IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.199 of 2002 1. Ashok Singh S/o Avadh Prasad Singh R/o Jawahar Nagar, P.S. Rudrapur, Distt. U.S. Nagar 2. Suresh Singh S/o Satya Narayan Singh R/o Bairajpur Railway Station, P.S. Bairajpur, District Kanpur … Appellants Versus State of Uttaranchal … Opposite Party Mr. S.K. Aggarwal, Sr. Adv. assisted by Mr. R.K. Saxena and Mrs. Charanjeet Kaur, Advocates for the appellants Mr. M.A. Khan, Brief Holder for the State/opposite party Dated: September 28, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been preferred against the judgment and order dated 30.7.2002, rendered by learned Additional Sessions Judge/First FTC, Nainital in S.T. No.510/1997, State Vs. Ashok Singh & one another. The said trial proceeded in the court below against the accused/appellants Ashok Singh and Suresh Singh. After trial, learned court below held both the accused persons guilty for the charges levelled against them, except for the charge of Section 145 of Railways Act, 1989. Both the accused persons were convicted for the rigorous imprisonment of two years u/s 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter will be referred as ‘SC/ST Act’). They were also convicted for the offence of Section 323 IPC to undergo six months’ imprisonment; one year’s imprisonment for the offence of Section 353 IPC and again one year’s imprisonment for the offence of Section 506 IPC. The terms of imprisonment, awarded to the convicts, were directed to run concurrently. 2 2. The brief facts of the prosecution are that Jagdish Prasad, a member of scheduled caste, was posted as the Assistant Station Master, Railway Station Pant Nagar and was doing his official duty on 31.7.1996 since 18 PM to 6 PM of the next day. Accused Suresh Singh was also a railway employee posted at the same railway station and his designation was ‘KANTE WALA’ (a Class IV employee who sets the railway track by a mechanical device using some physical force to take a Train on a particular track). This accused Suresh Singh demanded the key of the waiting room, which is usually remains reserved for waiting to the VIPs or the elite class passengers, from the Assistant Station Master and after taking the keys from him, he opened the waiting room and began to have alcoholic drinks there along with his friend Ashok Singh (co-accused) and five other persons. This act of them was being done on 31.7.1996 in the evening at about 7 PM onwards. After they have had consumed the alcohol, all became much vocal inviting the attention of passengers on the platform. The passengers complained this commotion in the waiting room to A.S.M. Jagdish Prasad. Sri Jagdish Prasad sent another employee Sri Aaram Singh ‘KANTE WALA’ who was also doing his duty at the relevant time at the railway station. Sri Aaram Singh noticed the incident, as complained of by the passengers, to be true and returned to narrate the same to Sri Jagdish Prasad. Sri Jagdish Prasad went to the waiting room and asked the accused Suresh Singh not to have alcoholic drinks there and quit the place. All the accused persons insulted him and asked him to run away from there, addressing him as ‘CHAMAR’ (a caste indicative word). After that Sri Jagdish Prasad came back to his office. At the same time, Train No.5307 ‘Nainital Express’ was signalled to be at the station, but meanwhile, accused Ashok Singh and Suresh Singh came there and dragging the chair of Jagdish Prasad, set therein. Accused Ashok Singh intervened in the 3 mechanical device of taking the train at the track of the railway station. Jagdish Prasad checked him from doing so. On this, accused Ashok Singh abused the complainant Jagdish Prasad and snatched the significant papers concerning the arrival and departure of the train and tore them. By addressing the complainant as ‘CHAMAR’, accused Ashok Singh further threatened him that he is just to bring his gun so that to roast him by fire. Anyhow, the Train No.5307 was taken on the track. 3. Again, at about quarter past nine, accused Ashok and Suresh came in the office of complainant Jagdish Prasad. Accused Suresh Singh beat him with slaps while accused Ashok Singh beat him with his shoes hurling various abuses, along with threat to kill him using the caste indicative words. When they left the place to fetch their gun, complainant Jagdish Prasad bolted the door from inside and informed to the Controller Security, Izzat Nagar and Government Railway Police, Lalkuan Police Station by phone. Next day on 1.8.1996, he went to the police station at about 7 AM for getting the report registered against both the accused persons, but the Government Railway Police, Kathgodam did not lodge the report. Rather, the same could be lodged after the intervention of the Superintendent Police (G.R.P.) after a considerable time, as much as on 16.8.1996. 