Delhi District Court
State vs Accused on 30 November, 2011
IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL
SESSIONS JUDGE-02:EAST DISTRICT:KARKARDOOMA
COURTS: DELHI
SC NO. 06/09 Date of Institution :01.08.2001
FIR No. 186/00 Date of Argument :26.11.2011
PS New Ashok Nagar Date of Order :30.11.2011
U/S 3(1)(v) SC&ST (POA) Act
State Versus Accused
1 Mukesh Kumar
S/o Sh. Jai Prakash
R/o Pandit Mohalla, Village
Kondli, Delhi-96.
2 Ved Prakash
S/o Sh. Ram Nath
R/o Pandit Mohalla, Village
Kondli, Delhi-96.
3 Karan Singh
S/o Sh. Khem Chand
R/o Village Kondli, Delhi-96.
4 Shish Pal
S/o Sh. Mangat Singh
R/o Village Kondli, Delhi-96.
5 Anil Kumar
S/o Sh. Jai Prakash Sharma
R/o D-1/41, New Kondli,
Delhi-96.
6. Jai Prakash
S/o Sh. Ram Nath
R/o Pandit Mohalla, Village
Kondli, Delhi-96.
(Since Dead)
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 1 of 54
AND
FIR No. 342/96 Date of Institution :01.08.2001
PS Kalyan Puri Date of Argument :26.11.2011
U/S 448/379/34 IPC Date of Order :30.11.2011
State Versus Accused
1 Mukesh Kumar
S/o Sh. Jai Prakash
R/o Pandit Mohalla, Village
Kondli, Delhi-96.
2 Ved Prakash
S/o Sh. Ram Nath
R/o Pandit Mohalla, Village
Kondli, Delhi-96.
3 Shish Pal @ Rishi
S/o Sh. Mangat
R/o Village Kondli, Delhi-96.
4 Karan Singh
S/o Sh. Khem Chand
R/o Village Kondli, Delhi-96.
JUDGMENT
Vide this common judgment, I shall dispose off above mentioned two cases bearing FIR No.186/2000 of PS New Ashok Nagar, here in after referred to the first case & FIR No.342/1996 of PS Kalyan Puri, here in after referred to the second case.
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2. The facts in brief of the first case are that on 29.02.1996, Smt. Ramwati was informed that Sh. Anil Kr. Sharma, property dealer, Jai Prakash, Ved Prakash, Shish Pal & Karan Singh were demolishing boundary wall of her plot. She alongwith her son Jai Kumar arrived on the plot situated in khasra No.303, village Kondli, Delhi and found that above mentioned person were present on her plot. The foundation was being dug. Smt. Ramwati and her son Jai Kumar objected. Accused persons abused them and uttered "ye panditon ka mohalla hai yahan chamaron ka koi kam nahin hai. Ham tumhe yahan kisi keemat par nahin basne denge" and "ye panditon ka mohalla hai, yahan chamar nahin reh sakte". All the accused persons also scolded them and asked them to stay away from them. A quarrel had taken place. Accused persons torn the clothes of Smt. Ramwati. She approached the PS for lodging of her report but police did not lodge her report. Smt. Ramwati and her husband Sh. Munni Lal met SHO for lodging the complaint but their report was not lodged. Conversely, they were harassed by the police officials particularly, Arvind Tyagi, Constable, Hari Singh Head Constable, Khushpal Singh, SI and S.P. Rana, SHO of PS Kalyan Puri. They submitted a complaint in this regard to PS New Ashok Nagar. It was also disclosed in the report as SC No. 06/09 State Vs. Mukesh & Ors. Page No. 3 of 54 to how the accused persons wrongly occupied part of plot of complainant on 29.02.1996. Smt. Ramwati also made a complaint to National Commission for SC&ST and the commission recommended on 26.04.2000 for lodging a FIR under the Act. Consequently, DCP East, made an endorsement on the complaint and got the FIR registered at PS New Ashok Nagar on 20.08.2000 against the accused persons. Investigation revealed that Smt. Ramwati purchased a plot of 166 sq. yards out of khasra No.303 from Sh. Ram Nath s/o Sh. Raghubar Singh r/o village Kondli on 19.11.1987 and she also purchased another plot measuring 180 sq. yards on 25.11.1987 and third plot measuring 150 sq. yards on 28.01.1988 from Sh. Ram Nath. These plots were having boundary wall. On 29.02.1996, when Ramwati & her son arrived at their plot they saw that Shish Ram & Karan Singh were digging foundation on her plot measuring 150 sq. yards and Ved Prakash, Jai Prakash, Mukesh & Anil Sharma were getting the foundation dug. When she objected they abused her and pushed her. The police after completion of investigation filed a charge sheet for trial of all the six accused persons for the offence punishable u/s 3 The Scheduled Castes and the Scheduled Tribe (Prevention of Atrocities) Act, 1989, here in after referred to as the Act.
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3. The facts in brief of the second case are that on 03.03.1996 Smt. Ramwati submitted a complaint to the police mentioning that she was resident of village Kondli. She has plot in khasra No.303. Sh. Karan Singh has taken possession of her plot. Another person named Rishi @ Shish Pal has removed bricks of boundary wall of her plot and made his own wall by using those bricks. Sh. Mukesh son of Sh. Jai Prakash and Sh. Ved Prakash son of Sh. Ram Nath both resident of village Kondli were also involved in that offence. She prayed for taking legal action against them and for return of her plots and bricks alleging further that she was a poor harijan lady and she was having all the required document of her plot. The matter was investigated. IO prepared site plan, seized the document of the plot. It revealed during investigation that Smt. Ramwati had purchased one plot measuring 180 sq. yard on 25.11.1987 and another adjoining plot measuring 150 sq. yards on 28.01.1988 from Sh. Ram Nath S/o Sh. Jodha Ram. Both these plots were having outer boundaries. The total area of both these plots was 330 sq. yards and Smt. Ramwati was using that plot by dumping garbage (kuda etc.). Sh. Khem Chand son of Sh. Kundan Lal was having his plot measuring 106 sq. yards and adjoining to that plot measuring 180 sq. yards of Shish Pal s/o Mangat. Sh.
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 5 of 54 Khem Chand agreed to sell 50 sq. yards area out of his plot to Sh. Karan Singh and obtained advanced amount (bayana). Sh. Karan Singh occupied that plot without getting any documents e.g. GPA, etc. executed. During investigation, Sh. Ram Nath died and his son Ved Prakash and grand son Mukesh Kumar sold 80 sq. yards of the land out of land of complainant Smt. Ramwati under the pretext that their father and grand father Sh. Ram Nath did not sell their land to Smt. Ramwati. Ved Prakash and Mukesh got the portion of land occupied by Sh. Shish Pal. Smt. Ramwati was then having only 290 sq. yards out of 330 sq. yards as accused persons wrongfully occupied her land measuring 40 sq. yards. Therefore, the police filed charge sheet of second case against the four accused persons for their trial for the offences punishable u/s 448/379/34 IPC.
