Delhi District Court
State vs . Mohd. Naseem on 4 August, 2007
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IN THE COURT OF SH. RAJNEESH KUMAR GUPTA, ASJ,
TIS HAZARI COURTS, DELHI.
SC No. 7/01
FIR No. 259/2000
PS Sadar Bazar
U/s 353/332/186/34 IPC
& 3 (1)(x) SC/ST Act
State Vs. Mohd. Naseem
S/o Sh. Badruddin
R/o 7527, Bari Masjid,
Kasabpura, Sadar Bazar,
Delhi.
Mohd. Swalin
S/o Sh. Qyamuddin
R/o T-247, Kasabpura,
Sadar Bazar, Delhi.
Mohd. Imtiyaz
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S/o Mohd. Mati-Ur-Rehman
R/o 7508, Kasabpura,
Sadar Bazar, Delhi.
Salauddin Qureshi
S/o Gayasuddin
R/o 7500, Gali Qabron Wali
Quresh Nagar, Sadar
Bazar
Delhi.
Date of Arguments : 24.7.07
JUDGMENT
In brief the case of the prosecution is that on 18.7.2000 an sealing action of the premises doing illegal slaughtering of animals was organized by the team of MCD in the Kasabpura area. The sealing team was led by Dr. Bhagwan Dass, the Deputy Health Officer. Adequate force from the PS Sadar Bazar was also arranged. At about 6.30 am, two premises bearing no. T-258 and T-259 in Kasabpura Area was 3 sealed. Premises no. T-247 was found locked and the lock was broken and about 50-60 slaughtered animals were lying in the premises. When the removal of the slaughtered animals was under the progress, a large crowd gathered at the spot and started abusing and insulting the staff. Accused Swalin physically caught hold the Dr. Vinod Kumar Verma who was also in the team and he along with the accused Salauddin, Imtiyaz and Mohd. Naseem started beating Dr. Vinod Kumar Verma. Accused Salauddin throw a heavy stone at Dr. Bhagwan Dass, the complainant which hit him. Dr. Vinod and Dr. Bhagwan Dass received injuries and they were medically examined. The situation became tensed and the sealing action has to be postponed.
It is the further case of the prosecution that at the police station accused Salauddin had slapped the complainant who belongs to Scheduled Caste sub caste 'Kori' and insulted him 4 by uttering "SALE CHURE CHAMAR. I WILL SEE YOU." Accused persons had obstructed the public officials in discharge of their public functions.
2. FIR was registered and after investigation charge- sheet was filed by the IO against the accused persons U/s 353/332/186/34 IPC & 3 (1)(x) SC/ST (P.O.A.) Act 1989. Charge U/s 186/332/353/34 was framed against all the accused persons and a charge U/s 3 (1)(x) Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 was framed against the accused Salauddin Qureshi.
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3. In order to prove its case, prosecution has examined 18 witnesses. Statements of accused persons were recorded U/s 313 Cr.PC. wherein they have denied the case of the prosecution and they had examined one witness in their defence.
4. I have heard the Ld. APP for the state and the Ld. Counsels for the accused persons and perused the evidence on record.
PW1 Dr. Bhagwan Dass had deposed that on 18.7.2000 he along with Dr. Vinod Verma, Dr. Raj Kumar and Insp. K.N. Juneja, SS Bindra and B.K. Gupta and one K.S. Bansal along with 10-12 Beldars went to seal the four shops of illegal Slaughtering at Kasab Pura in PS Sadar Bazar. Before reaching there they went to PS Sadar Bazar and took the police force. They sealed the premises no. T-258 and T-259. 6 Premises no. T-247 was found locked. Lock was opened. About 40-50 slaughtered animals were lying inside. When the staff was in the process of removing the slaughtered animals a mob gathered there. Dr. Vinod Verma was being caught and beaten by the mob. In that mob he identified the accused persons. Many persons started pelting the stones. One stone which was thrown by accused Salauddin hit on his back. Apprehending the danger, they went to PS and when they reached at the gate of the PS Sadar Bazar, accused Salauddin came to him and caught hold his collar and gave him a slap and abused him by uttering the following words, "SALE CHURE CHAMAR TERI HIMMAT KAISE HUI KI HAMARE MOHALLE MEIN DUKAN SEAL KARNE KAISE AAYE" (Sale Chure Chamar how you dared to enter my mohalla to seal the shop). He made complaint Ex. PW1/A. He belongs to Scheduled Caste sub caste Kori and his caste certificate is Ex. PW1/B. 7 In cross-examination he has denied the suggestion that his caste certificate is false and fabricated one. He has lodged his report with the PS at 10.00 am. Ex. PW1/A was written on his dictation by other person and then he signed it. He had denied the suggestion that the complaint Ex. PW1/A was drafted by the police officer and at the instance of police officer he signed it. He does not belong to caste Chura or Chamar Jatav. He know all the accused persons prior to the incident.
