Delhi District Court
State vs . (1) Somdutt @ Babloo S/O. Sh. Rajender ... on 29 January, 2014
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R0821072007
Sessions Case No. 03/13
Date of Institution: 26.08.06
Date of transfer to this court: 14.01.13
Date on which reserved for orders: 18.01.14
Date of delivery of order: 25.01.14
State v/s. (1) Somdutt @ Babloo S/o. Sh. Rajender Prasad
R/o. B2 Rani Garden, Near Ambedkar Park, Delhi.
(2) Babita @ Gudia W/o. Sh. Som Dutt @ Babloo
R/o. B2 Rani Garden, Near Ambedkar Park, Delhi.
(3)Joginderi Devi W/o. Sh. Satya Prakash
R/o. 1/8, Rani Garden, Gali No.5, Geeta Colony, Delhi.
(Expired)
FIR No. 247/06
PS. Geeta colony
U/s. 341/323/34 IPC r/w section 3 (1) X of Scheduled Castes and Tribes
(Prevention of Atrocities) Act, 1989,
JUDGMENT: FIR No.247/06 PS. Geeta colony Page 1 of 29 St. Vs. Somdutt etc.
1. On 28.07.06 around 7.30 pm, an information was received at PS. Geeta Colony from PCR, which was recorded as DD No. 27A, and it was regarding a quarrel at 18 Rani Garden, Delhi. HC Ombir and Ct. Kanwar went to the spot, however, were informed that the parties had already left for the PS. On reaching the PS, they found complainant Laxmi Devi in injured condition. She was sent to SDN Hospital for medical examination. The doctor declared her fit for statement but she did not give statement claiming to be under intoxication because of medicines given to her. On 29.07.06 HC Ombir went to the hospital and got recorded the statement of Smt. Laxmi Devi. On this statement, a case u/s. 323/341/34 IPC r/w section 3 (1) X of Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, was registered. Investigation thereafter was taken up by ACP D.K.Singh. Husband of the complainant gave an affidavit regarding the caste of his wife.
2. Chargesheet was filed. Charge was framed u/s. 323/34 IPC against accused Joginderi Devi, Somdutt and Babita @ Gudia. A separate charge u/s. 3 (1) X of scheduled castes and tribes ( Prevention of Atrocities) Act, 1989 (hereinafter to be referred as SC/ST Act) was framed against accused Joginderi and Babita.
FIR No.247/06 PS. Geeta colony Page 2 of 29 St. Vs. Somdutt etc.
3. Prosecution has examined 11 witnesses to prove its case.
4. PW1 is Dr. A.K.Kulshrestha, who had examined complainant Laxmi and has proved her MLC Ex.PW1/A.
5. PW4 ASI Ombir Singh has deposed regarding the investigation conducted by him and has proved the endorsement made on the rukka as Ex.PW4/A. The endorsement made on the FIR by HC Ashok Kumar is Ex.PW4/B. Carbon copy of FIR is Ex.PW4/C. He deposed that he had prepared the site plan at the instance of Shamim Bano, which is Ex.PW4/D. The copy of DD No. 27A recorded at PS is proved by him as Ex.PW4/E. In his crossexamination the witness stated that accused Somdutt was booked u/s. 107/151 Cr.P.C on 29.07.06.
6. PW10 W/HC Sunita had arrested accused Joginderi Devi, Babita and Somdutt and has proved their personal search memos as Ex.PW10/D to Ex.PW10/F and arrest memos as Ex.PW10/A to Ex.PW10/C.