4. Vide order dated 16.11.1999, Ld. M.M., opined that charge against all the accused persons was made out for the offences punishable u/s 448/379/34 IPC. In revision, vide order dated 07.06.2000, it was held by Shri Prithvi Raj, ASJ, Karkardooma Courts that there was no prima facie case against accused Ved Prakash and Mukesh. Consequently, order for framing of charge against them was set aside. However, vide order of even date order of SC No. 06/09 State Vs. Mukesh & Ors. Page No. 6 of 54 charge against accused Shish Pal and Karan was upheld.
5. After supplying the copies of the charge sheet and other documents the Ld. M.M. committed the case pertaining to FIR No. 186/2000, P.S.Kalyan Puri as it was a case interalia, for the offences punishable u/s 3 of the Act.
6. The case pertaining to FIR 342/96 P.S.Kalyan Puri was also committed to the court of Sessions as it was connected to the case FIR No. 186/2000, P.S.Kalyan Puri, inspite of the fact that Ld.M.M. had already recorded testimony of Shri Munni Lal as PW1 and partly recorded testimony Smt. Ramwati as PW2, and both the cases were assigned to this court being Special designated Court for trial of cases under the Act.
7. Vide order dated 26.09.2003, my Ld. Predecessor Shri S.N. Gupta, ASJ, clubbed both the cases and also ordered for framing of charge only against accused Karan Sing and Shish Pal for the offence punishable u/s 3 (1)(v) of the Act. Matter against other accused was kept in abeyance.
8. Accordingly, charge against both the accused SC No. 06/09 State Vs. Mukesh & Ors. Page No. 7 of 54 for said offence was framed and read over to accused persons in vernacular language. Both the accused persons pleaded not guilty and claimed trial.
9. In support of its case the prosecution examined ASI Shri Hardwari Lal as PW1 and partly examined Shri Munni Lal as PW2 and Smt. Ramwati as PW3.
10. After considering the testimonies of these witnesses my Ld. Predecessor vide his order dated 19.07.2004 again summoned accused Mukesh Kumar, Ved Prakash, Jai Prakash and Anil and vide his order dated 04.01.2010 opined that charge for the offences punishable U/s 3(1)(v) of the Act read with Section 34 of IPC was made out against all the accused persons. Therefore, charge for the said offences was framed and read over to remaining four accused persons. The accused persons after understanding the charge pleaded not guilty and claimed for trial.
11. In support of its case the prosecution examined ASI Hardwari Lal as PW1; Sh. Munni Lal husband of complainant as PW2; Smt. Ramwati, complainant as PW3; Smt. Janki, LDC Sub Registrar Seelampur as PW4; Sh. Jai SC No. 06/09 State Vs. Mukesh & Ors. Page No. 8 of 54 Kumar S/o Sh. Munni Lal as PW5; Sh. Hukum Singh neighbour of the complainant as PW6; Sh. Babu Ram neighbour as PW7; Smt. Dharamwati, neighbour as PW8; Sh. Khem Chand, as PW9; Sh. Rajesh Kumar as PW10; Sh. Prakash Gautam as PW11; Sh. Vijay Kumar as PW12; Sh. Manoj Kumar UDC, Office of Divisional Commissioner as PW12; Sh. P.K. Mishra, Additional DCP as PW13; Sh. Pratap Gautam as PW14; Sh. SI Jaswant Singh as PW15; and Sh. S.N. Khan Inspector as PW16.
12. After closing of prosecution evidence, statement of accused persons U/s 313 Cr. P.C. were recorded. All the material and incriminating evidence available on record against the accused persons was read over and put to them. The accused persons denied the incriminating evidence and stated that they were innocent and were falsely implicated in this case. Accused Mukesh Kumar stated that he is a Brahmin by caste. He pleaded that false allegations were leveled against him to pressurize him to withdraw his civil suit. Accused Ved Prakash pleaded that his father did not sell plot to Smt. Ramwati and Munni Lal. He filed a complaint to SHO. He told him that it was a civil matter. He filed a civil case against the complainant and that case titled Jai Prakash vs. Khem Chand is pending SC No. 06/09 State Vs. Mukesh & Ors. Page No. 9 of 54 before Sh. Gutam Manon Additional Sr. Civil Judge, Tis Hazari, Delhi. Accused Karan Singh pleaded that he had purchased land in dispute from Sh. Khem Chand. Munni had falsely filed case against him. Accused Anil Sharma pleaded that he visited PS for some work. He signed a document pertaining to Rs.20,000/- and due to that reason he was falsely implicated in the present case. Sh. Munni Lal and his family member falsely deposed against him Accused Shish Pal pleaded that he was falsely implicated in the case.
13. During pendency of the case accused Jai Prakash expired. Vide order dated 16.09.2008 of my Ld. Predecessor, the proceedings against him stood abated.
14. In support of their defence accused persons examined Sh. Anar Singh, Social Worker as DW1; Sh. Bijender Singh, farmer and neighbour as DW2; and Sh. Raj Kumar, as DW3.
15. I have heard arguments of Ld. Additional Public Prosecutor for the State and counsels for the accused persons and perused file.
16. On perusal of charge sheet and other SC No. 06/09 State Vs. Mukesh & Ors. Page No. 10 of 54 documents, on examination and analyzing of evidence on record and on considering the arguments I have formed my opinions and that are discussed herein below:
17. It would be appropriate to reproduce relevant provisions of Section 3 (1) (v) of the Act.
The relevant extract of the Clause is as under:
"3. Punishments for offence of atrocities.(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,* * *
(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land premises or water ;* * * shall be punishable with imprisonment for a term, which shall not be less than six months but which may extend to five years and with fine.* * *"
Ingredients of offence punishable under section 3(1)
(v) of the Act
18. In order to constitute an offence of atrocities of dispossessing or interfering with the enjoyment of a member of SC or ST from his land, premises of water, following ingredients are essential which must be alleged and proved to seek the conviction of the accused:
i Victim is Scheduled Caste
ii Accused is Non Scheduled Caste or Scheduled
Tribe
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 11 of 54
iii Accused had Prior Knowledge of Caste of Victim
iv Accused Offended the sensibilities of the Victim
in relation to his Caste or Offence was
committed because the Victim was Scheduled Caste v The Accused persons either have wrongfully dispossessed the victim or they wrongfully interfered with the enjoyment of any right of the victim.
Case Law on the offence
19. In case of Yashwant Vs. State of Maharashtra & Anr., 2003 CRI.L.J.2765 the facts of the case were that a F.I.R. was lodged for the offence punishable under Section 3(1) (2) of the Act read with Section 324 of I.P.C. on the allegation that on that day about 10 A.M, the petitioner went to the field of the victim armed with sticks and assaulted him and tried to dispossess or interfered in his rights. Special Judge framed charges for the offence punishable under Section 3(1) (v) of the Act. Bombay High Court held that the bare reading of the provisions of Section 3 (1) (v) of the Act reveal that what is made punishable under clause (v) of Section 3 (1) is not only wrongly dispossession of a member of Scheduled Caste or SC No. 06/09 State Vs. Mukesh & Ors. Page No. 12 of 54 Scheduled Tribe from his land or premises, but also if somebody interferes with enjoyment of his right over any land, premises or water, then the same would be sq.ly covered by this provision. The allegations mentioned in the F.I.R. clearly indicate that the applicant not only assaulted the complainant but also asked him to leave his field and, therefore, it is quite obvious that he interfered with enjoyment of rights of the complainant over that land. Assaulting the complainant thereafter by sticks and causing him injuries was the aggravating circumstances in applicant's design to interfere with enjoyment of his rights over the land and hence, the act as alleged and complained of in the F.I.R. squarely falls within the ambit and mischief of clause (v) of Section 3 (1) of the Act.
