Madras High Court
K.Ragupathi vs State Represented By on 18 December, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 13.11.2014
Date of decision: 18.12.2014
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
CRIMINAL APPEAL No.230 of 2007
K.Ragupathi .. Appellant
..vs..
State represented by
the Inspector of Police,
J1 Saidapet Police Station,
Chennai. .. Respondent
(Crime No.101 of 2002)
Criminal Appeal filed under Section 374 of the Criminal Procedure Code against the judgment dated 5.2.2007 made in SC No.226 of 2004 by the learned Principal Sessions Judge, Chennai.
For Appellant : Mr.R.Gandhi, Senior Counsel,
for Mr.V.S.Sivasundaram
For Respondent : Mr.V.Arul,
Government Advocate (Criminal Side)
JUDGMENT
By the impugned judgment, the appellant was convicted for offence under Section 3(1)(x), 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [for short SC & ST (PA) Act] and under Section 354 of the IPC and sentenced to undergo six months' rigorous imprisonment and to pay a fine of Rs.2,000/- for each offences, in default, to undergo two months simple imprisonment for each of the offences and the appellant was found guilty on 6 charges and aggrieved by the same, this Appeal is filed.
2. The appellant was charge sheeted for the offence under Section 3(1)(x) of the SC & ST (PA) Act on four charges and was charge sheeted for the offence under Section 354 of the IPC on six charges and for the offence under Section 3(1)(xi) of the SC & ST (PA) Act, in respect of 3 charges, the trial Court found him guilty for the offence under Section 3(1)(x), 3(1)(xi) of the SC & ST (PA) Act and also found him guilty under Section 354 of the IPC.
3. The case of the prosecution is as follows:-
(i) The appellant was running a Home called House Maid Services Home at Saidapet and on 4.1.2002, he abused PW.1 by calling her caste name and also insulted her in the presence of public and therefore, he has committed the offence punishable under the provisions of the SC & ST (PA) Act. It is further stated that on 4.11.2001, when PW.1 was working in the said Home, the appellant with an intention of outraging her modesty asked him to give a kiss and also asked her to lie down with him and also used force on her for the said purpose and therefore, he committed the offence punishable under Section 3(1)(xi) of the SC & ST (PA) Act. (ii) It is further stated that he also abused one Fathima Mari PW.11 who belongs to Scheduled Tribe Community and insulted her by calling her caste name in the presence of public and therefore committed the offence under Section 3(1)(x) of the SC & ST (PA) Act.
(iii) On 11.9.2001 at about 7.00 a.m., he also misbehaved with Shanthi PW.5 and touched her cheeks and also described her body structure and on other dates, he misbehaved with PW.3 and PW.9 with an intention to outrage their modesty and therefore, committed the offence punishable under Section 354 of the IPC.
(iv) He also misbehaved with Sasikala PW.6 and Rajaveni PW.8, who belong to Scheduled Tribe Community and also by using force caught hold of the hands and put his hands on her hip and therefore, outraged their modesty and committed the offence punishable under Section 3(1)(xi) of the SC & ST (PA) Act.
(v) He also abused Amaravathy PW.7, Rajaveni PW.8 and Savithri PW.9, who belong to Scheduled Caste Community by calling their caste name in the midst of public and therefore, committed the offence punishable under Section 3(1)(x) of the SC & ST (PA) Act.
(vi) Similarly, he committed the offence punishable under Section 354 of the IPC in respect of PW.3, PW.5, PW.9, one Karpagam and Selvi and outraged their modesty.
4. On the basis of 12 incidents, 12 charges were framed against the appellant and the prosecution examined 18 witnesses and marked 8 Exhibits to prove the prosecution case. On the side of the appellant, 9 witnesses were examined and one Exhibit was marked.
5. The trial Court acquitted the accused in respect of the charges 1, 3, 4, 11 and 12 and convicted in respect of the charges 2, 5 to 10. Hence this Appeal.
