Delhi District Court
State vs 1. Yogender S/O. Mohakam Singh on 16 August, 2017
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SPL COURT,
SC/ST (POA) ACT 1989, SHAHDARA: KARKARDOOMA COURT:
DELHI.
SESSIONS CASE No.31/2015
Unique Case ID No.474/2016
FIR No.583/2008
U/S: 323/341/506/34 IPC & 3 (1) (x) SC/ST Act 1989.
P.S: Nand Nagari
State Versus 1. Yogender S/o. Mohakam Singh
R/o. H.No. E12/365, East Gokul
Pur, Delhi.
2. Mahipal S/o. Ramchand
R/o. H.No. E12/365, East Gokul
Pur, Delhi.
3. Kavita W/o. Vinod
R/o. H.No. E12/365, East Gokul
Pur, Delhi.
Date of Institution : 04.09.2015
Date of Arguments : 25.07.2017
Date of Judgment : 16.08.2017
_______________________________________________________________________________
FIR No. 583/2008, PS. Nand Nagri Page 1 of 17 St. Vs. Yogender etc.
J U D G M E N T
Case of Prosecution
1.On 16.09.2008, DD No. 40 was registered at PS Nand Nagri, pursuant to which and as per the directions of SHO, SI Chander Pal Singh, prepared Kalandara u/s. 107/151 Cr.P.C against one Sushil Kumar and Yogender. Sushil Kumar filed a complaint case and on 24.12.2008, in compliance of direction of concerned MM regarding registration of FIR, given on the application filed by complainant Sushil Kumar u/s. 156 (3), his statement was recorded, which was to the effect that in the afternoon of 16.09.2008 complainant Sushil Kumar, who was a labourer was going on his bicycle. His neighbour Yogender Kumar was doing illegal construction in his house i.e H.No. E12/365, Amar Colony, and all the construction material like cement etc. was lying in the gali, because of which there was mud all over in the gali leaving hardly any space to pass through. All the locality people were also feeling uneasy because of this. He stated that Yogender Kumar and his brother inlaw (Behnoi) Mahipal abused him and stated " Tum Hamari Juti Ke Neeche Rahte Thai, Ab Hamare Ghar Me Raasta Banaoge. Sister inlaw (Bhabhi) of Yogender Kumar namely Kavita also came out and stated " Haramjade Ko, Ise Abhi Sabak Sikha Do aur Dekh Lo". Both the sons of Mahipal also came there and all of them threw him in the foundation (neev) and started giving him beatings. He stated that he was beaten mercilessly and they stated " tumhe yaha rahna bhula dunga _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 2 of 17 St. Vs. Yogender etc. aur makan bechkar bhag jaoge". On the basis of statement of complainant, present FIR was registered u/s. 323/341/506 IPC. At the instance of complainant, site plan was prepared. Accused persons were arrested. Further investigation was carried out and after completion of investigation, challan was filed.
2. Vide order dt. 03.10.2012, passed by Sh. Sunil Gupta, Ld. MM charge against all the accused persons U/s. 342/323/34 IPC was framed. Complainant was examined as PW1 and since Ms. Mayuri Singh, Ld. MM, Shahdara, was of the view that there are specific allegations in the testimony of PW1 to the effect that caste calling remarks were passed against PW1 in a public place by accused persons, present case was committed to the sessions court.
Charge framed against the accused persons
3. Charge under section 342/323/34 IPC and section 3 (1) (x) SC & ST Prevention of Atrocities Act, 1989 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial.
