Vijender Singh vs State
2014 Latest Caselaw 6913 Del

$~ R-32
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Judgment reserved on : 11.12.2014
%                                   Judgment delivered on : 17.12.2014

+     CRL.A. 439/2006

      VIJENDER SINGH                               ..... Appellant
                   Through: Mr. C.L. Gupta with Mr. Akashdeep
                           Verma & Mr. Rahul Ahlawat,
                           Advocates.

                        versus

      STATE                                              ..... Respondent
                        Through: Mr. Ravi Nayak, APP.
                                SI Mousam Ghani, P.S. Mayur Vihar.
      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


      INDERMEET KAUR, J.

1. This appeal is directed against the impugned judgment and

order of sentence dated 19.05.2006 and 26.05.2006 respectively,

wherein the appellant had been convicted under Section 3(1)(X) and

Section 3(2)(VII) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the

said Act"). He had been sentenced to undergo RI for a period of one

year and to pay a fine of Rs.2000/- and in default of payment of fine

to undergo SI for a period of 15 days for the offence under Section

3(2)(VII) of the Act; no separate sentence had been imposed for the

second offence. Benefit of Section 428 Cr.P.C. had been granted to

the appellant.

2. Record discloses that on 31.08.1994, an untoward incident had

taken place. The complainant Rajender Singh (examined as PW-7)

has stated that the accused Vijender Singh, working as a lift operator

in the Central Board of Secondary Education (CBSE) office and being

a public servant had intentionally insulted and intimidated the

complainant working as a mason in the same office and was a

member of a scheduled caste; the derogatory words which were used

against him were "chura" and "chamar". As noted supra this incident

had taken place on 31.8.1994. A complaint to the said effect was

lodged on 2.9.1994. This has been proved as Mark 'X'. Thereafter

on 23.08.1998, another complaint (Ex.PW 6/A) was given by the

complainant pursuant to which the present FIR was registered.

3. Apart from the complainant who was examined as PW-7, two

other public witnesses, namely Karambir Singh and Sanjay were

examined as PW-1 and PW-3 respectively. Another public witness,

namely Lekh Raj Singh was examined as PW-4 but he did not support

the version of the prosecution; he was hostile. The first Investigating

Officer SI Vikram Singh was examined as PW-6 and the second

Investigating Officer SI Mahinder Singh was examined as PW-2.

Addl. DCP Ram Kumar was examined as PW-11. He had arrested

the accused vide arrest memo Ex. PW1/C.

4. Statement of the accused was recorded under Section 313

Cr.P.C. He denied all these averments. No evidence was led in

defence.

5. On the basis of aforenoted evidence, collated by the

prosecution, the accused was convicted and sentenced as aforenoted.

6. Arguments have been heard in detail on behalf of the appellant.

The first argument addressed is that under Rule 7 of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Rules,

1995 (hereinafter referred to as the said Rules), investigation for an

offence under the said Act can only be carried out by an officer not

below the rank of DSP which is equivalent to an ACP. On merits, it

has been submitted that PW-1 and PW-3 are both associates and

friends of the complainant and thus, they do not qualify as "public

view" within the meaning of Section 3(1)(X) of the said Act.

Reliance has been placed on a judgment of this Court reported as

2004 (2) JCC 1136 Daya Bhatnagar & Ors. v. State, wherein a

reference was made to a third Judge of this Court consequent to a

difference of opinion on the interpretation of the expression "public

view" as appearing in Section 3(1)(X) of the said Act. Submission is

that this judgment has enunciated the meaning of "public view" to

mean that the persons who have viewed the incident must be as good

as strangers and not linked with the complainant through any close

relationship or any business, commercial or any other vested interest

and who are not participating with him in any way; excluding these

persons, others would qualify as "public". Submission in this regard

being that PW-1 and PW-3 were both friends and close associates of

the complainant and their version that the incident had occurred qua

the complainant in their presence is thus, of no value. The trial Judge

while relying upon their version and convicting the appellant, has,

thus, committed an illegality. Next submission of the learned counsel

for the appellant is that the judgment of the Apex Court reported as

(2008) 12 SCC 531 Gorige Pentaiah v. State of Andhra Pradesh &

Ors. clearly stipulates that the basic ingredients of Section 3(1)(X) of

the said Act are that the complainant ought to have alleged that the

appellant-accused was not a member of a scheduled caste or a

scheduled tribe and the complainant was insulted or intimidated by

the accused with an intent to humiliate in a place within public view.

