Delhi District Court
Page 1 Of 24 State vs Avinash Etc. on 13 May, 2015
IN THE COURT OF SHRI PANKAJ GUPTA:
ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI
COURTS: DELHI
Sessions Case No. 22/14
State
Vs.
1. Avinash Vashist, s/o Lt. Ishwar Dayal
r/o C20, Naya Bazar, Najaf Garh, Delhi43.
2. Sunita Mann, w/o Lt. Joginder Singh Maan
r/o H.No. 301, Village Khera Khurd, Delhi.
FIR No. : 255/13
Police Station : Bharat Nagar
Under Section : 3(i) SC/ST (POA) Act & 506 IPC.
Date of committal to Sessions Court : 28.04.2014
Date on which orders were reserved : 13.05.2015
Date on which judgment pronounced : 13.05.2015
JUDGMENT
1. This case is under section 506 read with section 34 of Indian Penal Code, 1860 (IPC) and section 3(i)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereinafter referred to as the "SC/ST Act").
2. Case of the prosecution is that on 27.04.2013 at about 3:00 p.m., Mr. Mahender Singh Arya ( the complainant), in compliance of the order dated 11.09.2012 and circular dated 12.04.2013, tendered the relieving order dated 27.04.2013 to Avnish Vashisht (the accused no. 1) at the Delhi Page 1 of 24 State Vs Avinash etc. Office, but, he refused to receive the same and he along with Ms. Sunita Maan (the accused no. 2) hurled abuses to him and also made castiest remarks against him. Simultaneously, they threatened to kill him. That time, Mahender Singh, Surender Kaur, Lata Mahajan and Amar Singh were present in the office. Both the accused also threatened to kill them in case they would depose against them. On 29.04.2013, the accused no. 1, after being relieved from the office, visited the office along with some antisocial elements and instigated 23 females and was likely to commit any unlawful act. To that effect, the complainant filed the complaint with SHO, Bharat Nagar and requested to take the action against both the accused. But SHO did not lodge the FIR against the accused. Hence, the complainant filed an application u/s 156 (3) Code of Criminal Procedure, 1973 (CrPC). Vide order dated 10.09.2013 passed by the Ld. ACMM, North West Rohini Courts Delhi, the application was allowed and SHO, PS Bharat Nagar was directed to lodged the FIR under the relevant provisions of law. Consequently, FIR no. 255/13 was lodged against both the accused on 26.09.2013.
3. During investigation, both the accused were arrested and were released on bail. After completing the investigations, the charge sheet was filed in the court. Charges under section 506 read with section 34 IPC and section 3(i) (x) of the SC/ST Act were settled against both the accused to which Page 2 of 24 State Vs Avinash etc. they pleaded not guilty and claimed trial.
4. In order to discharge the onus, the prosecution has examined 10 witnesses.
Public Witnesses:
5. PW4 Mr. M.S. Arya, the complainant, in his examination in chief proved the transfer order dated 11.09.2012 Ex.PW4/A, letter dated 19.02.2013 Ex.PW4/B, letter dated 05.03.2013 Ex.PW4/C, letter Ex.PW4/D and circular dated 12.04.2013 Ex.PW4/E. He deposed that on 27.04.2013, he was working as Manager in Central Warehousing Corporation, Rana Pratap Bagh, Delhi (hereinafter referred to as the "Corporation") and tendered the relieving order dated 27.04.2013 Ex.PW4/F to the accused no. 1. Once the accused no. 1 was being relieved, he came in front of his office at about 5:005:15 p.m. on 27.04.2013 and told him that "Sala choora chamar hamare oopar baitha diya hai, pair ki jooti pair mein hee rehni chahiya, dherchamatte kahakaha se a gaye". At that time, Amar Singh, Mahender Singh, Smt. Surender Kaur were present there. By that time, Lata Mahajan had also arrived in his office. The accused no. 1 threatened that whoever would depose against him he would get him killed. He deposed that Sunita Maan (the accused no. 2) was also present with the accused no. 1 at the time of incident and had also abused him along with the accused no.1. He also deposed that on 29.04.2013, the accused no. 1 came to the office along Page 3 of 24 State Vs Avinash etc. with some bad elements. He also proved his endorsement at point B and his signature at point C on the complainant Ex.PW4/G. He identified the accused persons in the court.
