JUDGMENT :- Criminal Appeal No.156 of 1997 is directed by appellant (original accused No.1), Mirza Ejaj Baig s/o. Ahmed Baig, feeling aggrieved by the Judgment and Order, passed by Special Judge, Beed on 30-4-1997 in Special Case No.22 of 1996. 2. The important facts of the case of prosecution lie within a small compass and may be briefly stated as under: Complainant, Sheela Bhagwat More, a married woman, during relevant time, was working as Teacher in Balwadi at Lahujinagar. On 14-12-1995, at about 11.00 am., in the morning, she was going to her school alongwith her sister, Shakuntala, for bringing amount of salary. When they were passing through Zenda Chowk, appellant (accused), Mirza Ejaj, who was sitting in front of his house, blown whistle and uttered words, with it view to insult them. He tried to catch complainant Sheela More. When her sister Shakuntala intervened and tried to rescue her, the appellant (accused) also caught hold of her and tried to drag her towards his house. He also beat her by fists. Thus, he tried to outrage their modesty. Then, they both returned home and narrated this incident to their mother, Malanbai Pawar. Thereafter, when complainant Sheela, her sister Shakuntala and their mother Malanbai were going towards Police Station, appellant (accused), Mirza Ejaj and his brother Mirza Phaijulla given them threats, to cause harm to their person and life, if they go to the Police Station and lodge report. They abused and insulted complainant and her sister on the basis of their caste and untouchability. Thereafter, the complainant went in police station and lodged the report (Exh.14) against all these persons and offence at Crime No.217 of 1995 was registered against them. 3. P.S.I. Salunke, who was then on duty in police station, went on the spot of incident and prepared spot panchanama (Exh.12). He recorded statements of the witnesses and after completing investigation, did submit charge-sheet against all these persons in the Court. 4. The learned Special Judge, accordingly framed charge against appellant and co-accused, taken the trial, delivered Judgment and convicted appellant (accused) Mirza Ejaj alone, for all the charges framed against him. However, the learned Judge acquitted remaining co-accused of all the charges framed against them. 5. 4. The learned Special Judge, accordingly framed charge against appellant and co-accused, taken the trial, delivered Judgment and convicted appellant (accused) Mirza Ejaj alone, for all the charges framed against him. However, the learned Judge acquitted remaining co-accused of all the charges framed against them. 5. The appellant (original accused No.1), Mirza Ejaj felt aggrieved by the said Judgment of conviction and sentence and, therefore, preferred present appeal, mainly on the grounds that, firstly, the learned Judge did not properly appreciate oral and documentary evidence, adduced on record and, therefore, arrived at wrong conclusion. Secondly, when the learned Judge acquitted remaining co-accused of all the charges, framed against them, it was not proper on the part of trial Court to convict him in the same set of circumstances. Thirdly, the evidence of complainant, Sheela does not get support from other evidence. Lastly, the order passed by the learned Judge, is not only contrary to the principles of law but, against the facts and circumstances brought on record. 6. It was argued by the learned Counsel for the appellant and grounds are also taken in appeal memo that, the evidence of complainant Sheela More cannot be safely believed and accepted because, firstly, her evidence is full with discrepancies and infirmities. Secondly, the prosecution did not examine independent witnesses and only eye witnesses were examined and lastly, their evidence does not get support from any medical and other evidence. Therefore we have to view the case of the prosecution in the light of grounds taken in appeal memo and the submissions made by the learned Counsel for the parties. (i) It was argued by Shri. Salunke, learned Counsel for the appellant that, the Special Judge did not properly frame the charge against appellant (original accused No.1), Mirza Ejaj and even against the co-accused. It was further argued that, when the appellant (accused) was charged, for the offence punishable under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter called as "Act of 1989"), it was not necessary for the Special Judge to frame charge under Section 3(1)(x) of the Act of 1989, and under Section 323 and 354 of the Indian Penal Code. In other words, according to Shri. Salunke, offence under Section 3(1)(xi) 'of the Act of 1989 includes and contains all the ingredients of the offence, punishable under Section 3(1)(x) of the Act of 1989 and Section 323 and 354 of the Indian Penal Code. There is force in the argument, advanced by the learned Counsel and, therefore, we have to accept the same. It was further pointed out by Shri. Salunke, that the learned Special Judge, when acquitted the appellant (accused), of the offence punishable under Section 3(1)(x) of the Act of 1989, it was not proper to convict the appellant (accused) under Section 3(1)(xi) of the Act of 1989. Now, there is no scope for doubt that, the learned Special