Witnesses examined
4. To prove its case, prosecution has examined total 5 witnesses.
_______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 3 of 17 St. Vs. Yogender etc.
5. PW1 Sushil Kumar is the complainant, who deposed that he does not remember the date and month, however, one day in year 2008, in the afternoon, he was passing through his gali on bicycle for going to the house of his Bua. He deposed that accused Yogender, who is his neighbour was getting his house constructed and the building material was lying on the road and water had gathered there. He deposed that while he was passing on his bicycle from the roadside, accused Yogender uttered " Niche ko mar", and on being questioned, accused Yogender hit him with danda meant for digging earth. He deposed that accused Mahipal and Kavita were also present there. All the three accused threw him in the pit dug up at the construction site and gave him beatings, as a result of which, he suffered fracture in his left hand. He made call at 100 number. Police came at the spot and took him and Yogender to PS. Both of them were put in the lock up. He deposed that while beating him accused persons were uttering " Sale Chude Chamar Tujhe Yahan Rahne Nahi Denge, Gaon Me Wapas Bhej Denge". He deposed that next day, he was released on bail then he went to GTB Hospital for treatment, where his hand was plastered due to which, he was confined to bed for 67 months. Police recorded his statement. In his crossexamination by Ld. Defence Counsel, he stated that he had been living at E12/258, East Gokul Puri, Amar Colony for about two years prior to the occurrence. He deposed that public persons gathered at the spot after the incident but before the arrival of the police. He deposed that building material was lying in the entire gali and other public persons were also passing through the gali. He admitted that municipality work was _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 4 of 17 St. Vs. Yogender etc. also going on in the gali for laying down the brick flooring, due to which heap of mud was also lying there. He further admitted that public persons gathered after the accused had abused him. He admitted that all the houses in E12 gali except the house of accused, are of his community. He admitted that his house and the house of accused were having common wall.
6. PW3 HC Devender deposed that on 19.02.2009 accused persons were arrested vide memos Ex.PW3/A to Ex.PW3/C and were released on bail.
7. PW4 is retired SI Chander Pal Singh, who deposed that on 16.09.2008, he was posted at PS. Nand Nagri and was on emergency duty. He deposed that on that day DD No.40 was marked to HC Kiran Pal, who had explained the situation to him. On the direction of SHO, he had prepared kalandara u/s. 107/151 Cr.P.C (Ex.PW4/A). He deposed that on 24.12.2008, in compliance of direction of concerned court u/s. 156 (3) Cr.P.C, on the basis of statement of complainant, present FIR was registered u/s. 323/341/506 IPC. He had also prepared the site plan Ex.PW4/C at the instance of complainant. He deposed that on 19.02.2009, he alongwith Ct. Devender reached at H.No.E12/365, East Gokulpuri, from where accused Yogender, Mahipal and Kavita were arrested and offence being bailable, were released on bail. After completion of investigation, he _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 5 of 17 St. Vs. Yogender etc. had filed the chargesheet in the court. During investigation, he had also collected the MLC of complainant, which is Mark PW4/A. In his crossexamination by Ld. Defence Counsel, he admitted that the majority in the locality was of SC and ST category. He stated that he does not know whether the only family of other caste residing there was the family of accused. He stated that he came to know about the dispute between accused and complainant and that the construction of house of accused was going on and complainant slipped due to mud and fell down. He further admitted that in the gali, the work of MCD was also going on.
8. PW5 Dr. Sanjeeta Behera deposed that on 17.09.2008, she had examined complainant Sushil Kumar and proved her report as Mark PW4/A (Ex.PW5/A). She deposed that on that day, she also examined accused Yogender Kumar vide her report Ex.PW5/B. In her crossexamination by Ld. Defence Counsel, she admitted that there was an old injury as mentioned in her report Ex.PW5/A i.e old wound on left groin.
Statement and Defence of accused persons
9. SA was recorded, wherein accused persons denied all the incriminating evidence put to them and pleaded innocence. Accused Yogender in response to question no.1 of his statement u/s. 313 Cr.P.C stated that complainant was going towards his house and building material _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 6 of 17 St. Vs. Yogender etc. was lying on the road for construction and that he was not constructing his house. He took the defence that he has been falsely implicated by complainant since he wanted to purchase his house. Other two accused persons also stated that they have been falsely implicated. They examined three witnesses to prove their defence.
10. DW1 Sh. Rampal Singh deposed that in the year 2008, he was residing in gali no.14, while accused Yogender was residing in gali no.12, Gokalpur and that he also knew accused persons since accused Yogender & Mahipal are the residents of his nearby villages. He deposed that accused persons are the only brahmin family in the gali. He stated that he does not remember the exact date and time but one day in the year 2008, complainant was going on his bicycle and some concrete was lying in the gali and there was water logging also, due to which complainant fell down but no incident of quarrel took place.