6. In his cross examination, PW4 deposed that he joined the office of the Corporation at Rana Pratap Bagh, Delhi in January, 2013 and remained there till August 2013. He admitted that the accused no. 1 is the secretary of the labour union and a worker in the office. He deposed that the accused no. 1 got him transferred because of his frequent complaints and his hold on the management. He admitted that he cannot issue the relieving order to any worker. In February 2013, the head office sent an order dated 19.02.2013 directing that no protected worker should be transferred. He admitted that the derogatory words, as mentioned in his examination in chief, were not mentioned in his complaint Ex.PW4/G. He tried to give the explanation that he did not mention those words because those words were highly derogatory in nature. He admitted that he did not mention the offending words ""Sala choora chamar hamare oopar baitha diya hai, pair ki jooti pair mein hee rehni chahiya, dherchamatte kahakaha se a gaye"
either in the complaint to the police or any subsequent statement made by him to the Investigating Officer (IO). He also admitted that he mentioned those words for the very first time in his deposition before the court only. The Ld. predecessor of this court also observed that in the Page 4 of 24 State Vs Avinash etc. supplementary statement dated 09.10.2013 Ex.PW4/DX1, the words ""Sala choora chamar hamare oopar baitha diya hai, pair ki jooti pair mein hee rehni chahiya, dherchamatte kahakaha se a gaye"" were mentioned for the first time. He denied the suggestions given by the counsel for the accused.
7. PW9 Mahender Singh in his examination in chief deposed that he is working as a lift operator in the corporation. On 27.04.2013 at about 5:005:15 p.m., he was present in the office. That time, both the accused were standing in front of the office of the complainant and were speaking derogatory remarks " ye choore chamar kaha se aakar hamare sir per baith gaye, pair ki jooti to pair mein he rehni chahiya". They were also hurling dirty abuses to him. Large number of persons were passing through the way. They also threatened that if anybody would give evidence against them, that would not be good for that man. Accused no. 2 was instigating the accused no. 1 to abuse the complainant saying that "YE MANAGER TO HAI HI BADTAMEEZ." He admitted that the accused no. 1 is union leader while the accused no. 2 is a member of union. He identified both the accused present in the court. In his cross examination, PW9 deposed that he had not gone to the police station on 29.04.2013 for his statement. He did not inform the police at the first instance after registration of the case that he is the eye witness to the incident. He admitted that his statement was recorded for the first time on 09.10.2013 in the Page 5 of 24 State Vs Avinash etc. office at 4:00 p.m. He showed his ignorance as to whether the accused no. 2 filed any complaint dated 12.11.2007 Ex.PW9/DX1 against him and Surender Kaur (PW10). He also showed his ignorance about the complaint dated 21.10.2008 Ex.PW9/DX2 filed by one Intezar Hussain. He deposed that he had also filed a police complaint against the accused no. 2 in the year 2001.
8. PW10 Surender Kaur in her examination in chief deposed that on 27.04.2013, she was working in the corporation. That day at about 5:005:15 p.m., she was present in the office. The complainant gave the relieving order to the accused no. 1. On that, the accused uttered the derogatory words " hamare sir par aakar baith gaya, pair ki jooti to pair mein hi acchi lagti hai ".and also threatened him. Accused no. 1 was a Union leader and also threatened saying that "HAMARE SE JO TAKRAYEGA USKO HUM DEKH LENGE." Accused no. 2 was also threatening the complainant and the people present there. She identified both the accused in the court. In her cross examination, she admitted that she had not made any police complaint. She did not inform the police at the first instance after registration of the FIR that she is the eye witness to the incident. She was aware of the complaint Ex.PW9/DX1, filed by the accused no. 2 against her. She also admitted another complaint Ex.PW10/DX1 filed by another staff member against her.
Page 6 of 24 State Vs Avinash etc.Police / Official Witnesses:
9. PW1 W/H.Ct. Santosh proved the DD entry no. 13/A Ex.PW1/A, copy of FIR Ex.PW1/B and endorsement made on complaint Ex.PW1/C.
