IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17/06/2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1136 of 2002 Sivakumar ... Appellant Vs. State Rep. by Inspector of Police Annur Police Station ... Respondent This Criminal Appeal has been filed under Section 374 of the Criminal Procedure Code to set aside conviction and sentence imposed against him by the learned Principal District Sessions Judge cum Special Judge Coimbatore in S.C.No.276 of 2001 dated 12.07.2002. For Appellant : Mr.L.Mahendran For Respondent : Mr.R.Muniapparaj, Govt. Advocate (Crl.Side) JUDGMENT
The first accused in S.C.No.276 of 2001 on the file of the Principal Session Judge/Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, who was prosecuted for i) an offence punishable under Section 3(1)(x) of the above said Act, ii) an offence punishable under Section 341 I.P.C. And iii) an offence punishable under Section 324 I.P.C., found guilty of and convicted for the offences under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 324 of I.P.C. sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,000/- with a direction to undergo rigorous imprisonment for a further period of two months in default of payment of fine in respect of the offence under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to pay a fine of Rs.1,000/- with a direction to undergo rigorous imprisonment for two months in respect of the offence under Section 324 of I.P.C., has brought forth the Criminal Appeal against the said conviction recorded and sentence passed by the trial judge by judgment dated 12.07.2002.
2. Based on the complaint of P.W.1 marked as Ex.P1, a case was registered on 02.08.2000 in Crime No.268/2004 on the file of Annur Police Station for alleged offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 341 and 324 of Indian Penal Code against the appellant herein (A1) and one Subramaniam, son of Ramasamy Gounder (A2), both residents of Kanuvakkarai within the jurisdiction of Annur Police Station. P.W.6, the then Deputy Superintendent of Police, Avinashi after investigation submitted a final report on the file of the learned Judicial Magistrate, Avinashi alleging commission of the offences under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 341 and 324 of IPC by the aforesaid accused persons. The learned Judicial Magistrate, Avinashi took it on file as P.R.C.No.1/2001 and after furnishing copies of the records relied on by the prosecution under Section 207 of Criminal Procedure Code, committed the case for trial to the Principal Sessions Judge/Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as the alleged offence under Section 3(1)(x) of the said act was exclusively triable by the Sessions Judge (Special Judge).
3. On appearance of the accused before the trial court, charges were framed for offences under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 341 and 324 of IPC. After having the charges read over and explained, both the accused pleaded not guilty. Hence the learned Principal Sessions Judge (Special Judge) tried the case. To substantiate the charges, the prosecution examined as many as 6 witnesses as P.W.1 to P.W.6, marked 11 documents as Ex.P1 to P11 and produced one material object as MO.1. After the conclusion of the evidence for prosecution, the accused were questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. The accused denied them as false and once again reiterated that they were not guilty and the case had been cooked up against them. No witness was examined and no document was marked on the side of the accused.
4. After hearing arguments advanced on both sides, the learned trial judge considered the evidence and acquitted Subramaniam (2nd accused) holding that the charges framed against him were not proved beyond reasonable doubt. The learned Trial Judge also acquitted the first accused/ appellant herein in respect of the charge for the offence punishable under Section 341 of Indian Penal Code. However, the appellant/first accused was found guilty, convicted and sentenced as indicated above for the offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 324 I.P.C. The said conviction and sentence are challenged by the appellant/first accused in this present appeal.
5. The case of the prosecution, in brief, can be stated thus:-
P.W.1 – R.Sukkan is the brother of P.W.2 – R.Bannari. The appellant herein (A1) and Subramaniam (A2) owed a sum of Rs.250/- to P.W.2. On 02.08.2000 at about 5.00 p.m., near Pattathu Arasiamman Koil at Kanuvakkarai, P.W.2 met the accused 1 and 2 and asked them to pay the above said amount due to him, pursuant to which he was assaulted by the accused 1 and 2. P.W.1 who by chance arrived at that place, questioned the propriety of the said act of the accused persons. Immediately, the accused persons abused him using the name of his caste and assaulted him with their hands. Sensing danger, P.W.1 ran towards his house to escape from the accused. P.W.2 also followed him. Accused 1 and 2 chased P.W.1 and intercepted him near his house at a distance of 30 feet. The first accused/appellant attacked him with an iron rod (used as Tractor wheel spanner) and caused injury on the occipital region of the head of P.W.1. At the same time the second accused attacked P.W.1 and caused injuries on his face by using a blade. Thus, according to the prosecution version, both the accused had committed offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 341 and 324 IPC. A case was registered on the basis of Ex.P1 complaint lodged by P.W.1 on the file of Annur Police Station. P.W.1 was referred to the hospital for treatment and was admitted in Annur Government Hospital. The Accident Register prepared by Medical Officer is Ex.P10. The Medical Officer has certified the injuries sustained by P.W.1 to be simple in nature. P.W.6 – Thiru K.R.Rangarajan, the Deputy Superintendent of Police, Avinashi, took up the case for investigation, visited the place of occurrence and prepared Ex.P2 – Observation Mahazar and P8 – Rough Sketch in the presence of P.W.3 – D.Padmanabhan, the then Village Administrative Officer, Kanuvakkarai and one Kumaran son of Raman. P.W.6 also arrested the accused persons on 03.08.2000, recorded the confession statement of the appellant/A1 admissible portion of which has been marked as Ex.P9 and recovered MO.1 under Ex.P3 Mahazar in the presence of the above said witnesses.
