This Criminal Appeal is directed against the order passed in S.C.No.35 of 2009, dated 16.11.2009 on the file of the I Additional Sessions Judge (PCR Court), Thanjavur.
2.According to the prosecution, on 24.12.2008 at 6 pm, while the de-facto complainant Krishnamurthy was erecting a radio mike-set with his friends at Karupattimoolai Arulmighu Kaliamman Temple, the accused came there and abused by saying caste name and criminally intimated them. The Deputy Superintendent of Police, Thiruthuraipoondi Sub Division has filed a final report against the accused examining the witnesses.
3.In the trial court, 12 witnesses were examined and 15 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. On the side of the accused, no witness was examined and no document was marked. The trial court convicted the accused for the offence section 3(1)(1)
(x) of SC/ST Act, 1989 and sentenced to undergo RI for one year and to pay a fine of Rs.1,000/-, in default to undergo RI for 3months and convicted for the offence under
Section 506(i) IPC and http://www.judis.nic.in 3 sentenced to undergo RI for 6 months and to pay a fine of Rs. 1,000/-, in default to undergo RI for 2 months. Aggrieved by the judgment passed by the trial court, the appellant/Accused is before this court.
4.The learned counsel for the appellant submitted that the prosecution has not come forward with clean evidence to establish the commission of the offence and the evidence of PW1 to PW4 are not corroborating each other and the alleged occurrence said to have taken place on 24.12.2008 at about 6.00 pm and the complaint was made only after 10 days I.e., on 03.01.2009 and there is no evidence from the caste of Hindus to corroborate the evidence of PW1 to PW4 and the complaint is made as vindictive measure, since the complainant and the family members were previously employed as agricultural coolies and according to the prosecution, there is a possibility of commission of offence that a wordy quarrel has been opted because of connecting electricity board line from the electricity Board post for using mike and speakers and there is no finding with regard to the availability of the Electricity Board post in the observation mahazar and sketch filed by the Investigating Officer. In view of the above circumstances, the accused is entitled to acquittal.
http://www.judis.nic.in 4
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that trial court appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offences, convicted the appellant and passed proper sentence, which do not require any interference by this court and the appellant/accused is not entitled for acquittal and prays that the criminal appeal may be dismissed.
6.Heard both sides and perused the materials available on record.
7.The contentions raised on the side of the appellant are that there are contradiction in respect of motive and further the occurrence was not taken place in a public view and there was inordinate delay in registering the case and no prior permission was sanctioned by the superior officials to conduct the investigation as per Rule 7(1) of SC/ST (POA) and prays that the accused is entitled to acquittal and the Criminal Appeal may be allowed. http://www.judis.nic.in 5
8.On the other hand, the learned Government Advocate (Criminal side) argued that in this case, the motive was properly proved and sufficient reason was stated in delay in registering the case and the case was investigated by the Deputy Superintendent of Police and hence, the investigation done by the Deputy Superintendent of Police cannot be vitiated and the prosecution proved the case beyond reasonable doubt and prays that the Criminal Appeal may be dismissed.
9.In this case, PW1 is the complainant and he gave Ex.P1, Complaint. PW1 in his complaint and evidence stated that on 24.12.2008, at about 6.00 p.m, while he engaged in erecting a radio mike set in connection with Arulmigu Kaliamman Temple, Margazhi Festival, the accused came there and abused and insulted him and the other witnesses by referring to their caste, which is a Scheduled Caste and criminally intimated them.
10.PW2 to PW4 are the resident of the same village belonging to scheduled caste community. PW2 to PW4 also stated during their evidence that when they along with PW1 engaged in erecting radio mike set in view of the temple festival, the accused http://www.judis.nic.in 6 came there and call their caste name. The motive put forth on the side of the prosecution is that when PW1 to PW4 engaged in erecting radio mike set in connection with temple festival, the accused came and abused and insulted the witnesses by referring to their caste. But, PW1 during his cross examination stated as follows:-
'vq;fs; Chpy; jho;j;jg;gl;l tFg;G Nrh;e;jth;fs; nk[hhpl;bahf ,Uf;fpNwhk; vd;why; mJ rhpjhd;. vjphp ,dj;ij Nrh;e;jth;fs; kw;Wk; khw;W ,dj;jth;fs; 5> 6 tPLfs; jhd; cz;L vd;why; rhpjhd;. vq;fs; ,dk; tPL 50 jhd;. ehq;fs; tptrha $yp Ntiy. ahUf;Fk; epyk; fpilahJ. Nkw;gb 5 Ngh;fs; jhd; me;j Chpy; kpuhRjhh;. mth;fsplk; $yp Ntiy nra;tJ ehq;fs;jhd;. 3> 4 Mz;Lfshf vq;fis $yp Ntiyf;F $g;gpLtJ ,y;iy vd;why; rhpjhd;. me;j khw;W ,dj;jpy; vjphpAk; Nrh;e;jth;jhd;. mjw;F fhuzk; vq;fSf;Fs; tptfhuk; te;Jtpl;lJ. vq;fSf;Fs; tFg;G Ntw;Wik Vw;gl;L xUtUf;nfhUth; ve;j NtiyAk; nra;tJ ,y;iy.