4. The investigation of the case was made and after the same, a chargesheet against the accused persons Ashok Singh and Suresh Singh was submitted for the offence of Section 3(1)10 of SC/ST Act r/w Section 145 of the Railways Act and also under Sections 323, 504, 353 and 506 IPC. The case was registered in the court, charge was levelled against both the accused persons; accordingly they were tried by the court below and after the trial, conviction was awarded, as stated above. 4 5. PW1 is Aaram Singh, an independent witness, who is also a ‘KANTE WALA’ posted at the same railway station. His duty on the relevant date was also from 18 PM to next day 6 AM. He has affirmed that Sri Jagdish Prasad, Assistant Station Master used to look after the work of Assistant Station Master as well as the ticket distribution. The portion for ticket distribution has been separated in the same room, where the Assistant Station Master operates the departure and arrival of the trains with the aid and assistance of ‘KANTA WALA’ Aaram Singh. He has affirmed that nearly at 9 PM, he informed Jagdish Prasad regarding the consumption of alcohol drinks by accused Suresh Singh and Ashok Singh, along with their 4- 5 companions, in the waiting room. On receiving this information, Jagdish Prasad went there and later returned to resume his duties in the office. After some time, accused persons Ashok Singh and Suresh Singh came in the office and occupied the chair of Jagdish Prasad because he, at that time, was indulged in the ticket distribution at a separate part of the office. The accused persons started to disturb the Panel Board wherefor they were checked. Accused Ashok Singh started hurling abuses and took the telephone in his hand. He tore the various government documents relating to the operation system of the Trains. The accused persons used the word ‘CHAMAR’ for a number of times and after abusing a lot, they left the place to fetch their gun. After sometime, they again came and beat Jagdish Prasad (Chottey Babu) bitterly. He has deposed that when the accused persons had left the place to fetch their gun, ‘Chottey Babu’ sent him to inform the Station Master about the incident. After giving the information, he had returned. He saw that accused Ashok Singh and Suresh Singh were beating Jagdish Prasad with shoes and slaps while hurling abuses and addressing him as ‘CHAMAR’ within the view of various passengers standing at the platform. This witness has also affirmed the assault offered by the accused 5 persons to ‘Chottey Babu’ in waiting room prior to the recurrence of the same in the office of stationmaster. 6. Learned senior counsel for the appellants has contended that the said fact has not been stated in the F.I.R. This contention of learned senior counsel does not hold water for the reason that it is a settled law that the FIR is not the embodiment of each and every fact of the incident, inasmuch as, every minute detail is not to be embodied in the FIR. It is also significant to note that Jagdish Prasad, Assistant Station Master tried to lodge the FIR just after his duty was over in the morning of 1.8.1996 at the G.R.P. Kathgodam, but the police did not lodge the same. He ran from pillar to post for lodging of the same and with the intervention of Superintendent of Police (GRP), it could be lodged on 16.8.1996. The Station Officer, G.R.P. received this self-script FIR lodged by Jagdish Prasad on 5.8.1996 and instead of recording the same in the General Diary, firstly he entrusted the work to some Sub Inspector for making a preliminary enquiry to verify the incident in question. The endorsement of said Station Officer on the self-script version of Jagdish Prasad is present in the margin of the same. Therefore, the contention on behalf of the appellants, that the FIR was delayed, too is not acceptable at all, inasmuch as, the prosecution has given sufficient explanation for the delay caused in lodging of the report. 7. P.W.2 is Prem Shankar Pandey, who was posted as Station Master on the relevant date and time at Pant Nagar, Railway Station, but he has been declared hostile by the prosecution. The learned brief holder has contended that this witness, in order to avert his responsibility, has not supported the prosecution version, inasmuch as, it was primarily his duty to check that the waiting room, which was meant for the VIPs and elite passengers, should not be allowed to be opened by any unwanted person or the unscrupulous staff. Since the 6 waiting room’s key was taken by the accused Suresh Singh from the possession of Jagdish Prasad under some coercion, in that case, it was the duty of Prem Shankar Pandey to explain as to why he allowed the keys of the waiting room to remain kept with the Assistant Station Master, instead of his own custody. Besides, it is very most pertinent to mention here that the incident is of dated 31.7.1996 and every effort was made by the accused persons to protract the examination of the witnesses till they are won over by them. It is only for this reason that Prem Shankar Pandey could be examined after more than four years of the incident and the cross- examination of PW1 Aaram Singh was also deferred due to the various hindrances created by the accused persons in cross- examining the witness. This witness Aaram Singh turned up many a times for deposition of the evidence, but on account of one reason or the other, his deposition was protracted and he could be cross-examined almost after four years of the incident. Despite all hindrances, Prem Shankar Pandey, Station Master has accepted this much that while he was loitering at the platform, he heard some noise coming from the place of occurrence. 