7. PW2 is the complainant Laxmi Devi. She deposed that on 28.07.06 at about 7 7.15 pm she was present in her house. On hearing FIR No.247/06 PS. Geeta colony Page 3 of 29 St. Vs. Somdutt etc. the call of a vegetable vendor, she went to purchase vegetable and found one motorcycle and scooter parked in front of gate of her house, which belonged to her neighbour residing in front of her house. She asked them to remove the vehicle at which accused Babita & Joginderi uttered "
Churi Chamari aaj hum tujhe dekhenge tu hame apne darwaje ke aage gadi khadi karne nahi deti". She deposed that after saying aforesaid they (Joginderi and Babita) started beating her. In the meanwhile accused Babbal came there and he alongwith two other persons also started beating her. Somehow she entered her house, however, all the three accused also entered her house. Babbal caught her hair and other two beat her and they dragged her into the gali. Babbal had broom in his hand and Babita was having a danda. The neighbours came there and saved her. Someone called her nephew, who called at 100 number. While they were sitting in the PS, Joginderi and Babita had abused her uttering " Churi Chamari". Accused Babbal had threatened her that he will not spare her even if he is imprisoned for that. She deposed that she was born in Village Jatpura, Tehsil Atroli, Distt. Aligarh in Jatav family. She deposed that she had given an affidavit to the police submitting the caste certificate, which document was blank at the time of being signed by her. The affidavit is Ex.PW2/B. She produced original caste certificate as Ex.PW2/C. FIR No.247/06 PS. Geeta colony Page 4 of 29 St. Vs. Somdutt etc. In her crossexamination, she deposed that she does not have caste certificate of her father. She does not have Ration Card of her father either. She deposed that she signed the stamp paper Ex.,PW2/B at her residence and that neither she nor her husband had bought the stamp paper. It was signed blank and two police officials had come with this documents to her house. She stated that she did not give any complaint to ACP or DCP regarding obtaining of her signatures on blank papers by police officials. She stated that she came to know about the stamp papers only in the court and further stated that she did not make any complaint regarding this in the court. She denied the suggestion that document was complete when it was signed by her or when it was handed over to the ACP after being duly notarised. She denied that the document was seized by the IO vide memo Ex.PW4/A. She stated that her husband was with her in the hospital and that she was also in the hospital when her statement was recorded on 29.07.06 and volunteered that at the time of recording statement her husband had gone to take medicines for her. She deposed that she herself had gone to collect her caste certificate from concerned office and did not take the police alongwith her and that she did not hand over her caste certificate to the police during investigation.
Her version was confronted with her statement Ex.PW2/A, wherein the version recorded is as under:
FIR No.247/06 PS. Geeta colony Page 5 of 29 St. Vs. Somdutt etc. " Maine Samne Walo Se kaha scooter hata lo, isi baat par Raj Kumar ki Mummi wa Raj Kumar ki bahan Babita @ Gudia ne gali dena shuru kar diya. Maine mana kiya, aunty tum gali kyo de raho ho to usne mairi ek nahi suni aur kaha ki aaja Chamariya Churi Aaj hum tujhe batayenge, tu hamari gadi apne ghar ke aage khadi hone nahi deti". Her statement that Joginder and Babita had uttered " Churi Chamari" to her in PS was confronted with her statement Ex.PW2/A, where name of Babita was not recorded. Her statement that she remained admitted in hospital for five days was confronted with her statement Ex.PW2/A, so were her statements recorded regarding her having asked accused Babita and Joginderi to remove the vehicle and both of them having uttered " Churi Chamari aaj hum tujhe dekhenge, tu hame apne darwaje ke aage gari khadi karne nahi deti", as name of Joginderi and Babita was not mentioned in Ex.PW2/A. She stated that witness Rajwati belonged to Jatav Caste, Kamlesh to Dhobi Caste, Raj Kumari to Jatav Caste and Tek Chand to some other caste. She denied that during the quarrel she had abused the child of Somdutt and that they were the aggressor in the incident.
8. PW5, 6, 7, 8 and 9 are the eye witnesses of the incident. PW5 deposed in the court that two motorcycles and one scooter of accused FIR No.247/06 PS. Geeta colony Page 6 of 29 St. Vs. Somdutt etc. Babita were parked outside the house of Laxmi Devi. Laxmi Devi, who came out to purchase tomato but could not find the way and so asked Raj Kumar, brother of accused Babita to remove the vehicle, who in turn told her to ask his mother for the same. An altercation took place. Accused persons pulled the hairs of Laxmi Devi & beat her. Husband of Babita shouted " Chure Chamar Kaha Se Iktthe Ho Gaye" and they also stated Banjh to Laxmi Devi. He says that accused Hoshiyar Singh was not present at the spot ad that he came later on. Her statement that husband of Babita had uttered Chure Chamar kaha se ikatthe ho gaye was confronted as not having been recorded in Ex.PW5/A. The statement that accused persons had pulled hair of Laxmi Devi and beaten her and exhorted was also confronted. She stated that she did not tell the police that the matter was got settled with the intervention of neighbours, which denial was confronted as it was so recorded in Ex.PW5/A. She admitted that she belonged to Jatav Caste but denied that her husband used to clean the vehicle of Mahinder and used to bring his household goods. She deposed that she did not tell the police that she was not aware if anybody said anything about the caste, which was also confronted with Ex.PW5/A having so been recorded there. The incriminating part of the statement of witness regarding allegations under SC/ST Act thus stood confronted with Ex.PW5/A and it came on record that witness had categorically FIR No.247/06 PS. Geeta colony Page 7 of 29 St. Vs. Somdutt etc. stated that no castiest remarks were passed as per her knowledge.