khw;W ,dj;jth;fs; tptrha Ntiyf;F tptrha ,ae;jpuq;fs; gad;gLj;Jfpwhh;fs; vd;why; mJ rhpjhd;. mjdhy; Nfhapy; rhkp Fk;gpLtJ jtpu kw;wtifapy; vq;fSf;Fk;; khw;W ,dj;jtUf;Fk; gifik cz;L vd;why; rhpjhd;.”
11.PW2 during his cross examination stated as follows:-
'vq;fs; ML khLfs; vjphp mth; jk;gp MfpNahhpd; tay;fspy;
Ngha; Nka;e;J tpLtjhy; mth; jk;gp xUKiw te;J vq;fs; ,dj;jtiu jhU khwhf Ngrpajhy; mjpypUe;J vq;fSf;Fs; tpNuhjk; ,Uf;fpwJ.” http://www.judis.nic.in 7
12.PW3 during his cross examination stated as follows:- 'vq;fSf;Fs; gifik rk;gtj;jpw;F Ke;jp 6 khjk; Ke;jp jhd; gifik ,Uf;fpwJ.”
13.PW4 during his cross examination stated as follows:- “Nfhapy; topghl;by; tpj;jpahrk; vq;fSf;F ,y;iy. gifik czh;T ,y;iy.”
14.PW1 to PW4 stated during their evidence that when they erected the mike-set, the accused came there abused and called their caste name. PW1 to PW4 stated that for erecting the mike-set they obtained permission from Electricity Board. To prove it, no document was filed on the side of the prosecution side.
15.In this case, on perusal of Rough Sketch Ex.P15, it was not shown that the radio mike-set was erected in the temple. Without filing the document to prove that for erecting the radio mike-set, the evidence of PW1 to PW4 stating that they erected the radio mike-set in the temple and the accused came and abused and called their caste name is not at all acceptable. http://www.judis.nic.in 8
16.The learned counsel for the appellant/accused argued that in this case, another Hindu Religious Community people was not examined to prove the occurrence and PW1 to PW4 are belong to the same community. Hence, the PW1 to PW4 evidence cannot be relied upon.
17.On the other hand, the learned Government Advocte (Criminal side) submitted that at the time of occurrence, PW5, who is belonged to other Hindu Community is present and he also deposed the occurrence. Hence, the evidence of PW1 to PW4 along with the evidence of PW5 can be relied upon.
18.In this case, PW1 during his chief examination stated that PW5 erected the mike-set in the temple, at that time, the occurrence took place. But PW1 during his cross examination stated that “khh;fop 1> 9-k; Njjpapy; mUs; vd;gth;jhd; NubNah fl;l te;jhh;. 9-k; Njjp NubNah fl;btpl;L mUs; tPl;bw;F nrd;Wtpl;lhh;.” Hence, the evidence of PW1 stating that PW5 saw the occurrence is not at all acceptable. Further no steps were taken to examine the independent Hindu belonged to the other community was not examined.
http://www.judis.nic.in 9
19.PW1 to PW4 are belong to the same SC Community. In this case, PW1 to PW4 stated that only with the permission of the Electricity Board, they erected the radio mike-set on 24.12.2008. To prove it, no was document file.
20.On the side of the prosecution to prove that only with the permission of the Electricity Board, the radio mike-set was erected, no officials from the Electricity Board were examined. On the side of the prosecution, it is stated that only due to the erection of radio mike-set in the temple for the festival, the occurrence took place. But PW1 to PW4 stated different motives during their cross examination. Hence, there are contradictions in respect of the motive for the occurrence. Therefore, it is held that the motive is not proved on the side of the prosecution.
21.The next contention raised on the side of the appellant is that the occurrence was not taken place in the public view, hence the offence under Section 3(1)(1)(x) of SC/ST (POA) Act is not made out. PW1 in his complaint and PW1 to PW4 during their evidence stated that on 24.12.2008 in the evening, they erected radio mike-set, at that time the accused came and abused and http://www.judis.nic.in 10 called their caste name. PW1 to PW4 stated that only in the temple the radio mike-set was erected. In the rough sketch, in which place the mike-set was erected was not shown.