11. DW2 is Smt. Suman, who deposed that she is residing on rent in front of house of accused persons. She deposed that a quarrel took place between accused persons and Yogesh (it seems that name of complainant has wrongly been mentioned here as Yogesh instead of Sushil Kumar) in the year 2008 and after hearing noise, she came out of her house and saw that accused persons and Yogesh were abusing and quarreling. She deposed that as there was water logging, Yogesh fell down.
_______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 7 of 17 St. Vs. Yogender etc. In her crossexamination by Ld. Addl. PP, she denied the suggestion that accused persons uttered the words, " Saaley chamar churey tujhe Delhi main nahi rahene dunga" in public view and all of them pushed the complainant into the foundation.
12. DW3 Sh. Surender Pal is also the neighbour of accused persons. He deposed that on 16.11.2008, there was some quarrel between Yogesh, Sushil, Dharamvir and accused persons. After hearing the noise, he came out of his house. He deposed that nothing happened in his presence.
Arguments and Conclusion
13. Arguments have been addressed by Sh. Ashok Kumar, Ld. Addl. PP for State as also by Sh. Mukul Kumar, Ld. Defence Counsel for all the accused persons. Notice was also issued to complainant, however, he could not be served as he went untraceable.
14. Ld. Addl. PP has argued that the accused as well as complainant were present on the date of incident at the stated place, as deposed by all witnesses, they thus had an occasion to have committed the offence. He further argued that complainant has given a consistent testimony, which in itself is sufficient to prove the charge against accused persons. He further argued that the offence was committed in the gali, which is a public place and therefore, the offence has been committed within public view. _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 8 of 17 St. Vs. Yogender etc.
15. Ld. Defence Counsel argued that the case of prosecution is based on a totally false story and in fact, it was the complainant, who abused accused persons and quarreled with them. He argued that testimony of complainant does not find any corroboration since there is no eye witnesses of the incident rather the depositions of DWs prove that nothing as alleged by complainant in fact happened or done by accused persons. It was further argued that there is no evidence on record to prove that accused persons passed castiest remarks against the complainant. He argued that the offence is required to be committed in a public view' and there is nothing to show that it was committed at the site, which is a public place. He argued that there are contradictions in the testimony of complainant regarding the manner of incident.
16. The accused persons have been charged of having committed an offence u/s. 3 (1) (x) of SC/ST Act. The section is reproduced hereunder for ready reference: Section 3. Punishment for offences of atrocities: (1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribe,
(x) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
_______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 9 of 17 St. Vs. Yogender etc.
17. The essential ingredients of section 3 which need to be fulfilled to hold a person guilty of committing an offence under sub section (X) thereof are that the person, who commits the offence, should not be a member of Scheduled Caste and Scheduled Tribes; should have intentionally insulted or intimidated the member of Scheduled Caste or Scheduled Tribes and such insult should have been committed within public view.
18. The prosecution case is that the accused persons had uttered castiest remarks to insult the complainant. The evidence on record is statement of complainant only. No public witness was examined in support of the case of complainant.
19. The first ingredient that is the offender not being of Scheduled Caste or Scheduled Tribes is not disputed. The accused persons have not disputed that they do not belong to the Scheduled Caste or Scheduled Tribes. The fact of accused persons being Brahmin has been proved by DW1 Rampal Singh also.
20. The fact of complainant's belonging to a Scheduled Caste and Scheduled Tribes has also not been disputed by accused persons and the same stands proved by the caste certificate of complainant and also by the deposition of DW1. The prosecution thus has proved that the _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 10 of 17 St. Vs. Yogender etc. complainant belongs to a Scheduled Caste and thus the second ingredient also stands fulfilled.
21. 'Public View' : To convict a person under 3 (1) (x) of SC/ST Act the court has to conclude that the insult as mentioned in the section was committed within the 'public view'. The prosecution case is in respect of incident dt. 16.09.2008. There are only one witness i.e complainant himself examined by the prosecution, who has deposed that he was insulted by accused persons by using castiest remarks in the gali, which is a public place.