Submission being that in the entire complaint filed by the complainant

there is not a whisper that the accused was not a member of a

scheduled caste or scheduled tribe. In the absence of this necessary

ingredient conviction again is faulty. Last submission of the learned

counsel for the appellant is that the incident had taken place on

31.8.1994 and the first complaint although filed by the complainant

was on 02.09.1994 yet he did not file the same with the police; it was

only four years later on 23.8.1998 that he awoke from his slumber and

got another complaint registered which shows that this is highly

motivated and only to vent out some other grievance such a belated

FIR which was registered in the year 1998 could not have been

accepted. Attention has also been drawn to the first complaint dated

02.09.1994. It is pointed out that all ingredients necessary for offence

under Section 3(1)(X) of the said Act are missing. On no count can

the conviction be maintained.

7. Arguments have been refuted. On the question of investigation

it is stated that until and unless a prejudice has been suffered by the

appellant, he cannot complain of the investigation having been carried

out by an officer below the rank stipulated in the Act; reliance has

been placed on provisions of Section 465 Cr.P.C. to advance this

submission. On the second count, it is pointed out that PW-1 and

PW-3 were only colleagues of the complainant and both of them in

their statements have, in fact, admitted that they were known both to

the complainant and to the accused; neither of them had any special

relationship with the complainant and as such they do not qualify as

"friends" of the complainant; their evidence was rightly relied upon

by the trial Judge to convict the appellant. Further submission being

that the FIR, when it is initially registered is not required to be an

encyclopaedia of all facts and the complainant in his testimony has

clearly stated that he being a member of scheduled caste had been

intimidated and insulted by the accused. It was for the accused to put

forward a defence that he was also a member of a scheduled caste; he

had nowhere, even in cross-examination of the witnesses of the

prosecution or at any other stage ever put forward the defence that he

is not a member of the General category. He being a member of a

General category and the complainant being a member of a scheduled

caste and he having been abused by the appellant in public view

clearly points to his guilt for the offence for which he has been

convicted.

8. Arguments have been heard and record has been perused.

9. Rule 7 of the said Rules stipulates that the Investigating Officer

be below the rank of Deputy Superintendent of Police for an

investigation of an offence under this Act. He shall be appointed by

the State Government/Director General of Police/ Superintendent of

Police after taking into account his past experience, sense of ability

and justice to perceive the implications of the case and investigate it

alongwith right lines within the shortest possible time. PW-2 SI

Mahinder Singh has on oath deposed that on 2.2.1999 he was marked

the investigation of this case and he had recorded the statement of the

complainant. Thereafter, the investigation was marked to another

Investigating Officer. PW-2 was not cross-examined. The second

Investigating Officer ASI Vikram Singh was examined as PW-6. He

had also recorded the statement of certain witnesses. He was cross-

examined but not a single question was put to this witness that he was

not authorised to carry out the investigation. Sh. Ram Kumar,

Additional DCP was examined as PW-11. Investigation of this case

was marked to him on 4.5.1999. This was pursuant to the orders of

the DCP, East District, proved as Ex.PW-11/A. He collected the

certificate (Ex.PW7/A) of the complainant evidencing the fact that he

was a member of the scheduled caste; he also arrested the accused

vide arrest memo Ex.PW11/C. A suggestion had been given to him

that he had not carried out the investigation fairly. No suggestion has

been given to him that the investigation (prior to his taking over) was

not authorised by law.

10. Section 465 Cr.P.C. clearly stipulates that no finding or order of

sentence passed by a court of competent jurisdiction shall be reversed

in appeal on account of any irregularity, error or omission in the

proceedings during trial unless a failure of justice has been

occasioned. It is not the case of the appellant that he has suffered any

failure of justice on account of investigation being carried out prior to

PW-11 by PW-2 or by PW-6. Apart from the fact that no such

suggestion has been given to this witness, this argument had also not

been propelled before that Court.

