Andhra HC (Pre-Telangana)
Stalin Father @ Nanda Stalin @ Stalin ... vs The State Of A.P. Rep. By Public ... on 10 August, 2004
JUDGMENT P.S. Narayana, J.
1. Stalin Father, Father (Pastor) in-charge and care taker of R.C.M. Church compound, Mogalthuru, A-1 in S.C. No. 5/96 under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 preferred this Appeal as against the Judgment in S.C. S.T. Sessions Case No. 5/96 on the file of Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, West Godavari District dated 10-9-1997. The appellant/A-1 was found guilty under Section 376(2)(c) r/w. Section 511 I.P.C. and Section 323 I.P.C. The findings of the learned Special Judge, in nut shell, are that the victim girl PW-1 does not belong to Scheduled Caste being a Christian and hence the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not applicable and the accused are not liable to be punished under Section 3(1)(xii) and 3(2)(v) of the said Act. The further finding is that A-1 to A-5 did not wrongfully confine PW-1 with common intention and hence Section 342 r/w. Section 34 I.P.C. also is not attracted. A-1 is not guilty of the offence under Section 376(2)(f) I.P.C. A-1 attempted to commit rape on PW-1, being a person in management of children's institution taking advantage of his position and is liable to be punished under Section 376(2)(c) r/w. Section 511 I.P.C. A-1 also is liable to be punished under Section 323 I.P.C. for beating PW-1. A-2 to A-5 are entitled for an acquittal.
2. The case of the prosecution is that PW-1, aged 12 years, belongs to Hindu Arundhateeya, Scheduled Caste, and she was one of the inmates of the children's home under the management of A-1 and on 10-10-1995 at about 8 P.M. A-1 sent for PW-1 and her brother PW-3 through PW-9 to come and see him in his private room and that PW-1 and PW-3 went to the bed room of A-1 and A-1 had sent away PW-3 and expressed his intention to kiss PW-1 and further instructed PW-1 not to sleep in that night and he was coming to her hall in the night and PW-1 slept in the hall along with other inmates and at about 11 P.M. A-1 entered the said hall and PW-1 pretended as though she was sleeping. A-1 closed the mouth of PW-1 and carried her into his bed room and committed rape on PW-1 on his cot after making PW-1 naked and A-1 fell on PW-1, penetrated his penis into her vagina despite resistance and after the commission of the offence A-1 asked PW-1 to wear her clothes and to go to her room and also instructed not to disclose the same to any one. It is also the case of the prosecution that PW-1 went to the hall and noticed bleeding from her private part and on 11-10-1995 at 7 A.M. PW-1 and PW-3 met near Ramalayam of Mogalthuru and when she was weeping PW-10 to PW-14 noticed the same and she had disclosed this incident to them and they collected Rs. 8/- and gave the same to PW-1. PW-1 and PW-3 left Mogalthuru, reached Yendagandi village and while going to their village, A-1 along with along with A-2 went there and brought back PW-1 to Church home and A-1 beat PW-1 causing simple injuries. It is further the version of the prosecution that A-1 handed over PW-1 to A-3 to A-5 with instructions to confine PW-1 wrongfully and A-2 to A-5 wrongfully confined PW-1 in a room till 12-10-1995 at 8 A.M. and PW-1 was taken by A-1 and A-2 to the house of PW-4. It is further the case of the prosecution that PW-1 disclosed the offence to PW-4 and PW-2 and PW-4 and others questioned A-1 at K.P. Palem Church and A-1 replied arrogantly. After framing charges, the accused pleaded not guilty.
3. The prosecution had examined PW-1 to PW-29 and Exs. P-1 to P-44 were marked and MO-1 also was marked. Ex. D-1, Ex. D-2 and Ex. D-3 also were marked and DW-1 to DW-3 were examined on behalf of appellant/A-1.
4. Submissions of Sri C. Padmanabha Reddy, Counsel representing the appellant/A-1:
The learned Senior Counsel Sri Padmanabha Reddy on behalf of the appellant/A-1 submitted that the accused were acquitted of offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 since PW-1 does not belong to Scheduled Caste but she is a Christian. The learned Counsel also would submit that the evidence of PW-1 is quite exaggerated, unnatural and definitely cannot be believed in the light of the medical evidence and several of the circumstances and the probabilities in the present case. The learned Counsel would submit that it is not for the appellant/A-1 to explain why he was falsely implicated in such a heinous crime; it may be for having some monetary gain from the Government or otherwise. The learned Counsel also would submit that the evidence may have to be appreciated in the back drop of the facts. There is evidence on record that PW-1 and the brother of PW-1, PW-3, have not been regular and disciplined and have been disorderly and the evidence of PW-1 also would lend support to this aspect. The learned Counsel also would submit that the confident conduct of the appellant/A-1 while asserting that he had taken action against PW-1 and PW-3 for not being regular and disciplined and nothing more, would also point out the innocence of the accused in relation to the offences with which he had been charged with. The Counsel also had pointed out that it is not the case of the prosecution that there were no other inmates on the fateful day and all these inmates who were examined were treated hostile. The learned Counsel also would submit that if the evidence of PW-1 is carefully scrutinized, it would be highly doubtful whether she is speaking truth. Apart from the exaggerated versions, the medical evidence also negatives the commission of the offence of rape. The learned Counsel had pointed out to the inherent probabilities in the evidence of PW-1. The learned Counsel also would submit that PW-1 had not intimated this to PW-2, her father, and PW-2 also accompanied the appellant/A-1. Subsequent thereto it is said that PW-1 disclosed the commission of the offence at the earliest point of time to PW-10 to PW-14 and PW-10 to PW-13 turned hostile. PW-14 only speaks of PW-1 informing him about the commission of the offence. The Counsel would point out that a responsible person like PW-14, an active member of Communist Party of India, would not have left the matter there and this is an inherent improbability. The learned Counsel also had pointed out to the evidence of PW-2 and his statement that PW-3 had informed