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2012 DIGILAW 870 (KAR)

Basavaraja v. State of Karnataka

2012-10-05

K.N.Keshavanarayana

body2012
JUDGMENT K.N. Keshavanarayana, J: This appeal is directed against the judgment and order dated 01.10.2005 passed by the Special Judge, Hassan, in Special Case No. 100/2001 convicting Appellant No.1/Accused No.1 for the offences punishable under Sections 341 and 324 of IPC and also under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Special Act') and convicting Appellant No.2/Accused No.2 for the offence punishable under Section 324 of IPC. 2) Appellants-1 & 2 along with five other persons were tried for the offences punishable under Sections 143, 341, 324, 323 & 506 r/w. 149 of IPC and Sections 3(1)(x) and 3(1)(xi) of the Special Act inter alia alleging that, at about 12.30 pm on 31.12.1994 when the complainant and his family members were removing the paddy crop in their land situated in Karjuvalli Village, these appellants and other accused forming themselves into an unlawful assembly by sharing a common object, came near the land and among them, Accused No.1 wrongfully restrained the complainant: PW. 1-Shivanna, a member of scheduled caste and abused him touching his caste with an intention to insult and humiliate him and then assaulted him with a sickle and also threatened to take away his life and when PW.4 came to the rescue of PW. 1, Accused No.2 assaulted PW.4 with a sickle and abused him by taking his caste name and when PW.5- Ravi came to the rescue of PW.4 and PW.1, he was also assaulted by Accused No.2 and when PW.6-Dyavamma came to the rescue of her sons, Accused No.1 abused her and caught-hold of her tuft, pushed her by threatening to kill her and all the accused persons abused the complainant, his brothers and others touching their caste. 3) The accused persons pleaded not guilty for the charges levelled against them. The prosecution in order to bring home the guilt of the accused persons, examined PWs. 1 to 9 and produced documentary evidence-Exs.P1 to 15 and material objects-MOs. 1 & 2. Accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They did not choose to lead any defence evidence. Their defence was one of total denial and that of false implication. 1 to 9 and produced documentary evidence-Exs.P1 to 15 and material objects-MOs. 1 & 2. Accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They did not choose to lead any defence evidence. Their defence was one of total denial and that of false implication. 4) After hearing the learned Counsel appearing on both sides and on assessment of oral as well as documentary evidence, the learned Special Judge by the judgment under appeal held that the prosecution has failed to prove the guilt of Accused Nos. 3 to 7 for any of the charges levelled against them and consequently acquitted all of them of all the charges. However, learned Special Judge held that the evidence on record satisfactorily established that Accused No.1 abused PW. 1, a member of the Schedule Caste touching his caste with a view to insult and humiliate him in public place" therefore, he is guilty of the offence punishable under Section 3(1)(x) of the Special Act. The learned Special Judge also held that the prosecution has proved the guilt of Accused No.1 for the offences punishable under Sections 341 and 324 of IPC. The learned Special Judge further held that Accused No.2 is guilty of the offence punishable under Section 324 of IPC. In that view of the matter, Accused Nos. 1 & 2 were convicted for the aforesaid offences. Accused No.1 was sentenced to undergo imprisonment for six months and to pay fine of Rs. 500/- for the offence punishable under Section 3(1)(x) of the Special Act and he was further sentenced to pay fine of Rs. 300/- for the offence punishable under Section 341 of IPC and to pay fine of Rs. 2,500/- for the offence punishable under Section 324 of IPC. Accused No.2 was sentenced to pay fine of Rs. 2,500/- for the offence punishable under Section 324 of IPC. Aggrieved by the said judgment of conviction and order of sentence, the appellants/Accused Nos. 1 & 2 have filed this appeal. 5) I have heard the learned Counsel appearing for the appellants and the learned Government Pleader appearing for the Respondent-State. Perused the records secured from the trial Court. 2,500/- for the offence punishable under Section 324 of IPC. Aggrieved by the said judgment of conviction and order of sentence, the appellants/Accused Nos. 1 & 2 have filed this appeal. 5) I have heard the learned Counsel appearing for the appellants and the learned Government Pleader appearing for the Respondent-State. Perused the records secured from the trial Court. 6) With regard to the conviction recorded for the offence punishable under Section 3(1) (x) of the Special Act against Accused No.1, the learned Counsel for the appellants contended that the said conviction cannot be sustained for the reason that the investigation into. the said offence was carried on by an officer who was not of the rank of Deputy Superintendent of Police as mandated by Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short, 'Rules') framed by• the Central Government. Therefore, the trial is vitiated, as such, the conviction recorded for the said offence is liable to be set aside. In this regard, learned Counsel for the appellants placed reliance on several decisions of the High Court of Madras, Andhra Pradesh and Madhya Pradesh. With regard to other offences, learned Counsel contended that the judgment is highly perverse and illegal, and liable to be set aside. 