8. P.W.3 Jagdish Prasad is the victim of occurrence. He has categorically proved the occurrence of the incident stating that the accused persons, while checked from having the liquor in the waiting room, misbehaved with him. When he returned to his office because the train ‘Nainital Express’ was about to arrive at the railway station and he had to make the signals for that purpose after making the relevant entries in the papers, the accused persons came there and began to disturb the Panel Board which regulates the operation of trains. While asked not to do so, he was abused and the accused persons also tore the relevant papers from the hands of the victim concerning the operation of trains. After departure of train at about 9:15 PM, accused Suresh Singh beat him with slaps 7 while accused Ashok Singh beat him with the blow of shoes on his head, hurling the caste indicative words. The accused went to fetch their gun with the warning to roast him by fire. He closed the door, bolted the same and rang up the phone to G.R.P. Lalkuan and Security Control, Izzat Nagar. Next day on 1.8.1996, he went to G.R.P. Kathgodam to lodge the FIR but could not get success because the police did not pay any heed. 9. Learned senior counsel has also drawn the attention of the Court towards the minor discrepancies here and there, but in view of this Court, these discrepancies do not affect the basic substance of the incident at all. In view of the delay in the cross-examination of the independent eyewitness and that of victim, these minor inconsistencies or discrepancies are bound to occur, inasmuch as, the discrepancies in the matters of details always occur in the evidence of truthful witnesses. Such variations creep in because there are always natural differences in the faculties of different individuals in the manner of observation, perception, retention of them in the memory and description of the same in the Court while deposing the evidence. Natural variations are bound to be there regarding same occurrence in the version of different eyewitnesses unless they are tutored or crammed evidence in parrot like manner. In the instant case, these discrepancies rather made the version of the victim and the independent eyewitness more truthful for the reason that they were permitted to be cross-examined after four years of the incident. The Hon’ble Apex Court in the case of “Appabhai and another Vs. State of Gujarat reported in 1988 A. Cr. R. Page 353 (S.C.)” has held as under:- “It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive 8 when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused.” 10. PW4 Satish Kumar Chaddha is the I.O. of the case, who after the completion of investigation, submitted the chargesheet against the accused persons. He is the formal witness of the case. 11. Learned senior counsel for the appellant also placed reliance upon a judgment rendered by the Hon’ble Apex Court in the case of “Swaran Singh and others Vs. State through Standing Counsel and another (2008) 3 SCC (Cri) 527”. Having gone through this Authority, it is amply clear that this is of no avail to the appellants because the only law laid down in this precedent is that the offence u/s 3(1)(x) of SC/ST Act attracts where the victim has been humiliated by hurling the caste indicative words within the public view. In the instant case, victim Jagdish Prasad was humiliated by the accused persons by hurling caste indicative word ‘CHAMAR’ while he was in his office and the scene was visible by a number of passengers loitering at the platform. The door and window of the room of the Station Master remain opened even at the time when the tickets are sold by this Assistant Station Master, for the time being working as a Clerk for selling the tickets. This way, complainant Jagdish Prasasd was humiliated by using the caste indicative word ‘CHAMAR’ a number of times, 9 coupled with his beating by repeated slaps and blows of shoes on his head. 12. In view of the above discussion, this Court is of the view that the learned trial court has given a very sound judgment based on the reasoning and the findings available on the record and the same is concurable by this Court. The appeal has no force to stand. It is liable to be dismissed. The appeal is, accordingly, dismissed. Impugned judgment and order passed by the court below dated 30.7.2002 is hereby upheld. Appellants/accused are on bail. Their bail bonds are cancelled. Let the arrest warrant of them be issued to bring them to the book and serve out the sentence. 13. A copy of this judgment along with the trial court record be sent back for compliance forthwith. (Servesh Kumar Gupta, J.) September 28, 2011 Rajeev Dang