Madras High Court
Elangovan vs State: Rep. By on 16 February, 2016
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.2.2016 CORAM THE HON'BLE DR.JUSTICE P.DEVADASS Crl.A.No.689 of 2005 Elangovan .. Appellant/Accused Versus State: Rep. by Inspector of Police, Meensurity Police Station, Perambalur District (Crime No.10/2003) .. Respondent/Complainant Criminal Appeal filed under Section 374(2) of Cr.P.C to set aside the Judgment and Conviction passed by the learned Sessions Judge, Perambalur in Spl.S.C.No.79/2004 dated 30.6.2005. For Appellant : Mr.D.Veerasekaran For Respondent : Mr.P.Govindarajan Addl. Public Prosecutor JUDGMENT
The sole accused in the Sessions Case No.79 of 2004 on the file of the learned Special Judge under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989/Sessions Judge, Perambalur is the appellant.
2. The learned Special Judge convicted and sentenced him as under:-
Conviction Sentence
(i) Section 3(1)(x) of SC&ST (PA) Act, 1989
(ii) Section 294(b) IPC
(iii) Section 506(ii) IPC
(i) 6 months R.I and fine Rs.1000/- i/d one month R.I
(ii) Fine Rs.1000/- i/d one month S.I
(iii) One year R.I and fine Rs.1000/- i/d one month S.I. He has paid the fine amount.
3. The case of the prosecution briefly runs as under:
The accused and P.W.1 belongs to the same village. P.W.1 was President, Guruvalappar Kovil Panchayat. The accused belongs to Hindu-Vanniyar Commuity (see Ex.P3 Community Certificate). P.W.1 belongs to Hindu-Pallar Community, a Scheduled caste (see Ex.P.2 Community Certificate).
(ii) On 31.12.2002, at 11 am, P.W.1 directed the accused to remove the pipe which he has put up unauthorizedly. The accused refused to do. He called P.W.1 by his caste intending to insult him. He also abused him in filthy language and also criminally intimidated him with Aruval. P.Ws.4, 5, 6 and 7 witnessed the occurrence. P.W.1 gave Ex.P.1 complaint. P.W.9, S.I of Police registered this case (see Ex.P.5, F.I.R) and sent the F.I.R to P.W.1, D.S.P, Jayamkondan.
(iii) P.W.10 took up his investigation. He visited the scene place. Prepared Ex.P.4 Observation mahazar in the presence of P.W.8 and another witness. Drew Ex.P.6 Rough Sketch. He has examined the witnesses and recorded the statement under Section 161 Cr.P.C. He has arrested the accused. Sent him to judicial custody. He has obtained community certificate for both. Concluding his investigation, he filed the Final Report in this case before the Court.
4. Upon committal, the learned Special Judge hearing both sides on consideration of case records framed charges under Sections 3(1)(x) SC/ST (PA) Act, 1989 and under Sections 294(b) and 506(ii) IPC. The accused pleaded not guilty of the charges.
5. To substantiate the charges, prosecution examined PWs 1 to 10 and marked Exs.P.1 to P.6.
6. When the accused was examined under Section 313 Cr.P.C. on the incriminating aspects appearing as against him in the prosecution evidence, he denied the offences. He did not examine any witness nor mark any document on his side.
7. Upon consideration of the evidence adduced, the learned Special Judge convicted and sentenced the appellant as already stated.
8. The learned counsel for the appellant would contend that P.W.10 is not specifically empowered under the Rules framed under SC/ST (PA) Act to investigate this case. Thus, this prosecution is vitiated. In this connection, he has cited Periyasamy vs. Deputy Superintendent of Police, Avinashi Sub-Division, Kovilpalayam Police Station, Coimbatore District {2015 (2) MWN (Cr.) 628}.
9. The learned counsel for the appellant would further submit that there is no evidence to sustain charges under Section 294(b) and 506(ii) of IPC as against the accused. The evidence of P.Ws.4, 5, 6 and 7, the ocular witnesses have stated something which P.W.1 himself has not stated. There is inconsistency. The evidence of P.Ws.1, 4 to 7 does not deserve credence. There is 6 days delay in lodging the F.I.R. However, it remains unexplained.
10. On the other hand, the learned Additional Public Prosecutor would submit that the accused having belonged to a non Scheduled Caste community and P.W.1 belonging to a Scheduled Caste Community has been established by producing their community certificates. P.W.1 had clearly deposed as to the occurrence as stated in his complaint Ex.P.1. He has been corroborated by other ocular witnesses. Prosecution has established the charges against the accused. The trial Court has rightly convicted and appropriately sentenced him.
11. I have anxiously considered the rival submissions, perused the trial Court's Judgment and also the entire evidence on record.
12. Now the question is whether the charges under Section 3(1)(x) SC/ST (PA) Act, 1989 and under Sections 294(b) and 506(ii) IPC have been proved by the prosecution beyond all reasonable doubts.
13. P.W.1 and the accused are not strangers. They belong to same village. P.W.1 was then President of the Panchayat. He was in the process of taking action against unauthorised water connections. P.W.1 belongs to Scheduled Caste (see Ex.P.2 community certificate and evidence of P.W.2, Tahsildar). Accused belongs to a non-scheduled caste community.
