Delhi District Court
State vs . Anil Kumar on 18 September, 2009
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SC / ST No. 15/08.
IN THE COURT OF SH. GURDEEP KUMAR :
D.J.VCUMASJ / I/C (SOUTH) P.H.C., NEW DELHI
SC / ST No. 15/08.
FIR No. 253/03.
PS : Hauz Khas
U/s 3(1)(x) SC/ST (POA) Act, 1989
& 506 IPC.
State Vs. Anil Kumar
S/o Om Prakash
R/o H. No. 232,
Shahpur Jat village,
New Delhi.
Date of institution : 04.06.2003.
Date on which arguments
have been heard : 29.08.2009.
Date of judgment : 18.09.2009.
J U D G M E N T: Accused Anil Kumar has been sent up for trial by the S.H.O, Police Station Hauz Khas u/s Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Contd...
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Atrocities) Act, 1989 (hereinafter referred to as the Act) and Section 506 IPC.
2. The relevant brief facts of the case are that complainant Kuldeep Singh Tomar S/o Hari Singh R/o 224, Shahpur Jat, New Delhi lodged complaint with the Assistant Commissioner of Police, South District, Delhi on 01.04.2003 alleging that on that day at about 10.30 a.m he was sitting near his house with his neighbours, namely, Tarun, Sandeep, Sanjeev, Amarjit and others. In the meantime, one shopkeeper, namely, Anil Kumar, who is residing at House No. 232, Shahpur Jat, came and started abusing him with threat to kill him and facing dire consequences and uttered on him as "Sale Chamar Ke Vakeel Teri Vakalat Teri Gand Mein De Dunga And Tu Contd...
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Kabhi Vapas Ghar Nahi Ayega, Maine Teri Intzam Kar Diya Hai." However, some other people came in between and the matter was given up. However, he feels danger to his life from Anil Kumar and, therefore, he was reporting the matter to the police for taking necessary action against him in the interest of his life and justice as early as possible.
3. On the above complaint filed by the complainant, in accordance with law, FIR was registered and the investigation was handed over to Mr. O.P. Yadav - ACP. During investigation, the I/O on 08.05.2003 inspected the place of occurrence and on the pointing out of the complainant prepared site plan. He also collected a copy of caste certificate No. 4308/83 dated 16.09.1983 issued by the Office of Deputy Commissioner, Delhi Government. He Contd...
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recorded statements of the witnesses, namely, Tarun Kumar, Sandeep Kumar, Amarjit and Sanjeev Kumar u/s 161 Cr.P.C. Accused was arrested and released on bail. After completing investigation, chargesheet was filed before ld. M.M.
4. The ld. M.M. committed the case to the Sessions Court for trial. After hearing both the parties on the point of charge, my ld. Predecessor vide orders dated 12.09.2003 framed charge against the accused u/s 3(1)(x) of the Act, to which the accused pleaded not guilty and claimed trial.
5. In order to bring home guilt against the accused, the prosecution has examined PW1 Head Constable Ram Contd...
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Singh, PW2 - Kuldeep Singh Tomar, PW3 - Sandeep Kumar, PW4 - Tarun Kumar, PW5 - SubInspector Major Singh, PW6 - Amarjit Singh, PW7 - Sanjeev Kumar, PW8
- O.P. Yadav ACP retired, PW9 - Subhash Chand LDC from D.C. Office.
6. Thereafter, accused was examined u/s 313 Cr.P.C wherein the entire incriminating evidence was put to him which he denied, but did not lead any evidence in his defence.
7. PW1 - Head Constable Ram Singh deposed that on 07.05.2003 while posted as Duty Officer at Police Station Hauz Khas on the basis of rukka mark A he recorded FIR Ext. PW1/A. He made his endorsement Ext.
Contd...
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PW1/B on the rukka.
PW2 - Kuldeep Singh Tomar complainant reiterated on oath the facts stated by him in his complaint, which form the part of the FIR, stating that he is residing at 224, Shahpur Jat, New Delhi since his birth with his family; that he is a member of Scheduled Caste, Sub Caste Jatav Chamar; that he knows accused Anil Kumar, who is residing in his neighbourhood, who does not belong to Scheduled Castes or Scheduled Tribes; that accused knows the fact that he belongs to Scheduled Caste as he has been residing in the same vicinity; that on 01.04.2003 at about 10.30 a.m he was reading newspaper at that time while sitting at the main road near the counter of the shop of his cousin Ravinder; that Sandeep, Tarun, Sanjeev, Amarjit were also present with him at that time; that Contd...