9. PW6 Kamlesh deposed that motorcycles of accused Babbal (Somdutt) & Raj Kumar and one scooter of someone else were parked outside the house of Laxmi Devi. When she tried to come out to take potatoes, she could not find the way to reach vegetable vendor. She asked the accused persons to remove the vehicle, on which altercation started.
Accused Babbal, Babita and mother of Babita told Laxmi Devi " Churi Chamari Tumhe hum abhi batate hai. Accused Babbal beat Laxmi Devi with broom, which was brought by him from inside his house. In her crossexamination dt. 23.11.12 the witness stated that she belonged to Dhobi class. The police did not make any enquiry from her on 28.07.06. She deposed that she did not tell the police that nobody uttered caste related remarks to anybody which was confronted with portion A to A of Ex.PW6/DA, her statement u/s. 161 Cr.P.C. She stated that she had told the police that accused Bablu, Babita and mother of Babita had told Laxmi Devi "Churi Chamari hum tumhe abhi batate hai" which was confronted with Ex.PW6/DA, where it was not so recorded. Her statement that Bablu had caught hair of Laxmi on the gate was also confronted with portion B to B of Ex.PW6/DA, where it was not so recorded. She denied that she had told the police that Laxmi Devi in FIR No.247/06 PS. Geeta colony Page 8 of 29 St. Vs. Somdutt etc. anger had pushed the motorcycle, which fell down, this statement was also confronted with portion C to C of Ex.PW6/DA, as the witness had told the police that Laxmi Devi pushed the motorcycle and it fell down. She denied having stated to the police that Hoshiyar was present at the spot and had fallen down in quarrel, which again was confronted with portion D to D of Ex.PW6/DA. Her denial that Laxmi Devi had gone to the roof and had started shouting was also confronted with portion E to E of Ex.PW6/DA. She also denied having stated to the police that Babloo had left the place taking his motorcycle and this was also confronted with portion F to F Ex.PW6/DA, where it was so recorded. The incriminating part of the statement given by the witness on SC/ST Act stood confronted entirely and the confronted part of statement u/s.161 Cr.P.C, regarding presence of Hoshiyar at the spot; no one having uttered caste related remarks to any person; Laxmi having pushed the motor cycle; Laxmi Devi's shouting from the roof and Babloo having left after taking his motorcycle, came on record.
10. PW7 Raj Kumari deposed that two motorcycles and one scooter belonging to accused Babbal were parked in front of gate of Laxmi Devi, she could not find way to come out to purchase vegetable like Tomoto. She asked Raj Kumar brother of accused Babita to remove FIR No.247/06 PS. Geeta colony Page 9 of 29 St. Vs. Somdutt etc. the vehicle. She stated that an altercation started between Laxmi Devi and accused persons and accused persons stated " Chure Chamar hamari gadi khadi kyo nahi hone dete aa jao hum tumhe batayege". Babita beat Laxmi Devi with danda and Babbal with broom after holding her hair. In her crossexamination the witness stated that she belonged to Jatav class. The portion of her evidence, where she stated that accused persons told Laxmi Devi "chure Chamar hamari gadi khadi kyo nahi hone dete aa jao hum tumhe batayege" was confronted with her statement u/s. 161 Cr.P.C, Ex.PW7/DA and her statement that no one had uttered castiest remarks was also confronted with Ex.PW7/DA. A suggestion was given to the witness that the dispute had arisen because Laxmi Devi had abused the child of Babita.