Arguments of Ld. Defence Counsels
20. It has been argued on behalf of the accused persons that present cases are offshoot of civil litigation pertaining to the plot in dispute pending between the parties. The complainant lodged complaints against accused persons to pressurize them to withdraw their civil cases.
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21. I have analyzed the evidence on record on this aspect. As mentioned above, date of occurrence of the present case is 29.02.1996. The power of attorney executed by Sh. Ram Nath s/o Sh. Raghubir Singh in favour of Smt. Ramwati wife of Munni Lal Ex.PW2/A is dated 25.11.1987. It is in respect of peace of land measuring 180 sq. yards consisting of one room with boundary wall in khasra No.303 situated at village Kondli, Delhi. The power of attorney Ex.PW2/B executed by Sh. Ram Nath s/o Sh. Raghubir Singh in favour of Smt. Ramwati wife of Munni Lal is dated 28.01.1988. It is in respect of peace of land measuring 150 sq. yards consisting of one room with boundary wall in khasra No.303 situated at village Kondli, Delhi. The power of attorney Ex.PW3/A executed by Sh. Ram Nath s/o Sh. Raghubir Singh in favour of Smt. Ramwati wife of Munni Lal is dated 19.11.1987. It is in respect of peace of land measuring 166 sq. yards having boundary wall in khasra No.303 situated at village Kondli, Delhi. Ex.PW3/DA is a certified copy of suit No.600/96 titled Jai Prakash v. Khem Chand. Suit is dated 04.04.1996 and it was filed before the Sr. Civil Judge on 06.04.1996. Ex.PW3/DB is written statement of Smt. Ramwati dated 11.04.1996. There is no other document on record regarding pendency of civil litigation between the parties.
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 14 of 54 The filing of civil case before Ld. Sr. Civil Judge on 06.04.1996, has itself established that it was filed after the date of incident of present case i.e. 29.02.1996. Consequently, it is held that arguments of Ld. Defence Counsel that present cases are offshoot of civil litigation is not tenable. Rather, it has proved that civil case was filed after the occurrence of incident which is subject matter of the present cases.
22. Ld. Defence Counsel further submitted that prosecution has failed to prove its case against accused persons beyond any reasonable suspicion or shadow of doubt. There are contradictions in the testimonies of witnesses. Many prosecution witnesses have turned hostile and they did not support the prosecution case.
23. In support of their arguments, Ld. Defence Counsel relied on a case Gorige Pentaiah v. State of A.P. & Ors., 2009 Cri.L.J. 350. The Apex court observed that:
"16. On careful consideration of the prayer made in the second suit, it becomes abundantly clear that respondent no.3 was not even in possession of the suit property and the date of incident and this fact has not been disputed by the Ld. Counsel appearing for the state of Andhra Pradesh. When respondent No.3 was not even in possession of the land in question, the allegation made in the complaint that SC No. 06/09 State Vs. Mukesh & Ors. Page No. 15 of 54 the appellant demolished the wall on 14.06.2004, could not arise. The allegations are totally baseless and without any foundation. On the face of it, it looks that the criminal complaint filed by respondent No.3 was totally false and frivolous. The complaint was filed with an oblique motive. In this view of the matter, charge u/s 427/447 are also wholly illegal and unsustainable in law."
24. Counsel for accused persons further relied on a case DPS v. State & Ors., 2002 (2) JCC 1180. The High Court of Delhi observed that:
"13. It does not, therefore, appear to us that uncontroverted allegations contained in FIR No.678/01, even if taken on face value, would attract an offence under sub-sections (1) (x) or (1) (xi) of SC/ST (POA) Act 1989. This is so because petitioner had made the utterance "CHUDE CHAMARON TUMHE MAAR DUNGA MAIN TUMSE NAHIN DARTA" in generalised terms. It was not directed against any particular member of SC/ST to attract the offence u/s 3(1) (x) of the Act. Nor was it shown or known whether he knew anyone in the group or crowd to be a member of SC or ST to whom the utterance could be linked.
25. Counsel for accused persons further relied on a case Mukesh Kumar Saini & Ors. v. State (Delhi Administration), 2001 VI AD(DELHI) 12. It was observed by High Court of Delhi that:
"As per the FIR, humiliating words were uttered while Hanuman being dragged inside before the arrival of neighbour, therefore, these words cannot be said to have been uttered in the "public view". Thus basic ingredients of the offence under Section 3(1)(x) of the SC/ST Act are not made out."
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26. Counsel for accused persons further relied on a case Karan Singh & Ors. v. State of M.P., 1992, Cri.L.J. 3054. It was observed by M.P. High Court that:
"6. Before leaving this case, I consider it to be my duty to point out that these days several cases are being registered by the police under the Atrocities Act without carefully considering whether the offence under the Act is made out or not. As special and stricter provisions have been made in the Act, it is the duty of the prosecution to examine the case more carefully. They have to be vigilant for avoiding any possibility of the Act. being misused for harassment of the citizens, who have not committed an offence under the Act. In the present case it appears that the offence under the Act was registered only because the complainant party belonged to a Scheduled Tribe and the accused persons did not belong to a Scheduled Tribe or Scheduled Caste. Such a mechanical exercise of authority has to be deprecated. The Courts have to see immediately after a case is brought to it whether an offence under the Act is purely made out prima facie on the material available in the case diary. If no such material is available, the Court should not hesitate in refusing to entertain such cases and in making appropriate directions for their disposal in the normal course.
27. Counsel for accused persons further relied on a case Haridas v. State of Maharashtra, 1997, Cri.L.J. 122, it was held by Bombay High Court that:
"If the evidence of this witness is left out of consideration for the reasons stated above, then that would leave in the arena only the evidence of P.W.1 which is shown to be an interested version or at any rate, a version tainted with the feeling of animosity. Added to this animosity is the delay SC No. 06/09 State Vs. Mukesh & Ors. Page No. 17 of 54 caused in making the report which delay has remained unexplained. All these factors have not been given their due weight by the learned Special Judge while appreciating the evidence. The finding of the learned trial Court on this issue has, therefore, to be dubbed as erroneous."
Submissions of Ld. Addl. Public Prosecutor
28. On the other hand Ld. Additional Public Prosecutor submitted that minor contradictions are liable to happen and they are required to be ignored. He relied on a case reported as Ramesh v. State of Himachal Pradesh, (HP) 2004(4) Crimes 60, wherein, the HP High Court observed that:
"15. There are minor contradictions in the statements of the prosecution witnesses but because of errors in individual perceptions and observations such contradictions are bound to occur. Secondly with the passage of time lapse of memory can also lead to minor contradictions and discrepancies in the statements of the witnesses. Human tendency to back up good cases by exaggerated version can be yet another reason for contradictions and discrepancies in the evidence of the witnesses. Therefore, while appreciating the evidence the Courts are not to attach undue importance to minor contradictions and discrepancies in the version given by the witnesses and not to disbelieve such statements as a whole because of such minor discrepancies/contradictions unless they go to the root of the case. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy."
