Andhra HC (Pre-Telangana)
Pentakota Koteswara Rao vs State Of A.P. on 11 December, 1998
Equivalent citations: 1999(1)ALD693, 1999(1)ALD(CRI)616
JUDGMENT
1. This appeal has been preferred by the sole accused in SC & ST Sessions Case No.13 of 1996 on the file of the Special Judge (Metropolitan Sessions Judge), Visakhapatnam, against his conviction for the offences punishable under Sections 3(1)(i) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atirocities ) Act, 1989 (hereinafter called as 'the Act') and for the offence punishable under Section 323 IPC and the sentences of imprisonment imposed against him. He was sentenced to undergo Rigorous imprisonment for a period of three years and also Rigorous Imprisonment for a period of three years and also Rigorous Imprisonment for a period of six months for the offences punishable under Sections 3(1)(xi) and 3(1)(x) of the Act respectively. He was also sentenced to undergo Rigorous Imprisonment for a period of one month for the offence punishable under Section 323 IPC and all the sentence are ordered to run concurrently.
2. The case of the prosecution, in brief, is as follows:
(i) The appellant -accused and the de facto complainant-Kum. Nakka Nagamani (PW2), her mother-Venkayyamma (PW4) and Lamba Krishna (PW3) are all residents of Ompolupeta situated within the limits of Munagapaka Police Station in Visakhapatnam District. The accused belongs to Gavara caste while the de facto-complainant and PWs.3 and 4 belong to Scheduled Caste i.e., Mala caste. The de facto complainant is an unmarried girl aged about 18 years. At the time of offence she was living with her parents.
(ii) On 2-3-1995 at about 5.00 p.m. after collecting the grass from a sugarcane field, PW2 went to her father who was at nearby shed and kept the grass there and at that time she saw the accused talking to her father and after informing her father she left that place to return home. When she reached Koilada Satyanarayana 's sugarcane field the accused came from behind, caught hold of her and shut her mouth and lifted her into the sugar cane field and tried to ravish her. In the scuffle her bangles were broken and bangle pieces feil on the ground and she sustained scratches also. She resisted the accused and go! herself freed from him and came away to tiie road and at that time PW3 who was passing on that road enquired her as to what had happened and the de facto complainant narrated the incident to PW3 who escorted her to her house from that place. On reaching home she informed her mother, PW4, about the incident. At about 6.30 p.m. on the same day PWs.2 to 4 and others went to the house of the accused and questioned the parents of the accused about the outrage and in the meanwhile (he accused came ou( of the house and dealt a blow on the head of PW3 with a stick and he also humiliated PWs.2 to 4 and insulted them by addressing them as 'Mala Bastards1.
(iii) PW2, thereafter, went to Munagapaka Police Station and preferred the complaint, Ex.P3, before the Sub-Inspector of Police, PW5, who registered the same as Crime No.33 of 1995 and issued FIR, Ex.P4 and he took up investigation and visited the scene of offence on the next day and seized the broken bangle pieces, MOs.1 and 2, form the scene of offence i.e., at the sugar cane field under panchanama. He also examined PWs.2 to 4 and others and recorded their statements. He also sent the injured PWs.2 and 3 to the Community Hospital, Anakapalle. PW1-the Medical Officer, Community I lospifal, Anakapalle, examined PW2 and found t\vo leniar abrasions on front and two leniar abrasions on back of right forearm and issued, Ex.P! for the injuries found on PW2. PW1 also examined PW3-Lamba Krishna and on examination she found a lacerated wound measuring 1 1/2" x 1/4 x muscle deep longitudinal direction with dry blood seen on right parietal of head and Ex.P2 is the wound certificate issued by her for the injury found on PW3. In her opinion both the injuries arc simple in nature and age of the injuries is 4 to 8 hours prior to her examination.
(iv) After completing the investigation, PW5-the Sub-Inspector of Police laid the charge-sheet against the accused for the offences punishable under Sections 3(1)(xi) and 3(1)(x) of the Act and under Section 34 i PC.