11. PW8 deposed that he came out of his house on hearing altercation between Laxmi and Joginderi Devi and her daughter Babita. Accused Babbal also arrived there. He pulled Laxmi Devi's hair and beat her with a broom. He also abused Laxmi Devi. Accused persons told Laxmi Devi that Churi Chamari we would see how you would not allow us to park out vehicle". He admitted that he belonged to SC community but denied that due to this reason, he was supporting the complainant. His statement that he saw Joginder Devi, Babita and Babbal beaing FIR No.247/06 PS. Geeta colony Page 10 of 29 St. Vs. Somdutt etc. Laxmi Devi was confronted with her statement u/s. 161 Cr.P.C Ex.PW7/DA where the name of Babbal did not appear. He denied the suggestion that he had improved his statement. His statement that Joginderi Devi, Babita and Babbal had stated that "Churi Chamari hum dekhte hai ki tu hame kaise gadi park karne ko mana karti hai" was confronted. The evidence qua the allegations under SC/ST Act were thus confronted.
12. PW9 Smt. Shamim Babo deposed in the same terms as above witnesses and stated that all the three accused had told Laxmi Devi "Churi Chamari". She stated in her crossexamination that she did not know the accused persons prior to the incident, however, she came to know about their names as they were calling each other by their names and so she gave their names to the police. She denied the suggestion that Mahinder husband of Laxmi got her employment in Angan Wari. Her statement that both the accused and mother of Gudia had told Laxmi Devi "Churi Chamari" was confronted with her statement Ex.PW9/DA, where it was not so recorded.
13. Ld. Counsel for the accused persons argued that there was a minor incident of quarrel between the neighbour, however, a political FIR No.247/06 PS. Geeta colony Page 11 of 29 St. Vs. Somdutt etc. colour was given to it and the complainant to take the benefit of special act and to prevent legal action against her and her nephew for having outraged the modesty of accused Babita, filed a false case. It was argued that no caste certificate of complainant was ever produced before the court. The caste of a person is proved by the certificate of his or her father or self, however, no certificate of father of complainant has been proved on record. It was argued that as per the complainant's own case the alleged castiest remarks were made by accused Joginderi Devi and not by accused Babita and Somdutt. He argued that in rukka, the complainant says that Joginderi and Babita were abusing her and she said Aunty gali kyo de rahi ho on which she abused her with castiest remarks. It was argued that a clear understanding of the statement is that Aunty i.e Joginderi Devi on being questioned had uttered castiest remarks and it is not believable that two persons could have uttered exactly same remarks. The complainant had abrasions on her hand and no injury; the abrasions can be self implicated and can even be formed by wearing or removing bangles. He argued that there were improvements in the statements of Prosecution witnesses, who changed their entire stand and deposed in contradiction to what they had stated to the police.
In support of his arguments, Ld. Counsel has relied upon the judgment in case titled Shivlal & Anr. Vs. State of Chhattisgarh 2011 FIR No.247/06 PS. Geeta colony Page 12 of 29 St. Vs. Somdutt etc. (4) JCC 2706, Sampath Kumar Vs. Inspector of Police Krishnagiri 2012 (2) JCC 1185. It was argued that the caste certificate was not proved by the person, who prepared it and was not tendered in evidence. It is not verified by the police also as such, caste certificate is not proved as per law. It was argued that the incident did not take place in public view as none of the witness stated that castiest remarks were made by the accused, in their respective statements given to the police. Thus, either the witnesses had not seen the incident or the words were in fact not uttered. He argued that there was no prior knowledge with the accused about the caste of the complainant and that there is no evidence that accused were not of SC/ST community, which the prosecution had to prove.
14. Ld. Counsel for the complainant in rebuttal argued that no suggestion regarding abrasions on Laxmi Devi's hand being possible by rubbing of bangles was given. Accused did not claim that they were also of SC/ST community and therefore, they cannot take the benefit of the fact that the prosecution did not prove that they were of upper caste. The portion of outraging of modesty has been confronted. The certificate has not been disproved and that a documents needs to be either proved or disproved. This document having not been disproved shall be treated as FIR No.247/06 PS. Geeta colony Page 13 of 29 St. Vs. Somdutt etc. proved. He argued that all the accused were in common intention to insult the complainant, therefore, are liable to be prosecuted u/s. 3 of SC/ST Act with section 34 IPC. Ld. Counsel has relied upon the statements of witnesses in case FIR No. 274/06 to prove that accused themselves admitted in that case about having slapped Laxmi Devi.