PW2 Dr. Vinod Kumar who was the member of the team has deposed that a large crowd gathered at the spot when the meat was being removed from the premises no. T-247. Accused persons started beating him with fist blows on his person and people started pelting stones on the sealing party. Stone hit the back of Dr. Bhagwan Dass. He had also deposed that when they were standing at the PS accused Salauddin along with some butchers came over there and caught the collar 8 of Dr. Bhagwan Dass and also uttered the following words, "SALE CHURE CHAMAR AFSAR BAN JAATE HO, AUR TUMHARI HIMMAT KAISE HUI HAMARE ILAQE MEIN SEAL LAGANE KI" and slapped him.
In cross-examination he has denied the suggestion that accused Salauddin has no connection in any way with the running of illegal/unauthorized slaughter houses at Kasabpura. Accused Salauddin was looking after the affairs of these unauthorized slaughter houses. Earlier also at many times at the time of raids, accused Salauddin resisted their action but no action was initially taken. There was a mob of about 50-60 persons. Accused Imtiyaz and Swalin has not pelted any stones.
PW3 S.N. Sharma had deposed that when the Beldars were bringing out the slaughtered buffaloes from premises, a mob came there. Accused Salauddin started 9 quarreling with Dr. Vinod Kumar and there were abuses between the two. There were stoning by the mob. The other three accused were also present there. The accused Salauddin caught hold of Dr. Bhagwan Dass with his Gireban and uttered the words, "HARAMJADE SUWARKE BACHE, CHAMAR KE BEEJ".
In cross-examination he had deposed that accused Salauddin was leading the mob. He came to know about names of the assailants in the PS. Accused persons along with some other public persons were called in the PS. Accused Imtiyaz had caught hold of the collar of Dr. Vinod and gave fist and kick blows to him and accused Swalin abused him. Dr. Bhagwan Dass sustained injuries due to the pelting of stones by the members of the mob.
PW4 ASI Dharam Pal has proved the FIR as Ex. PW4/A. 10 PW5 Ct. Jagdish Prakash has taken the copy of FIR and original rukka from the duty officer and handed over the same to ASI Dharam Chand.
PW6 Ct. Jagdish Chand is witness to the arrest of the accused namely Swalin, Mohd. Nasim and Mohd. Imtiyaz.
PW7 Dr. Rajan Verma had proved the MLC of Vinod Kumar and of Bhagwan Dass as Ex. PW7/A and Ex. PW7/B respectively.
PW8 Ct. Shanti George has taken the Dr. Vinod Kumar and Dr. Bhagwan Dass for their medical examination to Hindu Rao Hospital.
PW9 Naseer Ahmed has deposed that they were given beatings by the mob. He cannot identify the assailants. None of them is present in the court as there was crowd of many persons.
In cross-examination by the Ld. APP for the state he has 11 denied the suggestion that he was not intentionally identifying the accused persons as he has been won over by the accused persons.
PW10 Mam Chand has deposed that when they were doing their duties many persons appeared there and they started pelting stones upon them. They sustained injuries and fled to the PS for saving themselves. None of the assailants is present in the court.
PW11 A.K. Chaturvedi had deposed that after perusing the relevant papers of the case he had issued the complaint U/s 195 Cr. P.C. which is Ex. PW11/A. PW12 Insp. A.N. Juneja had deposed that at the spot about 250-300 persons collected. Some altercation took place between Dr. Bhagwan Dass and Dr. Vinod Kumar and some persons of the crowd. They sustained injuries. He cannot identify the assailants.
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PW13 Dr. Raj Kumar had deposed that accused Salauddin along with some other persons came at the spot. They had started provocation. Two of the assailants had caught hold the Gireban of Dr. Vinod Kumar. A mob had collected and they started shouting slogans against them. Members of the mob had pelted stones upon them due to which Dr. Bhgawan Dass and some other members of the party sustained injuries.