Judge did not at all properly frame the charge and proceeded against the appellant and co-accused and put them on trial, on the basis of erroneous charge. This aspect cannot be ignored and it caused great prejudice to the other side. (ii) The prosecution case was that, on 14-12-1995 at about 11.30 am. in the morning, near Zenda Chowk, Majalgaon, appellant I (accused), Mirza Ejaj and his relative (original accused No.2), Sarwaribegum assaulted the complainant Sheela and her sister Shakuntala, abused and insulted them in filthy language, on the basis of their caste and untouchability, v injured them etc. The second incident occurred f on the same day, after some time, when both ~ these sisters were going towards Police Station, r for lodging the report. At that time, original accused No.3, Mirza Phaijulla Baig obstructed them from going to the Police Station, abused them in filthy language, insulted them on the ground of caste and untouchability etc. Though these two separate incidents occurred on the same day, one after another, the appellant and two co-accused were tried together. It was pointed out by Shri. Salunke, the learned Special Judge convicted appellant (accused) Mirza Ejaj alone and at the same time, acquitted coaccused No.2, Sarwaribegum and co-accused No.3, Mirza Phaijulla of all the charges, framed against them, disbelieving the prosecution witnesses. In other words, according to the learned Counsel, when the Special Judge acquitted co-accused Nos.2 and 3 of all the charges, framed against them, it was not proper on the part of the learned Judge to convict only appellant (accused No.1), Mirza Ejaj, in same set of circumstances. In other words, according to the learned Counsel, when the Special Judge acquitted co-accused Nos.2 and 3 of all the charges, framed against them, it was not proper on the part of the learned Judge to convict only appellant (accused No.1), Mirza Ejaj, in same set of circumstances. It was further argued by Shri. Salunke, evidence of the witnesses has to be believed and accepted fully or it has to be rejected fully. In other words, according to Shri. Salunke, it is not permissible to the trial Court to believe the evidence of same witnesses and to convict the appellant (accused), Mirza Ejaj alone, on the same evidence, disbelieving the same prosecution witnesses and to acquit original accused Nos.2 and 3. Shri. Salunke wants to point out that, in the present case, there was no scope for the Special Judge to accept the evidence of prosecution witnesses and to rely on their evidence, even for. number of reasons. In such circumstances, it is necessary to scrutinise the evidence of the prosecution witnesses with great care. (iii) The case of the prosecution centers upon oral testimony of PW (Complainant), Sheela Bhagwat More. She entered in witness box and repeated her case, as mentioned in her report (Exh.14), lodged in Police Station on 14-12-1995, on the basis of which, offence at Crime No.217 of 1995 was registered. It was argued by Shri. Salunke, the evidence of this witness cannot be safely believed and accepted because, it does not get support from other oral, documentary, circumstantial, medical and medico-legal evidence. Secondly, her evidence does not get support from medical evidence and lastly, it is full with discrepancies and infirmities. It was argued by Shri. Salunke, there is delay in lodging the report in police station and thus, such delay is fatal to the prosecution case. The incident occurred at about 11.00 a.m. in the morning and the report was lodged in police station at about 3.20 p.m. in the noon. According to Shri. Salunke, when Police Station was situated at a distance of about one furlong, from the house of complainant, it was incumbent upon them to lodge the report in Police Station immediately. The prosecution nowhere explained the delay. Attempt was made to show that, 'original accused No.3, Mirza Phaijulla prevented the complainant from going to the police station etc. Moreover, this co-accused, Mirza Phaijulla was acquitted by the trial Court. The prosecution nowhere explained the delay. Attempt was made to show that, 'original accused No.3, Mirza Phaijulla prevented the complainant from going to the police station etc. Moreover, this co-accused, Mirza Phaijulla was acquitted by the trial Court. In such circumstances, it is difficult to believe that, there was delay in lodging the report in police station, only because, co-accused Mirza Phaijulla prevented the complainant from going to the police station. In such circumstance, as suggested by Shri. Salunke, we have to draw adverse inference that; this much time was spent in concocting the case against the appellant (accused). In other words, the first information report (Exh.14), according to Shri. Salunke, is creation of after thoughts. Therefore, we have to accept that, after consultation with mother and other relatives, complainant Sheela did file report in police station. Thus, the delay is fatal to the prosecution case. We know that, first information report is not a substantive piece of evidence. However, it can be used for limited purposes, for contradicting or corroborating the maker thereof. In the present case, the first information report cannot be