15. Arguments heard. Record Perused.
16. Allegations u/s. 3 of SC/ST Act: The prosecution case is that the accused persons had uttered castiest remarks to insult the complainant Laxmi Devi. The evidence on record is statement of six witnesses including the complainant. The statements of all the witnesses stand confronted with their statements given u/s. 161 Cr.P.C on the aspect of castiest remarks. None of the witnesses in their respective statement given to the IO at the time of investigation had stated that any castiest remark was passed by any of the accused persons. It is relevant to note that the statements of all the witnesses u/s. 161 Cr.P.C was recorded by ACP of Gandhi Nagar as provisions of section 3 (1) (x) of SC/ST Act were invoked. The investigation thus was conducted in terms of rule 7 of the Scheduled Castes and Tribes (Prevention of Atrocities) Rules, by a responsible officer of the level of ACP. All the statements u/s. 161 Cr.P.C FIR No.247/06 PS. Geeta colony Page 14 of 29 St. Vs. Somdutt etc. bear signatures of ACP Sh. D.K.Singh and all the witnesses categorically said that no castiest remarks were passed or heard by any of them. Under these circumstances statements of all the above witnesses given before the court are improvement from what they said during investigation. Ld. Counsel for the complainant himself had stressed the argument in the crosscase that improvements are contradictions and cannot be read in evidence. Applying the same argument, the improved versions of all the witnesses on the aspect of castiest remark cannot be read in favour of the complainant being in complete contrast to what they stated to ACP during investigation.
Reliance is also placed on 2012 (2) JCC 1185 Sampath Kukar Vs. Inspector of Police Krishnagiri, where the Hon'ble Supreme Court discarded the version of a witness by observing as under: " In the present case the statement made by Palani (PW7) is in complete contrast with the statement made to the police where the witness sated nothing about having seen the appellants standing near the deceased around the incident. This omission is of very vital character. What affects the credibility of witness is that he did not in his version to the police come out to what according to him was truth but withheld it for a period of five years till he was examined as a prosecution witness in the court".
Reliance is also placed on Vadivelu Thewar Vs. The State of FIR No.247/06 PS. Geeta colony Page 15 of 29 St. Vs. Somdutt etc. Madras AIR 1958 SC 614, wherein the Hon'ble Supreme Court held that " a witness who is neither wholly reliable nor wholly unreliable the court have to circumspect and have to look for corroboration in material particulars by reliable testimony direct of substantial ".
The evidence of all the public witnesses in view of aforesaid is not reliable regarding the allegations of castiest remarks, though their presence at the time of incident appears to be natural, they being the neighbours of the parties.
Reliance is placed on Lallu Manjhi Vs. State of Jharkhand AIR 2003 SC 854 Hon'ble Supreme Court discarded the evidence of a natural witness as it was found to have been improved substantially at the time of trial and his evidence was considered neither wholly reliable nor wholly unreliable.
The statements of the witnesses, which have all been exhibited during evidence give a different version from what has been stated before the court. PW Kamlesh supported the case of prosecution to the extent that the door of the complainant was blocked by the motorcycles of accused and the complainant wanted to come out to buy tomatoes. Thereafter her confronted version is that Laxmi Devi had pushed the motorcycle whereafter the confrontation had begun. FIR No.247/06 PS. Geeta colony Page 16 of 29 St. Vs. Somdutt etc.
