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Madhya Pradesh High Court · body

2012 DIGILAW 112 (MP)

Sunderlal v. State of M. P.

2012-01-24

U.C.MAHESHWARI

body2012
JUDGMENT : Thisappeal is directed by the appellant under Section 374 (2) of the Cr.PC being aggrieved by the judgment dated 7-4-1999 passedby the Special Judge, Chhindwara [constituted underthe Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (inshort 'the Act') in Special Case No. 52/95 whereby he has been convicted underSection 3 (1)(x)of the Act with a direction to undergo for RI six months withfine of? 1000/-. In default of depositing the fine, further RI 1 month has beenawarded. 2.The facts giving rise to this appeal in short are that on dated 5-7-95 at about21.35 in the night, the complainant Rajendra Kumar Chouria ( Chamar ) lodged the FIRas Crime No. 303/95 at P.S. Junardeo contending thatat about 8 o'clock in the evening of 5-7-95, he accompanied with his friends,namely, Shyam , Ramesh and Badrudeen Quereshi was standingin front of Rampura Cycle Shop. At the same time,appellant, who was posted as Junior engineer in the Madhya Pradesh lilectricity Board, Suwai camethere on his motorcycle and by abusing him with filthy language, also by takingname of his caste " Chamar Sale" asked himthat he has set right so many persons like him at Ghansor and he will see him also. Such activity of the appellant had annoyed him aswell as to his friends. As per further averments, the complainant was alsoasked by .the appellant saying that if he will not follow his instructions thenhe will make arrangement for his suspension from the department. As per furtheraverments of the FIR, the complainant was working in the same department assubordinate of the appellant. On such report, the offence of Sections 294, 506of the IPC and Section 3 (1) (x) of the Act was registered. The same wasinvestigated. On completion of the same, the appellant was charge-sheeted forhis prosecution under the aforesaid sections. On evaluation of thecharge-sheet, only charge of Section 3 (1) (x) of the Act was framed againstthe appellant lie abjured the guilt, on which, the trial was held in which asmany as four witnesses were examined by the prosecution while two witnesseswere examined in defence on behalf of the appellant.On appreciation of the evidence, after holding guilty to the appellant underthe aforesaid offence, he was punished with the above-mentioned punishment. 3. 3. Shri Y.P. Sharma, learned Counsel for the appellantafter taking me through the record of the Trial Court as well as the impugnedjudgment argued that the investigation was not carried-out by the CompetentInvestigating Officer as provided under Rule 7 of the Scheduled Caste andScheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules'),according to which the investigation of the impugned case for the aforesaidoffence under the Act could be carried-out only by suchPolice Officer who is not below the rank of Deputy Superintendent of Police andsuch Investigating Officer should be appointed by the State Government/DirectorGeneral of Police or the Superintendent of Police, as per the scheme providedunder such Rules. So, firstly, in such premises, the investigation was carriedout by the incompetent person, the Inspector or Sub Inspector of Police, theimpugned conviction under the Act, is not sustainable because the charge-sheetitself was not entertain able in the lack of the investigation by the properauthority. In support of this contention, he placed his reliance on thedecision of the Apex Court in the matter of State of Madhya Pradesh Vs. Chunnilal alias Chunni Singh,2010 (II) MPJR (SC) 249. Besides this, on merits of the matter, he argued thaton accepting the entire evidence as it is, even then, in the lack of anydocument or the certificate of caste showing caste of the complainant/victimcovered under the Act, mere on the oral testimony of the complainant/victim orother witnesses, the Trial Court should not have held him to be the person ofsuch community covered under the Act. He also said that it is apparent fact onrecord that neither such certificate was obtained in the investigation norproduced or proved by the prosecution in any manner. In such premises, he saidthat in the lack of such material evidence, the appellant deserves foracquittal in the matter. He further argued that looking to the nature of thecase, in order to rebut the evidence regarding caste of the complainant, theappellant could not get the opportunity of cross-examination of theInvestigating Officer namely, T.R. Hindolia the SubInspector of Police of the case because he was not examined by the prosecutionon account of his death. It was also argued that on account of somedepartmental dispute there was earlier enmity between the appellant and thecomplainant who was working as subordinate clerk of the appellant but suchaspect was also not taking into consideration. It was also argued that on account of somedepartmental dispute there was earlier enmity between the appellant and thecomplainant who was working