used for corroborating the testimony of complainant Sheela because, the delay was not properly explained by the prosecution and it is fatal to the prosecution case. Thus, version of complainant Sheela does not get support from the averments made in the first information report (Exh.14). (iv) It was argued by Shri. Adhav, learned Additional Public Prosecutor, the case of the prosecution entirely based on the evidence of complainant, Sheela and her sister Shakuntala. They both entered in witness box and stated that, the appellant (accused), Mirza Ejaj and his sister (original accused No.2), Sarwaribegum abused them in filthy language, caught hold of them and tried to outrage their modesty, beaten them and insulted them on the basis of caste and untouchability. It was pointed out by Shri. Salunke that, the parties were not knowing each other, since before happening of the incident. It was admitted by the complainant, the appellant and co-accused, before happening of this incident, never tortured or teased them and no such incident occurred earlier. In such circumstances, according to Shri. Salunke, the appellant had no reason, either to abuse, or insult or to beat the complainant. It was admitted by the complainant, the appellant and co-accused, before happening of this incident, never tortured or teased them and no such incident occurred earlier. In such circumstances, according to Shri. Salunke, the appellant had no reason, either to abuse, or insult or to beat the complainant. It was pointed out by Shri. Salunke, any time before happening of the incident, the parties were either not in cordial terms or were in enirnical terms and, therefore, occurrence of such incident, at the hands of appellant cannot be believed. There was no motive, reason or intention to commit such offence. We know that, motive is the reason, which induces a person to do certain act which he intends to do and does. All these aspects, motive, intention, knowledge etc. can be gathered from the circumstances of the case, or the conduct of the parties etc. The prosecution could not establish all these things. In such circumstances, it is very difficult to accept that, the appellant Mirza Ejaj, or his sister misbehaved with the complainant in such manner. There is force in the arguments, advanced by the learned Counsel and we have to accept the same. (v) It was argued by Shri. Adhav that, complainant Sheela and her sister Shakuntala, though were cross-examined to a good length, they are credible witnesses. It was further argued that, the version of complainant Sheela cannot be doubted because, Sheela, or any other woman would not lodge false report in police station at the cost of her chastity, reputation etc. In other words, according to Shri. Adhav, there was no reason for the complainant to file false complaint in police station. In reply, it was argued by Shri. Salunke, such argument cannot be accepted in every matter. In other words, according to Shri. Salunke, every case is to be tested on the facts of each individual case and such argument cannot be accepted and in support of his contention, relied on the decision given by the Apex Court, reported in 2004(8) Supreme 916 : [2005 ALL MR (Cd) 776 (S.C.)] (Pandurang Sitaram Bhagwat Vs. State of Maharashtra). Held: "16. The approach of the learned Trial Judge as noticed supra that ordinarily a lady would not "put her character at stake" may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. State of Maharashtra). Held: "16. The approach of the learned Trial Judge as noticed supra that ordinarily a lady would not "put her character at stake" may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where charges under Sections 376 and 354 of IPC have been found to have been falsely advanced". Therefore, in view of the ratio laid down in the decision, referred to above, the case of the prosecution under Section 354 of I.P.C. always cannot be viewed through this angle. (vi) The learned trial Judge convicted the appellant (accused), for the offence punishable under Section 323 of Indian Penal code, for having beaten PW-Shakuntala by hand. Except bare words of the prosecution witnesses, no other evidence was adduced on record, if the complainant and her sister were beaten by the appellant (accused). According to prosecution, even attempt was made to wrap saree around the neck of complainant and to press her throat, etc. and even though, she was beaten, the Investigating officer, for the reasons best known to him, did not refer her for medical examination and treatment to the Medical a Officer. Thus, except bare words of the complainant, there is no medical evidence to support the prosecution case. Thus, the conviction recorded under Section 323 of Indian Penal Code, is without any basis. (vii) It was argued by Shri. Salunke that, it was incumbent upon the prosecution to establish that, complainant Sheela belongs to Scheduled Caste and, therefore, the offence under the provisions of Act of 1989 is complete. It was pointed out by Shri. Salunke, therefore, the trial Court, in para 6 of the Judgment was wrong in holding that, " 6. ...There is no dispute with regard to the fact that they are the members of Scheduled Caste." After pointing out all these things, it