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meanwhile accused Anil Kumar came there and started abusing him and uttered the words "Sale Chamar Ke Vakeel Teri Vakalat Teri Anus Me De Dunga Aur Tera Intzam Kar Diya Hai Ek Din Tu Vapis Nahi Ayega; that the persons present there intervened and told the accused not to behave in this passion; that he felt insulted by the derogatory words uttered by the accused on his caste basis and thereafter the accused left murmuring in angrily towards him; that he would cause danger to his life as he is very influential person of the area. He further deposed that he filed complaint Ext. PW2/A in that regard to the ACP of the area. He also sent a copy of the complaint to the DCP, National SC / ST commission, Hon'ble Chief Justice of Delhi High Court for further necessary action. Later on, the police registered the case, conducted the proceedings;
Contd...
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copy of his caste certificate was taken into possession vide memo Ext. PW2/B. In his further examination, on 30.08.2005 he produced original caste certificate stating that Ext. PW2/C is the photocopy of the same and the same was seized vide seizure memo Ext. PW2/B. PW3 - Sandeep Kumar stated that on 01.04.2003 his neighbour Durga Prasad who had encroached in front of his entrance in the street; that Kuldeep Singh Tomar complainant, Tarun Kumar, Sanjeev and Amarjit went to the house of Durga Prasad and requested him to remove encroachment. On their request, Durga Prasad removed encroachment in the gali made by him at the entrance of his house. He further stated that there is a Sahib General Store at the corner of street and they all went there and were standing near the same store in village Shahpur Jat Contd...
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and were talking to each other. It was about 11/11.30 a.m when the accused Anil Kumar, who does not belong to Scheduled Caste came there while they were discussing about the removal of encroachment by Durga Prasad, accused heard their talks. After hearing their talks accused Anil Kumar told them that he would also make stairs at the entrance of his house and he would see as to who would dare to remove his stairs by doing encroachment at the entrance of his house. They told him that Durga Prasad had also removed his encroachment so he should not do such things but accused Anil Kumar again emphasised that as to who will dare to remove his stairs. The complainant Kuldeep Singh Tomar, who is an Advocate by profession, also requested the accused Anil Kumar that Durga Prasad has removed his encroachment on their request and so Contd...
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why he should make stairs by encroaching upon the way; that thereupon the accused started abusing to the complainant saying that "Chamar Ke Vakeel, Teri Vakalat Teri Gand Mein Thoosh Dunga Aur Maine Teri Intzam Kar Diya Hai Ghar Nahi Ayega." Thereafter the accused left. He stated that accused knew the fact that he and the complainant belong to Scheduled Caste Sub Caste Jatav Chamar.
PW4 - Tarun deposed that on 01.04.2003 Durga Prasad had encroached the land in front of his entrance and created difficulties to the traffic in the gali. He along with Kuldeep Singh, Sandeep and Sanjeev etc. went to the house of Durga Prasad and on their request he removed the encroachment on the street peacefully; that they started towards the shop of Ravinder where they reached at about Contd...
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11/11.30 a.m. They were sitting there and discussing the matter of encroachment by Durga Prasad. In the meantime accused Anil Kumar came there and started to cry by saying that "Chamar Tum Mere Kuch Nehe Bigar Sakete Jab Me Apni Pauri Banaooga To Mujhe Kaun Rokega. The complainant Kuldeep Singh Tomar told him that they were not saying anything to him and they were discussing the matter amongst themselves. Thereafter accused started abusing the complainant by saying the words "Chamar Ke Vakeel, Teri Vakalat Teri Gand Mein Thoosh Dunga Aur Maine Tera Intzam Kar Diya Hai Ghar Nahi Ayega." He further stated that accused knew the fact that he and complainant belong to Scheduled Caste Sub Caste Jatav Chamar. Many persons from public had collected there.
PW5 - SubInspector Major Singh stated that on Contd...
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08.05.2003 he joined the investigation of this case with ACP - O.P. Yadav I/O. He accompanied him to the place of occurrence near Sahib General Store, Shahpur Jat main road where at the instance of complainant Kuldeep Singh Tomar I/O prepared the site plan. The complainant also produced his caste certificate which was taken into possession vide memo Ext. PW2/B. On 09.05.2003 he again joined investigation with ACP - O.P. Yadav and accused was arrested and his personal search was conducted vide memo Ext. PW5/A. PW6 - Amarjit deposed that on 01.04.2003 at about 11.00 a.m he along with Kuldeep Singh Tomar, Tarun Kumar, Sandeep, Sanjeev were sitting at the shop of Neeraj and were talking to each other. In the meantime, accused Anil Kumar came from the village side and started Contd...