17. Apart from the statements of these witnesses, who have not been found reliable in respect of the allegations under SC/ST Act, the only evidence on record is statement of the complainant. The complainant in her statement given to the police (Ex.PW2/A) stated that her neighbour had parked scooter and motorcycle in front of her house. When she asked them to remove scooter, Raj Kumar's mother and sister i.e accused Joginderi and Babita started abusing her. Till this point there is no allegations of castiest remark against any of the accused. The witness stated further that when she stated Aunty tum gaali kyo de rahi ho usne meri ek nahi suni aur kahaki Aaja Chamariya Chudi aaj hum tujhe batayenge". It is not said specifically as to which of the two accused i.e Babita or deceased Joginderi uttered these word. A raw interpretation however would be that the words were uttered in response to complainant's asking Aunty Tum gali kyo de rahi ho and would have been replied by Aunty, since the complainant does not say that both of them or which of them uttered the words. The complainant in her statement before the court stated that both Joginderi and Babita had uttered the aforesaid offensive castiest remarks. Her version before the court appears to be an improvement from what she said to the police and being improvement cannot be read adversely to the accused. There being two possible interpretation of her statement in Ex.PW2/A the FIR No.247/06 PS. Geeta colony Page 17 of 29 St. Vs. Somdutt etc. interpretation which goes in favour of the accused shall be accepted, it is thus concluded that the words were uttered by Joginderi Devi and not by Babita as explained hereinabove.
18. On the second incident i.e of Police Station the complainant stated before the police that Babloo ki Mummi i.e Joginderi Devi had uttered Chamari in the police station also. In the court she again improved her statement and stated that both Joginderi and Babita had abused her and uttered Churi Chamari. The version being an improvement from what was stated to the police, and on material aspect, cannot be read against the accused Babita. These words shall be considered to have been uttered by accused Joginderi Devi as was stated in the statement of complainant given to the police. Accused Joginderi Devi has died. The castiest remarks, if any, could in view of above discussion, at best be attributed to accused Joginderi Devi. The evidence on record against the accused Babia and Somdutt is not reliable to conclude that any castiest remark was passed by them against Laxmi Devi. It was argued by Ld. Counsel that the accused were in common intention with each other to insult the complainant and ,therefore, whatever was uttered by one should be read against all. The common intention cannot be attributed regarding the allegations of the nature , as FIR No.247/06 PS. Geeta colony Page 18 of 29 St. Vs. Somdutt etc. have been uttered by accused Joginderi. There is nothing on record to show that accused Babita or Somdutt had in any manner conveyed to accused Joginderi to utter the derogatory castiest words. The argument of Ld. Counsel for complainant seeking invoking of section 34 IPC regarding allegations under section 3 of SC/ST Act to make accused Babita & Somdutt liable, cannot be sustained under law as section 34 IPC involves an element of common intention denoting action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds (Chittarmal Vs. State of Rajasthan, AIR 2003 SC 796). It (common intention) can also be developed at the spur of moment but there must be prearrangement or premediated concert (Ramashish Yadav Vs. State of Bihar, 1999 (8) SCC 555). Ld. Counsel has not been able to show as to when and how the three accused mediated and planned to insult the complainant and in furtherance thereto deceased Joginderi Devi uttered the castiest remarks. The argument is discarded on merit.
19. Allegations u/s. 323/34 IPC: Complainant alleges that accused Babloo and Babita had beaten her with broom and danda without any provocation from her side. The accused have alleged that accused Hoshiyar Singh had outraged the modesty of Babita and he was slapped FIR No.247/06 PS. Geeta colony Page 19 of 29 St. Vs. Somdutt etc. under self protection. It was also alleged that accused had reacted since his son was abused by Laxmi Devi. The complainant has urged that Hoshiyar Singh was not present at the spot, however, this stand of the complainant becomes doubtful in view of confronted version of statement of her own witnesses. PW Kamlesh stated to the police that Hoshiyar Singh had fallen in the quarrel at the spot, thus confirming his presence at the spot. PW Kamlesh's version that Babloo had caught hold of Laxmi's hair was confronted with her statement to the police where her version is that Laxmi had caught hold of Babloo's hair. The defence also pleaded that Laxmi had abused the minor son of accused to provoke accused. This version also finds support from Ex.PW7/DA. From the confronted statements of witnesses it also appears that the quarrel had stopped at one point of time and started again after the arrival of Hoshiyar Singh.
20. The prosecution has not been able to establish that the accused were the aggressor, all that has been alleged is that the bikes belonging to the accused were parked in front of Laxmi Devi's house. There was some altercation in this regard. The altercation turned into a quarrel resulting into injuries to both the sides, however, the versions of prosecution witnesses on how the incident unfolded, have become doubtful on FIR No.247/06 PS. Geeta colony Page 20 of 29 St. Vs. Somdutt etc. account of improvement on material aspects. The accused has been able to raise a suspicion in the story of prosecution by bringing an element of provocation because of what Laxmi Devi stated about the child of the accused. The accused has led defence evidence, wherein DW1 has deposed in favour of the version of accused.