10. PW2 W/SI Usha proved the arrest memo Ex.PW2/A and personal search memo Ex.PW2/B of the accused no.2.
11. PW3 ASI Dalbir Singh proved the arrest memo Ex.PW3/A and personal search memo Ex.PW3/B of the accused no.1.
12. PW5 Sh. Pradeep Kumar Prasad, Tehsildar Saraswati Vihar, Delhi proved the caste certificate Ex. PW5/A issued by ADMBulandshahar in favour of Mahender Singh Arya showing his caste as 'Jatav'.
13. PW6 Amar Singh employee of the Corporation proved the attendance register Ex.PW6/A showing the attendance of the accused no. 1 at point X and that of the accused no. 2 at point Y.
14. PW7 S.K. Sehgal employee of the Corporation relied upon the office order dated 11.09.2012 Ex.PW4/A and circular dated 12.04.2013 Ex.PW4/E. Page 7 of 24 State Vs Avinash etc.
15. PW8, Retd. ACP Jagdish Prasad/IO deposed that on 27.09.2013, he received the copy of FIR Ex.PW1/B for investigation and rukka Ex.PW4/G of this case. Thereafter, he visited the office of corporation at R.P. Bagh and prepared the site plan Ex.PW8/A at the instance of the witness Mahender Singh (PW9). He collected the caste certificate of the complainant Ex.PW8/B and took the same in his possession vide seizure memo Ex.PW8/C. Caste certificate Ex.PW8/B was verified by the SDM at his request Ex.PW8/E and the said certificate was found genuine vide report Ex.PW5/A. He issued the notice u/s 91 CrPC Ex.PW8/D to the Manager and collected the documents from him i.e. PW4/A to Ex.PW4/E. He recorded the statements of the witnesses. He also collected the copy of the attendance register Ex.PW6/A in pursuance to the notice u/s 91 CrPC Ex.PW8/F. Accused no. 1 was arrested vide memo Ex.PW3/A and his personal search memo is Ex.PW3/B. Accused no. 2 was arrested vide memo Ex.PW2/A and her personal search memo is Ex.PW2/B. He identified the accused in the court. In his cross examination, he admitted that FIR was registered on the direction issued on the application u/s 156 (3) CrPC and he does not know whatever had transpired at the spot. In the application filed by the complainant, the derogatory words were not specified and the same were mentioned in the supplementary statement dated 09.10.2013 Ex.PW4/DX1 for the first time. He admitted that in the status Page 8 of 24 State Vs Avinash etc. report filed by him in the court of Ld. ACMM, North West, he had not specified the derogatory words attributed to the accused. He admitted that he had not prepared the site plan at the instance of the complainant. He denied the suggestion that he had drawn the supplementary statement without the knowledge of the complainant to prepare a full proof case and that is why the complainant was not aware of the same.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
16. After completing the prosecution evidence, statements of accused were recorded under Section 313 CrPC in which the incriminating evidence / material were put to them which they have denied. Both the accused have stated that they are innocent and have been falsely implicated in this case.
According to the accused no. 1, he worked in the corporation for 30 years and the complaint filed by his immediate boss i.e. the complainant is motivated one and is filed at the instance of Mahender Singh and Surender Kaur who are inimical towards him being from the rival association. He had no complaint against him in past. Accused no. 2 also took the same stand and deposed that the complainant was inimical towards them. Surender Kaur was also inimical towards her because she had written a complaint against her.
17. The accused have examined two witnesses in their defence.
Page 9 of 24 State Vs Avinash etc.18. DW1 Smt. Vimla deposed that on 27.04.2013, she was present in the office and the complainant issued the relieving letter to the accused no. 1 which he refused to accept. Thereafter, at about 2:002:30 p.m., the accused no. 1 left the office of the complainant and the complainant handed over the relieving letter to her for dispatch. Thereafter, nothing happened till office hours in the evening. On 29.04.2013, she was present in the office and nothing had happened. In the past, she had made a complaint against the complainant which was written by accused no. 2 which are Ex.DW1/A and Ex.DW1/B. In her cross examination, no suggestion was given to her that the accused no. 1 had not left the office at about 2:30 p.m. once he refused to accept the relieving letter or that the incident dated 29.04.2013 had taken place. No suggestion was given that the complainant had not handed over the relieving letter to her for further dispatch as she was doing the work of dispatch and diary. She deposed that she got the job in lieu of her husband on compassionate ground. She admitted that the staff association played a positive role in getting her appointment on compassionate ground. On one occasion, she made a complaint to the accused no. 1 against the complainant.