him about the incident. The evidence of PW-4 and PW-17 is to the limited extent that they verified and checked up the body of PW-1 to satisfy themselves whether the offence was committed or not. PW-18 to PW-21, the neighbours of PW-4 also had not supported the version of the prosecution. The learned Counsel also pointed out that it is the evidence of PW-4 that at the earliest point of time to satisfy whether the offence was committed or not, PW-1 was taken to a Doctor and they were satisfied that the offence in fact was committed, but the said Doctor was not examined. The final opinion of PW-24, Ex. P-30, is that PW-1 had not lost her virginity. On the strength of this material, the learned Judge had definitely erred in convicting A-1 under Section 376(2)(c) r/w. Section 511 I.P.C. on the ground of attempt to commit rape. When the evidence of PW-1 suffers from several inherent improbabilities convicting the appellant/A-1 on the strength of such evidence would be totally unjust and appellant/A-1 is definitely entitled to the benefit of doubt. The learned Senior Counsel would conclude that may be that while enforcing discipline the appellant/A-1 might have exceeded the permissible limits but while evaluating the standard of discipline and enforcing thereof, the standards vary from human being to human being. The learned Counsel also had pointed out to the evidence of DW-1 to DW-3 and would contend that in view of the fact that their version had been accepted by the learned Judge the same need not be elaborated. The learned Counsel also made certain submissions relating to the non-production of age certificate by the headmistress who was examined and the medical evidence relating to the age of PW-1. Ultimately the learned Senior Counsel concluded that this is definitely a framed up case either expecting some monetary gain from the Government by implicating the appellant/A-1 in an offence of this nature, or being aggrieved by the way in which discipline was enforced by the appellant/A-1.
Submissions made by learned Additional Public Prosecutor:
The learned Additional Public Prosecutor had narrated the dates and the events in seriatim and the delay in between the date of offence and the date of examination of PW-1 by the Doctor and would contend that the medical evidence in relation to the private parts of PW-1 would definitely lend support to the version of the prosecution that at least an attempt was there though that is not a completed offence. The evidence of PW-1, young girl prosecuting her studies, cannot be discarded on the ground that she gave exaggerated versions. The social status of the victim girl and the status of the accused also may have to be taken into consideration and the appellant/A-1 was a Pastor at the relevant point of time and absolutely there is no reason for PW-1 to make such false allegation against the Pastor and implicating him in a false case. The learned Additional Public Prosecutor also had taken this Court through the findings recorded by the learned Judge and also would contend that in view of the doubt relating to the age, the learned Judge had arrived at a correct conclusion that Section 376(2)(f) I.P.C. is not applicable and hence inasmuch as it is a clear case of an attempt, the appellant/A-1 was convicted under Section 376(c) r/w. Section 511 I.P.C. The learned Counsel also would point out that apart from the evidence of PW-1, the evidence of PW-4 and PW-17 would amply support the version of PW-1. The evidence of PW-14 also is available on record to support the version of the prosecution as to what transpired at Ramalayam of Mogalthuru. Absolutely there are no inherent improbabilities in the episode of the prosecution and the learned Judge had recorded convincing reasons and hence there are no reasons to interfere with the said findings by the appellate Court. The learned Additional Public Prosecutor also placed reliance on STATE OF MAHARASHTRA Vs. CHANDRAPRAKASH KEWALCHAND JAIN, and STATE OF RAJASTHAN Vs. N.K., AIR 2000 S.C. 1812.
5. Heard the Counsel at length and perused the oral and documentary evidence and the material available on record.
6. The learned Special Judge framed the following charges :
"FIRSTLY:
That you A-1 of you on 10th day of October, 1995 around at 8 p.m. in Mogalthuru committed rape on Kapa Mary @ Sulochana and that you thereby committed an offence punishable under Section 376(2)(c) of the Indian Penal Code and within my cognizance;
SECONDLY:
That you A-1 of you on the same day, date, time and place as mentioned in charge No. 1 supra committed rape on Kapa Mary @ Sulochana and that you thereby committed an offence punishable under Section 376(2)(f) of the Indian Penal Code and within my cognizance;
THIRDLY:
That you A-1 of you on 11th day of October, 1995 in Mogalthuru voluntarily caused hurt to Kapa Mary @ Sulochana by beating indiscriminately and that you thereby committed an offence punishable under Section 324 of the Indian Penal Code and within my cognizance.
FOURTHLY:
That you A-1 to A-5 on the same day, date, time and place as mentioned in charge No. 3 wrongfully confined Kapa Mary @ Sulochana and that you thereby committed an offence punishable under Section 324/34 IPC and within my cognizance.
FIFTHLY:
That you A-1 of you on the same day, date, time and place as mentioned in charge No. 1 supra, Kapa Mary @ Sulochana being in a position to dominate the will of that woman belonging to a Scheduled Caste and you namely A-1 used that position to exploit her sexually to which she would not have otherwise agreed and that you thereby committed an offence punishable under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and within my cognizance; and LASTLY:
That you A-1 of you on the same day, date, time and place as mentioned in charge No. 1 supra, committed an offence against Kapa Mary @ Sulochana who belongs to the Scheduled Caste and that you thereby committed an offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act within my cognizance of the Court of Session."
7. A-2 to A-5 were acquitted and the appellant/A-1 alone was convicted for an offence under Section 376(2)(c) r/w. Section 511 I.P.C. imposing sentence of R.I. for one half of the life and to pay a fine of Rs. 5000/-, in default to suffer S.I. for six months and under Section 323 I.P.C., R.I. for one year and to pay a fine of Rs. 1000/-, in default, S.I. for one month.