11 The Apex Court time and again has held that irregularity in the

investigation by an officer below the rank as stipulated will not affect

the finding at the appellate stage. In (2009) 3 SCC 789 Ashabai

Machindra Adhagale v. State of Maharashtra & Ors., the

observations made by the Apex Court in this context read as follows:

"17. So far as the scope for investigation is concerned it is relevant to note that Sub-section (2) of Section 156 of the Code provides that no proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under the section to investigate."

Thus, the first argument of the learned counsel for the appellant is rejected.

12. The complainant had been examined as PW-7. His version has

been perused. He deposed that on 31.8.1994 he was posted in CBSE.

At about 4.30 PM he was on the 4th floor of the building in the

Maintenance Labour room. Karambir Singh, Lekh Raj Singh, Sanjay

and Parveen were also present when the appellant came there and he

spoke to those persons. Thereafter, he uttered the following abuse

upon him: "Tu chure chamar teri himmat hamare beech baithne ki

kaise hui or aaj ke baad nahin bathega." The accused also slapped

him. He was shunted out from the room. Further version of PW-7

was that the appellant knew the caste of the complainant who is a

Jatav; he had perused his caste certificate Ex.PW 7/A. The brother-

in-law of the complainant, S.K. Sharma was posted as an Assistant

Engineer in the same office; the complainant recited his woes to him

but he was rebuked by him. The appellant was of Sharma caste; he

used to humiliate the complainant even on earlier occasions. He

lodged his complaint with the CBSE officers on 01.09.1994 and to the

Chairman of the CBSE on 2.9.1994 and thereafter with the police

station. His statement before the police was recorded as Ex.PW6/A.

In his cross-examination, he admitted that he also made his complaint

against Sh. S.K. Sharma, brother-in-law of appellant. He denied the

suggestion that this was a false complaint. He admitted that he was

working under S.K. Sharma.

13. The first complaint made by the complainant dated 2.9.1994 is

Mark 'X'. The same has been perused. In this complaint it has been

alleged that the appellant for the last two months have been fighting

with him and used to call him "chura" and "chamar"; this used to

disturb him mentally; appellant's brother-in-law S.K. Sharma was

working as an Assistant Engineer in the same office. Even on his

complaint, he was rebuked by S.K. Sharma. Relevant would be it to

note that in the complaint dated 2.9.1994 there is not a whisper of the

incident of 31.8.1994. There is no mention that any such incident had

in fact taken place on 31.8.1994. Thereafter even as per the version

of prosecution the complainant slept over the matter and he awoke

from slumber after four years when he got registered another

complaint dated 23.08.1998 wherein he stated that on 31.8.1994 an

untoward incident had taken place qua the complainant; the appellant

had rebuked him and used casteist slurs in the presence of other

public persons, namely, Karambir, Sanjay and Lekh Raj.

14. PW-1 Karambir Singh Rana has deposed about the incident of

31.8.1994 on the same lines as the complainant. He deposed that on

31.8.1994 at 4.30 PM the appellant had a quarrel with the

complainant; he had beaten him and uttered objectionable words. In

his cross-examination, he had admitted that he had also made a

complaint against S.K. Sharma as he was harassing him; he had no

special relations with the complainant; he stated that he was friendly

with both the complainant and the appellant; he had no reason to

depose falsely.

15. The second public witness examined by the prosecution was

PW-3 Sanjay. PW-3 Sanjay deposed that on 31.8.1994 at 4.30 PM

while he was present along with Lekhraj, Vijender and Rajender in

the room, words "Tu chure chamar teri himmat hamare beech baithne

ki kaise hui or aaj ke baad nahin bathega." were uttered by the

appellant qua the complainant. In his cross-examination, he denied

that the accused has been falsely implicated in the case as he is

relative of S.K. Sharma and PW-3 had a grievance against S.K.

Sharma under whom he was working.

16. On the aforenoted testimonies, relevant would be it to note that

for the first time the Investigating Officer had recorded the statement

of Karambir under Section 161 Cr.P.C. on 22.5.1999. The Statement

of Sanjay under Section 161 Cr.P.C. was recorded by the

Investigating Officer on 26.5.1999. Both these witnesses were thus

examined after almost five years of the incident.

