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Shiv Ram vs State Of C.G. 20 Wpc/1908/2018 M/S … on 12 July, 2018

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

——————————————————————————————————

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
2

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
3

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
4

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
5

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:

6

“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:

7

“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
8

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

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