3. The plea of (he accused is one of denial. To bring home the guilt of the accused, the prosecution examined PWs.1 to 5 and marked Exs.P1 to P7 and MOs.1 and 2. On behalf of the accused, a portion of statement of PW2 recorded under Section 161 Cr.PC was marked as Ex.D1. The learned Special Judge accepting the evidence of PWs.2, 3 and 4 held the accused guilty of the offences punishable under Sections 3(l)(xi) and 3(!)(x) of the Act and also the offence punishable under Section 323 IPC and, sentenced him to undergo imprisonment as stated supra.
4. Challenging the said convictions and sentences imposed on him, the accused has come up with this appeal.
5. Sri C. Praveen Kumar, learned Counsel appearing for the appellant, raised two contentions. Firstly, the testimony of the de facto complainant-victim girl, PW2, is not worthy of credence with regard to the alleged outrage of her modesty in the field, (hat her conduct in not informing her father who was said to be available in a nearby shed immediately after the incident, is highly unnatural and that the alleged incident, at the house of the accused at about 6.30 p.m. did not take place and that the case has been foisted falsely against the accused. Secondly, Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Altrocities) Rules, 1995 (hereinafter called as 'the Rules') envisages that an offence committed under the Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police and this direction is mandatory and that in the instant case, the investigation has been done by the Sub-Inspector of Police, PW5, and as such the investigation done by P\V5-the Sub-Inspector of Police is invalid and the charge-sheet filed by him is also invalid and, therefore, the conviction based on such invalid investigation is liable to be set aside.
6. On a careful consideration of the evidence on record, 1 am satisfied that both the contentions raised by the appellant's Counsel are liable to be rejected.
7. The offences punishable under Sections 3(1)(x) and 3(1)(xi) of the Act with which we are concerned read as follows:
"3. Punishments for offences of attrocities:
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(i) to (ix) are not necessary.
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;
(xii) to (xv) are not necessary.
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
8. As per the prosecution case, the offence had taken place under two incidents. The first incident was said to have taken place at about 5.00 p.m. in the fields near the sugar cane field of Koilada Satyanarayana and the second incident was said to have taken place at the house of the accused at about 6.30 p.m. on the same day. As regards the first incident, the victim (PW2) alone is the witness. It is in her evidence that while she was returning home, the accused came from behind, caught hold of her hands and shut her month and lifted her into the sugar cane field and tried to ravish her and that as she tried to come away the accused held her by hand and embraced her and in the scuffle her bangles were broken and the bangle pieces fell on the ground and that she sustained scratches and that she got herself released from the clutches of the accused and went away weeping and that she informed PW3 who was passing that way about the incident. She has been subjected to lengthy cross-examination but nothing has been elicited to discredit her testimony. It is true that there are no other eye-witnesses to this incident. But it is in the evidence of PW3 that he found PW2 coming weeping at the sugar cane field of Koilada Satyanarayana and on enquiry she informed him that the accused attempted to rape her. He further deposed that he escorted her to her house. Thus, immediately after the occurrence PW2 had informed PW3 who was passing on that way. After reaching home, PWs.2 and 3 also informed PW4-the mother of PW2 about the incident.
9. In Jagadish Prasad v. State of M.P., , the Supreme Court held that as a general rule the Court can and may act on the testimony of a single witness though uncorroborated provided the testimony of that single witness is found entirely reliable and in such case there will be no legal impediment for recording conviction, but if the evidence is open to doubt or suspicion the Court will require sufficient corroboration. Therefore, conviction can be based on uncorroborated testimony of a victim girl in a case of this type while her testimony is not open to doubt or suspicion and infuses confidence and found out to be entirely reliable. As earlier stated, nothing has been elicited in the cross-examination of PW2 to discredit her testimony. I do not find any infirmities in her testimony. Under normal circumstances, we cannot expect any other persons to be present in the field where the offence has been committed.