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29. Ld. Additional Public Prosecutor further relied on a case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696, wherein the Apex Court observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
30. Ld. Additional Public Prosecutor further argued that conviction of accused persons can be based even on a single testimony. He relied on a case Anil Phukan v. State of Assam, AIR 1993 SC 1462. The Apex court held that:
"A conviction can be based on the testimony of a single eye witness and there is no rule of law for evidence which says to the contrary provided the sole eye witness passes the test of reliability. So long as the sole eye witness is a wholly reliable witness, the courts have no difficulty in basing conviction on his testimony alone. However, where SC No. 06/09 State Vs. Mukesh & Ors. Page No. 19 of 54 the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insists upon some independent corroboration of his testimony in material particulars before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."
31. Ld. Additional Public Prosecutor further argued that testimony of hostile witnesses can be utilized if any portion of their testimony has supported the prosecution case. He relied on a case State v. V. Sejappa, (Karnataka), 2008 Cri.L.J. 3312, wherein the Karnataka High Court observed:
"27. As far as the acceptance of evidence of the hostile witness is concerned, it is a well settled law that part of the hostile witness which goes well with the prosecution case can be accepted and rejecting only that portion of the evidence which does not support the prosecution case. Therefore applying such yardstick in the instant case, it cannot be said by any stretch of imagination that the evidence of P W. 1 has to be ignored in totality merely because of a witness not supporting the prosecution case in certain minor aspects which do not have any bearing on the core of the prosecution case. ***Therefore, on the very same analogy of accepting the evidence of a hostile witness to the extent that it supports the prosecution case, the testimony of P.W. 2 also will have to be accepted in regard to that part of the evidence, which supports the prosecution case."
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32. Let us now scrutinize and evaluate the prosecution evidence in the light of rulings cited by Ld. Defence Counsel and Ld. Addl. Public Prosecutor in order to see whether prosecution could prove its case successfully against accused persons for their conviction for an offence punishable u/s 3(1)(v) of the Act r/w S. 34 IPC. I have analyzed the evidence. My findings are discussed here in below:
FINDINGS Victim is a member of Scheduled Caste
33. PW2 on this aspect deposed that he belonged to scheduled caste category. Copy of caste certificate was proved as Ex.PW2/C. On perusal of Ex. PW2/C I find that a caste certificate in favour of Smt. Ramwati w/o Sh. Munni Lal r/o village Kondli, Delhi-32 was issued by Sh. H.C. Birdi, SDM/Officer Incharge (CCS), office of the Dy. Commissioner, Delhi. It was certified by him that Smt. Ramwati belonged to Jatav chamar caste which was recognized as a scheduled caste under the Constitution (Scheduled Caste) Part-C, Order, 1951 read with the Scheduled Castes/ Scheduled Tribes (Modification) order, 1956.
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34. PW3 on this aspect deposed that she belonged to chamar caste of scheduled caste. PW12 an official of Divisional Commissioner brought the original record of the caste certificate and corroborated the statements of PW2 & PW3 by proving the copy of the record regarding issuance of caste certificate as PW12/A. Accused Mukesh Kumar and Ved Prakash in their statements recorded u/s 313 Cr.P.C. admitted that Smt. Ramwati belonged to jatav chamar caste of scheduled caste. In view of the evidence available on record and particularly discussed here in above and admission thereof by the two accused persons, it is held that prosecution has established on record that complainant belonged to jatav chamar caste of scheduled caste.
Accused is Non Scheduled Caste or Scheduled Tribe
35. PW2 on this aspect deposed that she know that Shishpal belonged to kumhar caste. She further deposed that accused Karan Singh belonged to kumhar caste. PW9 also deposed that accused Shish Pal and Karan Singh belonged to kumhar caste. PW6 on this aspect deposed that Ved Prakash belonged to brahmin community. Sh. Jai Prakash was his brother and they were sons of Sh. Ram SC No. 06/09 State Vs. Mukesh & Ors. Page No. 22 of 54 Nath. As disclosed by Sh. Mukesh he is son of late Sh. Jai Prakash. In his statement recorded u/s 313 Cr.P.C. accused Mukesh Kumar and Ved Prakash disclosed that they are brahmin by caste. Accused Karan Singh disclosed that he is kumhar by caste. Accused Anil Sharma disclosed that he belonged to a caste other than scheduled caste. Neither accused Shishpal and Karan Singh nor their counsel pleaded that either or both of them belonged to either scheduled caste and scheduled tribe. Therefore, on the basis of material on record, it is held that prosecution has proved that none of the accused persons belonged to scheduled caste and all of them belonged to a caste other than scheduled caste and scheduled tribe.
Accused had Prior Knowledge of Caste of Victim
36. PW2 on this aspect deposed that he was residing in the aforesaid house i.e. village Kondli Delhi since his birth. Ramwati is his wife. He also deposed that he knew accused Mukesh, Ved Prakash, Anil Kumar, Karan Singh and Shishpal as they are also residents of village Kondli. Accused Mukesh Kumar, Ved Prakash, in their statements u/s 313 Cr.P.C. admitted that Smt. Ramwati and Sh. Munni Lal are the residents of village Kondli, Delhi.
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 23 of 54 DW1 on this aspect deposed that he had been Pradhan of village Kondli for a tenure of six years. He knew accused persons as well as Smt. Ramwati, complainant and her family members. There are separate mohallas of separate caste in the village. In view of the evidence on record and particularly, mentioned here in above, it is held that prosecution has proved that accused persons and Smt. Ramwati & Sh. Munni Lal were known to each other and they were aware about their caste, being residents of the same village, prior to the date of incident.
Accused Offended the sensibilities of the Victim in relation to her Caste or Offence was committed because the Victim was Scheduled Caste
37. PW3 on this aspect deposed that about 20-25 years ago she had purchased three plots from Sh. Ram Nath and Jodha Ram vide registered power of attorney Ex.PW2/A, PW2/B and PW3/B in her name. The said three plots were having boundary walls. One day all accused persons demolished the boundary wall of her three plots and took away bricks of the boundary wall. When she and her son objected, the accused persons gave beatings to her and her son Jai Kumar. They also told them that, that SC No. 06/09 State Vs. Mukesh & Ors. Page No. 24 of 54 was the mohalla of pandit, how the chamar would live there. They also uttered "yeh chamaron ko yahan nahin rehne denge. Kyunki yeh mohalla panditon ka hai." Accused persons also threatened to kill her and her family members. PW2 deposed that someone had informed his wife that accused persons were taking forcible possession of her land. On this information, his wife alongwith his son Jai Kumar reached at the said plot and saw that the aforesaid accused persons alongwith labour were digging earth for foundation. His wife and son Jai Kumar objected but they did not pay any heed and gave beatings to them and abused them besides stating, "yeh panditon ka mohalla hai. Yahan chamaron ka koi kam nahin hai. Hum tumhe yahan kisi keemat par nahin basne denge". Accused persons also scolded his wife and son. In cross examination he admitted that these facts were told to him by his wife and his son as he was not present at the spot on the date of occurrence. In cross examination PW3 reiterated the same deposition. PW5 Jai Kumar on this aspect deposed that on 29.02.1996 he came to know that some of the persons tried to dispossess them from one plot. He alongwith his mother reached at plot measuring 150 sq. yards and saw that Karan Singh, Mukesh and Ved Prakash and Anil Sharma property dealer were present there and SC No. 06/09 State Vs. Mukesh & Ors. Page No. 25 of 54 foundation was being dug. His mother asked them as to why they were trying to dispossess them from the plot. They pushed his mother and abused her and stated that "Yeh panditon ka mohalla hai, yahan chamar nahin reh sakte." PW9 initially did not support the prosecution case and he was declared hostile but during the cross examination conducted by Ld. Additional Public Prosecutor, he admitted that Ved Prakash stated "Is gali main chamar nahin rahenge, yeh panditon ka mohalla hai, Yahan par chamaron ko nahin basne denge". PW-13 deposed that at the time of incident he was present at bus stop at Kondli. Later on he came to know that Mukesh, Jai Prakash and Ved Prakash who were saying to Ramwati and Munni Lal that "hum tumko yahan nahin rahne denge". On perusal of cross-examination I find that nothing material could come out which could prove that accused persons did not utter the above mentioned words to Smt. Ramwati and her son Jai Prakash. Thus on the basis of evidence on record and particularly discussed here in above it is held that the prosecution has proved that accused persons offended the sensibility of Smt. Ramwati and her son Jai Prakash on the basis of their caste.