was argued by Shri. Salunke that, the appellant (accused) never admitted this fact: The learned Judge wrongly and without any basis, held this fact as proved, being admitted. If we go through the record and proceedings then, it will come to the notice that, the appellant (accused) really nowhere admitted this fact. If we go through the record and proceedings then, it will come to the notice that, the appellant (accused) really nowhere admitted this fact. Therefore, in view of the submissions made by Shri. Salunke, it was incumbent upon the prosecution to establish the caste and then should have proceeded further. After pointing out all these things, it was argued by Shri. Salunke that, the prosecution did not at all adduce any evidence, in form of caste certificate etc. and failed to establish the caste and in support of his contention, relied on the decision reported in 1999(2) Mh. L.J. 36 (Ashabai Ganeshrao Khote and another Vs. State of Maharashtra). Held: "Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act contemplates that the prosecution must establish that the accused was not member of Scheduled Caste or Scheduled Tribe and the person aggrieved was the member of Scheduled Caste or Scheduled Tribe. This is the important ingredient to establish the offence under section 3 and there must be specific evidence with respect to both these aspects". In view of the ratio laid down in the decision, referred to above, it was incumbent upon the prosecution to establish the caste with the help of cogent evidence. For want of any evidence on record, the learned Judge was wrong in holding that, the complainant belongs to Scheduled Caste. (viii) It was pointed out by Shri. Salunke, in the first information report, complainant Sheela More nowhere mentioned that, she belongs to Scheduled Caste. Therefore, the doubt raised by the appellant (accused) about the caste of the complainant was genuine. Shri. Salunke taken us through the statement of the appellant (accused), recorded under Section 313, Cr. P.C. and pointed out that, his statement was not at all properly recorded. It was further pointed out that, no questions pertaining to the caste of the complainant etc. were put to the appellant (accused) under Section 313, Cr.P.C. Therefore, appellant (accused) had no occasion to deny the caste etc. There is no scope for doubt that, no such questions were put to the appellant (accused). Therefore, he had no opportunity to deny the caste of the complainant. were put to the appellant (accused) under Section 313, Cr.P.C. Therefore, appellant (accused) had no occasion to deny the caste etc. There is no scope for doubt that, no such questions were put to the appellant (accused). Therefore, he had no opportunity to deny the caste of the complainant. If we go through the statement of the appellant (accused), recorded under Section 313, Cr.P.C. then, it will come to the notice that, the questions framed and put by the Special Judge to the appellant (accused) run into more than 15 lines. Each question consists number of aspects, number of acts, alleged to have done by the appellant (accused). The purpose of examination of the accused under Section 313, Cr.P.C. is to enable the accused to explain each and every circumstance, appearing against him in evidence properly. The learned Judge did not at all properly record the statement of accused and this caused great prejudice to the appellant (accused). Shri. Salunke, in support of his contention, relied on the decision given by this Court earlier, reported in 1999(2) Mh.L.J. 36 (Ashabai Ganeshrao Khote and another Vs. State of Maharashtra). Held: "The provisions of section 313 of Criminal Procedure Code clearly indicate that any circumstance appearing against the accused must specifically be put to the accused to obtain his explanation and to give him chance of defence. So each and every circumstance appearing against the accused is required to be put to the accused separately in small questions understandable to the accused. Where the questions were running into more than 15 to 20 lines containing various aspects of deposition of the witness the same cannot be called a proper examination of the accused under section 313 of Criminal Procedure Code. The practice of putting lengthy questions to the accused must be depricated. Where the accused were not given proper opportunity at the time of recording their statements under section 313, Criminal Procedure Code the conviction and sentence could not be upheld." Similar view was taken by the Division Bench of this Court in the decision, reported in 2001 ALL MR (Cri) 2300 (Raju S/o Sureshsingh Thakur Vs. The State of Maharashtra). Where the accused were not given proper opportunity at the time of recording their statements under section 313, Criminal Procedure Code the conviction and sentence could not be upheld." Similar view was taken by the Division Bench of this Court in the decision, reported in 2001 ALL MR (Cri) 2300 (Raju S/o Sureshsingh Thakur Vs. The State of Maharashtra). Held: "Examination of accused - Putting questions to him - Procedure Questions must be fair and simple Must not be confusing and misleading." As the examination of the accused was not properly conducted, as provided under