22.PW1 to PW4 have not stated during their evidence that the occurrence took place in a public view. PW1 to PW4 specifically deposed that they erected radio mike-set in the temple and the accused came and called their Caste name. Hence, it is not proved by the prosecution that the occurrence took place in the public place.
23.On careful perusal of the evidence of PW1 to PW4, it reveals that PW1 in his complaint and PW1 to PW4 in their evidence have not stated that they are belong to SC/ST Community and the accused is not belong to SC/ST Community and the accused intentionally insulted and intimated them in public view. Hence, the ingredients of Section 3(1)(1)(x) of SC/ST (POA) Act is not made out.
24.Further, the other contention raised on the side of the appellant is that the Investigating Officer shall be appointed by the http://www.judis.nic.in 11 State Government/Director General of Police/ Superintendent of Police, after taking into account his past experience, sense of ability and justice to perceive the implication of the case and investigate it along with right lines within the shortest possible time. But in this case, no document was filed to prove that the Investigating Officer was appointed by State Government/Director General of Police/ Superintendent of Police. Hence, the investigation done by the Investigating Officer can be vitiated. For that, the learned counsel submitted the ruling reported in 2016-2-LW (Crl.)170. (Chinnathambi and another Vs. The State, rep by the Deputy Superintendent of Police, Chengam Police Station). In the above case, in paragraph No.13 is held as follows:-
''13.That apart, as far as Rule 7 (1) of the S.C. and S.T (Prevention of Atrocities ) Rules is concerned, it stipulates that in respect of the offence committed under the said Act, the same shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police and 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.
http://www.judis.nic.in 12 In this regard, it is useful to refer a decision of the Madhya Pradesh High Court reported in 2005 Cri.L.J. 3782 (Dhanraj Singh and etc. Vs. State of M.P), wherein, it has been held as under:
''5.......Therefore, it is necessary that the provisions of the Act and Rules should be followed strictly and in such cases investigation should be conducted by police officer not below the rank of Deputy Superintendent of Police. This special rule has a purpose. Therefore, if the Rules are not followed strictly by the investigating agencies, purposes of the Act cannot be achieved. Thus, this contention of the learned counsel for the appellant carries weight. There is no compliance of provisions of Rule 7. Nature of the rule is mandatory. Investigation has not been conducted by Deputy Superintendent of Police either appointed by the State Government or Director General of Police or Superintendent of Police. There is no evidence to this effect in the cases and when the investigation has not been done by an authorised or appointed officer, the entire investigation is vitiated and on this ground conviction of the appellants cannot be maintained. Learned counsel for the respondent State could not satisfy the compliance of the aforesaid rule in the cases and also could not explain how the trial is legal, when the proper investigation is not done by the Dy. Superintendent of Police.'' http://www.judis.nic.in 13
14.In the case on hand, learned Additional Public Prosecutor appearing for the respondent-Police has not satisfied the Court about the mandatory compliance of Rule 7(1) of the said Rules and has also not explained how the trial is legal, when there is no evidence in this case to show that P.Ws.11 and 13 D.S.Ps. have been authorised in writing to investigate the case under the said Rules. Therefore, the entire investigation would stand vitiated.''
25.In this case, the Investigating Officer was examined as PW11. No document was produced on the side of the prosecution to prove that he was appointed to conduct investigation by his superior officials as per Rule 7 (1) of the SC and ST (Prevention of Atrocities). The Rule 7(1) of the SC and ST (Prevention of Atrocities) stipulates that in respect of the offence committed under the said Act, the same shall be investigated by a Police Officer not below the rank of the Deputy Superintendent of Police and the Investigating Officer shall be appointed by the State Government/ Director General of Police/Superintendent of Police, after taking into account in 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. Hence, in this case, for investigating the case, PW11 was not appointed by his superior http://www.judis.nic.in 14 officials to conduct the investigation. Hence, the investigation conducted by PW11 was vitiated.
26.The next contention put forth on the side of the appellant is that even though the alleged occurrence took place on 24.12.2008 at 16.00 hours, but PW1 gave the complaint only on 3.1.2009 and the case was registered only on 03.01.2009. Hence, there was an inordinate delay in registering the case and no proper explanation was given for the delay in registering the case. Therefore, it is fatal to prosecution.
27.On the side of the prosecution, it is stated that on the date of occurrence, the complaint was given, but it was taken it as petition and after enquiry the case was registered. Hence, proper explanation was given for the delay in registering the case and hence it is not fatal to the prosecution.
