AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.248 of 2002
Judgment Reserved on : 18.4.2018
Judgment Delivered on : 12.7.2018
Shiv Ram, S/o Ram Lal, age 50 years, R/o Village Bhilai, P.S. Charama,
District Kanker, Chhattisgarh
—- Appellant
versus
The State of Chhattisgarh through Police of P.S. Charama, District Kanker,
Chhattisgarh
— Respondent
——————————————————————————————————
For Appellant : Shri Shobhit Koshta, Advocate
For Respondent/State : Shri Sameer Behar, Panel Lawyer
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Hon’ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. This appeal is directed against the judgment dated 14.2.2002
passed by the Special Judge under the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth
‘the Act of 1989’), Bastar at Jagdalpur in Sessions Trial No.306 of
2001 convicting and sentencing the Appellant as under:
Conviction Sentence
Under Section 354 of the Rigorous Imprisonment for 2 years and
Indian Penal Code fine of Rs.2,000/- with default
stipulation
Under Section 3(1)(xi) of the Rigorous Imprisonment for 2 years and
Act of 1989 fine of Rs.2,000/- with default
stipulation
2. The prosecution case, in brief, is that the prosecutrix (PW1) is a
member of the Scheduled Tribe and is dumb. On 25.4.2001 at
about 6:00 a.m., she had gone to the agricultural field to pick up
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Mahua flowers. At that time, the Appellant was sitting nearby
under a tree. It is alleged that he, with an intent to outrage and
humiliate the prosecutrix, caught hold of her breast. She came out
of his clutches, ran away from there and came back to her house.
She told about the incident to her mother Bhagwati (PW2). A
written report (Ex.P1) was submitted by Bhagwati. On the basis of
Ex.P1, First Information Report (Ex.P2) was registered.
Statements of witnesses were recorded under Section 161 of the
Code of Criminal Procedure. On completion of the investigation, a
charge-sheet was filed against the Appellant for the offence
punishable under Section 354 of the Indian Penal Code and
Section 3(1)(xi) of the Act of 1989. Charges were framed against
him under Section 354 of the Indian Penal Code and Section 3(1)
(xi) of the Act of 1989.
3. To rope in the Appellant, the prosecution examined as many as 5
witnesses. Statement of the Appellant was also recorded under
Section 313 of the Code of Criminal Procedure in which he denied
the circumstances appearing against him, pleaded innocence and
false implication. One witness has been examined in his defence.
4. After trial, the Trial Court convicted and sentenced the Appellant as
mentioned in the first paragraph of this judgment. Hence, this
appeal.
5. Learned Counsel appearing for the Appellant argued that there are
material contradictions and omissions in the statements of the
prosecutrix (PW1) and her mother Bhagwati (PW2). No cogent
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evidence is available on record against the Appellant. Even if for
the sake of argument it is considered that any such incident had
taken place, the act done by the Appellant with the prosecutrix was
not with a view that she is a member of the Scheduled Tribe.
Therefore, the offence alleged under Section 3(1)(xi) of the Act of
1989 is not made out. He further submitted that the matter was
investigated into by Sub-Inspector Santosh Singh (PW5), who is
below the rank of a Deputy Superintendent of Police and,
therefore, there is violation of Rule 7 of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Rules, 1995
(henceforth ‘the Rules of 1995’).
6. On the other hand, Learned Counsel appearing for the State
supported the impugned judgment of conviction and sentence.
7. I have heard Learned Counsel appearing for the parties and
perused the record with utmost circumspection.
8. The prosecutrix (PW1) is dumb. As per her statement recorded by
the Trial Court, the Appellant gagged her mouth, caught her breast,
also caught her private part and tried to remove her underwear.
Thereafter, she ran away, went to her house and told about the
incident to her mother.
9. Bhagwati (PW2), mother of the prosecutrix has stated that the
prosecutrix had gone to the agricultural field to pick up Mahua.
After some time, she returned and fell down. She was weeping.
On being asked, she told by hints that the Appellant had met her in
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the agricultural field and caught her. She has further stated that
she called a village meeting in which she told about the incident to
the villagers and thereafter she submitted the written report (Ex.P1)
in the police station.
10. Hinjaram (PW3) has stated that Bhagwati (PW2) had come to his
house and told about the incident. Thereafter, a village meeting
took place in which he had asked the prosecutrix about the
incident. The prosecutrix told by hints that the Appellant had
caught her and pressed her breast. She had come out of his
clutches and run away from there and come back to her house.
11. Somlal (PW4) has also supported the statement of Hinjaram
(PW3). He has also stated that the prosecutrix had told him that
the Appellant had caught her and pressed her breast.
12. Sub-Inspector Santosh Singh (PW5) is the witness who
investigated into the offence in question. He recorded the FIR
(Ex.P2) on the basis of the written report (Ex.P1). He prepared the
spot-map (Ex.P3). He recorded statements of witnesses under
Section 161 of the Code of Criminal Procedure. He has also
stated that he had seized the caste certificate of the prosecutrix,
but no seizure memo nor any caste certificate is available on
record.
13. On a minute examination of the above evidence, it is clear that the
Appellant had caught the prosecutrix in the field with an intent to
outrage her modesty and also caught her breast. The prosecutrix
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has remained firm during her cross-examination and her statement
is also supported by Bhagwati (PW2), Hinjaram (PW3) and Somlal
(PW4).