as subordinate clerk of the appellant but suchaspect was also not taking into consideration. Even the evidence adduced by theappellant in his defence was not considered withproper approach. He further argued that after more than 15 years from the dateof the incident, even after extending acquittal to the appellant from theaforesaid charge, on account of non-framing the charge of Sections 294,506 ofthe IPC, the case should not be remanded back to the Trial Court for holdingthe trial under such sections. In support of this contention he said that theappellant should not suffer because of non-framing the charge ofabove-mentioned section of the IPC and prayed for extending acquittal to theappellant by setting aside the impugned conviction by allowing this appeal. 4.On the other hand, Shri Rakesh Kesharwani , learned Panel Lawyer by justifying the impugnedconviction and sentence of the appellant under the aforesaid provision of theAct said that the same being based on proper appreciation of evidence, so alsoon the basis of unrebutted testimony of complainant Rajendr ; Kumar (P.W. 2), do not require any interference atthis stage. In response of some query of the Court, he fairly conceded that theinvestigation of the impugned case, was neithercarried out by any Deputy Superintendent of Police or any officer above therank of such officer nor any specific order in this regard was passed either bythe State Government or by any other senior officials of the Police. With thesesubmissions, he prayed for dismissal of this appeal. 5.Having heard the Counsel at length, keeping in view their arguments, I havecarefully gone through the record of the Trial Court along with the impugnedjudgment. Before proceeding further, as ready reference, I would like toreproduce Rule 7 of the Rules enacted under the Act which has came into forcesince 31-3-95 before registration of the impugned offence. The same reads as under : - "7.Investigating Officer.- (1)An offence committed under the Act shall be investigated by a police officernot below the rank of a Deputy Superintendent of Police. The InvestigatingOfficer shall be appointed by the State Government, Director General of Police, Superintendent of Police after taking into account hispast experience, sense of ability and justice to perceive the implications ofthe case and investigate it along with right lines within the shortest possibletime. The InvestigatingOfficer shall be appointed by the State Government, Director General of Police, Superintendent of Police after taking into account hispast experience, sense of ability and justice to perceive the implications ofthe case and investigate it along with right lines within the shortest possibletime. (2)The Investigating Officer so appointed under sub-rule (1) shall complete theinvestigation on top priority within thirty days and submit the report to theSuperintendent of Police who in turn will immediately forward the report to theDirector General of Police of the State Government. (3)The Home Secretary and the Social Welfare Secretary to the State Government,Director of Prosecution the Officer-in-charge of Prosecution and the DirectorGeneral of Police shall review by the end of every quarter the position of allinvestigations done by the Investigating Officer.'' Undisputedly,the impugned case was registered with respect of the incident of dated 5-7-95on the same day and on such date the aforesaid Rule was in existence andaccording to it, the investigation of the impugned case, with respect of theoffence covered under the Act, should have been carried out by the PoliceOfficer not below the rank of Deputy Superintendent of Police. But as per deposition of Mr. Mudrika Prasad (P.W. 1) Sub Inspector of Police, after registration of the FIR ( Exh . P-3) by Mr. N.P. Devalia ,Inspector of Police, appellant was arrested by T.R. Hindolia ,Sub Inspector of Police by preparing arrest memo ( Exh . P-1). The spot map ( Exh .P-2) which was the material part of the investigation, was also prepared by T.R. Hindolia , Sub Inspector ofPolice. It also appears from the other papers available on record that furtherinvestigation of the case was carried out by other Police Officer below therank of Deputy Superintendent of Police. It is noted that before recording theevidence in the matter, said Sub Inspector T.R. Hindolia passed away. In such premises, the prosecution had not examined him. So,apparently, the investigation was not carried out by the Competent Authorityprescribed under the aforesaid Rule 7 of the Rules. In such premises, even atthe initial stage, the charge-sheet filed by the prosecution in respect of theoffence covered under the Act, was not sustainable and pursuant to it, theimpugned conviction of the appellant under Section 3 (1) (x) of the Act couldnot be sustained. In such premises, even atthe initial stage, the charge-sheet filed by the prosecution in respect of theoffence covered under the Act, was not sustainable and pursuant to it, theimpugned conviction of the appellant under Section 3 (1) (x) of the Act couldnot be sustained. As such, the Trial Court has committed grave error inconvicting the appellant under the aforesaid section of the Act withoutconsidering the aforesaid legal position, therefore, the approach of the TrialCourt in this regard, deserves to be and is hereby set aside. 