused persons as proved on record from 29 the evidence of the prosecution witnesses shows that accused persons along with other students formed a mob, the object of which was to disturb the signature campaign and to inflict injuries on the persons of the complainants. They have inflicted simple injuries with blunt object on the persons of Shanti Kiran, Naveen, Bhupinder, Bhawna and simple injuries with sharp object on the persons of Laxmi and Geeta Devi.
In my view from the evidence on record, it is proved that accused persons has committed the offence of rioting punishable U/s 147 IPC and had also committed the offence punishable U/s 323 r/w section 149 IPC and an offence U/s 324 r/w section 149 IPC.
7. As per the case of the prosecution the accused persons had broken the glass of the table and Shanti Kiran was attacked by the accused Sanoj with a piece of glass of the table and accused persons were also guilty of offence punishable U/s 148 IPC.
One of the essential ingredient to prove the offence U/s 30 148 IPC is that the object should be a deadly weapon or is such if used as weapon of offence is likely to cause the death. Police has not seized that piece of glass which was used by the accused Sanoj and has also not seized the glass of the table. There is no evidence to prove that what was the nature of that glass whether it was sharp or blunt and what were its measurements.
In my view prosecution has failed to prove that the glass which was allegedly used by the accused was deadly weapon or was likely to cause death if used as weapon of offence, so offence U/s 148 IPC does not stands proved against the accused.
8. In 2002 (1) RCR (Crl.) 242 the Hon'ble High Court of Delhi has observed that the basic ingredients of the offence U/s 3(1)(x) SC/ST Act are as follows :
a) that there must be an "intentional insult" or "intimidation" with "intend" to humiliate SC/ST member by a non-SC/ST member;31
b) and that insult must have been done in any place within the "public view";
c) the use of expression "intentional insult or intimidation" with "intention" to humiliate, makes it abundantly clear that the mens rea is an essential ingredient of the offence;
d) it must also be established that the accused had the knowledge that the victim is the SC/ST and that the offence was committed for that reason;
e) merely calling a person by caste would not attract the provisions of this Act.
There must be specific accusation 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 of the ingredient is found lacking, it would not constitute the offence. 32
It has also been observed in 1997 CRI. L.J. 122 by the Hon'ble Bombay High Court as follows :
"In the matter of an offence under Section 3(1)(x) as also under Section 509, where the prosecution rests on certain words uttered by the accused, what exactly those words were would be of paramount importance. Those words would suggest as to whether the accused intended to insult the said member of the Scheduled Caste or Scheduled Tribe or as the case may be intended to insult the modesty of such member. When we find a serious difference in the versions regarding those words, the prosecution case becomes rather suspicious. It is not as if the words are to be proved verbatim. However, at least the prosecution must bring home what was really uttered and whether what was really uttered was with the idea to hurl insult in the name of the caste."33
Perusal of the testimonies of PW2, PW3, PW5, PW14 PW17 and PW18 shows that there is no unanimity in the precise words used by the accused persons. Their evidence shows that all the accused persons who are the members of the unlawful assembly had allegedly uttered the humiliating words. In view of the judgment 2002 (1) RCR (Crl.) 242 of the Hon'ble High Court of Delhi, the prosecution has to prove the specific accusations against each of the accused persons but the prosecution has failed to prove this fact.
In complaint Ex. PW1/A there is no allegations that the accused persons had insulted Shanti Kiran and Laxmi by the castiest remarks. In complaint Ex. PW11/A there is no mention about the castiest words used by the accused persons on 17.12.99 by which the complainants were insulted.
In view of these facts, I am of the opinion that the prosecution has failed to prove its case beyond any reasonable doubt that the accused persons had insulted the complainant by using the castiest remarks. So, offence U/s 34 3(1)(x) of SC/ST Act is not proved against the accused persons.
9. Section 3(1)(xi) of SC/ST Act provides as follows :
"Whoever, not being a member of Scheduled Caste or a Scheduled Tribe- assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty......"
The evidence of PW2, PW3, PW5, PW14, PW17 and PW18 as discussed above proves the fact that the accused persons who were the members of the unlawful assembly in pursuance of their common object had given beatings to them and causing injuries on their person but the evidence of these witnesses does not prove that Laxmi and Shanti Kiran has been inflicted with injuries by the accused persons with intention to outrage their modesty.
In my view, the offence U/s 3(1)(xi) of SC/ST Act is also not proved against the accused persons. 35
10. PW2, PW3, PW5, PW14 and PW17 had deposed that accused persons had damaged the property in the Principal room.
PW4 Sh. P.C. Jain, who was the Principal at the time of alleged incident has not supported the case of the prosecution as he had deposed that accused persons had not caused any damage to the property of the college and he in cross-examination by the Spl. PP had denied that the accused persons had entered into his office and had damaged the property of the office. Police which has reached at the spot after the incident has not seized any damaged articles. Photographs of alleged damaged articles were also not taken.
So, in my view prosecution has also failed to prove the offence U/s 427 IPC against the accused persons beyond reasonable doubt.
11. The defence of the accused that the accused persons has been falsely implicated in the case at the 36 instance of Geeta who has lost the elections of Students Union does not inspire confidence. Accused has not led any evidence in their defence. From the evidence of prosecution witnesses, no material has been come on record which would support the defence of the accused.
12. The argument of the defence counsel that the injuries suffered by the accused persons namely Vishal, Purshottam, Vinod and Girish in the alleged incident has not been explained by the prosecution and so the case of the prosecution becomes doubtful.
It has been observed by Hon'ble Supreme Court in 2002 VII AD (S.C.) 117 that :
"It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eyewitnesses, including injured 37 ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the investigating Officer."
In view of this judgment, this argument of the defence is also without any merits as the prosecution has proved its case from the prosecution witnesses U/s 147 IPC and U/s 323/324 IPC r/w section 149 IPC.
13. In view of the above discussions, prosecution has failed to prove its case beyond any reasonable doubt against the accused persons for the offence U/s 148/427 IPC and U/s 3(1)(x) and 3(1)(xi) of SC/ST Act but the prosecution has proved its case against the accused persons beyond any reasonable doubt U/s 147 IPC and U/s 323/324 r/w section 149 IPC. Accordingly, accused persons are acquitted of the offence U/s 148/427 IPC and U/s 3(1)(x) and 3(1)(xi) of SC/ST Act, however, they are convicted for the offence U/s 147 IPC and U/s 323/324 r/w section 149 IPC. 38 Announced in the open court (RAJNEESH KUMAR GUPTA) today i.e. on 25.07.08 Additional Sessions Judge, Tis Hazari Courts, Delhi.