Hon'ble Supreme Court in 2002[1] JCC 385 titled State of Harayan vs Ram Singh held that the evidence tendered by the 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.
21. In the given facts and circumstances, where the version of the prosecution witnesses is not wholly reliable on major portion of their evidence, and defence had also led evidence deposing categorically that the incident did not occur in the manner as is being deposed by the prosecution witnesses in the court, the story of prosecution becomes doubtful on accused being aggressor in having caused injury. FIR No.247/06 PS. Geeta colony Page 21 of 29 St. Vs. Somdutt etc.
22. Other contradictions: The complainant says that she remained admitted in the hospital for five days. PW ASI Ombir Singh in his evidence in FIR No. 274/06 (evidence relied upon by Ld. Counsel for complainant and certified copy having been filed on record), deposed that on 29.07.06 in the morning hours he had gone to the spot, where Somdutt was abusing Laxmi and Mahender by using castiest remarks and proved certified copy of Kalandra as Ex.PW4/E. The evidence of the two witnesses is apparently contradictory, if Laxmi Devi was in hospital as claimed by her for five days, she could not be present near the spot to hear what Somdutt was alleging. The Kalandara EX.PW4/E says that when witness went to the spot in the morning accused Somdutt in Taish and Josh was saying to Laxmi Devi " Uska kya bigad liya aur ab wah apni motorcycle wohi park karega". One of the witnesses therefore, has given a false statement. Either Laxmi Devi was not admitted in hospital on 29.07.06 or ASI Ombir had not visited the spot and found the incident as has been mentioned by him in Kalandra.
23. There is an affidavit on record, which is Ex.PW2/B and bears the signatures of the complainant. Though such a document would not have any bearing on the merit of the case, however, when the reliability of a witness is to be judged, every document and the evidence given in FIR No.247/06 PS. Geeta colony Page 22 of 29 St. Vs. Somdutt etc. respect of such document becomes relevant. The witness stated that her signatures on Ex.PW2/B was obtained fraudulently by telling her that document was required to obtain caste certificate. She and all her witnesses stated that no settlement was arrived at between the parties, though it was so stated in the statement of witnesses u/s. 161 Cr.P.C. The complainant had filed a Crl. Revision bearing no. 689/2007 before the Hon'ble High Court, wherein it was categorically stated that the matter had been settled between the parties on the date of incident. The complainant thus admitted that a settlement was arrived and tried to take benefit of it to get the FIR registered against her quashed by the Hon'ble High Court. However, at the time of giving evidence before the court, she not only disputed the fact but also the document which was signed by her; was notarised and was seized by the ACP of Gandhi Nagar, having been handed over to him by the husband of complainant, Mahender Singh. The seizure memo of the affidavit is Ex.PW3/A, which was tendered in evidence by her husband, who admitted his signatures at Ex.PW3/A. The evidence and the orders as available on record are indicating that at one point of time a settlement was arrived between the parties, however, to deny the settlement the complainant disputed Ex.PW2/B. Admittedly no complaint at any point of time was given regarding obtaining of her signatures on blank stamp paper by the FIR No.247/06 PS. Geeta colony Page 23 of 29 St. Vs. Somdutt etc. complainant. The version of the complainant in this aspect creates doubt.
24. From the evidence on record, it is doubtful as to which of the two parties were in fact the aggressor qua the incident of physical injuries caused to each other. No explanation has come from the prosecution in respect of the injury sustained by the other party. Since it cannot be said with certainty that the accused in fact were the aggressor, they have to be given benefit of doubt in respect of allegations u/s. 323/34 IPC.