7) Learned High Court Government Pleader did not seriously dispute the fact that the investigation of the case was conducted by a police officer below the rank of Deputy Superintendent of Police. Nevertheless, he contended that the investigation carried on by an officer other than the designated officer under Rule 7 of the Rules itself cannot be a ground to hold the trial as vitiated. According to him, it is a curable defect under Section 465 of Cr.P.C. He contended that the learned Special Judge has recorded finding of guilt against Accused Nos. 1 & 2 on proper appreciation of evidence and those findings being sound and reasonable does not warrant interference by this Court. 8) In the facts and circumstance of the case, the points that arise for consideration are, i) Whether the conviction recorded for the offence punishable under Section 3(1)(x) of the Special Act is vitiated for the reason that the investigation of the case was carried on by an officer below the rank of Deputy Superintendent of Police, as mandated by Rule 7 of the Rules? ii) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? 9) I have bestowed my anxious considerations to the submissions made by the learned Counsels appearing on both sides. 10) Perusal of the record indicates that the First Information Report about the incident was lodged by PW.1 as per Ex.P1 at about 5.00 pm. on 31.12.1994 before CW 13-S.R. Vittal Murthy, ASI, Alur police station, based on which, he registered the case and handed over the investigation of the case to PW.9- C.Siddappa, Circle Inspector of Rural Circle of Hassan on 01.01.1995. The evidence of PW.9 indicates that he took-up investigation of the case on 01.01.1995, recorded the statements of witnesses, apprehended the accused persons, seized the weapons used in the commission of the offences, produced the accused persons before the Court along with remand application, collected the caste certificates and other necessary documents, and ultimately filed the charge sheet. Thus, from the above it is clear that the entire investigation of the case was carried on by PW.9. who was of the rank of Circle Inspector. 11) Section 23(1) of the Special Act empowers the Central Government to make rules for carrying-out the purposes of the Act. In exercise of the power under sub-section (1) of Section 23 of the Special Act, the Central Government has framed Rules called ‘The Scheduled Caste and The Scheduled Tribe (Prevention of Atrocities) Rules, 1995’ and the same was brought into force with effect from 31.03.1995. 12) Rule-7 of the Rules, 1995, read as under: "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. (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 officer-in-charge 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." As could be seen from the above rule, it is clear that the offence under the Act is mandatorily required to be investigated by a police officer not below the rank of Deputy Superintendent of Police. 13) Reading of Rule-7 of the Rules would further indicate that all Deputy Superintendents of Police are not permitted to investigate the offence under the Special Act. Only officer of that rank appointed by the State Government/Director General of Police/Superintendent of Police is empowered to investigate the offence and while making such appointment, the concerned authority should take into account the past experience of the officer, his sense of ability and capacity to perceive the implications of the case and investigate it along with right lines within the shortest possible time. Thus, from the above, it is clear that the said Rule is mandatory and investigation into the offences under the Act is required to be done by a Police Officer not below the rank of Deputy Superintendent of Police appointed for the said purposes by the State Government or Director General of Police or Superintendent of Police. As noticed supra, in the case on hand, the investigation was not carried on by the designated officer under Rule-7 of the Rules. 14) Now the question would be, "Whether the trial held in this case for the offences punishable under the Special Act which was investigated by an officer in breach of the mandatory requirement of Rule-7 of the Rules, is vitiated and the conviction recorded by the trial Court on that basis is required to be set aside? 15) The purpose and object sought to be achieved by the Special Act is to minimize the offences against the members of the Scheduled Caste and Scheduled Tribe. 15) The purpose and object sought to be achieved by the Special Act is to minimize the offences against the members of the Scheduled Caste and Scheduled Tribe. Therefore, in order to ensure that there would be no misuser of the Act, the Central Government framed Rule 7 of the Rules laying down not only that the investigation should be done by an officer not below the rank of Deputy Superintendent of Police, but also has laid down that such officers should be specifically appointed by the State Government or D.G.P. or Superintendent of Police for investigation of the offences under the Special Act and while appointing such officers, the Government or the other authorities, as the case may be, should also take into consideration the past experience of the officer, his sense of ability and capacity to perceive the implications of the case by the officers of that rank. Thus, the investigation done by an officer other than the one specified under Rule-7 of Rules would certainly go to the root of the matter and it vitiates the entire proceedings. 