the mandatory provisions of Section 313 of Cr.P.C., the appellant (accused) is entitled to acquittal. (ix) It was argued by Shri. Salunke, after referring the Rojnama (Order sheet) of the Special Case No.22 of 1996, dated Nil that, the appellant (accused) and co-accused were charge-sheeted, tried etc. for the offences, punishable under the provisions of Act of 1989 and, therefore, it was incumbent upon the Investigating Officer to file the charge-sheet in the Court of concerned Judicial Magistrate, First Class and then, after committal, the Special Judge should have tried and decided the case. In other words, according to Shri. Salunke, the charge-sheet was directly filed in the Court of Special Judge, Beed and, therefore, in view of the present legal position, the Special Judge was not competent to take cognizance, as the chargesheet was not filed in the Court of Magistrate and was not committed to the Special Court and in support of his contention, relied on the decision given by the Apex Court, reported in 2004(2) Supreme 528 (M. A. Kuttappan Vs. E. Krishnan Nayanar and Anr.). "Held: Thus the Court of Sessions is specified to conduct a trial and no other court can conduct the trial of offences under the Act. The legislative intent was to ensure that the offences under the Act were tried by Special Court and Court of Sessions was specified as a Special Court under Section 14 of the 1989 Act. Even after being so specified as a Special Court the Court of Session continues to be essentially a Court of Session and its designation as a Special Court did not den tide it of its character or even powers as a Court of Session. Even after being so specified as a Special Court the Court of Session continues to be essentially a Court of Session and its designation as a Special Court did not den tide it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code of Criminal Procedure which contains a fasciculus of provisions for trial before a court of Session. In view of the aforesaid decisions of this Court it could not be contended before us that the Special Judge had jurisdiction to entertain the complaint directly and to issue process after taking cognizance without the case being committed to it by a competent Magistrate. The question is no longer res integra and, therefore, it must be held that the learned Special Judge in the instant case a erred in entertaining a complaint filed before I it and in issuing process after taking cognizance without the case being committed to it for trial by a competent n Magistrate. Though the High Court has quashed the proceeding on a different ground altogether, we are satisfied that the impugned order of the Special Judge deserves to be set aside so far as it related f to its taking cognizance of an offence under f the 1989 Act, and issuing process on the basis of the complaint directly made before it by the complainant." Shri. Salunke further referred the decision given by this Court in Criminal Appeal No.44 of 1995, in which the same point arose for consideration and the Court, relying on the decision given by the Apex Court in M.A. Kuttappan (supra), held that, the Special Judge was wrong in taking cognizance of the matter, which was not committed to him by the Magistrate. Therefore, in view of this legal position, in the present case also, the Special Judge was wrong in taking cognizance of the matter. After going through the entire evidence on record and the legal position, it was pointed out by Shri. Salunke that, the learned Judge did not at all properly consider the evidence, nor did properly follow the procedure laid down under the Code. For all these reasons, we have to accept the submissions made by Shri. Salunke. No fair and proper trial of the appellant (accused) was taken and completed by the Special Judge. For all these reasons, we have to accept the submissions made by Shri. Salunke. No fair and proper trial of the appellant (accused) was taken and completed by the Special Judge. The Special Judge did not at all properly consider the evidence and, therefore" arrived at wrong conclusion. Therefore, it is necessary to interfere with the findings and the order, recorded by the learned Judge. In the result, appeal must succeed. Criminal Appeal No.156 of 1997 is allowed. The Judgment and Order, passed by Special Judge, Beed in Sessions Case No.22 of 1996 on 30-4-1997, thereby convicting the appellant (accused), Mirza Ejaj Baig s/o. Ahmed Baig, for the offence punishable under Sections 3( 1 )(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and for the offence punishable under Sections 323 and 354 of the Indian Penal Code and sentencing him to suffer substantive sentence of imprisonment, for different terms on different counts and also ordering him to pay the fine amount, is quashed and set aside and. The appellant (accused), Mirza Ejaj Baig s/o. Ahmed Baig, is acquitted of the offence, punishable under Section 3(l)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and of the offence punishable under Sections 323 and 354 of the Indian Penal Code. His bail bond, surety bond stand cancelled. Amount of fine, if deposited be refunded to the appellant (accused). Criminal Appeal No.156 of 1997 is allowed accordingly. Order accordingly.