19. DW2 Sh. Samundar Singh deposed that on 27.04.2013 at about 2:30 p.m., the complainant handed over the relieving letter to the accused no. 1 which he refused to accept. Thereafter, nothing had happened in the office in his Page 10 of 24 State Vs Avinash etc. presence nor both the accused stated any derogatory word to any person nor they extended any threat to the complainant. In his cross examination, no suggestions to the contrary were given. He also deposed that the complainant made a false complaint against the accused persons as their relations were not cordial because the accused no. 1 was pursuing the complaints against him and proved the complaint Ex.DW2/A.
20. I have heard the Ld. Addl. PP for the State who was assisted by the Ld. Counsel for the complainant and the Ld. Defence Counsel and have considered the material available on record including the written submission filed on record.
21. Case of the prosecution is that the complainant belongs to the Scheduled Caste category and is employed in the corporation. Both the accused persons not being the members of Scheduled Caste/Scheduled Tribe Category, on 27.04.2013, used the derogatory and castiest remarks against the complainant at a place within the public view. On 29.04.2013, the accused no. 1 further threatened the complainant along with some anti social elements. They also criminally intimidated him.
22. The essential ingredient to prove the offence u/s 3(i) (x) of the SC/ST Act are as follows:
(i) there should be intentional insult or intimidation by a person, who is not a member of the SC or ST;Page 11 of 24 State Vs Avinash etc.
(ii) the insult or intimidation must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from long association; and
(iii) the incident must occur in any place within the public view.
23. PW5 proved the caste certificate Ex.PW5/A issued in favour of the complainant showing his caste as "Jatav". PW8 also relied upon the said certificate and proved that the same is genuine. Further, it is not the case of the accused that the complainant does not belong to the Scheduled Caste category. Hence, it can be held that the complainant belongs to Scheduled Caste Category.
24. Testimony of PW4, PW9 & PW10 reveal that both the accused were the employees of the corporation for a long period and were also the part of the labour union and had been interacting with the complainant for one reason or another. Therefore, it can be inferred that the accused were aware that the complainant belongs to the Scheduled Caste category. Even otherwise, this is not the case of the accused that they were not aware that the complainant belongs to Scheduled Caste Category.
25. It is not the case of the accused that they come Page 12 of 24 State Vs Avinash etc. under Scheduled Caste/Scheduled Tribe Category.
26. In view of the foregoing discussions, it can be held that the complainant belongs to Scheduled Caste Category and the accused were well aware of the said fact. The accused do not fall in the Scheduled Caste/Scheduled Tribe Category.
27. The whole case of the prosecution revolves around the incidents dated 27.04.2013 and 29.04.2013.
28. To prove the incident dated 27.04.2013, the prosecution examined PW4 who narrated the incident taken place on that day. He deposed that on 27.04.2013, once he tendered the relieving letter Ex.PW4/F to the accused no. 1 who once being relieved came in front of his office at about 5:005:15 p.m. and used the derogatory words/castiest remarks "SAALA CHURA CHAMAR HAMARE OOPAR BAITHA DIYA HAI, PAIR KI JUTTI PAIR MEIN HI REHNI CHAHIYA, DER CHAMATTE KAHAN KAHAN SE AA GAYE." That time, Amar Singh, Mahender Singh, Surender Kaur, Lata Mahajan were also present. Accused no. 2 also abused him. To substantiate the same, the prosecution also examined PW9 & PW10.
29. Now the first question arises as to whether the accused persons made the derogatory, insulting and castiest remarks against the complainant which are as follows:
Page 13 of 24 State Vs Avinash etc."Sala choora chamar hamare oopar baitha diya hai, pair ki jooti pair mein hee rehni chahiya, dherchamatte kahakaha se a gaye".