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 26 of 54 The Accused persons either have wrongfully dispossessed the victim or they wrongfully interfered with the enjoyment of any right of the victim.
38. In order to decide whether the accused persons either have wrongfully dispossessed the victim or they wrongfully interfered with the enjoyment of any right of the victim, it has to be adjudicated upon following points:
(i) Plot in dispute measuring 150 sq. yards was owned and possessed by PW3; and
(ii) Accused dispossessed Complaint from said plot; or
(iii) Accused interfered with the enjoyment of said plot.
Plot In Dispute Measuring 150 sq. Yards Was Owned And Possessed By PW3
39. PW2 on this aspect deposed that in the year 1987 or 1988 he had purchased plots measuring 166 sq. yards, 180 sq. yards and 150 sq. yards from Jodha Ram and Ram Nath r/o of village Kondli out of khasra no.303. These plots were having their boundary walls at the time of SC No. 06/09 State Vs. Mukesh & Ors. Page No. 27 of 54 purchase. He proved GPA of 180 sq. yards of land as Ex.PW2/A.
40. PW3 on this aspect deposed that she was in possession of three residential plots in village Kondli as she had purchased the plots from Sh. Ram Nath & Jodha Ram. From Ram Nath she had purhased two plots one was of 180 sq. yards and another plot was of 150 sq. yards. She had purchased above said plot by registered power of attorney and photocopy of the same were proved as Ex.PW2/A and PW2/B. The third plot was of 166 sq. yards, photocopy of the said plot was proved as Ex.PW3/A. In cross examination she stated that possession of said three plots were taken together by her in the year 1987-88 after purchasing the same.
41. PW4 deposed that she had brought the record of receipt of Rs.36,000/- executed by Smt. Ramwati on 25.11.1987 duly stamped by the office of Registrar on the document at serial No.40116 dated 25.11.1987 Ex.PW4/A. She had also brought another record of receipt of Rs.33,000/- which was executed by Ramwati on 19.11.1987 duly stamped by the office of SC No. 06/09 State Vs. Mukesh & Ors. Page No. 28 of 54 Registrar on the documents at Serial No.39404 dated 19.11.1987 Ex.PW4/B and record of third receipt of Rs. 30,000/- executed by Smt. Ramwati and Jodha Ram dated 28.01.1988 duly stamped by office of Registrar on the documents at serial No.4266 dated 28.01.1988 Ex.PW4/C.
42. PW5 on this aspect deposed that they were having three plots in khasra no.303, village Kondli in the name of their mother Smt. Ramwati.
Measurements of these three plots was 180 sq. yards, 166 sq. yards and 150 sq. yards.
43. PW6 deposed that in the year 1987-88 Smt. Ramwati purchased two plots total measuring 450 sq. yards in khasra no.303 from Ram Nath and Jodha Ram. Monetary transaction was done in his presence and Sh. Ram Nath and Jodha Ram also executed power of attorney in favour of Sjmt. Ramwati in his presence in SDM office, Krishna Nagar. He signed those documents as a witness.
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 29 of 54
44. PW7 deposed that he knew Ram Nath & Jodha Ram. They were real brothers. They also knew Sh. Munni Lal who had purchased two plots measuring 400 sq. yards from Ram Nath and Jodha Ram in the name of his wife Smt. Ramwati about 10-12 years ago.
45. PW12 on this aspect deposed that in the year 2000 he was residing in his village Kondli with his parents. At that time they were having three plots in khasra No.303. His father purchased a plot of 166 sq. yards from Ram Nath on 19.11.1987 for Rs.35,000/-, second plot of 180 sq. yards on 25.11.1987 for Rs. 36,000/- from Ram Nath and third plot 150 sq. yards on 28.01.1988 for Rs.30,000/- from Ram Nath and Jodha Ram in village Kondli, in the name of her mother. All the three plots were having boundary wall.
46. Nothing in cross examination could come out to show that PW3 did not purchase said plots particularly a plot having area of 150 sq. yards or she was not in possession of the said plot on the date of the incident. Therefore, on the basis of evidence on SC No. 06/09 State Vs. Mukesh & Ors. Page No. 30 of 54 record, it is held that prosecution has established that Smt. Ramwati PW3 owned and possessed above referred plots on the date of incident.
Accused Dispossessed Complaint From Said Plot; or Accused Interfered With The Enjoyment Of Said Plot
47. PW2 on this aspect deposed that he know Mukesh, Ved Prakash, Anil Kumar accused persons present in the court and other accused persons Karan Singh and Shish Pal as they all are residents of the same village Kondli. Smt. Ramwati, complainant is his wife. On 29.02.1996 Sh. Anil Kumar Sharma, Jai Prakash (since dead), Ved Prakash, Mukesh, Shish Pal and Karan Singh demolished boundary walls of all three plots. They took possession of land measuring 80 sq. yards from plot 150 sq. yards. His wife Ramwati and his son Jai Kumar tried to stop the accused persons. The accused persons gave beatings to his wife and son. Accused persons gave beating to his son and wife and also abused and uttered that "yeh panditon ka mohalla hai yahan tum chamaron ko nahin basne denge". Accused persons also threatened him and his family to kill. Accused also torn clothes of his wife.