14. From the above, the offence alleged under Section 354 of the
Indian Penal Code is proved against the Appellant and, therefore,
he has rightly been convicted thereunder by the Trial Court.
15. So far as the offence alleged under Section 3(1)(xi) of the Act of
1989 is concerned, though the prosecutrix (PW1) belongs to Halba
Caste and the Appellant belongs to Kalar Caste yet there is no
document or caste certificate on record to show that the Caste
Halba falls within the category of the Scheduled Tribe. Though
Sub-Inspector Santosh Singh (PW5) has stated that he had seized
the caste certificate of the prosecutrix yet no caste certificate of the
prosecutrix is available on record. Even if for the sake of argument
it is considered that the prosecutrix belongs to Scheduled Tribe,
there is nothing on record to show that since the prosecutrix
belongs to Scheduled Tribe, the Appellant committed the alleged
act with her.
16. Apart from the above, it is also clear that the investigation has
been done by Santosh Singh (PW5), who is a Sub-Inspector, that
is to say, he is an officer of below the rank of a Deputy
Superintendent of Police. As per Rule 7 of the Rules of 1995, the
investigation must have been done by a police officer not below the
rank of a Deputy Superintendent of Police. Rule 7 of the Rules of
1995 reads as under:
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“7. Investigating Officer.-(1) An offence committed
under the Act shall be investigated by a police officer
not below the rank of a Deputy Superintendent of
Police. The investigating officer 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 along
with right lines within the shortest possible time.
(2) The investigating officer so appointed under sub
rule (1) shall complete the investigation on top priority
basis within thirty days and submit the report to the
Superintendent of Police who in turn will immediately
forward the report to the Director General of Police of
the State Government.
(3) The Home Secretary and the Social Welfare
Secretary to the State Government, Director of
Prosecution, the officerincharge of Prosecution and
the Director General of Police shall review by the end
of every quarter the position of all investigations done
by the investigating officer.”
17. In 1999 Cri.L.J. 2918 (D. Ramalinga Reddy @ D. Babu v. State
of A.P.), it was observed thus:
“7. There is no dispute that the present case was
investigated by a SubInspector of Police and not by an
Officer envisaged under Rule 7. Since the investigation
itself has been conducted by an officer who was not
authorised in law to conduct the investigation the
whole trial is vitiated. The same view has been
expressed in a judgment of Madras High Court
reported in N. Ramu v. Supdt. of Police Villupuram,
1998 Mad LJR (Crl) 132. Therefore, conviction of the
appellant for the offence under S. 3(1)(xi) of SCs and
STs (Prevention of Atrocities) Act has to be set aside
and is accordingly set aside and the accusedappellant
is acquitted of the charges under the Act.”
18. In 2009 AIR SCW 5335 (State of M.P. v. Chunnilal @ Chunni
Singh), it was observed as under:
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“6. By virtue of its enabling power it is the duty and
responsibility of the State Government to issue
notification conferring power of investigation of cases
by notified police officer not below the rank of Deputy
Superintendent of Police for different areas in the
police districts. Rule 7 of the Rules provided rank of
investigation officer to be not below the rank of Deputy
Superintendent of Police. An officer below that rank
cannot act as investigating officer. The provisions in
Section 9 of the Act, Rule 7 of the Rules and Section 4
of the Code when jointly read lead to an irresistible
conclusion that the investigation to an offence under
Section 3 of the Act by an officer not appointed in
terms of Rule 7 is illegal and invalid. But when the
offence complained are both under the IPC and any of
the offence enumerated in Section 3 of the Act the
investigation which is being made by a competent
police officer in accordance with the provisions of the
Code cannot be quashed for non investigation of the
offence under Section 3 of the Act by a competent
police officer. In such a situation the proceedings shall
proceed in appropriate Court for the offences
punishable under the IPC notwithstanding
investigation and the charge sheet being not liable to
be accepted only in respect of offence under Section 3
of the Act for taking cognizance of that offence.”
19. Thus, in view of the clear mandate of Rule 7 of the Rules of 1995
and the decisions of the Supreme Court referred to above, it is only
the officer not below the rank of Deputy Superintendent of Police is
competent to investigate the offence under the Act of 1989. In the
instant case, undisputedly, the entire incident has been
investigated by Sub-Inspector Santosh Singh (PW5), which is
flagrant violation of the legal provisions and it renders the entire
trial as vitiated.
20. Therefore, in the premises of aforestated, the conviction and
sentence imposed upon the Appellant under Section 3(1)(xi) of the
Act of 1989 are set aside and he is acquitted of the charge framed
thereunder, but the conviction imposed upon him under Section
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354 of the Indian Penal Code is affirmed.
21. So far as sentence for the offence under Section 354 of the Indian
Penal Code is concerned, the Appellant has remained in custody
for about 1 month. He is facing the lis since 2001. He has no
known criminal antecedent. Therefore, I am of the view that ends
of justice would be served if he is sentenced with the period
already undergone by him and the sentence of fine is affirmed.
Ordered accordingly.
22. Consequently, the appeal is allowed in part to the extent indicated
above.
23. Record of the Court below be sent back along with a copy of this
judgment forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel)
JUDGE
Gopal