30. Admittedly, the complainant filed the complaint dated 27.04.2013 Ex.PW4/G and once, no FIR was lodged in pursuance thereto, he moved an application u/s 156(3) CrPC before the Ld. ACMM, North West, Rohini courts and vide order dated 10.09.2013, the said application was allowed and the FIR was registered against the accused persons.
31. Perusal of the complaint dated 27.04.2013 Ex.PW4/G reveals that once the accused no. 1 refused to accept the relieving letter, both the accused abused the complainant and made castiest remarks against him and also threatened to kill him. But in the said complaint, the details of derogatory words and castiest remarks are not mentioned. In the said complaint, the incident dated 29.04.2013 at point B of complaint Ex.PW4/G is mentioned, but, the same is also completely silent about any derogatory/castiest remarks. As such, the allegations of derogatory and castiest remarks made in the said complaint are vague in nature.
32. Perusal of the order dated 10.09.2013 passed by the Ld. ACMM does not reveal that even in the application filed before the Ld. ACMM, the complainant elaborated the Page 14 of 24 State Vs Avinash etc. derogatory or castiest remarks made against him. Statement of PW8 reveals that he filed a status report in the proceedings before the ACMM and even in that status report, he did not mention the details of the castiest remarks. On the basis of the said order, the FIR was lodged on 26.09.2013. Even in that FIR, details of castiest remarks were not mentioned. Only the vague averments were made to that effect. As such, the prosecution has failed to prove that from the date of alleged incident 27.04.2013 till 26.09.2013, what was the nature and details of the derogatory and the castiest remarks.
33. The prosecution much relied upon the supplementary statement of the complainant recorded on 09.10.2013 Ex.PW4/DX1 wherein the detailed castiest remarks were mentioned for the first time as deposed by PW8 also.
34. Counsel for the accused pleaded that the supplementary statement 09.10.2013 Ex.PW4/DX1 was prepared by the IO PW8 to make a full proof case whereby he incorporated the abovementioned derogatory words to fill up the lacuna in the case. In fact, the statement Ex.PW4/DX1 is not the statement of the complainant and is therefore, of no consequences.
35. PW4 in his crossexamination admitted that the abovementioned castiest remarks were mentioned by him for Page 15 of 24 State Vs Avinash etc. the very first time on the date of his deposition in the court. He also deposed that he had not disclosed the same in the complaint to the police or any subsequent statement made by him to the IO. Now the question arises, if he disclosed the said remarks before the court on 14.07.2014, then, how the IO recorded the statement of the complainant to that effect on 09.10.2013. It is not the case of PW4 that the statement dated 09.10.2013 was recorded by the IO, however, he failed to mention the same in his examination in chief due to passage of time. In the given circumstances, an adverse inference can be drawn against the prosecution. Therefore, it can be held that the supplementary statement dated 09.10.2013 Ex.PW4/DX1 containing the details of the casteist remarks is not the statement of the complainant and the same has been prepared by the IO to fill up the lacuna, if any, in the case. It can also be held that the statement of PW4 describing the castiest remarks is an afterthought and has been made to support the supplementary statement and to fill up the lacuna in the prosecution case. As such, the remarks mentioned in the supplementary statement and statement of PW4 do not inspire confidence of this court.
36. In the judgment titled as "Smt. Deepa Bajwa vs. State & Ors.", reported in 115 (2004) DLT 202, the Hon'ble Delhi High Court held ".............. a complaint, on the basis of which the complainant seeks registration of an FIR must Page 16 of 24 State Vs Avinash etc. disclose essential ingredients of the offence and in case a compliant lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the FIR. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spire of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence." Reliance is also placed upon the judgment passed by the Hon'ble Delhi High Court in case titled as "Ashwani Kumar Vs State" Writ Petition (Criminal) no. 1593/2006 decided on 09.01.2009.