13. The allegation is that on the occurrence day, the accused had abused P.W.1 by calling him by his caste name with an intention to insult him and also criminally intimated him.
14. The first charge is under Section 3(1)(x) of SC/ST (PA) Act.
With regard to the arguments of the learned counsel for the appellant based on Rule 7, framed under the Scheduled Caste and Scheduled Tribes (Prevention Atrocities) Act, 1989, I have occasion to consider the same elaborately in Periyasamy's case (supra). It is relevant here to extract the following portions from the judgment in the said case:-
26. In 1995, in pursuance of Section 23 of the SC&ST (P.A.) Act, 1989, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 has been framed. Its Rule 7 relevant for our purpose runs 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 to the State Government."
27. In view of the nature of the offence, Higher Officials namely an Officer not below the rank of a Deputy Superintendent of Police has been specified in the Rules, to investigate this type of offences. Further Rule 7(1) specifically mentions that the D.S.P. should have specified past experience etc. Further, as per Rule 7(2), the investigation has to be completed within 30 days.
28. In Mrs.Mariammal vs. State of Tamil Nadu {1998 (1) MWN (Cr.) 349}, this Court interpreted the said Rule as under:-
"18. It follows from this Rule that it is mandatory in the case of an offence complained of under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 that the investigation should be done by a Deputy Superintendent of Police and not the Inspector of Police, whatever may be the allegation as true or otherwise. In other words even if the allegations in the FIR are not true, even then the case can be investigated by the Deputy Superintendent of Police and not by the Inspector of Police."
29. In Sambasivam and Another vs. State {2007 (1) MWN (Crl.) 69}, this Court had occasion to go elaborately into the significance of the said Rule 7(1). In Sambasivam (supra), the Court observed as under:-
15. Rule 7(1) of the Rules reads:
"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."
16. A careful reading of the above Rule and its purpose would reveal, that an Investigating Officer has to be appointed to investigate this kind of cases by the State government/Director General of Police/ Superintendent of Police, taking into account the past experience, sense of ability etc. of the officer and this is possible only if the individuals are considered separately. Rule does not say that all the Deputy Superintendents of Police are competent to investigate this kind of cases, irrespective of their experience, sense of ability etc. Therefore, in my considered opinion, a person, who has been named and appointed, considering his past experience and ability alone is competent to investigate this kind of cases, otherwise, the purpose of the Rule will not be served. If all the Deputy Superintendents of Police of the State are empowered, as observed by the trial Court, placing reliance upon some circular, which is not available for perusal, before me, then, there may not be any chance for the higher authorities to take into account the past experience, sense of ability and justice to perceive the implications of the case of the officer, which were considered so essential, to investigate this kind of cases, considering the sensitiveness and the caste discrimination prevailed or prevailing throughout, though we have crossed so many years from the date of independence. When the Rules framed under the Act, says how, by whom the case is to be investigated, I am of the view, the same cannot be nullified or overlooked, by issuing a circular, empowering all the Deputy Superintendents of Police, to investigate this kind of cases, forgetting or ignoring the purport of Rule 7, which is mandatory, not challenged. If it is to be taken, all the Deputy Superintendents of Police are empowered, the Rule need not say, past experience, sense of responsibility etc., simply it would have been stated "by the officer not below the rank of Deputy Superintendent of Police" in general form, which is not the import or purport of Rule 7, as read from its proper perspective.
17. The learned counsel for the appellants, inviting my attention to a decision of the Division Bench of the Andhra Pradesh High Court in Viswanadhula Chittibabu vs. State of A.P. (2002 (4) Andhra Law Times Reports 456), would submit that the investigation done by any person, not authorised under Rule 7 of the Rules, should be treated as prejudice caused to the accused, since Rule 7 is mandatory and not directory. It is observed in the above Ruling:
The Act was enacted in the year 1989, whereas the Rules were framed in the year 1995, under Section 23 of the said Act. There was a delay of about six years in framing the Rules. It has to be considered why the Government framed this Rule. According to our logic, the Government experienced that the Act is being misused and therefore, felt that under such Acts, the investigation has to be done by a responsible Senior Officer and therefore, they chose Dy.S.P. to make an investigation. This Rule does not provide that all Dy.S.Ps. can investigate into the matter but provides that the Dy.S.P., named by the State Government or Director General of Police or Superintendent of Police has to nominate and select a Dy.S.P., with integrity and experience to investigate into such offences, which will prevent the misuse of the Act, and therefore, the provision contained in Rule 7 of the said Rules has to be interpreted as mandatory. In some of the rulings cited, their Lordships held that if there were procedural defects, the trial would not vitiate. The procedure means a procedure, which is adopted by the Court. When the investigation has to be done by a Police Officer not below the rank of Dy.S.P. under Rule 7 of the said Rules framed under Section 23 of the said Act, it has some meaning. It is not the procedural defect, it is inherent defect in making the investigation and that would vitiate the entire trial."
The said reasonings are legally sound and I should follow, as concluded by me in the previous paragraph.