6. Mr.R.Gandhi learned Senior Counsel appearing for the appellant submitted that the trial Court without properly appreciating the scope of Section 3(1)(x) and (xi) of the SC & ST (PA) Act and also Section 354 of the IPC and without properly appreciating the evidence of the prosecution witnesses 1 to 12 erred in convicting the appellant for the aforesaid offences. He also submitted that as per the charge sheet, 12 independent charges were framed against the appellant in respect of 12 independent occurrences and as per Section 219 of the Cr.P.C., when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three, and in this case, 12 offences are included in one case and therefore, it a clear violation of Section 219 of the Cr.P.C. and therefore, the trial is vitiated on that ground. He further submitted that under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995 (for short SC & ST Rules), an offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police and such 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. Therefore, having regard to Rule 7 of the said Rules, unless a person is appointed specifically by the State or by the Director General of Police/Superintendent of Police, after taking into consideration his past experience, sense of ability and justice to perceive the implications of the case, he cannot conduct investigation even though such police officer was holding the rank not below the rank of Deputy Superintendent of Police (DSP). In other words, he submitted that police officer not below the rank of DSP cannot investigate the case punishable under SC & ST (PA) Act unless they are specifically appointed by the State Government /Director General of Police/Superintendent of Police after taking into consideration of their past experience, sense of ability and justice to perceive the implications of the case. He therefore submitted that in this case, the FIR was registered by PW.15 who was at that time the Inspector of Police, Saidapet Police Station, and further investigation was conducted by PW.16 who was the Assistant Commissioner of Police, Saidapet Region and further investigation was also conducted by PW.17 who was the Assistant Commissioner of Police in the Central Crime Branch and PW.18 who was then working as Assistant Commissioner of Police in the Central Crime Branch. The witnesses PW.15 to PW.18 did not state in their evidence that they were appointed under Rule 7 of the SC & ST Rules after the State Government or Director General of Police or Superintendent of Police being satisfied with their past experience, sense of ability and justice to perceive the implications of the case. He therefore submitted that in the absence of such officers being appointed especially under Rule 7 of the SC & ST Rules 1995, they are not competent to conduct the investigation and file the charge sheet and therefore, the entire proceedings is vitiated and therefore, on that ground, the appellant is entitled to be acquitted. The learned Senior Counsel further submitted that the trial Court without properly appreciating the fact that complaints were given only after PW.1 gave FIR and according to other witnesses, the occurrence said to have taken place long back and no explanation was given by them for not reporting the matter to the police immediately and even though some of the witnesses have deposed that they gave complaint against the appellant none of the complaints were produced by the prosecution to substantiate their case. Therefore, the finding of the trial court that the prosecution proved the case beyond reasonable doubt in respect of 7 charges are liable to be set aside. He further submitted that to attract the offence under Section 3(1)(x) of the SC & ST (PA) Act, the offence should have been committed in the presence of public view. In this case, even according to the prosecution evidence, the appellant abused them privately and nobody has witnessed the occurrence. Therefore, even assuming that the accused / appellant abused them by calling their caste name unless it is done in the presence of public view, no offence is said to have been committed and these aspects were not properly appreciated by the trial Court. He therefore submitted that the prosecution miserably failed to prove the case against the appellant and the lower Court also failed to take into consideration Ex.D.1 which falsifies the case of PW.1 and also the evidence of DW.1 to DW.9. He therefore submitted that the judgment of the trial Court may be set aside and the Appeal may be allowed. In support of his contention, the learned Senior Counsel relied upon the following judgments:-