8. PW-1 is the victim girl. No doubt the stand of the Prosecution is that she belongs to Scheduled Caste. The evidence of DW-1 to DW-3 would clearly disclose that they are Christians. Exs. D-2 and D-3 also were marked in this regard. PW-22, Headmistress of Mandal Praja Parishad Primary School, Mogalthuru deposed that PW-1 was studying in 3rd class in school No. 2 and she gave certificate as per the admission register and PW-1 belongs to Arundhateeya. However, in the light of the findings recorded by the learned Judge that Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not applicable inasmuch as PW-1 is a Christian, the said aspect need not be detailed further.
9. In this case, there is solitary testimony of PW-1 about the incident proper. The appellant/A-1 is a Pastor and he had been in management of children's home. The charge is commission of the offence of rape apart from other charges. The learned Special Judge, in view of the doubt about the age, convicted the appellant/A-1 under Section 376(2)(c) r/w. Section 511 I.P.C. and not under Section 376(2)(f). PW-29, the Assistant Professor of Forensic Medicine, Rangaraya Medical College, Kakinada, deposed that on requisition of Inspector of Police, Narsapur he examined PW-1 on 20-10-1995 after taking consent of PW-1's father in the presence of a lady constable for age determination and he conducted general examination, physical examination, dental examination and radiological examination of PW-1 and he is of the opinion that PW-1 was aged about 12 years and he issued Ex. P-43 certificate. In cross-examination PW-29 deposed that PW-24 gave reference letter for examination of PW-1 and he denied the suggestion that the age of the girl would be 14 years because she was having 28 permanent teeth and normally second molar teeth appear after 12 to 14 years. PW-24, Deputy District Medical and Health Officer, deposed that the girl will be aged about 11 to 12 years, healthy and was understanding questions. Though there is some controversy relating to the age of PW-1, the same falls into insignificance since the appellant/A-1 was not convicted under Section 376(2)(f) I.P.C.
10. PW-3 is the brother of PW-1, a child witness, and the learned Special Judge after putting some preliminary questions to him and having been satisfied that it would not be safe to record the evidence of such witness observed that the evidence of PW-3 cannot be recorded as he is an incompetent witness. PW-5 to PW-13 were declared hostile. PW-5 to PW-9 are the other inmates of the home and PW-10 to PW-13 are the persons to whom, it is said, PW-1 informed the incident at Ramalayam. PW-16 also was declared hostile who deposed that at about 3 p.m. on 13-10-1995 he saw PW-1 to PW-3 and when he was going from the Police Station one police constable called him to write a report and he wrote the report and police did not examine him and Ex. P-1 is in his hand writing and no one signed in his presence in Ex. P-1. No doubt he was cross-examined by the prosecution, but he specifically denied that PW-1 gave instructions to him to write Ex. P-1.
11. PW-18, PW-19, PW-20 and PW-21 were declared hostile.
12. PW-1 is the victim girl. PW-2 is the father of PW-1. PW-4 is the senior maternal aunt of PW-1. PW-17 is the mother-in-law of PW-4. PW-14 is the witness available to prove the prosecution version relating to what happened at Ramalayam. PW-15 is the photographer. Exs. P-14 to P-17 and Exs. P-18 to P-21 are the photographs and negatives of R.C.M. Church, Mogulthuru in a house by the side of Church and in the bed room of the house. PW-23 is the V.A.O. of Mogalthuru. Ex. P-26 is the observation report and seizure of blood stained blanket and lungi under Ex. P-27. PW-25 is the Doctor who examined the appellant/A-1 who issued Ex. P-31 and the final opinion Ex. P-32 is to the effect that the individual is potent and capable of performing sexual intercourse. In cross-examination he deposed that from the examination of the appellant/A-1 made by him clinically and from the F.S.L. report on the objects sent to him, there was no indication of the sexual intercourse on 10-10-1995. PW-26, Munsif Magistrate, was nominated for recording the statements under Section 164 Cr.P.C. Ex. P-33 is the nomination by the Additional District & Sessions Judge, Ex. P-34 is the requisition, Ex. P-35 to Ex. P-39 are the statements recorded by him under Section 164 Cr.P.C. in the absence of police. PW-27 and PW-28 are concerned with the investigation.
13. As already stated supra, there is solitary testimony of PW-1 alone as to what transpired on the fateful day and other inmates of the home also turned hostile. Hence, the evidence of PW-1 may have to be carefully scrutinized. It is no doubt the stand of the prosecution that the other inmates turned hostile in view of the official position of the appellant/A-1.
14. Narration of incident proper: PW-1 deposed that her mother left to Kuwait and PW-1 and her brother PW-3 were joined in R.C.M. Hostel, Mogalthuru and while staying in the said hostel she was studying in Government School at Narsapur. The appellant/A-1 is the Father of the Church and he was staying in a room by the side of the hostel and there are inmates in the hostel and she knows A-2 to A-5 also. A-3 to A-5 are the cooks in the hostel and A-2 is the driver of the appellant/A-1's car. PW-1 further deposed that in the year 1995, the appellant/A-1 sent for her and her brother to his room at 8 p.m. and pointed out that her brother was not studying properly and thereafter sent him away and after her brother left the room, the appellant/A-1 stated that she was fair in colour and he wants to eat away her cheeks and wanted to have his desire fulfilled with her. PW-1 further deposed that the appellant/A-1 stated to her that she may go and wait in the study hall upto 10 P.M. and he would come over there and she went to the study hall, had studies and went away to her room when all other inmates left the said hall. PW-1 also deposed that she slept in the room. Subsequent thereto, the appellant/ A-1 came there, focussed torch light on the faces of the children and out of fear PW-1 closed herself with blanket and the appellant/A-1 called him as Mary twice and she did not get up. When PW-1 did not get up, the appellant/A-1 lifted PW-1 by her hand and took her to his room and laid her on the cot. PW-1 further deposed that the appellant/A-1 removed her drawer and gown and removed his lungi and fell upon her and the appellant/A-1 put his male organ into her female organ and she raised cries as Baboy Baboy due to pain and the appellant/A-1 questioned her as to why she was raising cries and she stated to the appellant/A-1 that she was getting pain. She further deposed that the appellant/A-1 asked her to see the programme in the T.V. in his room, but she did not see and then the appellant/A-1 got up and asked her to put on her gown and to go to her room. PW-1 also deposed that the appellant/A-1 stated that if she reveals the same to anybody he would kill her and she went to the hall to sleep and wanted to sleep, but could not get the sleep since she was suffering from pain in her female organ and there was bleeding from her female organ and she wanted to go away from the hostel on the next morning and on the next morning PW-1 informed the incident which had taken place on the previous night to her friend in the hostel.