PW14 Dr. R.K. Bhargav has deposed that the order no. 229/DC/CZ/99 dated 12.7.99 was issued by Dr. S. Kumar Swami, Deputy Commissioner City Zone and which is mark A. PW15 Yash Kumar Swami has deposed that he was posted as Deputy Commissioner, City Zone and signed the letter mark A which is Ex. PW15/A and has also signed enforcement action programme which is Ex. PW15/B. PW16 Dr. Sunil Kumar CMO has opined the injuries of Vinod Kumar and Bhagwan Dass as simple. 13
PW17 ACP Jai Chand had deposed that on 18.7.2000 he was appointed as Investigating Officer of the case vide order Ex. PW17/A. He had collected the photocopies of the documents regarding sealing of the unauthorized slaughter houses and regarding seeking the police force and the photocopy of caste certificate of the complainant, posting order and the complaint U/s 195 Cr. P.C. and the MLCs of the injured. After completion of the investigation he has filed the challan.
PW18 SI Dharam Chand had deposed that on 18.7.2000 he along with some staff including SHO reached at Kasabpura for sealing the unauthorized slaughter houses. When the labour of MCD were removing the dead bodies of slaughtered animals from the premises no. T-247 many persons gathered there. Some persons came there from another street at the spot and started abusing MCD Staff. Dr. Bhagwan Dass, Dr. Vinod Kumar and Dr. Raj Kumar was assaulted on which the 14 MCD staff left their job and reached to PS. In the police station Dr. Bhagwan Dass gave his written complaint Ex. PW1/A on which he made his endorsement Ex. PW18/A and got the case registered. He inspected the place of occurrence and prepared the site plan Ex. PW18/B. Injured persons were sent for medical examination. During investigation accused Nohd. Nasim, Mohd. Swalin and Mohd. Imtiyaz were arrested. Thereafter, the investigation of the case was handed over to ACP Jai Chand.
DW1 Shahid had deposed that on 18.7.2000 he was present on the roof of his neighbourer and saw that there was a mob near T-247 and he got down and reached near the mob. There was no stone pelting. None of the accused was present in that mob.
5. Ld. counsels for the accused persons has argued that accused have been falsely implicated in the case. Accused 15 persons were not present at the spot at the time of alleged incident. No MCD team has inspected the Kasabpura on 18.7.2000 for sealing the shops of illegal slaughtering.
From the evidence of prosecution witnesses, who were members of sealing team and from the evidence of PW18 it is proved that they had visited the Kasabpura on 18.7.2000 for sealing shops of illegal slaughtering. Letter Ex. PW15/B shows that a sealing team under the supervision of PW1 has been constituted to seal the shops no. T-258, T-259, T-247 and T-242 in the area of Kasabpura. These prosecution witnesses i.e PW1, PW2, PW3, PW9, PW10, PW12 and PW13 who are the members of the sealing team are the public servants and they were discharging their public duties as public servants by sealing the aforesaid shops.
PW1 had deposed that Dr. Vinod Kumar was caught hold and beaten by the mob. He has identified the accused 16 persons as present in that mob. Accused Salauddin had thrown a stone which had hit him on his back.
PW2 Dr. Vinod kumar had deposed that accused persons had beaten him with fist blows.
PW3 S.N. Sharma had deposed that accused Salauddin had started quarreling with Dr. Vinod. There was abuses between the two. Other three accused persons were also present there.
PW9, PW10, PW12 and PW13 were also present at the spot and had deposed that they could not identify the assailants as there was a mob.
PW1 had deposed that he knew the accused Imtiyaz and Swalin as they were earlier challaned for illegal slaughtering. Accused Salauddin used to visit his office generally but he do not recollect the number of his visits.
From the evidence of PW1 and PW2 it is proved that the 17 accused persons has beaten the PW2 and accused Salauddin had thrown a stone on PW1 which had hit the PW1.
The evidence of PW1 and PW2 that they had received the injuries is also corroborated by their MLCs Ex. PW7/B and Ex. PW7/A respectively. These MLCs shows that they have suffered with the simple injuries.
The evidence of PW9, PW10, PW12 and PW13 that they cannot identify the assailants does not create any doubt in the prosecution case because from the evidence of PW1 to PW3 it is proved that accused are the persons who were present in the mob and had been identified by them.
The evidence of DW1 that none of the accused was present in the mob does not inspire confidence because his evidence is not corroborated as the accused persons has not led any other witness in their defence.