10. The testimony of PW2 is also amply corroborated by the recitals in her complaint Ex.P3 given to the police and also the medical evidence in this case. The Doctor, on examination of PW2 on 3-9-1995 at 1.00a.m., found two leniar abrasions on front and two leniar abrasions on back of right fore-arm. Ex.PI is the wound certificate issued by her. Further, during the course of investigation, PW5 also seized broken bangle pieces, MOs.1 and 2 from the scene of offence in the field under panchanama. Thus, the oral testimony of PW2 is amply corroborated by the medical evidence and also by the recovery of bangle pieces MOs.1 and 2 from the scene of offence. Therefore, I have no hesitation to accept the testimony of PW2 that the accused assaulted her to outrage her modesty.
11. As regards the second incident which took place near the house of the accused on the same day evening, PWs.2, 3 and 4 deposed that when they went to the house of the accused and accosted the mother of the accused as regards to the first incident which took place in the field, the accused came out from the house with a stick and dealt a blow on the head of PW3 and caused a simple injury. It is also in their evidence that the accused abused them by their caste namely 'mala'. Though PWs.2, 3 and 4 have been subjected to cross-examination on this aspect, nothing has been elicited to discredit their testimony. Hence, I do not find any reason to disbelieve or reject the testimony of PWs.2, 3 and 4. Moreover, PW3 is an independent witness. For the fault of accompanying PWs.2 and 4 to the house of the appellant-accused, PW3 was beaten by the accused. The medical officer-PW1 also corroborates the oral testimony of PWs.2, 3 and 4. It is in the evidence of PW1 that on examination of PW3 she found a lacerated wound measuring 1-1/2" x 1/4" x muscle deep on the right parietal region of PW3. Ex.P2 is the wound certificate issued by her. Therefore, the evidence on record conclusively establishes that the appellant-accused caused simple hurt io PW3 and also abused PWs.2, 3 and 4 by their caste namely 'mala'.
12. The second contention raised by the learned Counsel is purely a question of law. It involves two aspects - firstly whether the provisions in Rule 7 of the Rules that the offences committed under the Act should be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police is mandatory ? and secondly whether the investigation done contrary to the provisions of Rule 7 vitiates the trial held and conviction recorded against the accused based on that investigation?
13. For the sake of convenience Rule 7 is extracted and it reads thus:
"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 Stale Government, Director General of Police, Superintendent of Pol ice 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 within thirty days and submit the report to the Superintendent of Police who inturn 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, (he officer-in-charge of Prosecution and the Director Genera! of Police shall review by (he end of every Quarter the position of all investigations done by (he Investigating Officer."
14. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been enacted to prevent the commission of offences/atrocities against the members of the scheduled castes and scheduled tribes, to provide for special Courts for trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto, as is evident from its preamble. To ensure speedy trial for the offences under the said Act, Section 14 of the Act provides for the establishment of a Special Court of the rank of Court of Sessions for each Dist., Section 23 of the Act enables (he Central Government to make rules for carrying out the purposes of (he Act. It is in pursuance of Section 23 the Central Government have made the Rules namely 'The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Rules, 1995" and the same have been published in the Gazette of India, Extraordinary Part-11, dated 31-3-1995 and they have come into effect form the date of the said publication. As these Rules have been framed under Section 23 of the Act, they have got the statutory force and the compliance of those Rules is mandatory.
15. Rule 5 provides that every information relating to the commission of offence under the Act, if given orally to an officer incharge of a police station shall be reduced to writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it and the substance thereof shall be entered in a book to be maintained by that police station and the person who gave such information is entitled for a copy of the same free of cost.
Rule 7 provides that an offence committed under the Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police appointed by the State Government, Director General of Police, Superintendent of Police after considering his past experience etc. In the absence of any other provision relating to the enquiry, trial etc., under the Act or Rules the general provisions under the Code of Criminal Procedure (hereinafter called as 'the Code') are applicable.