15. This is the only evidence available on record relating to the incident proper.
16. Narration of post incident events : As far as the post incident events are concerned, PW-1 continued to depose that PW-1 and her brother came away from the hostel and went to Ramalayam of the same village in order to catch bus to Bhimavaram and when she was weeping at Ramalayam some people, whose names she cannot say, enquired her and she informed the offence committed by the appellant/A-1 to them and they enquired whether she was having money for bus fare and she stated that she was having only Rs. 10/- and they gave her Rs. 8/- and sent PW-1 and her brother in a bus to Bhimavaram. After getting down at Bhimavaram, PW-1 and PW-3 got into city bus bound for Yandagandi and went to Yandagandi. She also deposed that they have to go to their village from Yandagandi by walk. PW-1 also deposed that when she was going along with her brother, her brother informed her that the appellant/A-1 was coming in a car and he suggested that she may run away and she began to run and her brother ran into fields. The appellant/A-1 ran after her brother and A-2 caught hold of her and put her in the car. However, her brother could not be caught. The appellant/A-1 and A-2 took her to the hostel at Mogalthuru and in the hostel the appellant/A-1 beat her with a small stick over her body and abused her and questioned as to whom she revealed the incident in spite of his warning. The appellant/A-1 handed over PW-1 to A-3 to A-5 and instructed them to keep her in a room and lock the same and prevent her from going elsewhere. PW-1 also deposed that A-3 to A-5 did not keep her in any room separately. On the next morning, the appellant/A-1 was taking PW-1 in his car driven by A-2 to Sammala Deevi alias K.P. Palem to the house of her senior maternal aunt Siromani, PW-4. On the way at Sitaramapuram bridge the father of PW-1, PW-2, was there and on hearing his claps the car was stopped. The appellant/A-1 and A-2 took PW-2 also into the car and took the car to Sammala Devi to the board school in which Siromani's husband Mohana Rao was working as a teacher. The appellant/A-1 informed Mohana Rao that PW-1 was not studying well and therefore he beat her and she was running away often from the hostel. Mohana Rao advised the appellant/A-1 to drop her and her father at his house. Then the appellant/A-1 and A-2 took them and dropped them at the High school in that village. PW-1 and PW-2 went to her senior maternal aunt's house from there i.e., to the house of PW-4. PW-1 further deposed that PW-4 enquired her as to what happened when she was weeping and PW-1 narrated the incident relating to the offence committed by the appellant/A-1 on her and then PW-4 gathered four or five women folk and took her to the appellant/A-1 and questioned about the incident and the appellant/A-1 stated that he did nothing on her except beating her because she was running away from the hostel and the appellant/A-1 also stated that they may go to any place of their choice and report the matter and they returned to the house of PW-4 and PW-4 wanted to confirm whether really the offence of rape had taken place in order to give a report to the police and PW-1 had undergone tests at Narsapur, but she cannot say whether it is a private hospital or a Government hospital and in the hospital it was confirmed that the offence had taken place. PW-1 further deposed that several persons advised her father to give report to the police and on the next day PW-1, PW-2 and PW-3 went to Mogalthuru from K. Palem and got Ex. P-1 drafted through one Sreenu and gave the same to police after signing it. PW-1 also deposed that police examined her and MO-1 is the stick with which the appellant/A-1 beat her and she belongs to Madiga caste and that police had taken her to Government hospital, Palakol. No doubt PW-1 was cross-examined at length.
17. Apart from the evidence of PW-1 relating to post incident events, the evidence of PW-1, her father, is available, who deposed that what happened was informed by his son to him. But however, it is pertinent to note that PW-1 never revealed this incident to PW-2. PW-2 also deposed about the subsequent events i.e., PW-4 checking up the body of PW-1 and certain others gathering and going to the appellant/A-1 and questioning the appellant/A-1. But PW-2 also deposed that the appellant/A-1 stated that he did nothing and if necessary PW-1 may be examined even by a Doctor and they can do whatever they like. PW-2 also deposed that they went to the police station and gave a report.
18. PW-3 being a child witness, was felt by the Court, as an incompetent witness and did not record his evidence. PW-4 is the senior maternal aunt of PW-1 and PW-4 deposed that PW-1 was weeping and she had taken PW-1 for giving her a bath and at the time of removing her clothes inside the bath room she found heavy scores of blows all over the body of PW-1 and also found the private part of PW-1 in a swollen condition and in reddish colour and questioned PW-1 as to what happened and PW-1 narrated the offence and then PW-4 brought some women inclusive of PW-17, her mother-in-law and they questioned the appellant/A-1 and he stated that he did nothing but beating PW-1 and if necessary PW-1 may be examined by a Doctor. PW-4 also deposed that PW-1 to PW-3 went to Police Station for giving a report and subsequent thereto she had gone to Palakole Hospital and handed over the drawer and gown of PW-1 to the Inspector of Police. PW-17 also deposed the same.