37. In view of the foregoing judgments and discussions, it can be held that from the date of alleged incidents i.e. 27.04.2013 & 29.04.2013 till recording of the statement of PW4 on 14.07.2014, the prosecution has failed to prove the details of the castiest remarks made by the accused against the complainant. Further, whatever allegations have been made to that effect till 14.07.2014 are vague in nature. The explanation given by the complainant i.e. PW4 for no mentioning the said remarks in the complaint is that they were highly derogatory in nature. The complainant is not the Page 17 of 24 State Vs Avinash etc. layman. Further, his relationship with the accused was not cordial. Hence, if the accused no. 1 had stated those words then it was the best opportunity for him to take the immediate action against him by disclosing the entire facts. But that was not done. Further, even if it is presumed for the sake of arguments only that the supplementary statement Ex.PW4/DX1 is correct, then, in view of the above cited judgments, the remarks mentioned therein are an afterthought and are of no consequence.
38. PW9 in his examination in chief improved his statement stating that the accused no. 2 also abused the complainant saying that "YE MANAGER TOH HAI HI BADTAMEEZ." Further, once the complainant himself was unaware about the details of the castiest remarks and the supplementary statement Ex.PW4/DX1 is of no consequence, the statements made by PW9 & PW10 are also an afterthought to that effect. From the statement of PW9 & PW10, it is also revealed that they are inimical against the accused. Therefore, they are the interested witnesses to depose against the accused persons. Hence, their statements do not inspire confidence of this court.
39. Regarding the timing of the incident dated 27.04.2013, according to the complaint Ex.PW4/G, the said incident took place on 27.04.2013 at about 3:00 p.m. The Page 18 of 24 State Vs Avinash etc. same date and time is mentioned in the FIR as well as in the charge sheet. However, PW4, PW9 & PW10 in their statement mentioned the time of the incident as at about 55:15 p.m. According to IO, the said incident had not taken place in his presence. As such, the timing of the incident should be within the personal knowledge of PW4, PW9 & PW10. It is not their case that they by mistake mentioned the time of incident at about 55:15 p.m. instead of 3:00 p.m. Therefore, there exist a material contradiction in the time of incident. Hence, an adverse inference can be drawn against the prosecution. Further, no specific suggestions to the contrary were given to DW1 & DW2 that the accused no. 1 had not left the office at about 2:30 p.m. once he refused to accept the relieving letter or that the incident dated 29.04.2013 took place. No suggestion was given to DW1 that the complainant had not handed over the relieving letter to her for further dispatch as she was doing the work of dispatch and diary. Therefore, it can be held that accused no. 1, though, refused to accept the relieving letter, but, had left the office thereafter without creating any scene at about 2:30 p.m. In view of the foregoing discussions, it can be held that the accused no. 1 had left the office at about 2:30 p.m. on 27.04.2013 and therefore, he had no occasion to create the scene at 55:15 p.m., as alleged. It can also be held that even on 29.04.2013, the accused no. 1 did not visit the office nor threatened the complainant. Even otherwise, the averments made in the complaint regarding the incident dated 29.04.2013 Page 19 of 24 State Vs Avinash etc. are vague in nature.
40. Next question arises whether the incident was within the public view?
41. The Hon'ble Delhi High court in the judgment titled as "Daya Bhatnagar & Ors. vs. State", reported in 2004 (2) JCC 1136, held "25.............. "Public View" envisages that public persons present there should be independent, impartial and not having any commercial or business relationship, or other linkage with the complainant." Reliance is also placed upon the judgment passed by the Hon'ble Delhi High Court in case titled as "Karam Veer Singh Vs State", Criminal Revision Petition no. 225/2001 decided on 04.05.2012.