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 31 of 54
48. PW3 deposed that accused Karan Sngh had dispossessed her from the portion of 80 sq. yards out of the land of 150 sq. yards and accused Shish Pal had uprooted the bricks of the boundary wall of her above said plot. On the day of occurrence when she had gone to her plot at about 10 am, accused Karan Singh, Shish Pal, Jai Prakash (since dead), Ved Prakash, Mukesh and one property dealer residing in New Kondli were getting the foundation of her plot dug; she told them that the plot belonged to her. The accused persons uttered jointly and turn by turn that the plot was situated in the Mohalla of Brahmins/Pandits and that was not her plot. She had shown papers of her plot to them but even then accused persons dispossessed her and forcibly took possession of her 80 sq. yards land out of her plot. She tried to restrain them but they forcibly took away the bricks of her plot. Accused Shish Pal had taken away bricks of the boundary wall of her plot. Accused Karan Singh had forcibly took possession of 80 sq. yards of plot measuring 150 sq. yards. He built his own room out of it and boundary wall around it. Accused persons also threatened her to leave the plot. The possession of said three plots were taken by her in the year 1987-88 after purchasing the same and the SC No. 06/09 State Vs. Mukesh & Ors. Page No. 32 of 54 possession of all the three plots were taken together. Accused Karan Singh is in possession of 80 sq. yards of her plot of 150 sq. yards of plot and rest of the area is in her possession. In cross examination she stated that accused Karan Singh was digging foundation and accused Shish Pal was also having favra in his hand. Accused Karan Singh is residing in plot which was grabbed from her plot. She also deposed that accused persons also told her that, that was the mohalla of pandit and how the chamar could live there by uttering "Yeh Panditon ka Mohalla hai yahan Chamaron ko nahin basne denge".
49. PW5 deposed that on 29.02.1996 he came to know that some of the persons tried to dispossess one of their plots. He alongwith his mother reached at said plot and saw that on plot measuring 150 sq. yards, foundation was being dug by Karan Singh, Mukesh Kumar, Ved Prakash, Anil Sharma, property dealer and other person whose name he did not remember. His mother asked them as to why they were trying to possess her plot. They, who were accused present in the court pushed his mother out of plot measuring 150 sq. yards. His mother fell down. Thereafter, they were sent out of the said plot. They also abused and stated that, "yeh panditon ka mohalla hai, SC No. 06/09 State Vs. Mukesh & Ors. Page No. 33 of 54 yahan chamar nahin reh sakte." They also directed them to leave the locality. Thereafter they reached at PS Kalyan Puri but police did not record their FIR. They kept on visiting the PS continuously for three days but police did not take any action against them.
50. PW9 deposed that in the year 2000 Karan Singh made construction on the plot of Munni Lal at the instructions of Ved Prakash, Mukesh, Rishi @ Shish Pal. He identified all the accused persons in the court.
51. PW12 deposed that he did not recollect the exact date but he came to know the fact that at the plot of 150 sq. yards accused Shish Pal, Karan, Mukesh, Ved Prakash and property dealer were trying to dig foundation on their plot. Thereafter he saw his mother and brother Jai Kumar leaving for said plot. Later on he came to know that his mother and brother were pushed out by accused persons. They reached at the PS but their complaint was not recorded.
52. PW13 deposed that in the year 2000 he was standing at bus stop at Kondli when he came to know that a quarrel had taken place between Ramwati and her son SC No. 06/09 State Vs. Mukesh & Ors. Page No. 34 of 54 with Ram Nath and sons in respect of a plot. Munni Lal and Ramwati were saying that accused persons Mukesh, Jai Prakash (since dead) and Ved Prakash were saying that "hum tumko yahan nahin rehne denge".
Contradictions
53. The Ld. Defence Counsel for the accused invited my attention on various contradictions in the statements of prosecution witnesses namely that PW in case FIR No. 342/96 failed to mention the name of Mukesh and Anil Kumar Sharma. Testimony of PW3 is silent about use of abusive language to her by the accused persons. In reply/WS Ex.PW3/DB, PW3 stated that Karan Singh was inducted as a tenant. PW5 in his cross examination admitted that all the three plots were in their actual and physical possession. Only Shishpal and Karan Singh were digging the foundation and all other accused were only standing there. PW6 deposed that Khem Chand legally possessed 40 sq. yards land out of plot of Ramwati. PW8 deposed that plot owned by Dharamwati was encroached by brother of the accused Mukesh who had since expired.
54. It has to be seen if above referred contradictions SC No. 06/09 State Vs. Mukesh & Ors. Page No. 35 of 54 and the arguments of Ld. Defence Counsel discussed here in above, have created any doubt about the genuineness of the occurrence under adjudication. After carefully scrutinizing the evidence available on record, and in view of the principles of law laid down in Ramesh v. State of Himachal Pradesh, (HP), (supra), and Appabhai and another v. State of Gujarat, (supra), I am of the view that neither the arguments raised by Ld. Defence Counsels nor the above referred minor discrepancies in the testimonies of the prosecution witnesses could create any dent in the prosecution case particularly when their testimonies have been supported by other witnesses. Therefore, this argument of Ld. Defence Counsel will not provide any benefit to accused persons.
Other Reasonings of Decision
55. On analyzing and scrutinizing the prosecution and defence evidence on record, I come to the conclusion that the prosecution has successfully proved its case against all the accused persons for the offence punishable u/s 3(1)(v) of the Act r/w S. 34 IPC. The reasons which support my decision are firstly, that prosecution has successfully proved all the ingredients which are required to be proved for proving the case punishable u/s 3(1)(v) of SC No. 06/09 State Vs. Mukesh & Ors. Page No. 36 of 54 the Act r/w S. 34 IPC.
56. Secondly, the principles of law laid down in case Gorige Pentaiah v. State of A.P. & Ors., (supra), will not provide any benefit to the accused persons as prosecution has successfully proved that PW3 was not only owned the plot measuring 150 sq. yards but she was dispossessed 80 sq. yards of land out of that plot by the accused persons. Besides, their was interference in peaceful use of said plot by Smt. Ramwati, PW3 and her family members by the accused persons.
57. Thirdly, the principles of law laid down in DPS v. State & Ors., (supra), and Mukesh Kumar Saini & Ors. v. State (Delhi Administration), (supra), will not provide any benefit to the accused persons as those cases were for the offences punishable u/s 3(1)(x) and 3(1)(xi) of the Act. The ingredients required to be proved for those offences and present offence are different. Thus due to difference of facts and law of those cases, the principles laid down in those cases are not applicable on the facts of present case.
58. Fourthly, I have applied the principles of law laid down in case Karan Singh & Ors. v. State of M.P., (supra), in SC No. 06/09 State Vs. Mukesh & Ors. Page No. 37 of 54 order to find out whether offence punishable u/s 3(1)(v) of the Act r/w S.34 IPC was actually committed by the accused persons. On the basis of evidence on record and particularly discussed here in above I came to the conclusions that all the accused persons in furtherance of their common intention committed the said offence of dispossession or interference in peaceful use over the land of PW3.
59. Fifthly, the arguments of Ld. Defence Counsel that in written statement filed before the civil court Smt. Ramwati pleaded that Sh. Karan Singh was tenant in her plot measuring 150 sq. yards will not provide any benefit for the reasons that, that case and written statement Ex.PW3/DB were filed after incident of the present case.
60. Sixthly, although PW5, PW6, PW7, PW9, PW11 and PW13 were declared hostile, yet portions of their testimonies which have corroborated the testimonies of complainant and other material witnesses can be used as per principles of law laid down in case of State v. Sejappa, (supra), relied on by Ld. Addl. Public Prosecutor.
61. PW6, inter alia admitted during cross SC No. 06/09 State Vs. Mukesh & Ors. Page No. 38 of 54 examination by Ld. Additional Public Prosecutor that at the time of registration of three plots by Ram Nath and Jodha Ram in favour of Smt. Ramwati in the year 1987-88 he was present, money was handed over by Smt. Ramwati to Sh. Ram Nath and Sh. Jodha Ram in his presence and he has signed the receipts Ex.PW4/A, Ex.PW4/B and Ex.PW4/C. Sh. Ram Nath measured the said three plots in his presence. Plot measuring 150 sq. yards was having boundary wall.