19. In relation to the event of PW-1 informing certain people at the earliest point of time at Ramalayam, there is the evidence of PW-14. As already referred to supra all others in relation to this incident were declared hostile. PW-14 simply deposed that PW-1 was weeping and he enquired her as to what happened and she stated that she was in R.C.M. Church hostel and narrated the offence and at that time one mason, one soda shop man and a laundry person also were there. PW-14 also deposed that he is the Executive Committee member of Communist Party of India at Mogalthuru Mandal. Though the police station is at a distance of two or three furlongs from Ramalayam, he had not chosen to take PW-1 to the police station.
20. This is the evidence available on record with regard to the post incident events.
21. Medical evidence : PW-24, PW-25 and PW-29 are the Doctors. PW-29, the Assistant Professor of Forensic Medicine was examined only for the purpose of speaking the age determination of PW-1. PW-25, the Civil Assistant Surgeon, examined the appellant/A-1 and issued Exs. P-31 and P-32 and in cross-examination PW-25 deposed that from the examination of appellant/A-1 made by him clinically and from F.S.L. report on the objects sent by him there was no indication of sexual intercourse on 10-10-1995. PW-24 is the Deputy District Medical and Health Officer of Kotaramachandrapuram and she worked as Woman Assistant Surgeon, Government Hospital, Narsapur from 11-8-1990 to 8-5-1997 and she examined PW-1 and apart from some observations she made, certain injuries also were specified. PW-24 deposed that she reserved opinion pending examination of semen analysis and she issued Ex. P-28 certificate and as per Ex. P-29 F.S.L. report, semen was not detected on the gown, cut drawer, bed sheet, lungi, cotton swabs, pubic hair, hair, vaginal smear slides and she is of the final opinion that virginity of the victim girl was not lost and she might have been victimized with an attempt for sexual intercourse. In cross-examination this witness deposed that she did not find any rupture or bleeding in labia majora or in labia minora and the other vaginal organs were intact. PW-24 also deposed that it is true that in the case of forcible sexual intercourse of the girl aged 11 or 12 years, there will be rupture of labia majora, labia minora and hymen. She also deposed that it is true that the redness seen by her may be due to infection and it is true that yellowish white discharge may be due to unhygienic condition or infection and it is true that inflammation is possible due to introduction of an extraneous article or substance and the redness may be of recent origin i.e., within two or three days and the external injuries on the body of PW-1 may be due to beating with a hard object and no doubt PW-24 denied certain suggestions.
22. Section 164 Cr.P.C. statements : PW-26 is the Principal District Munsif, Kothagudem who worked as District Munsif, Palakole and Ex. P-33 is the proceedings of the Additional District and Sessions Judge, West Godavari, Eluru nominating him for recording statements of certain witnesses under Section 164 Cr.P.C. Ex. P-34 is the requisition of Sub-Inspector of Police, Mogalthuru for recording the statements of witnesses. PW-26 further deposed that on 20-12-1995 he recorded the statement of PW-1, marked as Ex. P-35. On 22-12-1995 he recorded the statement of PW-4 marked as Ex. P-36, statement of Chadalavada Mohan Rao marked as Ex. P-37 and the statement of PW-2 marked as Ex. P-38. On 26-12-1995 PW-26 recorded the statement of PW-3, marked as Ex. P-39. PW-26 further deposed that he recorded the above statements of witnesses in the open Court and in the absence of police.
23. Investigating Officers : PW-27 is the Sub-Inspector of Police and PW-28 is the Inspector of Police. PW-27 deposed about PW-1 coming to the Police Station along with PW-2 and PW-3 and presenting Ex. P-1 and Crime No. 77/95 being registered under Section 376(f), 342, 324 r/w. Section 34 I.P.C. and issued Ex. P-40 F.I.R. and he informed the registration of the case to Inspector of Police, Narsapur by phone and he had taken up investigation and he examined PW-1, PW-2 and PW-3 at the police station and recorded their statements and he sent PW-1 to Government hospital for medical examination and then handed over the investigation to Inspector of Police, Narsapur. This witness was cross-examined.