22. Ld. Counsel for the accused persons argued that there is no independent witness of the incident and on the statement of complainant only, it cannot be held that any such incident was committed in public view. Admittedly, there is no independent witness of the incident, who could have proved that such an incident took place.
23. The prosecution to prove the utterances has to prove that the same were made in full public view. The statement of complainant only is not sufficient to accept the fact of utterances. It is supposed to have come from independent persons, who had nothing to do with the complainant. Admittedly, no public persons has been made as a witness, who could have substantiated the claim of the complainant regarding accused persons _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 11 of 17 St. Vs. Yogender etc. having uttered castiest remarks against him. Reliance is placed upon the judgment of Hon'ble High Court of Delhi in 2004 (2) JCC 1136 titled Daya Bhatnagar & Ors. Vs. State, wherein it has been held that "I accordingly hold that expression within 'public view' occurring in Section 3 (1)(x) of the Act means within the view which includes hearing, knowledge or accessibility also, of a group of people of the place/locality/village as distinct from few who are not private and are as good as strangers and not linked with the complainant through any close relationship or any business, commercial or any other vested interest and who are not participating members with him in any way. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view' within the meaning of the expression used". Therefore, the sole uncorroborated testimony of complainant, cannot be held as trustworthy to prove that complainant was insulted by accused persons using castiest remarks in public view.
24. With regard the presence of public witnesses, specific questions were asked from IO regarding possibility of examining the independent witnesses of the incident and his response shows that nobody came forward to become a witness and depose in favour of complainant. Though, he stated that he recorded the statement of one Suman but she was not cited as a prosecution witness. Smt. Suman has been examined as DW2 by accused persons, who has denied any incident as alleged having taken place. She has deposed that complainant had fallen down due to water _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 12 of 17 St. Vs. Yogender etc. logging. In her crossexamination by Ld. Addl.PP, she specifically denied the suggestion that accused persons uttered the words, " Saaley chamar churey tujhe Delhi main nahi rahene dunga" in public view or all of them pushed the complainant into the foundation. DW1 Rampal Singh, who also belongs to Schedule Caste community has deposed that family of accused persons are the only Brahmin family in the gali, which fact has also been accepted by complainant in his crossexamination. DW1 further stated that complainant was going on his bicycle and some concrete was lying in the gali and there was water logging also, due to which complainant fell down but no incident of quarrel took place. Though, all the residents of the gali including DW1 & DW2 were of SC/ST community, however, none of them came forward to depose in favour of complainant or was made a prosecution witness. They, rather chose to appear as defence witness and deposed in favour of accused persons. It has been held in various pronouncements, that the defence witnesses are entitled to equal treatment as that of the prosecution witnesses. In the instant case, in the absence of any corroborating evidence to prove the stand of complainant, the evidence of DWs seems much more reliable and trustworthy than that of complainant and their version is sufficient to hold that no such incident, as alleged by complainant ever took place or complainant was ever insulted by accused persons using castiest remarks.
Reliance is placed upon the judgment of Hon'ble Supreme Court in 2002[1] JCC 385 titled State of Harayan vs Ram Singh,wherein, the apex court in the said judgment held that the evidence tendered by the _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 13 of 17 St. Vs. Yogender etc. defence witnesses cannot be always termed as a tainted one, and the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. It was held that issue of credibility and trustworthiness ought also be attributed to the defence witnesses at par with that of the prosecution. The Hon'ble Supreme Court in 2004(3)RCR (criminal) 774, Anil Sharma & others versus State of Jharkhand also held that equal treatment has to be given to the defence witnesses.