28.In this case, the alleged occurrence was taken place on 24.12.2008. As per the PW1's, version he gave complaint on the date of occurrence. In this case, PW9 received the complaint and taken it as petition and she handed over the file after the Inspector, http://www.judis.nic.in 15 joined the duty, who was on medical leave. PW10 is the Inspector of Police, who registered the case. PW10 deposed that he received the file from PW9 and after perusing the file, he registered the case.
29.In this case, PW9 and PW10 deposed that after receiving the complaint from PW1, PW9 gave petition number and after the arrival of the PW10 he handed over the file to PW10. In this case, the offence 3(1)(x) of SC/ST (POA) Act, is grave in nature. But PW9 treated the complaint as petition. No explanation was given on the prosecution side, why the complaint was treated as petition at the first instance. PW9 stated that she received the complaint on 24.12.2008 and assigned the petition No.206/2008. To prove the petition enquiry, no document was filed on the prosecution side.
30.At this juncture, it is necessary to refer the cross examination of PW9 and PW10, which would run thus:-.
'm.rh.M.1-y; vd;Dila Nkw;Fwpg;G ,y;iy.
mjdhy; ehd; kDurPJ nfhLj;jjhf nrhy;tJ muR jug;G rhd;W Mtzk; 1-y; Jyq;fhJ. ehd; nrhd;d urPij ,e;j tof;fpy; xU Mtzkhf jhf;fy; nra;atpy;iy.” http://www.judis.nic.in 16 'rk;gtk; 24.12.2008 md;W ele;jJ. jfty;
ngw;wJ 03.01.2009 vd;W Fwpj;Js;Nsd;. Kjy; jfty; mwpf;if cs;s Fwpg;Gfs; kDurPJ rk;ge;jg;gl;l Fwpg;G vd;W fhl;Ltjw;F vd;Dila ehl;Fwpg;G gjpNtL ,g;NghJ vd;dplk; ,y;iy. jftiy ngw;w Neuk; Kjy; jfty; mwpf;ifapy; 03.01.2009 khiy 4.00 kzpf;F vd;Ws;sJ. m.rh.M.1-y; ngz; cjtpahshpd; Nkw;Fwpg;G vJTk; ,y;iy. mjdhy; ,e;j tof;fpw;F mbg;gil Mjhuk; 03.01.2009 md;W ehd; nra;j Nkw;Fwpg;G jhd; vd;why; mJ rhpjhd;. kDrPJ toq;fpdhy; mjd; mbg;gil fhty; epiyaj;jpy; ,Uf;Fk;. mijNghy; me;j mbg;gilapy; Gfhh;jhuhpd; ifnaOj;Jk; ,Uf;Fk;. mJ 5 tUrk; tiu guhkhpf;fg;gLk;. ,e;j tof;F murpay; thjpapd; jiyaPl;lhy; vd;dhy; jahh; nra;ag;gl;lJ vd;why; rhpay;y. mijNghy ehd; tpLKiwapy; ,Ue;Njd; vd;gjw;F gpd;dpl;L 03.01.2009 md;Wjhd; jpUk;g te;Njd; vd;gjw;F vd;Dila ehl;Fwpg;G gjpNtl;by; ,y;iy vd;why; rhpjhd;. Kjy; jfty; mwpf;ifapy; jhkjj;jpw;F fhuzk; nrhd;dNghJ thjpahy; jhkjk; vd;W Fwpg;gplg;gl;Ls;sJ. gjpT nra;ag;gl;l Kjy; jfty; mwpf;if 07.01.2009 gfy; 1.10 f;F ePjpkd;wj;jhy; ngwg;gl;lJ vd;why; mJ rhpjhd;.”
31.In this case, the alleged occurrence was taken place on 24.12.2008. But the case was registered on 03.01.2009 for the http://www.judis.nic.in 17 offence under Section 3(1)(x) of SC/ST (POA) Act, which is grave in nature. But PW9, who received the complaint has not registered the case immediately. But she treated the complaint as petition. But in this case, the file in respect of the petition was not produced. Hence, the reason stated on the prosecution side for the delay in registering the case is not at all acceptable.
32.For all the reasons stated above, this court is of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and hence, the judgment of the trial court has to be set aside and accordingly, it is set aside.
33.In the result, the Criminal Appeal is allowed. The impugned judgment of conviction and sentence are set aside. The appellant/Accused is acquitted of the charges levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him. Consequently, connected Crl.MP is closed.
26.04.2019 Index:Yes/No Internet:Yes/No vsd/er http://www.judis.nic.in 18 T.KRISHNAVALLI,J.
vsd/er To,
1.The I Additional Sessions Judge, PCR Court, Thanjavur.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Judgment made in Crl.A.(MD)No.390 of 2009 26.04.2019 http://www.judis.nic.in