6.My aforesaid view is fully fortified by the decision of the Apex Court in thematter of State of Madhya Pradesh Vs. Chunnilal alias Chunni Singh (supra), cited by the appellant'sCounsel in which it was held as under :- "6.By virtue of its enabling power it is the duty and responsibility of the StateGovernment to issue notification conferring power of investigation of cases bynotified police officer not below the rank of Deputy Superintendent of Policefor different areas in the police districts. Rule 7 of the Rules provided rankof Investigation Officer to be not below the rank of Deputy Superintendent ofPolice. An officer below that rank cannot act as Investigating Officer. Theprovisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of theCode when jointly read lead to an irresistible conclusion that the investigationto an offence under Section 3 of the Act by an officer not appointed in termsof Rule 7 is illegal and invalid. But when the offence complained are bothunder the IPC and any of the offence enumerated in Section 3 of the Act theinvestigation which is being made by a Competent Police Officer in accordancewith the provisions of the Code cannot be quashed for non-investigation of theoffence under Section 3 of the Act by a Competent Police Officer. In such asituation the proceedings shall proceed in appropriate Court for the offencespunishable under the IPC notwithstanding investigation and the charge- slieet being not liable to be accepted only in respect ofoffence under Section 3 of the Act for taking cognizance of that offence." Inview of the aforesaid principle of the Apex Court if the impugned case is examined then it is apparent that besides the aforesaidoffence of the Act, the charge-sheet was also filed with respect of the offenceof Sections 294 and 506 of the IPC. There is no disputed on the legalproposition that in the lack of investigation of the case by the properauthority, even after quashing or excluding the change of any section of theAct, the case could have been proceeded further tohold the trial for the aforesaid offence of IPC. Itis undisputed fact that on framing the charge by the Trial Court, the charge ofSections 294 and 506 of the IPC was not framed against the appellant and beingaggrieved by such order, neither the State Government nor the complainant, hascome to this Court, either by way revision at the interlocutory stage oragainst the final judgment of the Trial Court. So, in the lack of any suchproceeding, at the instance of the State or the complainant, after more than 15years from the date of the incident, I do not find fit to remand the matter tothe Trial Court with a direction to frame the aforesaid charge of the offenceand hold fresh trial in that regard. 8.In the aforesaid premises, keeping in view the provision of Section 222(1) ofthe Cr.PC , I have gone through the charges framed bythe Trial Court. In such charge, I have found that the material ingredients ofthe offence of Sections 294 and 506 of the IPC are mentioned, although whileframing the charge no such specific sections of the IPC are mentioned in thesame. It is needless to state here that all the aforesaid factual matrix of thecase stated in the charges were denied by the appellant, on which, the trialwas held against him. So, in such premises, it could be said that the appellanthas faced the trial with full understanding that by mentioning the necessaryfacts of the charge of Sections 294 and 506 of the IPC has been framed againsthim. So, mere non-mentioning the Sections 294 and 506, IPC specifically in theframed charge, does not stop the hands of the Court to examine the matterkeeping in view such angle also. In the aforesaid premises, keeping in view theingredients of Sections 294 and 506 of the IPC, the case is being examined byme. So, mere non-mentioning the Sections 294 and 506, IPC specifically in theframed charge, does not stop the hands of the Court to examine the matterkeeping in view such angle also. In the aforesaid premises, keeping in view theingredients of Sections 294 and 506 of the IPC, the case is being examined byme. 9.It is apparent fact from the FIR itself that the complainant was working assubordinate clerk in the office of the appellant and, on account of somedepartmental work there was some earlier enmity between the appellant and thecomplainant and, in such premises, such enmity could not be said to be theenmity on account of caste of the appellant covered under the Act. Rajendra Kumar (P.W. 2) on recording his depositioncategorically stated that the alleged incident took place on the public road infront of Rampura Cycle Shop where he accompanied withhis friends Shyam , Ramesh and Badruddin Quereshi wereon evening walk. He also stated about the alleged abuse but he was not statedthe specific particulars regarding alleged criminal intimidation given by theappellant to the victim. It is stated that the alleged incident took place atabout 8 o'clock in the night while thecomplainant had stated that the incident took place at about 7 o'clock in the evening. On perusal of thedeposition of aforesaid examined all three witnesses, the fact regardingprevious enmity between the appellant and the complainant has been established. 