1Athimula Gounder and another v. State of Tamil Nadu rep. by Deputy Superintendent of Police, Chengee Taluk [(2006) 2 M.L.J.(Crl.)256] 2 H.Thenmozhi v. Inspector of Police P.R.C.Unit, St.Thomas Mounst Police Station, Chennai and another [(2006) 2 M.L.J.(Crl.)463] 3 Thangarasu and another v. State [2010 CRI.L.J.1299] 4 Venkatesan @ Venkateswaran and 13 others vs. State rep. by Deputy Superintendent of Police Gudiyatham, Vellore District and another in Crl.O.P.No.4849 of 2010 dated 15.11.2012 of Madras High Court (unreported)
7. Mr.V.Arul, learned Government Advocate (Criminal Side) submitted that the trial Court rightly appreciated the evidence of witnesses and exonerated the appellant on 5 charges and convicted him on 7 charges and that would also prove that the trial Court rightly appreciated the evidence and convicted the accused. He further submitted that though under Section 219 of the Cr.P.C. when similar offences are committed within a period of one year, 3 of them may be tried in one trial and when a person is charged for more than 3 offences alleged to have been committed within a period of one year, trial will not be vitiated on that ground having regard to provision of Section 464 of the Cr.P.C.,. He further submitted that under Section 460 of the Cr.P.C., certain irregularities will not vitiate proceedings and under Section 461 of the Cr.P.C. certain irregularities will vitiate the proceedings and violation of Section 219 of the Cr.P.C. is not stated to be one of the irregularities which would vitiate the proceedings. Therefore, even though the accused / appellant was charged for 12 offences in one case that will not vitiate the proceedings unless prejudice is shown by the appellant. He also submitted that during trial, the jurisdiction of the Investigating Officer was not challenged and therefore, at this stage, the same cannot be questioned by the appellant. He also submitted that the offence of PW.1 to PW.9 has been cogent and admittedly all of them were employed in the same Home and there was no necessity for them to implicate the accused falsely and it cannot be expected that people will come forward to corroborate the evidence of PW.1 to PW.9 and on being satisfied with the evidence of PW.1 to PW.9, which inspired the confidence of the Court, the trial Court rightly convicted the appellant for various offences and therefore, this Appeal may be dismissed.
8. On the basis of the above submissions, it is to be seen-
(i) whether the prosecution initiated and investigated by PW.15 to PW.18 is valid and whether PW.15 to PW.18, the police officers were validly appointed as per Rule 7 of the SC & ST Rules 1995 by the competent person?
(ii) Whether there is violation of Section 219 of the Cr.P.C., as the appellant was charged with 12 offences alleged to have been committed within a period of one year?
(iii) Whether the prosecution proved the case beyond reasonable doubt?
9. Point No.(i): (A) It is seen from the evidence of PW.15 to PW.18 that they have not stated that they have been appointed under Rule 7 of the SC & ST Rules. PW.17 admitted that Under Rule 7 of the SC & ST Rules, the case can be investigated only by an officer not below the rank of DSP. PW.18 also admitted the same in evidence. As per the evidence of PW.16, PW.17 and PW.18, at the relevant point of time, they were working as Assistant Commissioners of Police and therefore, they were equivalent to the post of DSP and hence, the question arisen for consideration is whether they were appointed specifically under Rule 7 of the SC & ST Rules or whether it is necessary that to investigate the offence under the provisions of SC & ST (PA) Act, any officer not below the rank of DSP to be specifically appointed under Rule 7 of the SC & ST Rules.
(B) In the judgment reported in (2009) 3 MLJ (Crl) 1071 (SC-NOC) : (2010) 1 SCC (Cri) 683 in the case of State of M.P. Versus Chunnilal @ Chunni Singh, it is held that reading of Section 9 of the SC & ST (PA) Act, Rule 7 of SC & ST Rules 1995 and Section 4 of the Cr.P.C. jointly read would lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of 7 is illegal and invalid. But when the offence complained are both under the IPC and any of the offence enumerated in Section 3 of the Act, the investigation which is being made by a competent police officer in accordance with the Code cannot be quashed for non-investigation of the offence under Section 3 of the Act by a competent police officer.
(C) In the judgment reported in (2010) 2 Supreme Court Cases (Cri) 288 in the case of State of Punjab Versus Hardial Singh and others, following the judgment reported in (2010) 1 SCC (Cri) 683 supra held that the investigation done by police officer not specifically authorised in terms of Section 3 of the Act is illegal qua the offence relating to SC & ST (PA) Act but the investigation is not illegal in respect of of offence punishable under the provisions of IPC.
