[1] The present appeal, under Section 374(2) of the Criminal Procedure Code, is filed by the appellant (original accused) against the judgment and order dated 30.8.1997 passed by the learned Special Judge, Jamnagar, whereby learned Judge has held the appellant guilty for the offences under Sections 323, 504, 506(2) of Indian Penal Code and under Section 3(1)(10) of Atrocity Act and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- in default to further undergo simple imprisonment for one month.
[2] The brief facts of the prosecution case are that on 28.03.1995 at about 8.00 a.m, when the complainant was riding his motor cycle on the Keshiya Jodiya Road, the accused Manji J. Ghetiya was standing with his bycycle and all of a sudden, the accused was on the midst of the way of the complainant who was riding his motor cycle and hence the complainant had to apply sudden brake to avoid the accident. At that time, the accused got angry and accused had told the complainant “Dhedo, Joitha Nathi” and abused the complainant. It is further submitted that when the complainant stopped his motor cycle and the accused has advanced further abuses and slapped the complainant and hence the complainant shouted. On hearing shout Lakha Hata Bharwad, Ravji Nana Bharwad and Devabhai Vanand prevented the accused by holding him so that the complainant could escape. It is further submitted that the accused went away and gave threat to kill the complainant. Therefore, the complainant lodged his complaint against the accused before Jodiya Police Station. The police registered the offence against the accused and investigated into the matter.
[3] Necessary investigation was carried out by the Police. The statements of the complainant and other witnesses were recorded. Thereafter, after completion of investigation, the charge-sheet was filed against the appellant – accused for offence under Section 3(1) (10) of the Scheduled Caste & Schedule Tribe (Prevention of Atrocities) Act, 1989 (for short “ Atrocity Act”) and under Sections 323, 504 and 506(2) of the Indian Penal Code before the Court of learned Special Judge, Jamnagar. The learned Special Judge framed the charges against the appellant – accused. The appellant – accused pleaded not guilty to the charge and claimed to be tried.
[4] To prove the case against the accused, the prosecution has examined the four witnesses and also relied upon the documents and at the end of trial, after recording the statement of the appellant – accused under Section 313 of the Criminal Procedure Code and after hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge held the appellant guilty of the offences charged against him and awarded sentence as narrated hereinabove. However, the learned Judge has acquitted the accused from the charges levelled against him.
[5] Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the appellant – accused has preferred this appeal.
[6] Heard learned advocate Mr. Manoj Popat, appearing on behalf of the appellant and learned APP Mr. H. L. Jani, on behalf of the respondent – State. I have gone through the Judgment and order passed by the Special Court and also considered the documents produced on the record of the case.
[7] Learned advocate appearing on behalf of the appellant – accused has contended that the appellant – accused has not committed any offence, as alleged in the charge. He has contended that there is no direct, cogent and convincing evidence to prove the guilt of the accused. He has contended that the Investigating Officer is Police Constable, who is examined at Ex.13. He has contended that looking to the provisions of the Act, the investigation, in the matter, is to be carried out by the Police Officer, not below the rank of Deputy Superintendent of Police. But, in the present case, the investigation has been carried out by P.W. 4, Ex.13 – Balvantrai Bhikhajirai Modi (Exh.13), who was, at the relevant time, Police Sub Inspector at Jodiya City Police Station. He has contended that as per the provisions of law the offence under the Atrocity Act cannot be investigated by him. He has contended that the prosecution has not examined any independent witness and, therefore, benefit of doubt is required to be given in favour of the appellant - accused. He has contended that the Investigating Agency is totally negligent in investigating the case and the investigation is totally biased. He, therefore, contended that the learned Special Judge has not considered the material aspect of the matter and has erred in holding the appellant – accused guilty for the charges levelled against him.
[8] Learned APP Mr. Jani has supported the Judgment of the trial Court and contended that looking to the facts and evidence on record the prosecution has proved its case beyond reasonable doubt and the learned Judge has rightly held the appellants guilty of the offences charged against them and, therefore, no interference is required to be called for. He has contended that looking to the place of offence no other independent witnesses could be available and so the oral evidence of complainant and the injured is required to be considered.
[9] Heard the learned advocate, appearing for the parties. I have also gone through the papers produced before me. I have also considered the oral evidence of the complainant and other witnesses. It also appears that no independent witness is examined by the prosecution and looking to the defence put forward by the appellant before the learned Judge, I am of the opinion that reasonable doubt is created, but, the learned Judge has not considered the same.
[10] As per Rule – 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, it has been clearly observed that “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. “ Here, in the present case, from the record, it clearly appears that the investigation was carried out by the Police Sub Inspector and, therefore, the learned Judge has committed grave error in not appreciating the fact that the investigation is not carried out as prescribed under the Rules. Hence, investigation itself is vitiated.
[11] From the oral evidence of Investigating Officer, prima facie, it is established that the investigation is totally biased and the same is not carried out properly. Even the Investigating Agency has not cited other independent person from the public as witnesses to support the case of prosecution though the offence is alleged to have been committed in the public place.
[12] From the perusal of above facts, it clearly appears that learned Special Judge has committed grave error in holding the appellant – accused guilty for the offences charged against him. No independent witnesses have been examined by the prosecution. In my opinion, therefore, the Judgment of the trial Court requires to be quashed and set aside.
[13] In view of above, the Appeal is allowed. The Judgment and order of conviction and sentence dated 30.08.1997 passed by the learned Special Judge, Jamnagar, in Special Criminal Case No. 32 of 1995, holding the appellant – accused guilty for the offences under Sections 323, 504, 506(2) of Indian Penal Code and under Section 3(1)(10) of Atrocity Act is hereby quashed and set aside. The appellant – accused is hereby acquitted from the offences charged against him. Bail Bonds shall stand discharged. Fine, if paid, be refunded to the appellant. Record & Proceeding to be sent back to the trial Court immediately.
[ Z. K. SAIYED, J. ] vijay