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abusing to Kuldeep Singh and further uttered to Kuldeep Singh "Chamar Ke Vakeel Teri Vakalat Teri Gand Mai De Dunga" and further uttered that "Tera Intzam Maine Kar Diya Hai Kisi Din Tu Wapis Nahi Aayega and thereafter while causing the abusing to Kuldeep Singh Tomar, accused went away from there. The witness was declared hostile and cross examined at length by Special P.P for the State. Thereon the witness admitted that accused had also uttered to them that what they can do and further stated that he would also construct a pauri in front of his house and further challenged that he would see that which one of the Chamar would speak on this point. He denied that accused Anil Kumar had uttered to Kuldeep Singh "Teri Vakalat Chamar Ke Asisi Taisi Kar Dunga". He was confronted with the statement Ext. PW6/A where it has Contd...
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been so recorded.
PW7 - Sanjeev Kumar deposed that on 01.04.2003 at about 10.30 or 11.00 a.m he was standing on the Sahib General Store run by Neeraj. He was accompanied by Mr. Amarjit, Sandeep, Tarun and Kuldeep Singh and they all were talking with each other. At that time accused Anil Kumar came there from the village side and was going to his shop. After passing the Sahib General Store, he returned there and stood in front of Sahib General Store and threatened Kuldeep Singh Tomar while uttering "Chamar Ke Vakeel Main Teri Vakalat Teri Gand Main Wardunga Tera To Maine Intzam Kar Diya Hai Tu Ghar Wapis Nai Aayega." He further stated that accused had said to him and rest of them that "Tum Chamar Ke Ladko Iss Ke Vakeel Banney Se Seer Contd...
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Chargaye Ho".
PW8 - O.P. Yadav ACP (retired) stated that on 07.05.2003 the DCP South ordered him to investigate the case FIR No. 253/03 u/s 3 of Act registered at Police Station Hauz Khas vide his office order Ext. PW8/X. He immediately took over the investigation, received copy of the FIR, visited the spot, prepared the site plan Ext. PW8/B on the pointing out of the complainant. He also collected Ext. PW2/C photocopy of the caste certificate and seized it vide memo Ext. PW2/B. He recorded statement of witnesses. He arrested the accused on 09.05.2003 and conducted his personal search vide memo Ext. PW8/C. After completing the investigation he filed the chargesheet in the Court.
PW9 - Subhash Chand stated that as per the Contd...
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register No. R81 at serial No. 4308/83 Scheduled Castes Certificate was issued in the name of Sh. Banwari Lal S/o Sh. Bhiku Ram R/o 7719, Basti Khatik, Kasabpura, Sadar Bazar, New Delhi. He further stated that as per the register No. 83 of 1983, SC Certificates from serial No. 9933 to 10010 were issued on 16.09.1983. As per the record, certificate bearing No. 4308/83 was issued on 17.05.1983 and not on 16.09.1983. He also produced a letter Ext. PW9/A issued by Sh. Rajeev Kumar, SDM (HQII), 5 Sham Nath Marg, Delhi. Photocopy of entry pertaining to issuance of certificate at serial No. 4308/83 found to be issued on 17.05.1983.
8. In his statement u/s 313 Cr.P.C accused claimed to be innocent and falsely implicated. He denied that any Contd...
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such incident had taken place. He further stated that at that point of time he used to reside in rented house at 199, Shahpur Jat, New Delhi. He had purchased house No. 232 in the gali in which the house of the complainant is situated about 6 months prior to this incident.
9. I have heard Special P.P for the State and ld. counsel for the accused. I have also gone through the memorandum of arguments filed by Special P.P for the State. I have also gone through the entire evidence on record and considered the submissions made by both the parties.
10. The offences enumerated in Section 3 of the Act envisage that the victims of the offences have to be come Contd...
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from the Scheduled Castes or Scheduled Tribes within the meaning assigned to the term respectively under Clause 24 and 25 of Article 366 of the Constitution but the offender must not be member of Scheduled Caste or Scheduled Tribe. The utterances by the accused should also be for the purpose of intentional insulting or intimidating with an intention to humiliate the members of the complainant party because of their being member of Scheduled Caste or Scheduled Tribe. In order to procure conviction under the Act, it is necessary to prove the intent referred to therein. Mere intimidation or more voluntarily causing hurt by a person, who is not a member of that caste or tribe, would not constitute the offence referred therein unless the intention thereof has been proved by cogent evidence.