(D) In the judgment reported in 2007 (1) MLJ (Crl) 654 in the matter of Sambasivm and another Versus State, rep. by Deputy Superintendent of Police, Mannarkudi, the following judgments rendered in (2006) 2 M.L.J. (Crl) 463 and 2002 (4) ALTR in the matter of Viswanadhula Chittibabu v. State of A.P., learned single Judge of this Court held that investigation by police officer not specifically appointed under Rule 7 of the SC & ST Rules is illegal.
(E) Similarly, learned single Judge of this Court, in the judgment reported in 2009-2-L.W.(Crl.) 1347 in the matter of V.P.Kuppurao Vs. The Director General of Police, Tamil Nadu and others; and (2010) 1 MLJ (Crl) 247 in the matter of V.P.Kuppurao v. Director General of Police, Tamil Nadu Government DGP Office, held the same view.
(F) Therefore, it is clear from the above judgments of the Hon'ble Supreme Court and our High Court that when an investigation under SC & ST (PA) Act was done by an officer though holding the post of DSP is illegal when such officer was not appointed specifically under Rule 7 of the SC & ST Rules.
(G) In this case, as stated supra, admittedly, PW.16 to 18 did not state that they were specifically appointed under Rule 7 of the SC & ST (PA) Act. Therefore, in the absence of such evidence, it cannot be held that they were competent to conduct investigation against the accused punishable under the provisions of SC & ST (PA) Act and therefore, the charge levelled against the accused with the offence under Section 3(1)(x) & (xi) of the SC & ST (PA) Act is liable to be set aside.
10. As stated supra, the appellant was charge sheeted not only for the offence under the provisions of SC & ST (PA) Act but also under Section 354 of the IPC and therefore, in respect of Section 354 of the IPC, whether the prosecution has proved the case beyond reasonable doubt has to be seen?
11. The prosecution examined 11 eye-witnesses and charges 4, 7, 10, 11 and 12 are relating to the offence under Section 354 of the IPC. The Charges 11 and 12 are in respect of the offence committed against the witnesses Karpagam and Selvi and those witnesses were not examined by the prosecution and therefore, it cannot be stated that the offence has been made out under Section 354 of the IPC in respect of the charges 11 and 12 as the victims were not examined to depose evidence.
12. In respect of charges 4, 7 and 10, the witnesses concerned are PW.3, PW.5 and PW.9. PW.3 is Manjula and she has not stated the approximate date, mother and year in which the occurrence had taken place. According to her, when sshe demanded money from the appellant for the work rendered by her in the presence of one Rani, who was instrumental in getting her employment with the appellant, the appellant abused her by calling her caste name and also placed his hands on her chest and also abused her. The said Rani who was present was not examined. She also stated that she was taken to the women's organisation at Saidapet by Rani and from there, she went to the police station and gave complaint. However, no complaint given by her was produced by the prosecution to substantiate the case. Further, she was employed at Delhi through the appellant and shen she came back from Delhi and asked for her salary. No details about the date and month when the occurrence had taken were given. She also admitted that now she is employed in another Trust run by one Jeyanthi, who was examined as PW.12 and admittedly, PW.12 was previously employed under the appellant and thereafter, misunderstanding arose between her and the appellant and she left the appellant's organisation and now she is working in another trust. Similarly, PW.5 also did not state, the year, month of the incident and even according to her, her father was witness to such incident and no attempt was made by her to examine the father. She also stated that she gave a police complaint against the appellant and no such complaint was produced by the police. PW.6 also did not give any details about the date of incident and according to her, the occurrence took place at Delhi when she was employed in a House at Delhi and therefore, according to me, the said offence cannot be investigated by the respondent police. She also did not give any details about the date or month of the incident. The evidence of PW.9 is also similar. All the witnesses gave vague allegations giving no details regarding the date, month and all of them admitted having given police complaint and no complaint was produced. Further, the other witnesses except PW.1 started giving