25. It is pertinent to mention here that during investigation also, IO did not find any incriminating evidence against accused persons with regard to allegations of castiest remarks and that is why the FIR was registered only u/s. 323/341/506/34 IPC, however, section 3 (1) (x) of SC/ST Act was added later, on the direction of Ld. MM, when the allegations regarding castiest remarks came in the evidence of complainant. Even PW1 complainant in his crossexamination by Ld. Defence Counsel deposed that public persons gathered at the spot after the incident but before the arrival of the police. He further admitted that public persons gathered after the accused had abused him. The complainant thus himself has admitted that there was no one at all, who had heard the remarks, if any, passed by the accused persons and the public persons had gathered only after the incident. With that being the stand of complainant, I have no hesitation to hold that the third ingredient i.e of public view is not satisfied in this case. Thus, if there is no one to say that the complainant was insulted in their presence, no presumption can be drawn that any insult as envisaged _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 14 of 17 St. Vs. Yogender etc. u/s. 3 (1) (x) was in fact made. The incident, if any, having not taken place in public view, the accused cannot be convicted u/s. 3 (1) (x) of SC/ST Act.
26. Now coming to allegations u/s. 342/323/34 IPC. It is alleged that on 16.09.2008, when complainant was going on his bicycle, accused persons pushed him in the foundation (neev) and thereafter, gave him fist and leg blows thereby causing him simple injury. This statement of complainant is contradicted by the testimony of PW4 SI Chander Pal Singh, who has stated that he came to know about the dispute between accused and complainant and that the construction of house of accused was going on and complainant slipped due to mud and fell down. He further admitted that in the gali, the work of MCD was also going on. Both DW1 & DW2 have also deposed that there was water logging in the gali, due to which, complainant slipped in the mud and fell down. PW1 complainant himself in his crossexamination has admitted that municipality work was also going on in the gali for laying down the brick flooring, due to which heap of mud was also lying there. Thus, from the evidence adduced on record, it is proved that in the gali, the work of MCD was going on and concrete was lying in the gali causing water logging, due to which, complainant slipped in the mud and fell down and was not pushed by accused persons, as alleged.
27. Further, PW1 Complainant, in his testimony before the court has deposed that while he was passing on his bicycle from the roadside, accused _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 15 of 17 St. Vs. Yogender etc. Yogender uttered " Niche ko mar" and on being questioned, accused Yogender hit him with danda meant for digging earth. In his first statement given to the police on the basis of which present FIR was registered, complainant has nowhere mentioned about any danda having been used by accused Yogender. Under these circumstances statement of complainant given before the court is an improvement from what he said during investigation, which renders his entire testimony less trustworthy. Further, complainant has deposed in the court that all the three accused threw him in the pit dug up at the construction site and gave him beatings, as a result of which, he suffered fracture in his left hand. He further deposed that on 17.09.2008, he went to GTB Hospital for treatment, where his hand was plastered, due to which, he was confined to bed for 67 months. The MLC of complainant Ex.PW5/A does not mention about any fracture having been suffered by him. The MLC of complainant shows only abrasion on left leg & left elbow and an old wound on left groin. Thus, version of complainant with regard to his having been confined and beaten by accused persons stands falsified when read with MLC Ex.PW5/A. As such, the deposition of complainant on all the aspects creates a doubt regarding truthfulness of his entire testimony and renders the possibility of alleged incident having taken place doubtful.
Hon'ble Supreme Court in Vadivelu Thewar Vs. The State of Madras AIR 1958 SC 614, held that "a witness who is neither wholly reliable nor wholly unreliable the court have to circumspect and have to _______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 16 of 17 St. Vs. Yogender etc. look for corroboration in material particulars by reliable testimony direct of substantial".
The uncorroborated evidence of complainant in view of aforesaid is not reliable regarding the allegations of his wrongful confinement and causing injuries by accused persons.
28. In view of above, there is no reliable evidence on record that on 16.09.2008 in the noon time, accused persons wrongly confined complainant and thereafter, in furtherance of their common intention gave him beatings and uttered castiest remarks. As such, the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, all the accused persons are given benefit of doubt and thus acquitted of the charges framed against them. File be consigned to record room.
SANJEEV
KUMAR
MALHOTRA
Digitally signed by
SANJEEV KUMAR
Announced in the open MALHOTRA
Date: 2017.08.16
court on 16.08.2017
16:21:22 +0530
SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC :
E COURT: SPL COURT, SC/ST (POA) ACT
1989, SHAHDARA: KARKARDOOMA COURT:
DELHI
_______________________________________________________________________________ FIR No. 583/2008, PS. Nand Nagri Page 17 of 17 St. Vs. Yogender etc.