16. In the instant case, as soon as Ihe complaint has been preferred by PW2 before PW5-the Station House Officer, Munagapaka Police Station, a case has been registered against the appellant-accused andPW5 who is also the Sub-Inspector of Police took up investigation and after completing Ihe investigation, he filed the charge-sheet against the appellant-accused. It is not disputed that the investigation in this case has been conducted in violation of Rule 7 as it has not been done by the Deputy Superintendent of Police and it has been done only by a Sub-Inspector of Police. It is for that reason, the learned Counsel for the appellant vehemently contends that the trial and conviction of the appellant proceeded on such invalid investigation are illegal.
17. It is well settled that a defect or illegality in investigation has no direct bearing on the competence or the procedure relating to taking cognizance or an offence or trial of (he case. Section 5 of the Code shows that all offences "shall be investigated, enquired into, tried or otherwise dealt with in accordance with the Code" (except insofar as any special enactment may provide otherwise). The Code provides not merely for judicial enquiry into or trial of alleged offences, but also for prior investigation thereof. Investigation usually starts on information relating to the commission of an offence given to an officer incharge of a police station and recorded under Section 154 of the Code. The investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of the evidence conducted by a police officer". If, upon the completion of the investigation, it appears to the Investigating Officer that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he has to take the necessary steps therefor under Section 173 of the Code. In either case, on the completion of the investigation, he has to submit a representation to the Magistrate under Section 173 of the Code in the prescribed form furnishing various details. Section 190 of the Code relates to cognizance of offences by the Magistrate. Under this Section, the Magistrate may take cognizance of an offence:
(a) upon receiving a complaint of facts which constitutes such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed.
"Cognizance" means to apply mind for the purpose of taking cognizance in respect of facls constituting the offence and not for any other purpose like directing investigating under Section 156(3) or issuing search warrants for any other purpose. Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking a cognizance by a Magistrate. A police report under Section 173 of the Code which is the result of an investigation falls under Clause (b) of Section 190(1). It cannot be maintained that a valid and legal police report alone is the foundation of the jurisdiction of the Court to fake cognizance of an offence. Further, it is not possible to say that cognizance of an offence on an invalid police report is prohibited and is therefore a nullity. An invalid police report may still fall either under clause (a) or clause (b) of Section 190(1). Hence, the Court can take cognizance on such police report vitiated by breach of mandatory provision relating to investigation, under clause (1) of Section 190(1) as it constitutes a report/complaint relating to the collection of facts which constitute an offence as the Magistrate takes cognizance of the offence and not of offenders. Further, taking cognizance on such a police report will be in the nature of an error in the proceeding antecedent to the trial and to such a situation, Section 465(1) of the Code which is in the following terms is attracted:
"(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code or any error or irregularity in any sanction for the prosecution, unless in the opinion of that Court, the failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, irregularity in any sanction for the prosecution has occasioned the failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
Therefore, if cognizance is, in fact, taken, on a police report vitiated by a breach of a mandatory provision is relating to investigation, the result of the trial which follows cannot be set aside unless the illegality in investigation can be shown to have brought about mis-carriage of justice. That an illegality commilted in the course of investigation does not affect competence on the jurisdiction of the Court for trial is well settled as appears from catena of cases.
18. The earliest case on the point is H.N. Rishbud and Inder Singh v. State of Delhi, , in which the Supreme Court observed:
"If, therefore, cognizance is in fact taken on a police report vitiated by a breach of a mandatory provision relating to investigation there can be no doubt that the result of the trial which follows, it cannot be set aside unless the illegality in investigation can be shown to have brought about a mis-carriage of justice..... We are therefore clearly also of the opinion that where the cognizance of the case has in fact been taken and the case as proceeded to terminate, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."
The same propositions have been reiterated in the later decisions by the Supreme Court as well as by this Court.
19. In Munnalal v. State of Uttar Pradesh, , three Judge Bench of the Supreme Court while quoting the observations in H.N. Rishbud's case (supra) observed thus:
"In view of this decision, , even if there was irregularity in the investigation and Section 5(A) of Prevention of Corruption Act, 1947 was not complied within substance, the trials cannot be held to be illegal unless it is shown that mis-carriage of justice has been caused on account of the illegal investigation."