24. PW-28, the Inspector of Police, had deposed that the investigation was handed over to him and he verified the statements of PW-1 to PW-3 recorded by PW-27 and found them to be correct and examined Chadalavada Mohan Rao and also PW-4 and recorded their statements. He deposed that PW-4 handed over the cloths of the victim girl viz., frock and cut drawer to him and he left for Palakole and reached Mogalthuru in the mid-night. On 14-10-1995 at 6.30 A.M. he collected mediators PW-23 and Jayaraju and visited the scene of offence and examined the scene of offence in their presence. The scene of offence is the bed room of the appellant/A-1 and PW-28 prepared Ex. P-41 rough sketch of the scene of offence and seized blood stained blanket and blood stained lungi and Ex. P-27, a photo of the victim girl from the scene of offence, under the cover of Ex. P-26 observation report. PW-28 examined PW-5, PW-6, PW-7, PW-8, PW-9 and recorded their statements and got the scene of offence photographed by PW-15. On 17-10-1995 at 9 P.M. he arrested A-2, A-3, A-4 and A-5 near Mary Temple at K.P. Palem and sent them to Court. On 17-10-1995 he sent a letter to the Magistrate informing him addition of Sections 3(1)(3)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in this case. On 19-10-1995 he arrested the appellant/A-1 at St. Xavear High School at 8 p.m. On 20-10-1995 he sent the appellant/A-1 to the Government Hospital, Narsapur for medical examination and on the same day sent the appellant/A-1 to Court for remand. On 20-10-1995 he sent PW-1 to the Professor of Forensic Medicine, Rangaraya Medical College, Kakinada for age determination. On 24-10-1995 PW-28 went to K.P. Palem and examined PW-17 Chedalavada Adeyya, PW-19, PW-20, PW-21, PW-18 and recorded their statements. PW-28 also examined PW-22, Headmistress of the school and recorded her statement and she gave a certificate relating to caste and date of birth of PW-1. On 6-11-1995, PW-28 examined PW-24 and PW-25 at Narsapur and recorded their statements and he received age determination certificate from Dr. N. Prabhakara Rao, Assistant Professor of Forensic Medicine, Kakinada and recorded his statement. Ex. P-43 is the age determination certificate. Ex. P-44 is the letter addressed by him to the Magistrate regarding addition of Sections of law on 31-10-1995. On 8-11-1995 PW-28 filed requisition letter with letter of advice to the S.D.P.O. Narsapur for forwarding the material objects to Forensic Science Laboratory. After completion of investigation he filed the charge sheet into Court. He also deposed that the hostile witnesses had deposed as stated in their respective statements and the relevant portions were marked. In cross-examination PW-28 also deposed that PW-4 did not state before him about PWs. 2 and 3 coming to their house on the previous night and PW-4 stated to him as in Ex. D-1. He further deposed that Pw-4 did not state before him about she seeing bleeding from the private part of PW-1 and he did not verify the birth register relating to PW-1 at Thundurru village to note the caste and date of birth of PW-1. This witness also deposed that the cloths of the victim handed over to him by PW-4 were washed previously at the places of blood stains and dried and he had sent those clothes to Medical Officer immediately and he did not receive acknowledgement from the Doctor and he never showed the clothes to the Doctor and he did not hand over them to the Doctor and he did not serve any notice to the inmates of the Church compound before entering into the appellant/ A-1's bed room and he did not prepare any search list.
25. On the strength of the above evidence, especially in the light of the medical evidence, the learned Special Judge had arrived at a conclusion that the first accused is guilty of attempt to commit rape and also guilty of the offence under Section 323 I.P.C. In cross-examination PW-1 deposed that in Ex. P-1 she was described as Adi Andhra Christian and she was admitted in R.C.M. Hostel on the ground that she is Adi Andhra Christian and it is true that her parents marriage was as per Christians rites. This portion of the evidence may not be very relevant especially in the light of the findings recorded by the learned Special Judge that these parties are Christians and they do not belong to the Scheduled Caste. PW-1 admitted in cross-examination that she did not inform the offence to her father. It is pertinent to note that at the earliest point of time after the event at Ramalayam, the father of PW-1 accompanied the appellant/A-1 and PW-1 had not chosen to reveal the same to PW-2. PW-1 also admitted that she had not informed the offence to Mohan Rao. This witness also deposed that Ex. P-1 was drafted by Sreenu in her presence at his house and she gave the contents of Ex. P-1 to Sreenu. No doubt this witness, PW-16 was declared hostile, but he deposed that while he was going from Police Station one constable called him and asked him to write the report and by the time he went there the report was prepared to some extent and then the constable dictated him and he wrote the report and Ex. P-1 is in his hand-writing and no one signed Ex. P-1. PW-1 denied the suggestion that her father got Ex. P-1 written somewhere else and obtained her signature on it and that her father gave instructions for Ex. P-1. But, PW-1 admitted that she stated to the Magistrate that her father got the report prepared and obtained her signature and gave it in Mogalthuru police station. Several suggestions put to PW-1 also were denied and she also deposed that she had not observed whether there were blood stains on the bed sheet or on the cot and she also deposed that about 23 or 24 female children in the hall sleep with her and male children sleep in the two rooms located to the North and South of their hall and there is varandah in front of the hall. PW-1 also admitted that it is true that A-3 to A-5 sleep in the varandah and the said room is towards North of the Northern boys' room and in that study room both girls and boys study between 7 and 9 p.m. and one warden by name Lukas is incharge of the studies in the study room and it is not true to say that permission of Lukas is necessary for taking her from study room by A-1. PW-1 further deposed that Lukas had opportunity to see in case she was taken away by A-1 from the study room. PW-1 also deposed that there were other boys and girls in the study room when A-1 sent for her in the study room. One Prasad was the person through whom A-1 sent for her and her brother. After returning from the study room PW-1 did not inform to anybody about A-1 asking her to wait in the study room upto 10 p.m. On that night Prasad slept in the varandah in front of A-1's room. Certain questions were put relating to the other inmates of the hostel and how they sleep. PW-1 deposed that A-1 came to the hall by about 11 p.m. and called her name as Mary for 5 or 6 times and the other girls sleeping there did not wake up or when he focused torch light. PW-1 further deposed that she was lifted on his shoulders by A-1 and she was taken from the hall and she did not raise any cries and after getting up in the morning she narrated the incident to her friends, but she cannot give the names. PW-1 also deposed that she stated to the public at Ramalayam that A-1 committed rape on her and police station of Mogalthuru is at a short distance from the said place and she had no fear from A-1 and she also deposed that she can go to the police station and report the incident to police. She denied the suggestion that she was in the habit of frequently leaving the hostel unauthorisedly and going to the house of Mohan Rao. PW-1 also deposed that after A-1 and A-2 brought her back to the hostel in the car, she was sitting in the kitchen only and there were no restrictions on her movements for her usual works. After A-1 beat her, A-3 to A-5 asked her why she left the place and then she told A-3 to A-5 about the offence committed by A-1 on her. This witness also admitted that it is true that the District Collector gave Rs. 25,000/- after the offence and she does not know whether the Chief Minister gave Rs. 75,000/- and she does not know whether house site was also given after the offence. She did not state to the Police or the Magistrate about her being taken to a hospital at Narsapur by Siromani for getting the offence confirmed.