25. Allegations of wrongful restraint: The version of all the witnesses before the police and in the court remained that the accused Babbal had parked his motorcycle in front of the house of Laxmi Devi because of which the quarrel had started. All the witnesses have remained consistent on this aspect and have stated consistently that the bikes were parked so and complainant Laxmi Devi could not come out of her house. All the witnesses have consistently stated that on the asking of Laxmi Devi to remove the motorcycle the quarrel had started as the bikes were not removed and the accused persons started arguing. The version of the accused in crosscase is also that the quarrel started as bikes were parked in front of house of Laxmi Devi though with some improvement. There has been no contradiction in the statement of any of FIR No.247/06 PS. Geeta colony Page 24 of 29 St. Vs. Somdutt etc. the witnesses on this aspect at all. Accused Babbal, who had parked the motorcycle in front of the house of the complainant, in such a manner as to prevent her movement, thus voluntarily obstructed her from coming out of her house, which obstruction ultimately led to the quarrel. The bikes were not parked by accused Babita. Accused Somdutt was not given any notice for having committed an offence u/s. 341 IPC. The prosecution case, however had been from the beginning that it was the parking of the motorcycle in front of house of the complainant, in such manner as to obstruct the way of complainant and that since the complainant could not come out, the quarrel had started. Considering the fact that the evidence was led by the prosecution specifically on this aspect and the allegations are less in gravity than the offence u/s.323 IPC, for which he was charged and the fact that the accused got proper opportunity to meet the case of the prosecution in evidence also, I find justification in convicting the accused Somdutt @ Babloo for having committed an offence of wrongful restraint punishable u/s. 341 IPC.
26. In view of above, there is categoric evidence that accused Somdutt had committed unlawful restraint by blocking the passage of complainant by parking his motorcycle in front of her house in such a manner that she could not come out of the house and not removing the FIR No.247/06 PS. Geeta colony Page 25 of 29 St. Vs. Somdutt etc. motorcycle, when asked to do so; he is convicted u/s. 341 IPC. Both the accused are acquitted of the allegations u/s. 3 (1) X of Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 and 323/34 IPC. Announced in the open court on 25.01.14 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/25.01.14 FIR No.247/06 PS. Geeta colony Page 26 of 29 St. Vs. Somdutt etc. IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI Unique ID No. 02402R0821072007 Sessions Case No. 03/13 State v/s. (1) Somdutt @ Babloo S/o. Sh. Rajender Prasad R/o. B2 Rani Garden, Near Ambedkar Park, Delhi.
FIR No. 247/06 PS. Geeta colony U/s. 341/323/34 IPC r/w section 3 (1) X of Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989.
Pr: Sh. S.K.Dass, Ld. PP for the State.
Convicts Somdutt in person.
Sh. R.K.Kochar, Ld. Counsel for convict.
ORDER ON SENTENCE:
1. The accused has been convicted by order/judgment of this court dt. 25.01.14.
2. Heard on point of sentence.
FIR No.247/06 PS. Geeta colony Page 27 of 29 St. Vs. Somdutt etc.
3. Ld. Counsel argued that accused is not a previous convict and is a family person. The quarrel in this matter was between the neighbours and the accused is entitled for the benefit of Probation of Offender's Act. He has moved an application in this regard also.
4. As argued, the law on sentencing is that wherever alternative sentence is possible, it should be considered before sending a person to custody. The punishment prescribed u/s. 341 Cr.P.C is of simple imprisonment for a period of one month or fine of Rs.500/.
5. Hon'ble High Court of Punjab & Haryana at Chandigarh in case titled as Kuldeep Singh vs. State of Haryana, 1995(3) CC Cases 495 (HC), had observed that :
"That where the petitioner is a first offender and no previous case is registered against him, he is given concession of probation u/s.4 of the Probation of Offenders Act, r/w/s.360 Cr. P. C.
6. In view of aforesaid considering the fact that no evidence of any other case pending against him has been brought by State, the convict is ordered to be released on probation for a period of six months on FIR No.247/06 PS. Geeta colony Page 28 of 29 St. Vs. Somdutt etc. furnishing probation bond in the sum of Rs.10,000/. He is directed to be of good behaviour and not to commit similar offence during this period of six months. He is informed that in case he is found involved in any unlawful activity, he may be called again here to serve the sentence as per law.
7. A copy of this order as well as of judgment be given to convict free of cost. Copy be also sent to Jail Superintendent for information and necessary action.
Announced in the open court on 29.01.14 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/29.01.14 FIR No.247/06 PS. Geeta colony Page 29 of 29 St. Vs. Somdutt etc.