16) In the case of Chinnaswamy Vs. The State reported in 2000 Crl. L.J., 956, the Madras High Court had an occasion to consider this aspect of the matter and has held that the investigation done by the Inspector of Police, who is not of the rank of Deputy Superintendent of Police, as mandated by Rule-7 of the Rules, goes to the root of the matter and it vitiates the entire proceedings. 17) In the case of D. Ramalinga Reddy @ D.Babu Vs. State of A.P. reported in 1999 Crl. L.J. 2918, Andhra Pradesh High Court while dealing with the appeal filed against the judgment of conviction passed by the trial Court for the offence punishable under Section 3(1)(xi) of the Special Act in respect of the case which had been investigated by an officer other than the one specified under Rule-7 of the Rules, has held that the entire trial is vitiated and the conviction for the offence under the Act cannot be sustained. In this decision, reliance has been placed on the earlier decision of the Madras High Court in N. Ramu Vs. Superintendent of Police, Villupuram (1998 Mad. L.J. (Crl) 132), similar view has been expressed by the Madhya Pradesh High Court in the case of Dhanraj Singh Vs. In this decision, reliance has been placed on the earlier decision of the Madras High Court in N. Ramu Vs. Superintendent of Police, Villupuram (1998 Mad. L.J. (Crl) 132), similar view has been expressed by the Madhya Pradesh High Court in the case of Dhanraj Singh Vs. State of M.P. [2005 Crl.L.J. 3782], by a Division Bench of the Andhra Pradesh High Court in Viswanadhula Chittibabi Vs. State of A.P. (2002 (4) Andhra Law Times Reports 456), and again by Madras High Court in the case of Smabasivam Vs. State Vs. Deputy Superintendent of Police in Criminal Appeal No.713/1999 disposed of on 07.12.2006. 18) In the light of the principles laid-down in the above said decisions, I am of the considered opinion that the conviction recorded by the trial Court for the offence punishable under Section 3(1)(x) of the Special Act against Accused No.1 is vitiated since the investigation into the offence has not been carried on by the officer of the rank of Deputy Superintendent of Police, as mandated by Rule 7 of the Rules. Therefore, conviction recorded for the said offence cannot be sustained and it is liable to be set aside. 19) With regard to the other offences for which the appellants/Accused Nos. 1 & 2 have been found guilty under the provisions of Indian Penal Code, I am of the considered opinion that the evidence on record clearly establishes that there was an incident of assault, in which Accused Nos. 1 & 2 assaulted PWs. 1 & 4 with dangerous weapon like sickle and caused them hurt. That part of the evidence has not been shaken in the cross-examination. Their evidence is consistent and cogent, therefore, the learned Special Judge on proper appreciation of the evidence, has held that the appellants/Accused Nos. 1 & 2 are guilty of those offences and the findings recorded by learned Special Judge in this regard being sound and reasonable does not warrant interference by this Court. 20) Having regard to the fact that the appellants/Accused Nos. 1 & 2 are guilty of those offences and the findings recorded by learned Special Judge in this regard being sound and reasonable does not warrant interference by this Court. 20) Having regard to the fact that the appellants/Accused Nos. 1 & 2 have been sentenced only to pay fine for the aforesaid offences under the Indian Penal Code and the learned Counsel for the appellants also has not seriously questioned the correctness of the finding recorded by the trial Court convicting the appellants for those offences, I find no grounds to interfere with the judgment of conviction for the offences punishable under Indian Penal Code. PW.9-Circle Inspector was competent to investigate those offences, therefore, the conviction recorded for those offences is not vitiated. In view of the above, the appeal deserves to be allowed-in-part. 21) In the result, the appeal is allowed-in-part. The judgment of conviction and order of sentence convicting Appellant/Accused No.1 for the offence punishable under Section 3(1)(x) of the Special Act is hereby set aside. Appellant/Accused No.1 is acquitted of the said charge. However, the judgment of conviction, convicting appellant/Accused No.1 for the offences punishable under Sections 341 and 324 of IPC and convicting Accused No.2 for the offence punishable under Section 324 of IPC is hereby confirmed: The sentence of fine ordered by the trial Court for the aforesaid offence is also confirmed. If the fine amount as ordered by the trial Court is already not deposited, the appellants/Accused Nos. 1 & 2 are directed to deposit the same within two weeks from today, failing which, the trial Court shall take necessary steps to recover the fine amount from them.