20. In State of Uttar Pradesh v. Bhagwant Kishore Joshi, , Subba Rao, J. (as he then was) observed thus:
"The question is not whether in investigating an offence, the police have disregarded the provisions of (he Act (Prevention of Corruption Act, 1947), but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is therefore necessary for the accused to throw a reasonable doubt lhat the prosecution evidence is such that it must have been manipulated or established by reason of the irregularity in the matter of investigation or that lie was prevented by a reason of such irregularity putting forward his defence or adducing evidence in support thereof. But, where the prosecution has been held to be true and where ihe accused has full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation. There must be sufficient nexus either established or probabilised between the conviction and the irregularity in the investigation."
21. In Dr. M.C. Sulkunte v. State of Mysore, , three Judges Bench of the Supreme Court in para 15 observed thus:
"It has been emphasised in number of decisions of this Court that to set aside conviction, it must be shown that there has been mis-carriage of justice as a result of an irregularity in investigation."
22. In Muni Lal v. Delhi Administration, , quoting the proposition laid down in H.N. Rishbud's case (supra), the Supreme Court observed in para 14 thus:
"From the above proposition, it follows that where cognizance of the fact has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless mis-carriage of justice has been caused thereby and the accused has been prejudiced. Assuming in favour of the appellant, that there was an irregularity and that Section 5-A of Act (Prevention of Corruption Act, 1947) was not complied with in substance, the trial by a Special Judge cannot be held to be illegal unless it is shown that mis-carriage of justice has been caused on account of illegal investigation."
23. In Khandu Sonu Dhobi and Anr v. State of Maharashtra, , three Judges Bench of the Supreme Court observed in para 11 thus:
"It is well established that where cognizance of a case has in fact been taken by the Court on a police report following investigation conducted in breach of provisions of Section 5-A of Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality of the investigation can be shown to have brought about a mis-carriage of justice. The underlying reason for the above dictum is that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court to try the accused. Where, therefore, the trial of the case as proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality of the investigation has caused prejudice to the accused."
24. In Public Prosecutor v. Hatam Bhai and others, , Gopal Rao Ekbote, J.. (as he then was), while referring to the case law on the point observed in para 17 thus:
''What emerges from the above said discussion is that the validity of the trial docs not depend upon the validity of the investigation conducted unless of course any irregularity or illegality in the matter of investigation results or is likely to result in mis-carnage of justice. The evidence collected during the illegal investigation does not necessarily become inadmissible on that account if it is otherwise relevant. The Court can always scrutinise it by the same method as any other evidence is scrutinized. If on the evidence adduced in the trial, it can satisfactorily be made out thai the accused has committed an offence, the Court in spite of irregularities in the matter of investigation would be justified in convicting the accused. On the other hand, if the evidence given at the trial cannot independently make out the case and if the evidence is influenced by the improper investigation, the Court would naturally not convict the accused on such offence. What has to be seen in cases of improper investigation is whether it has occasioned mis-carriage of justice or is it likely to cause prejudice to the accused. If the objection in regard to irregularity in investigation is taken at the earliest stage, it has to be of course set right."
25. In the instant case, the learned Counsel for the appellant has been unable to show how there has been any mis-carriage of justice in this case and how the accused has been prejudiced by the irregular investigation done in this case. Admittedly, the appellant did not raise any objection before the trial commenced regarding any illegality or irregularity committed during ihe stage of investigation. On the other hand, the trial was allowed to proceed and it came to an end. This contention is raised for the first item before this Court. Since the appellant failed to establish that there has been miscarriage of justice in the present case because of the non-compliance of Rule 7 of the Rules, the conviction of the accused-appellant cannot be set aside on that score.
26. In the light of my above discussion, I do not find any merits in this appeal. Hence, the appeal is dismissed. The conviction and the sentence imposed on the appellant-accused arc confirmed. The appellant-accused, who had been enlarged on bail as per the orders of this Court in Criminal Miscellaneous Petition No.36 of 1997 dated 8-1-1997 is directed to surrender to undergo the remaining period of sentence imposed on him.