Admittedly accused Anil Kumar is not a member Contd...
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of Scheduled Caste or Scheduled Tribe. PW2 - Kuldeep Singh Tomar has deposed that he is a member of Scheduled Caste as he belongs to Sub Caste Jatav Chamar. He has produced Caste Certificate Ext. PW2/C. It is noticed that the genuineness of that certificate has not been challenged by the accused in his cross examination. Therefore, it is proved that the complainant belongs to Sub Caste Jatav Chamar, which is a Scheduled Caste within the meaning assigned to the term under clause 24 of Article 366 of the Constitution. As laid down by the Hon'ble Apex Court in AIR 1966 Supreme Court 45 and by the Hon'ble Karnataka High Court in Criminal Appeal No. 148/94 State of Karnataka Vs. Mahantappa, unless it is proved by cogent evidence that the accused was conscious of the fact that the act was committed knowing the victim Contd...
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belonging to Scheduled Caste, the Act would not apply to the facts of the case. PW2 - Kuldeep Singh Tomar in his statement in the Court stated that accused knows that he (the witness / complainant) belongs to Scheduled Caste Community. He did not state that the accused at the time of occurrence was aware of this fact. He 'knows' and 'he knew prior to the date of occurrence' are two different facts. So by his statement PW2 - Kuldeep Singh Tomar the complainant does not prove that the accused was aware before the date of occurrence of the fact that he belongs to Scheduled Caste Community and knowing it, he uttered the aforesaid derogatory words to humiliate him being member of Scheduled Caste Community. Besides, this fact stated in his statement in the Court does not find mention in his police report Ext. PW2/A and, therefore, his statement to Contd...
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that fact in the Court for the first time is an after thought and cannot be believed. Besides, in his cross examination PW2 - Kuldeep Singh Tomar admitted that he did not have visiting terms with the complainant. So there is remote possibility of accused knowing the victim of a member of Scheduled Caste Community. PW3 - Sandeep Kumar in his cross examination has also admitted that they do not have visiting terms with the accused. However, in his statement in the Court deposing as PW3 he stated that accused knew that he and the complainant belong to Scheduled Caste Community. This fact was not mentioned by him in his statement recorded during investigation u/s 161 Cr.P.C and he was confronted with the same in his cross examination wherein this fact is not mentioned. This further shows that the statement of PW3 - Sandeep Kumar Contd...
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in that regard is also an after thought and hence cannot be believed.
11. PW4 - Tarun deposed that accused knew that the complainant belongs to Scheduled Caste Community. However, his statement is found to be vague as it does not disclose the basis of that information. PW7 - Sanjeev Kumar has not uttered even a word in that regard. As admitted by PW2 - Kuldeep Singh Tomar, PW3 - Sandeep Kumar and PW4 - Tarun they do not have any visiting terms with the applicant / accused. Therefore, the statement of PW4 - Tarun in that regard does not corroborate either the complainant or PW3 - Sandeep Kumar and is not worthy of credence.
The above evidence goes to show that the Contd...
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prosecution has not brought on record any cogent evidence to prove that the accused was aware prior to the date of occurrence that the complainant is a Jatav Chamar by caste and Scheduled Caste. That being the case, it cannot be said that the accused had uttered the aforesaid derogatory words to the complainant with intention to insult, intimidate and humiliate him being a member of Scheduled Caste Community.
PW3 - Sandeep Kumar in his cross examination has stated that about 20 - 25 members from locality had collected at the time of incidence. He has further stated that those persons included persons, namely, Ravinder, Rajinder, Tilak, Raj, Satbir, Pradeep, Sunil. He also admitted that another persons, namely, Raj Pal Singh Jaat by caste was also present at the relevant time. PW4 -
Contd...
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Tarun in his cross examination has also admitted presence of persons belonging to Jaat Community, besides persons of General Category.
It is noticed that neither in the investigation nor while leading evidence during the trial, the prosecution did not examine any independent witness of the alleged occurrence though large persons belonging to Jatav Chamar Community and General Category were admittedly present. PW3 - Sandeep Kumar in his cross examination has admitted that the complainant is related to him. He clarified it stating that he is brother through relation in the village. PW2 - in his cross examination has tried to hide the fact that PW3 - Sandeep Kumar and PW4 - Tarun are related to him being from the same village. However, this fact stands admitted by PW3 - Sandeep Kumar and PW4 -
Contd...