26. Whether this evidence of PW-1 inspires the confidence of the Court to sustain the conviction and the sentences awarded to the appellant/A-1 may have to be examined. On the material available on record, it is clear that the scene of offence is a place where several children are there and PW-1 is neither a child nor a well grown up woman. It is in evidence that PW-1 and PW-3 had been irregular and they were running away from the hostel quite often and may be that the appellant/A-1, as Father, had been enforcing discipline to keep them in order. PW-1 had given several exaggerated versions relating to bleeding from her private parts. Several of the circumstances i.e., the appellant/ A-1 forcibly taking her away and though several other children were present PW-1 not raising any cries and also PW-1 informing to the inmates and none of the inmates coming forward in this regard to depose and PW-1 going near Ramalayam and subsequent thereto though she was accompanied by her father along with A-1 i.e., PW-2, she never revealing the same and ultimately revealing it to PW-4 and PW-4 after testing PW-1 through a Doctor confirming that the offence was committed and no such Doctor being examined and no explanation relating to the same is forthcoming and the evidence of PW-24 belying the version of the commission of offence of rape as against the person of PW-1, if carefully scrutinized would definitely throw some doubt over the story of the prosecution. It is not for the accused to explain why a particular case had been foisted against him. The reasons may be too numerous, may be that getting some benefit from the Government or may be that PW-1 was psychologically disturbed by the enforcement of discipline by the appellant/A-1 as against herself and PW-3. PW-14 in cross-examination stated that he is the Executive Committee member of C.P.I. of Mogalthuru mandal. When the offence was revealed to him, as a responsible person of a Leftist party, it is but unnatural that he had not evinced any interest. It is pertinent to note that all other witnesses examined by the prosecution in this regard turned hostile and hence the subsequent event at Ramalayam also is doubtful. Apart from this aspect of the matter, the evidence of PW-4, the senior maternal aunt of PW-1 and daughter-in-law of PW-17, is to the extent that on verification of the person of PW-1 they were satisfied that something happened, but however It is pertinent to note that these witnesses clearly deposed that when they questioned A-1, A-1 replied that except beating PW-1 he had done nothing and if they chose they can get PW-1 examined by a Doctor. This conduct of the appellant/A-1 also would throw some suspicion over the prosecution version. On the strength of the evidence of PW-1, coupled with the medical evidence, the learned Special Judge had arrived at a conclusion that the appellant/A-1 is liable to be convicted and sentenced for attempting to commit rape. The learned Additional Public Prosecutor placed strong reliance on the decision referred (1) supra wherein the Apex Court while dealing with standard of proof and corroboration in a rape case no doubt observed at paras 16 and 17 as hereunder :
"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage :
"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
27. With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
28. We think it proper, having regard to the increase person the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
29. Reliance also was placed on the decision referred (2) supra where the medical examination was delayed due to delay in filing F.I.R. and the injuries suffered by prosecutrix were abrasions which would heal up within 2 or 3 days and the testimony of prosecutrix regarding resistance offered by her and manner in which crime was committed was inspiring confidence and the other evidence also lending support to her testimony and the prosecutrix just crossing 16 years of age, it was held that consent on her part could not be inferred and absence of injuries on person of prosecutrix is not necessarily evidence of consent on part of prosecutrix. Section 376(2)(c) I.P.C. reads:
"Whoever being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
30. Section 511 I.P.C. reads :
"Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, of a term which may extend to one-half of the imprisonment for life, or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both."
31. While dealing with the aspect of attempting, the Apex Court in ABHAYANAND Vs. STATE OF BIHAR, held :
"Another contention for the appellant is that the facts proved do not go beyond the stage of preparation for the commission of the offence of 'cheating', and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit that offence. This is clear from the general expression 'attempt to commit an offence' and is exactly what the provisions of Section 511 I.P.C. require. The relevant portion of Section 511 I.P.C. is :
"Whoever attempts to commit an offence punishable by this Code...... or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished ...........".
32. These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for the that attempt to commit the offence. It follows, therefore, that the act which would make the culprits attempt to commit an offence punishable must be an act which, by itself or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by Section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence.
33. It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear."
34. There cannot be any doubt or controversy in relation to the settled principles of law. But the matter may have to be viewed in the back drop of the facts. A precedent in criminal jurisprudence in particular may have to be appreciated in the light of the given set of facts. It is no doubt something different if it is a pure question of law emerging out of admitted facts. Here is a Pastor, the appellant/A-1, who tried to enforce some discipline. No doubt submissions at length were made by the learned Additional Public Prosecutor that the status of the family girl and the status of the Pastor also may have to be taken into consideration and unless there is some element of truth the case would not be foisted as against the appellant/A-1 by PW-1. It is needless to say that the reasons may be too numerous and it is not for the defence to explain the same. It is no doubt true that while enforcing discipline, the appellant/A-1 might have exceeded the permissible limits by beating PW-1. Discipline, standard of discipline and enforcement thereof varies from individual to individual. To enforce discipline beyond certain limits also may appear to be severe and harsh. This would be in consonance with the running of time and the changing times. What was styled as discipline during the olden days may not be styled so in modern times. Discipline in families, discipline in educational institutions, discipline in other institutions, discipline in public administration, discipline in private administration, and for that matter, in every walk of life, discipline would be essential to have an orderly society. This Pastor, appellant/A-1 might have enforced discipline against the running away of the children exceeding the limits as referred to supra and might have landed himself in trouble. In the light of the events, psychologically, PW-1 might have developed some grievance in view of the discipline enforcement. Parents enforce discipline against a child in the interest of the child. A teacher disciplines the students, Preacher disciplines disciples, Doctor disciplines patient, an authority disciplines subordinates and management disciplines workers. Discipline may be family discipline, social discipline, institutional discipline. Discipline is definitely essential for the maintenance of an orderly society and it is more in social interest. The learned Special Judge had recorded certain reasons for arriving at the conclusion that the appellant/A-1 committed offence under Section 323 I.P.C. apart from attempting to commit rape on the person of PW-1. The episode does not stop here.