17. This Court also notes that the first complaint of the complainant

mark 'X' dated 2.9.1994 addressed to the concerned police officer,

nowhere speaks of the incident of 31.8.1994. It was a general

statement wherein it was stated that the accused used to harass him

and call him names "chura" and "chamar". The incident of

31.8.1994 was completely missing in the complaint dated 2.9.1994.

18. The FIR was registered on a complaint dated 23.08.1999; this

complaint was lodged after a gap of four years from the date of the

incident. Such an inordinate delay in lodging of the FIR is wholly

unexplained and brings to mind suspicion of embellishment.

19 This Court in MANU/DE/2959/2012 Manmohan Singh v. The

State (G.N.C.T. of Delhi) had in this context observed:

"13. In the case of "Mehraj Singh (L/Nk.) v.State of U.P. (1994) 5 SCC 188, the Supreme Court has held :

XXXX XXXX XXXX

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts

played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story...."

14. Earliest reporting of the occurrence with all its vivid detail gives an assurance regarding truth of its version. Deliberate delay in lodging the complaint/FIR is always fatal. It appears that the IO was deliberately marking time with a view to give a particular shape to the case. All the circumstances lead to one and only one conclusion that this dying declaration is not a genuine document and no sanctity can be attached to it."

20. Record also substantiates largely the submission of the learned

counsel for the appellant that the complainant PW-7, PW-1 and PW-3

who were the alleged public witnesses were all hand in glove and had

the same interest; their interest was to vent their grudges against S.K.

Sharma, who was working as an Assistant Engineer in the same office

and was in the senior capacity qua all the afore-noted persons i.e. PW-

7, PW-1 and PW-3. All of them had stated in their depositions that

they were being harassed by S.K. Sharma; complaints made by PW-7

repeatedly to S.K. Sharma met the same fate; he rebuked the

complainant and told him to leave the office or otherwise he would

be thrown out of his job. It is an admitted fact that the appellant is

brother-in-law of S.K. Sharma. PW-1 and PW-3 have also admitted

that they had filed complaints against S.K. Sharma as he was

harassing them. Thus, all efforts made by PW-7, PW-1 and PW-3 to

accost their boss S.K. Sharma with any kind of complaint against

Virender Singh/appellant met with a closed door; they were never

heard; this was for the reason that S.K. Sharma was the brother-in-law

of the appellant.

21 In this background, the arguments of learned counsel for the

appellant that the so-called independent witnesses brought forward by

the prosecution were interested witnesses, is a submission which

cannot be ignored. They were associates of the complainant and all of

them had a common goal and this is spelt out from their testimony.

Their goal and aim was to get even with S.K. Sharma and this

probably had led them to make accusations against his brother-in-law

i.e. the appellant Vijender Singh.

22. This Court is fortified by this conclusion also for the reason that

the incident having occurred on 31.8.1994, Karambir Singh and

Sanjay had given their statements to the Investigating Officer after 5

years i.e. on 22.5.1999 and 26.5.1999. The first complaint made by

PW-7 on 2.9.1994 also did not mention the incident of 31.8.1994. It

seems that the complainant had lost touch with the matter and had

almost given it up and when again for some reason, which is again

wholly unexplained, after an inordinate and unjustifiable delay, he

lodged a complaint dated 23.08.1999. He again set the law in motion

after 4 years and the FIR came to be registered. This could be

nothing but for a motivated reason. This Court is constrained to draw

this conclusion as otherwise why the complainant did not pursue his

complaint has not been explained or answered.

23. All these evidences collated, both oral and documentary,

persuade this Court to give benefit of doubt to the appellant. It cannot

be said that the charges under Section 3(1)(X) and Section 3(2)(VII)

of the said Act have been proved beyond reasonable doubt against the

appellant. Giving benefit of doubt to the appellant, the appeal is

allowed. The appellant is acquitted. His bail bond stands cancelled.

Surety discharged.

24. Appeal stands disposed of in the above terms.

INDERMEET KAUR, J DECEMBER 17, 2014/srb