10.Undisputedly, the supporting witnesses, Rajendra (P.W. 2) and Ramesh (P.W. 4) are the nearest friendsof the appellant. So, in such premises, their depositions has to be examined carefully by the Court keeping in view the evidence led by theappellant in his defence . The appellant has examinedtwo witnesses in his defence . Out of them Pramod (D.W. 1) who was also working as UDC in the samedepartment, on recording his deposition has categorically stated that thecomplainant was working as LDC under the subordination of the appellant andthere was fraction between the appellant and the complainant because on accountof the political approach of the complainant and on account of such approach,he was interfering in the regular work of the department. He was also notworking in accordance with the direction of the senior official. Variouscorrespondence and complaints in this regard were received from the publicagainst the complainant, on which, being senior officer of the departmentappellant gave him some notices and, on account of that the complainant hadenmity with the appellant. He was also notworking in accordance with the direction of the senior official. Variouscorrespondence and complaints in this regard were received from the publicagainst the complainant, on which, being senior officer of the departmentappellant gave him some notices and, on account of that the complainant hadenmity with the appellant. In such premises, this possibility could not beruled out that due to such enmity, with the assistance of the nearest friends,by fabricating the false story the appellant was falsely implicated by thecomplainant in the matter. It is apparent fact that even on cross-examinationof this defence witness at length, the defence of the appellant regarding departmental disputewith the complainant has not be destroyed. Thetestimony of this witness is further supported by the documents relating to thecomplaint proceedings of the complainant ( Exh . D-1 toD-8) proved by Mr. P. Balaram Moorty (D.W. 2) the Executive Engineer of the same department. 11.Keeping in view the aforesaid defence evidence, onexamining the case, I am of the view that mere on the aforesaid testimony ofthe complainant/victim and his above mentioned friends, namely, Shyam (P.W. 3) and Ramesh (P.W.4) the person like appellant could not be convicted under any of the aforesaidoffence, unless the story put forth by these witnesses is supported by someindependent witnesses or independent source of the evidence. I deem fit tomention here that as per prosecution the alleged incident took place in theevening on busy main market when so many shop-keepers and other independentpersons were present but out of them none of them was examined nor any explanationregarding their not examination has been put forth by the prosecution onrecord. 12.It is settled proposition of the law that where there is serious animus betweenthe accused and the complainant party then unless the story put forth by theprosecution and complainant is supported by the independent source of theevidence, the accused could not be convicted mere on the testimony of suchcomplainant and his interested witnesses having the enmity with the accused.Such principle was laid down by the Apex Court in the matter of Bir Singh and others Vs. State of Uttar Pradesh, AIR 1978SC 59, in which it, was held as under :- "9.Where all the eye-witnesses examined by the prosecution had serious animusagainst the accused and were interested in implicating the accused and neitherindependent witnesses were examined nor any reasonable explanation was given bythe prosecution, the Court would be justified in drawing an adverse inferenceagainst the prosecution." Placitum 13.In view of the aforesaid even on taking into consideration the language of thecharge framed by the Trial Court with respect of the offence of Section 294 and506 of the IPC also, the appellant could not be convicted for such offence inthe matter. In view of the aforesaid discussion, the impugned judgment beingperverse, infirm and contrary to the law, deserves tobe set aside. 14.Therefore, by allowing this appeal, the impugned judgment of the Trial Courtholding conviction and sentence against the appellant under Section 3(1) (x) ofthe Act is hereby set aside and he is acquitted from such charge. In theavailable circumstances, the appellant is also acquitted from the charge ofSections 294 and 506 of the IPC. The amount of fine, if deposited, be refunded to the appellant after proper verification. Thebail bonds of the appellant are hereby discharged. 15.The appeal is allowed as indicated above.