62. PW11, inter alia, deposed that at the time of incident he was member of SC/ST Board. He know about a dispute on a plots between Munni Lal and his wife with Ved Prakash & Ors. The said Munni Lal purchased said plots from Ram Nath, father of Ved Prakash. Relevant portions of testimonies of PW5, PW9 and PW13 have already been discussed here in above.
63. Seventhly, the arguments of Ld. Defence Counsel that prosecution could not prove its case against all the accused persons is not convincing. The testimonies of prosecution witnesses including PW2, PW3, PW5, PW9 and PW12 have established that all the accused persons in furtherance of their common intention committed atrocity SC No. 06/09 State Vs. Mukesh & Ors. Page No. 39 of 54 on Smt. Ramwati, a scheduled caste person by interference in the enjoyment of her land and by dispossessing her from portion of her land which is punishable under section 3(1)(v) of the Act.
64. Eighthly, the other police witnesses PW1, who proved the copy of FIR as Ex.PW1/A, PW13 Additional DCP; PW14 SI Jaswant Singh who accompanied IO and PW15 Inspector S. N. Khan also corroborated the case of prosecution.
65. Lastly, the testimonies of defence witnesses, DW1, DW2 and DW3 neither could disprove the prosecution case nor could create any reasonable shadow of doubt about genuineness of prosecution case. Therefore, it is held that their testimonies are unable to provide any benefit to the accused persons.
66. In view of the the reasons, discussions and evidence on record, it is held that prosecution has successfully proved that complainant Smt. Munni Lal and his wife Smt. Ramwati belonged to a jatav chamar caste which is recognized as one of the scheduled caste; all the accused persons belonged to castes other than the SC No. 06/09 State Vs. Mukesh & Ors. Page No. 40 of 54 scheduled castes and scheduled tribe; all the accused persons were having prior knowledge of the caste of Sh. Munni Lal and Smt. Ramwati and accused persons in furtherance of their common intention offended their sensibilities in relation to their caste. In other words, it can be said that the offence against Smt. Ramwati was committed because she belonged to scheduled caste. The prosecution has also established that accused persons not only wrongfully interfered in the enjoyment of right of Smt. Ramwati and her family members in respect of plot of 150 sq. yards situated in khasra No.303, Village Kondli, Delhi but also dispossessed her from a portion of 80 sq. yards out of that land. It also stands established that portion of 80 sq. yards is in possession of accused Karan Singh. Thus, it is held that prosecution has established that all the accused in furtherance of their common intention committed an offence of atrocity on a scheduled caste person by interference in the enjoyment of land and dispossession of her land which is punishable under section 3(1)(v) of the Act r/w S. 34 IPC.
67. Let us now analyze and scrutinize the prosecution and defence evidence on record, to find out whether the accused persons are liable for conviction for SC No. 06/09 State Vs. Mukesh & Ors. Page No. 41 of 54 the offences punishable under section 448 and 379 read with section 34 of IPC as per second case.
68. Offence of Criminal Trespass has been defined in section 441 of IPC. It runs as under:
"441. Criminal trespass.-Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate,insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
448. Punishment for house-trespass.-Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
69. On analyzing the material placed in both the files, I come to the conclusion that the accused persons are not liable for convictions for the offences of criminal trespass and theft punishable under section 448/379/34 IPC for the reasons firstly that offence punishable under section 3(1)(v) of the Act is aggravated form of offence punishable under section 448 IPC. Therefore, accused persons can not be convicted twice for same offence.
70. Secondly, my Ld. Predecessor on clubbing both SC No. 06/09 State Vs. Mukesh & Ors. Page No. 42 of 54 cases framed charges only for the offences punishable under section 3(1)(v) of the Act r/w S. 34 IPC and he neither framed charge for the offences punishable under section 448/379/34 nor prosecution has adduced any evidence to prove these offences.
Prosecution Evidence Against Police Officials
71. PW2 deposed that when he came to his house from his duty on 29.02.1996 his wife informed him about the occurrence. He asked his wife that he would meet SHO on the next date and would lodge their complaint in PS. On the next day, his wife again approached the PS to lodge complaint about the occurrence but the police did not allow her to meet SHO. When he came back to his house from his duty his wife informed about it to him. On the next day he alongwith his wife again approached PS and a complaint about the occurrence was made in writing on behalf of his wife to SHO PS Kalyan Puri against aforesaid accused persons. On 19.03.1996 he approached to concerned DCP and handed over a complaint to him which was marked for inquiry to ACP. On inquiry it was found by ACP that plots belonged to him and thereafter both the parties were called and matter was settled. It was decided that land in possession of opposite party including accused persons SC No. 06/09 State Vs. Mukesh & Ors. Page No. 43 of 54 was to be handed over to him. Despite of the settlement, aforesaid accused persons did not hand over the possession of the land measuring 80 sq. yards to him. Thereafter, he made complaints about it to other senior officers. Thereafter, police officials namely Ct. Arvind Tyagi had visited his house and took his son Jai Kumar to PS for inquiry and when he did not come back he went to PS to know as to why his son was not released by the police from the PS and there he was told by the police that unless and until he would withdraw his case, police would continued to harass and call his son in PS. On 12.05.1996 HC Hari Singh had come to him at his house and had taken him and his son in the PS and there he was made naked and stripped and SHO had also obtained his signatures on a paper mentioning the amount of Rs.20,000/-, because of this he was terrified from the police. Ct. Arvind Tyagi lifted his son Jai Kumar and gave beatings to him and other police officials threatened his son that if he would not take back his complaint regarding the plots he would be given beatings by them. Another application Ex.PW3/A was also given to the SHO by his wife Ramwati on the basis of which the case was registered. He handed over photocopy of all three plots to the IO which the IO took into possession vide memo Ex.PW1/A. During one week HC Hari Singh used to SC No. 06/09 State Vs. Mukesh & Ors. Page No. 44 of 54 visit his house and used to abuse them. He used to say that his son was a dacoit and he would arrest his son. He used to visit his house while taking liquor. He was taken away to the PS by HC Hari Singh, Ct. Arvind and his clothes were removed by them from his body and was giving beatings in PS. Cash of Rs.1500/- was taken out by SI Khushal Singh from his pocket. During the period of six months from the day of incident his report was not lodged by the police officials. SHO got compromised the matter between him and accused persons by force. One day SHO PS Kalyan Puri Sh. S.P. Rana called him in PS and gave fists, legs and chappal blows. He was asked to sign on document Mark X. He also threatened him to kill him if he dialled number 100 or informed the police. He also threatened him that in case he would not withdraw the case then he would kill him and his family.
72. PW5 deposed that in the evening he and his mother disclosed all the facts to his father. His father told them that he would give a complaint to SHO on the next day. When they went to PS for lodging the complaint neither their complaint was lodged not SHO met them. His father made a complainant to senior officials on 19.3.1996. One day constable Arvind Tyagi called him to the PS where SC No. 06/09 State Vs. Mukesh & Ors. Page No. 45 of 54 he abused him and detained him at PS for long time. He was told by him that whenever he would make the complaint against the police he would face the problem. In the cross examination he stated that the names of police officials who pressurized him to withdraw the present case were Ct. Arvind Tyagi, HC Hari Singh, SI Kushal Singh.