complaint only after the investigation was started on the basis of the complaint given by PW.1. The evidence of PW.1 cannot be believed for the reason that according to her on 12.1.2002 she gave the police complaint and she was accompanied by one Leelavathi who was an active member of the women's organisation. Therefore, as per the prosecution case, on 12.1.2002, PW.1 along with Leelavathi went to the police station and gave complaint. However, as per Ex.D.1, she went to the school where her children were studying and obtained TC for her two sons and in the letter given to the Headmaster of the School by PW.1, it was mentioned that she was accompanied by police and the letter was dated 11.1.2002. Therefore, having regard to Ex.D.1, on 11.1.2002, police officials accompanied PW.1 to the school for obtaining TC for her two sons and that would prove that the complaint must have been registered earlier and that was suppressed. Further, Leelavathi was examined to support the case of PW.1. The other witnesses PW.2 to PW.9 did not come forward to give any police complaint and they were examined by the police later and PW.1 did not state anything about the ill-treatment meted out to these witnesses. Similarly, the other witnesses did not say any thing about the ill-treatment or abuse of other witnesses by the appellant. Each witness gave independent account of their case without reference to other witnesses and none of the depositions of the victims were corroborated by any other evidence. Though the Court is justified in convicting an accused on the basis of the statement of the victim, having regard to the fact that the victim was not able to state clearly, the date, month or year in which the occurrence had taken place and the reason for not giving complaint immediately and keeping quiet for many months and come out with the statement after investigation was commenced on the basis of the complaint given by PW.1 would lead to the conclusion that the evidence of these witnesses cannot be believed.
13. In similar circumstances, in the judgment reported in (2008) 3 MLJ (Crl) 21 in the matter of Sivakumar v. State, rep. by Inspector of Police, Annur Police Station, this Court held that the unexplained delay coupled with contradictions and discrepancies would lead to an irresistible conclusion that the prosecution had not proved the case beyond reasonable doubt.
14. Therefore, the evidence of witnesses cannot be believed as there was long delay in giving complaint and they were not able to give the date and month during which, the offence was said to have been committed and even after they left the organisation of the appellant, they did not choose to give any complaint and they gave statement during investigation after PW.1 filed the complaint. Hence, the prosecution has not proved the case beyond reasonable doubt. Point No.(iii) is answered accordingly.
15. Point No.(ii), as rightly submitted by the learned Government Advocate that though as per Section 219 of the Cr.P.C. more than 3 offences committed in a period of one year can be tried in one case, it will not vitiate trial having regard to Section 464 of the Cr.P.C.,. The appellant has not pleaded any prejudice by reason of giving all 12 charges and in the absence of prejudice caused to the appellant and having regard to Section 461 and 464 of the Cr.P.C., it cannot be stated that trial is vitiated by reason of charging the person for more than 3 offences committed in a year. Hence, Point No.(ii) is answered against the appellant. However, having regard to the finding given in respect of Point Nos.(i) and (iii), I hold that the prosecution miserably failed to prove the case beyond reasonable doubt and the investigation done by the Investigating Officer is without jurisdiction as they were not properly appointed under Rule 7 of the SC & ST (PA) Act. Therefore, the investigation is vitiated.
16. In the result, the conviction and sentence imposed on the accused/appellant by the judgment of the trial Court are set aside and the Appeal is allowed. The appellant is acquitted of the charge levelled against him and he is set at liberty. The bail bond, if any, executed by him shall stand terminated and the fine amount, if any, paid by him shall be refunded.
18.12.2014 Index: yes Internet: yes asvm To
1.The Principal Sessions Judge, Chennai.
2.The Inspector of Police, J1 Saidapet Police Station, Chennai.
(Crime No.101 of 2002)
3.The Public Prosecutor, Madras High Court, Chennai.
R.S.RAMANATHAN,J.
(asvm) Judgment in Crl.Appeal No.230 of 2007 18.12.2014