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Tarun and these are interested witnesses and are not independent witnesses of alleged occurrence. Further, independent witnesses were available as admitted by PW3
- Sandeep Kumar and PW4 - Tarun in their respective cross examination but none of them has been examined by the prosecution for the reasons best known to them. PW3
- Sandeep Kumar in his cross examination admitted that 20 to 25 persons belonging to Jatav Chamar Caste, besides including large persons from General Category were present there. PW7 - Sanjeev Kumar in his cross examination also admitted presence of large number of independent witnesses to the alleged incident belonging to Scheduled Caste as well as General Category. However, police did not record their statements nor examined them in the Court.
Contd...
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Since PW3 - Sandeep Kumar, PW4 - Tarun and PW6 - Amarjit are related to the complainant, they are interested witnesses. In the absence of corroboration to their statements by any of the independent witness, admittedly present at the time of occurrence, no reliance can be placed on their statements. On this, I am fortified by a decision by the Hon'ble Bombay High Court titled Gulab Khabale Vs. Hira Ghuage and others 2006 Criminal Law Journal 3451.
12. PW2 - Kuldeep Singh Tomar, PW3 - Sandeep Kumar and PW4 - Tarun have deposed that the accused within the public view had uttered to the complainant the derogatory words "Sale Chamar Ke Vakeel Teri Vakalat Teri Gand Mein De Dunga Aur Tu Kabhi Vapas Ghar Nahi Contd...
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Ayega, Maine Teri Intzam Kar Diya Hai." An important aspect to be seen is whether the above derogatory words, if at all, were used with intention to humiliate or insult the complainant being a member of Scheduled Caste Community. As discussed above, it is not proved by the prosecution by any cogent evidence that accused, before the date of occurrence, was aware that the complainant is a member of Scheduled Caste Community. So the question of mens rea i.e. intention or intimidate the complainant with the words "Chamar Ke Vakil........" does not arise. Besides, the above mentioned derogatory words show that the accused was aware that the complainant is an Advocate by profession. In the cross examination of PW3 - Sandeep Kumar and PW4 - Tarun it has come on record that the bone of contention between the parties was Contd...
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a construction of Chabutra by Durga Prasad in public land in front of his house. Admittedly, the said Durga Prasad is a member of Scheduled Caste being Jatav Chamar. The utterance "Chamar Ke Vakeel ......." has to be seen in that context. When seen in that context, I am of the considered view that the said utterances uttered by the accused referred to the complainant as an Advocate of Durga Prasad a member of Scheduled Caste Community, and not to the complainant as a member of Scheduled Caste Community. So it cannot be said that the accused had addressed the complainant uttering the aforesaid derogatory words with intention to insult or intimidate him with intention to humiliate the complainant, being a member of Scheduled Caste Community.
Contd...
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13. During the course of arguments, Special PP for the State has referred to the case law reported as Swaran Singh and Ors. Vs. State through Standing Counsel and Anr. JT 2008 (9) SC 60 and Desh Raj Vs. Bodh Raj (2008) 2 SCC 186.
I have gone through the same. The Hon'ble Apex Court in Swaran Singh and Ors. Vs. State through Standing Counsel and Anr. (supra) has held that calling a member of Scheduled Caste 'Chamar' with intent to insult or humiliate him in a place within public view is an offence under Section 3(1)(x) of the Act. With due respect to Their Lordships, this judgment does not help the prosecution in any manner whatsoever. As already discussed above, prosecution has failed to prove by cogent evidence that the accused had addressed the complainant uttering the Contd...
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aforesaid derogatory words with intention to insult or intimidate him with intention to humiliate him, being a member of Scheduled Caste Community. With due respect to Their Lordships, the case law reported as Desh Raj Vs. Bodh Raj (supra) being relied upon by the Special PP for the State, is of no help as the facts of that case and the case in hand are entirely different as already discussed above.
14. In the light of the above discussion and for the detailed reasons given therein, I am of the considered view that the prosecution has failed to prove by cogent evidence the essential ingredients of Section 3(1)(x) of the Act. It is, therefore, held that the prosecution has failed to bring home guilt against the accused for the alleged offence u/s Contd...
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3(x)(x) of the Act. On the basis of the above discussion and for the reasons given therein, accused Anil Kumar is acquitted of the charges u/s 3(1)(x) of the Act. His surety is discharged. File be consigned to the record room. Announced in the open (GURDEEP KUMAR) Court on 18.09.2009. D.J.VcumASJ I/C(South) P.H.C., N. DELHI/18.09.2009.
Contd...