35. Cognizance taken by the Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 without an order of committal by Magistrate:
36. From the records, the Calendar Extract shows the date of committal as " - ". PW-28, the Inspector of Police deposed that on 17-10-1995 he sent a letter to the Magistrate informing him addition of Sections 3(i) and 3(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and after completion of investigation he filed charge sheet into court. Nothing more is deposed by PW-28 in this regard. The Inspector of Police, Narsapur, the investigating officer, on 27-12-1995 submitted the charge sheet to the Additional District & Sessions Judge, Eluru and in view of the fact that the same was not entertained, an attempt was made to present before the concerned Judicial First Class Magistrate on 29-12-1995. The record shows that on 29-12-1995 the Judicial Magistrate of First Class, Mobile Court, Eluru, returned the charge sheet with the endorsement "The charge sheet attracts under Sec. 3(2)(v) and 3(1)(xii) of SC and ST (Prevention of Atrocities) Act, 1989. Hence the charge sheet may be filed in proper court" and ultimately the charge sheet was filed before the learned Special Judge which is a Court of Session and cognizance was taken and the trial was conducted which had resulted in the conviction and sentences which are being challenged in the present Criminal Appeal. It is no doubt true that on the material available on record a finding was recorded that PW-1 does not belong to Scheduled Caste and the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 may not be applicable. Nonetheless, the Court will be a Court of Session since an offence of rape also is exclusively triable by a Court of Session only. In MOLY Vs. STATE OF KERALA, the Apex Court held :
"Hence, we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight-away be laid down before the Special Court under the Act. We are reiterating the view taken by this Court in Gangula Ashok and another v. State of A.P. and in Vidyavardhan v. State of Kerala in above terms with which we are in respectful agreement. The Sessions Court in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met.
Though the plea relating to lack of jurisdiction was not raised before the lower Courts, in view of the undisputed position on facts and inasmuch as a pure question of law without any factual controversy is involved, we feel interference on the facts of the case is called for."
37. It is no doubt true that this question was neither raised in the instant case nor canvassed, but this is a question touching the jurisdiction of the Court to try the offences. In VIDYADHARAN Vs. STATE OF KERALA, the Apex Court at para 18 held :
"Section 193 of the Code has to be understood in the aforesaid backdrop. The Section imposes an interdict on all Courts of Session against taking cognizance of any offence as a Court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate" as provided in the Code. Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the Section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently, no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate."
38. In the light of the specific procedure contemplated by the provisions of the Code of Criminal Procedure viz., Section 193 and Section 209, the entire trial is vitiated and hence on this ground alone, the appellant/A-1 is entitled for an acquittal.
39. Whether the investigation was done in accordance with Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995:
40. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, made in exercise of powers conferred by sub-section (1) of Section 23 of the said Act, came into force from 1-4-1995. Rule 7 of the Rules framed under the said Act dealing with Investigating Officer reads as hereunder :
"(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 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 of the State Government.
(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution the officer-in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all Investigations done by the investigating officer."
41. Rule 7(1) of the aforesaid Rules specifies that an offence committed under the Act 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. However, it is brought to my notice that in the present case, the investigation was done by the Sub-Inspector and Circle Inspector of Police and the incident also is said to have taken place after the Rules coming into force. There cannot be any doubt or controversy that the Circle Inspector and the Sub-Inspector of Police are not competent to conduct the investigation into the offences committed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In E.SESHAIAH Vs. STATE OF ANDHRA PRADESH, 2000(2) ALT (Crl.) 91 A.P. while dealing with the said Rule 7 this Court at paras 7 and 8 held :
"It may be mentioned that Rule 7 of the Rules has made provision for appointment of Special Investigating Officers for investigation into the offences under the Act. Rule 7 of the Rules contemplates, firstly that an offence committed under the Act shall be investigated by a police officer not below the rank of the Deputy Superintendent of Police. It does not rest here. It further provides that the Investigating Officer shall be appointed by the State Government, Director General of Police, Superintendent of Police after taking into account his past experience, his sense of justice and his ability to perceive the implications of the case.
Thus, Rule 7 of the Rules prescribes criteria for appointing Special Investigating Officers for investigating into the offences under this Act. Sub-rule (2) of Rule 7 of the Rules contemplates that such Investigating Officer so appointed under sub-rule (i) shall complete investigation on top priority within 30 days and shall submit report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government. Thus, the Rule also contemplates that not only an offence under the Act shall be investigated by the specially qualified Investigating Officer of the rank not below the Deputy Superintendent of Police but the investigation shall also be supervised and scrutinized by the Superintendent of Police and Director General of Police. Thus, appointing of the Investigating Officer under Rule 7 of the rules is not a routine formality but has specific purpose. Investigation done by the officer not appointed under the provisions of Rule 7 of the Rules must, therefore, be held to be in violation of the statutory provisions and would certainly vitiate the trial."
42. There cannot be any doubt that for non-compliance of Rule 7 inasmuch as the investigation was conducted by the Officers who are not competent to conduct the investigation, in the light of Rule 7, the investigation also is defective and on that ground also the appellant/A-1 is entitled for acquittal in relation to the charges with which he was charged with.
43. Apart from the inherent improbabilities and unnaturality in the evidence of PW-1, even on the ground of illegality which touches the very jurisdiction of the Court to take cognizance directly and to further proceed with trial coupled with the conducting investigation in violation of Rule 7 as stated supra, this Court has no hesitation in holding that the appellant/A-1 is entitled for acquittal of the offences for which he was convicted and sentenced by the learned Special Judge. Accordingly, acquittal is hereby recorded and the Criminal Appeal is allowed.