73. PW12 deposed that in the month of March 1996, in the evening, one HC Hari Singh came at his house. At that time he was on roof and his parents were at ground floor. HC Hari Singh told his parents that he (Vijay Kumar) was involved in a decoity case. So, he was afraid and so he ran away from his house because he was a student in the school at that time. On the next day, he made telephone call to his parents and asked why HC Hari Singh asked him then he parents replied that HC pressurized them for withdrawing the complainant. Thereafter, HC Hari Singh continuously visited his house for one week. During said period, he was away from his house. Thereafter, his father talked with a Member of Parliament and said M.P. Talked with police and then said HC Hari Singh stopped to come to his house.
74. Section 4 of the Act runs under:
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 46 of 54 "4. Punishment for neglect of duties.-Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year."
75. Section 3(1) (iii) (xv) of the Act run under:
"3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,* * *
(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribes or parades him naked or with pained face or body or commits any similar act which is derogatory to human dignity ;* * *
(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence.* * * shall be punishable with imprisonment for a term which, shall not be less than six months but which may extend to five years and with fine.* * *"
76. Above named police officials are not facing trial as accused in the present cases. The testimonies of the prosecution witnesses have shown that these police officials performed their duties in violations of duties they were supposed to perform to implement provisions of the Act. Therefore, this is brought into the notice of Commissioner of Police, Delhi with the directions to look into the matter for taking appropriate legal action in the SC No. 06/09 State Vs. Mukesh & Ors. Page No. 47 of 54 matter against the officials who were at fault under intimation to this court. A copy of this judgment be sent to Commissioner of Police, Delhi.
CONCLUSION/ORDER
77. Consequent upon the above reasons, discussion and decision, it is held that prosecution has successfully proved its case against all the accused persons for the offence punishable u/s 3(1)(v) of the Act r/w S. 34 IPC. Therefore, all the accused persons namely Mukesh Kumar, Ved Prakash, Karan Singh, Shish Pal and Anil Kumar are held guilty and convicted for the offence punishable under section 3(1)(v) of the Act r/w S. 34 IPC.
78. A copy of this judgment is placed in case FIR No. 342/96, PS Kalyan Puri, Delhi.
Announced in the open court on 30.11.2011 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No. 06/09 State Vs. Mukesh & Ors. Page No. 48 of 54 IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL SESSIONS JUDGE-02:EAST DISTRICT:KARKARDOOMA COURTS: DELHI SC/ST NO.06/09 FIR No.186/2000 PS New Ashok Nagar State Versus Mukesh & Ors.
ORDER ON SENTENCE 01.12.2011 Present: Sh. I.U.H. Siddiqui Addl. P.P. for the State.
Convict/accused Mukesh Kumar, Ved Prakash, Karan Singh, Shish Pal and Anil Kumar in J.C. Sh. S.K. Verma Advocate for convict/accused Mukesh, Ved Prakash and Anil.
Sh. S. Chakravarti, Advocates for accused Karan Singh and Shish Pal.
Complainant Munni Lal in person.
I have heard arguments on the quantum of sentence.
SC No. 06/09 State Vs. Mukesh & Ors. Page No. 49 of 54
2. It has been argued on behalf of Mr. Verma, Ld. Defence Counsel for accused Mukesh, Ved Prakash and Anil that accused/convict Mukesh is a government servant; he is the sole bread earner in the family; he is looking after his old aged widow mother; he is facing trial for more than 14 years; and he has no previous criminal record. Accused/convict Ved Prakash is a senior citizen aged about 60 years; he is suffering from various diseases including heart ailment; he has responsibility of his family;he is the only bread earner in the family; and he is also not a previous convict.
Accused/convict Anil Kumar has five children to maintain out of them two daughters are of
marriageable age; his wife is unable to perform day to day work due to sustaining of injuries in an accident; he has old mother to maintain; and he is also not a previous convict. It has been submitted that all the convicts deserve for leniency and it has been prayed that lenient view in sentence may be taken.
3. It has been argued on behalf of Mr. S. Chakravarti, Ld. Defence Counsel for accused Karan SC No. 06/09 State Vs. Mukesh & Ors. Page No. 50 of 54 Singh & Shish Pal that convict/accused Karan Singh is aged about 54 years; he has three student sons; he is labourer; there is no other person in the family to look after the family; he is not a previous convict; and he is facing trial since 1996. Convict/accused Shish Pal is a government servant working in MCD; he has seven children including four unmarried children out of them two are of marriageable age and two are student; he is the only person bread earner in the family; and he is also facing trial since 1996. It has been submitted that both the convicts deserve for leniency and it has been prayed that lenient view in sentence may be taken.
4. On the other hand it has been argued on behalf of Ld. Additional Public Prosecutor that exemplary punishment should be awarded to the accused persons so that no one can harass any person on the basis of caste. Compensation may be awarded to the victim and possession of her property may be restored.
5. Keeping in view the nature and gravity of SC No. 06/09 State Vs. Mukesh & Ors. Page No. 51 of 54 offence committed by the accused/convicts and the arguments submitted by Ld. Defence Counsels, I am of the view that convicts are not entitled for leniency in sentence. They deserve for appropriate sentence commensurate with the offence they have committed. Accordingly, each of the Convicts namely, Mukesh Kumar, Ved Prakash, Karan Singh, Shish Pal and Anil Kumar are sentenced to undergo simple imprisonment for a period of three years and each of them are also sentenced to pay fine of Rs.20,000/- in default simple imprisonment for six months for the offence punishable u/s 3(1)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 r/w S. 34 of Indian Penal Code.
6. Serial No.5 of the Schedule/Annexure-I, appended with Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides norms for relief amount for commission of offence relating to land, premises and water punishable u/s 3(1)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It provides that minimum SC No. 06/09 State Vs. Mukesh & Ors. Page No. 52 of 54 amount of relief will be at least Rs.25,000/- or more depending upon the nature and gravity of the offence. The land/premises/water supply shall be restored where necessary at government cost.
7. In view of above mentioned provisions, it is held that the victim of atrocity namely Smt. Ramwati is entitled to get not only Rs.25,000/- as compensation but also she will be entitled for restoration of possession of 80 sq. yards of her plot which is in the possession of convict/accused Karan Singh at government expenses. Besides, she is also entitled to get possession u/s 456 of Cr.P.C.
8. It is further ordered that if any or all of convicts have undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C.
9. Copy of judgment and order on sentence are supplied to all the convicts free of cost.
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10. All the convicts be sent to imprisonment to serve the sentence.
11. A copy of order on sentence is placed in case FIR No.342.96, PS Kalyan Puri, Delhi.
12. A copy of order on sentence be also sent to Commissioner of Police, Delhi alongwith Judgment of these cases.
13. After supplying copy of judgment and order on sentence as directed above, file be consigned to Record Room.
Announced in the open court on 01.12.2011 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No. 06/09 State Vs. Mukesh & Ors. Page No. 54 of 54