42. According to the complainant, at the time of incident PW9 Mahender Singh, PW10 Surender Kaur, Lata Mahajan and Amar Singh were present. It has come in the evidence of PW9 & PW10 that they were and are the employees of the corporation. It is not the case of the complainant that Lata Mahajan and Amar Singh were not the employees of the corporation. Hence, it can be held that the incident dated 27.04.2013, if any, had taken place in front of employees of the corporation only who happened to be interested persons also. Further, it is not the case of the prosecution that the office of the complainant is within the public view. The prosecution relied upon the site plan Page 20 of 24 State Vs Avinash etc. Ex.PW8/A and has shown the place A, where the accused made the castiest remarks against the complainant and B is the place where the complainant was sitting in his office. Surprisingly, the IO prepared the site plan at the instance of PW9 not at the instance of the complainant. If the site plan is presumed to be correct then it reveals that the place A is not within the public view and was within the premises of the corporation itself. Therefore, the statement made by PW9 that that time large number of the persons were passing through the way is not sustainable in law because it is not the case of the prosecution that the said place was being used by the persons not employed in the corporation also. In view of the foregoing judgments and discussions, it can be held that even if it is presumed for the sake of arguments only that the accused made the castiest remarks, even then, the same were not made at a place within the public view. As such, the judgment titled as "Swaran Singh and others vs. State" reported in (2008) 8 SCC 435, relied upon by the prosecution is of no benefit.
43. Ld APP for the State pleaded that DW1 and DW2 are the interested witnesses as the accused persons had helped them in one way or other. But the fact remains that the prosecution failed to shake their credibility as to the facts deposed by them regarding the incidents dated 27.04.2013 and 29.04.2013, as such, the said plea is of no consequence.
Page 21 of 24 State Vs Avinash etc.44. In view of the abovementioned judgments and foregoing discussions, it can be held that the prosecution has failed to prove the essential ingredients of Section 3(i)(x) of the SC/ST Act against the accused.
45. Now the question arises why the complainant made the complaint against the accused persons?
46. It is clear from the statement of PW4 that the accused no. 1 was the secretary of the Labour Union while the accused no. 2 was the member of the same. Both of them were involved in some complaints filed against him in one way or the other. As such, the complainant had the motive to falsely implicate the accused in the present case. To achieve the said object, the IO PW8, who had the duty to conduct the fair inquiry as per law instead to do that, prepared the supplementary statement Ex. PW4/DX1 recording the details of the derogatory and castiest remarks which according to the complainant PW4 he did not make till recording his statement before the court on 14.07.2014. As such, it can be held that the IO prepared the supplementary statement Ex.PW4/DX1 mentioning the false allegations against the accused no. 1 to fill up the lacuna in the case and thereby, has failed to discharge his duties as per law. Hence, it can be held that on the one hand, the complainant misused the provisions of SC/ST Act and on the other hand, IO, instead to discharge his duty lawfully, Page 22 of 24 State Vs Avinash etc. helped him in misusing the law.
47. The accused have also been charged under section 506 IPC.
48. Section 503 IPC defines the criminal intimidation while Section 506 IPC prescribes the punishment for the same. To succeed, the prosecution is to prove that (1) the accused had threatened the complainant; (2) such threat consisted of some injury to the person, reputation or property of complainant; (3) that they did so to cause the complainant to do an act which he was not legally bound to do or omit to do any act which he was legally entitled to do as a mean of avoiding the execution of such threat.
49. As discussed above, the prosecution has failed to prove that the accused had spoken the derogatory and castiest remarks against the complainant on 27.04.2013 or 29.04.2013. The prosecution has even failed to prove any incident taken place on 27.04.2013 or 29.04.2013. Therefore, the very first condition to prove the charge of criminal intimidation is not proved in the present case. Further, the duty of the complainant was only to communicate the transfer order to the accused no. 1. In fact, the complainant had no authority to transfer or withhold the transfer and this fact was well known to accused no. 1 being the active member of the labor union.
Page 23 of 24 State Vs Avinash etc.Therefore, there was no occasion for him to indulge into any such act to avoid the transfer order in which the complainant had no say. As such, the prosecution has failed to prove the charge of criminal intimidation also.
50. Accordingly, accused persons are acquitted for the offences under section 506 read with section 34 of Indian Penal Code, 1860 and section 3(i)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), 1989. Bail bonds furnished by the accused persons in the sum of Rs. 15,000/ (each accused) with one surety (each accused) of the like amount are accepted and shall remain in force for a further period of 06 months in terms of section 437(A) Cr. PC. File be consigned to Record Room.
Announced in the open court on this 13th day of May, 2015.
(Pankaj Gupta) ASJII, NorthWest Rohini: Delhi Page 24 of 24 State Vs Avinash etc.