18. The same view was taken by this Court also in H.THENMOZHI vs. INSPECTOR OF POLICE, P.R.C.UNIT, St.THOMAS MOUNT POLICE STATION, CHENNAI AND ANOTHER [(2006) 2 MLJ (Crl.) 463], wherein it is stated that the investigation done by the Inspector of Police vitiates the entire proceedings and the accused is entitled to an acquittal. In the case involved in the above decision, as seen from the judgment, the investigation has been done by the Inspector of Police and the same has been forwarded to the DSP, to investigate the matter further, probably considering the fact, the investigation by the Inspector of Police goes to the root of the matter. This Court, considering the above facts, took the view that the same would vitiate the entire proceedings, giving acquittal, which should be followed by me also, since I am in confirmity with the view expressed by the learned Judge.
30. Recently, in Sekar and others vs. D.S.P., Pudhuchatram {CDJ 2011 MHC 5916}, this Court while referring to the said Rule 7(1) reiterated the its earlier views which we have seen already.
31. In Asmathunnisa vs. State of A.P. (CDJ 2011 SC 332), referring to the said Rule 7(1) when the Investigating Officer namely D.S.P. is not the person as contemplated in the Rules, in other words, not specifically empowered referring to his past experience, the Apex Court held him an incompetent Police Officer to investigate such an offence.
32. Now considering the above Rule position and the decisions on the point, there cannot be quarrel over the proposition that it is not all the D.S.Ps. even Police Officers above him in rank cannot investigate the offences alleged to have been committed under SC&ST (P.A.) Act, 1989 unless they are specifically empowered by the Government or by the Superintendent of Police (in case of Metropolitan Cities, the Deputy Commissioner) taking into account their past experience and sense of ability etc.
33. The consequence of investigation done by a Police Officer not below the rank of a Deputy Superintendent of Police who has not been so empowered as mandated in Rule 7(1) has been pointed out by this Court in Sambasivam (supra) that the entire proceedings is vitiated.
34. Now in this case, PW-15 Subramaniam, D.S.P., Avinashi Sub Division took up his investigation on 25.4.2007. No materials or records to show that he has been empowered to undertake investigation with the required authorisation as contemplated under Rule 7(1).
15. In the present case, P.W.10, DSP has investigated this case. He did not say in his chief examination that he was so empowered. During his cross examination, a specific question was put to him that he has not been so specifically empowered and he denied the suggestion.
16. In the circumstances, the prosecution has to let in evidence by producing the order issued by the District Superintendent of Police that he has been specifically empowered under the Rules framed under the SC/ST Act. But, no such record has been produced. In such circumstances, the principles laid down in the said case squarely applies to the instant case. Thus, prosecution failed to prove the charge under Section 3(1)(x) of SC & ST (P.A.) Act, 1989 as against the accused.
16. The next charges are under Section 294(b) and 506(ii) of IPC. The requisite element for Section 294(b) IPC was not spoken by P.W.1 himself. Further, P.W.1 also did not say that at about that time the accused was wielding a lethal weapon and criminally intimidated him. However, P.Ws.4, 5, 6 and 7 stated to be ocular witnesses in this case to corroborate the evidence of P.W.1 has spoken about those aspects. In such circumstances, the evidence of P.W.1 would not be a legal evidence to establish the charges under Sections 294(b) and 506(ii) of IPC.
17. Further, there is a delay of 6 days in lodging the F.I.R. It is not that every day delay in lodging the F.I.R will vitiate the case. But it depends on the facts and circumstances of each case. Prosecution has to explain the delay.
18. Lodging of F.I.R becomes very important in a criminal case. Unexplained delay will become fatal because that will give scope to introduce embezzled version. When there is unexplained delay, it will shake the veracity of the witnesses.
19. Now, in this case, admittedly, there is 6 days delay in lodging the F.I.R. No explanation as to why 6 days delay has occurred. In the circumstances, it has shaken the veracity of P.W.1 and the other witnesses, who were examined as ocular witnesses in this case. Thus, charges under Sections 294(b) and 506(ii) of IPC also not established.
20. The net result is suspicion and surmises. However, they may be strong, they may not be a substitute for legal proof. Prosecution has failed to establish the charges framed against the accused beyond all reasonable doubts.
21. In the result, the appeal succeeds. The conviction recorded and sentence awarded for offences under Sections 3(1)(x) Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, under Sections 294(b) and 506(ii) IPC are set aside. The accused is acquitted. The fine amount shall be refunded to him.
Index : Yes/No 16.02.2016
Internet: Yes/No
kua
To
1. The Special Judge
under SC&ST (P.A.) Act/
Sessions Judge,
Perambalur.
2. The Additional Public Prosecutor,
High Court, Madras.
3. The Superintendent of Police,
Perambalur
4. The Deputy Superintendent of Police,
Meensurity Police Station,
Perambalur District
5. Inspector of Police,
Meensurity Police Station,
Perambalur District
6. The Superintendent,
Central Prison,
Cuddalore.
Dr.P.DEVADASS,J.
kua
Crl.A.No.689 of 2005
16.02.2016