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6. Ld. counsel for the accused persons has argued that the trial of the accused persons is barred U/s 195 Cr. P.C. as no complaint as required U/s 195 Cr. P.C. has been filed in the court and cognizance has not been taken on the basis of the complaint. The trial of the accused persons U/s 332/353 IPC is also barred as it is on the same facts as the trial for the offence U/s 186 Cr. P.C. Perusal of the file shows that the complaint U/s 195 Cr. P.C. which is Ex. PW11/A has been made as part of the charge- sheet. It has not been filed in the court and no cognizance has been taken by the court on the basis of this complaint. So, provision of section 195 Cr. P.C. has not been complied with. In these circumstances, the trial of the accused person punishable U/s 186 Cr. P.C. is barred U/s 195 Cr. P.C. Ld. counsel for the accused has also relied upon the judgment 1996 (2) C.C. Cases 396 (HC) of Hon'bleHigh Court 19 of Delhi wherein it has been observed that :
"where in substance the offence U/s 186 IPC in question would fall in the category of Section 195 Cr. P.C., it would not be open to by pass its provisions even by choosing to prosecute u/s 353/506 IPC. Proceedings as a whole are liable to be quashed."
It has been observed by the Hon'bleSupreme Court in AIR 1996 SC 775 that :
"Sections 185 and 353 of Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former is not so. The ingredients of the two offences are also distinct. Section 186, Penal Code, is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his 20 public functions but under S. 353, Penal Code, the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Penal Code dealing with contempts of the lawful authority of public servants, while S. 353 occurs in Ch. XVI regarding the offences affecting the human body.
Section 195 of Cr. P.C. does not bar the trial of the accused for the distinct offence under S. 353 of Penal Code, though it may be practically based on the same facts as for the prosecution under S. 186 of the Penal Code which is barred for want of necessary sanction under S. 195, Cr. P.C."
In view of the aforesaid judgment of Hon'bleSupreme 21 Court although the trial of the accused persons U/s 186 IPC is barred U/s 195 Cr. P.C. yet the accused can be convicted U/s 332/34 IPC and U/s 353/34 IPC because the case is fully proved under these sections against the accused persons as discussed above.
7. Ld. counsel for the accused Salauddin has argued that offence U/s 3(1)(x) of Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 [in short SC/ST (POA) Act] is not made out against the accused as there are contradictions in the case of the prosecution as to derogatory words uttered by the accused Salauddin.
Section 3(1)(x) SC/ST (POA) Act provides as follows :
"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe- intentionally insults or intimidates with intent to humiliate a member of a Schedule Caste or a Schedule Tribe in 22 any place within public view ........".
The allegations against the accused Salauddin is that he has intentionally insulted with intent to humiliate the complainant by uttering the derogatory words. In the present case the exact words as uttered by the accused are of crucial importance and it is for the prosecution to prove the exact words as alleged to be uttered by the accused.
As per the case of the prosecution the accused Salauddin has used the derogatory words to the complainant "SALE CHURE CHAMAR. I WILL SEE YOU".
PW1 who is the complainant has deposed that the accused has used the words, "SALE CHURE CHAMAR TERI HIMMAT KAISE HUI KI HAMARE MOHALLE MEIN DUKAN SEAL KARNE KAISE AAYE".
PW2 has deposed that the accused has uttered the words, "SALE CHURE CHAMAR AFSAR BAN JAATE HO, AUR 23 TUMHARI HIMMAT KAISE HUI HAMARE ILAQE MEIN SEAL LAGANE KI".
PW3 has deposed that accused has uttered the words, "HARAMJADE SUWARKE BACHE, CHAMAR KE BEEJ".
These witnesses has not supported the case of the prosecution as to the exact words as uttered by the accused Salauddin. So, in my view prosecution has failed to prove its case against the accused Salauddin U/s 3(1)(x) Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989.
8. In view of the above discussions, accused Salauddin is acquitted for the offence punishable U/s 3(1)(x) Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 and accused persons are acquitted for the offence punishable U/s 186 IPC as the trial is barred U/s 195 Cr. P.C. However, prosecution has successfully proved its case 24 against the accused persons beyond any reasonable doubt U/s 332/34 IPC and U/s 353/34 IPC. Accordingly, all the four accused are convicted U/s 332/34 IPC and U/s 353/34 IPC. Announced in the open court (RAJNEESH KUMAR GUPTA)today i.e. on 4.8.07 Additional Sessions Judge, Tis Hazari Courts, Delhi.