6. During the course of investigation, on the request of the investigating officer, the then Deputy Tahsildar, Avinashi issued Ex.P4 to Ex.P6 – Community Certificates certifying that Accused 1 and 2 belong to Kongu Vellalar community included in the list of Backward Communities. Similarly, the then Tahsildar of Avinashi issued Ex.P6 – community certificate certifying that P.W.1 was a member of a Scheduled Caste. After completing investigation P.W.6 submitted a final report on the file of the committal magistrate alleging that the appellant and Subramanian (A2) had committed offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 341 and 324 of I.P.C.
7.Mr.L.Mahendran, learned counsel advancing arguments on behalf of the appellant, contended that the court below committed an error in convicting the appellant (A1) for offences punishable under Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 324 of IPC, solely based on the interested testimony of P.W.1 and P.W.2; that the court below simply ignored vital discrepancies found in the evidence adduced on the side of the prosecution capable of improbablising the prosecution theory that the court below would have arrived at a conclusion that there was a clear concoction had it properly considered the discrepancies found in the evidence of prosecution pointed by the learned counsel for the accused and that the very place of second occurrence itself was doubtful as there had been corrections in Ex.P1 – complaint regarding the same even though several persons were witnessing the occurrence, according to the evidence of P.W.2, and statements of many disinterested persons were also recorded by the investigating officer as eye witnesses for the alleged second occurrence, none of them was examined and the same would cause a serious doubt on the prosecution theory the learned counsel submitted. The alleged confession of the appellant (A1) and recovery of MO.1 iron rod should have been disbelieved in the light of the fact that the presence of said iron rod was noted in Ex.P2 – Observation mahazar, the learned counsel argued. It is the further contention of the learned counsel for the appellant that the very fact that the presence of the iron rod near the scene of occurrence was noted in Ex.P2 – observation mahazar would falsify the theory of recovery of M.O.1 under Ex.P3 mahazar; that the prosecution theory of confession leading to recovery would be further falsified by the fact that in Ex.P3 – Mahazar, measurements of the iron rod allegedly seized has been found corrected subsequently and such similar corrections were found in Ex.P11 – Form 95; that the prosecution has totally failed to establish the link between the injuries sustained by P.W.1 and MO.1 and that hence the theory of arrest and confession leading to recovery of MO.1 should have been rejected by the court below.
8. The learned counsel for the appellant contended further that there was manipulation of records, especially Ex.P10 Accident Register regarding the time of admission of P.W.1 in the hospital; that a clear contradiction was found in the parole evidence of P.W.1 and P.W.2 and the contents of the P10 as to the time of P.W.1’s admission in the hospital; that the evidence of P.W.1 and P.W.2 would cast a cloud on the prosecution case and would give room for a reasonable suspicion that the case had been registered after due deliberation and that the prosecution had not come forward with the true facts. The learned counsel for the appellant contended further that there was a delay in setting the criminal law in motion which was not properly explained; that there was an inordinate delay in the FIR reaching the Judicial Magistrate concerned, which would give room for a suspicion that the time had been utilised for concoction; that the said delay in sending the FIR to the court had also not been properly explained by the prosecution; that the prosecution case against the appellant (A1) should have been disbelieved and rejected in the light of the unexplained delay leading to the inference that there had been deliberation and concoction; that above all the trial court should not have convicted the appellant (A1) for the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as it was not proved by the prosecution; that the investigating officer (P.W.6) was not appointed in accordance with Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995; that viewed from any angle, the judgment of trial court convicting the appellant/A1 should be held discrepant and that the same should be set aside and the appellant (A1) should be acquitted of all the charges reversing the judgment of the trial court.
9. The arguments advanced by the learned Government Advocate (Crl.Side) in reply to the above said submissions made by the learned counsel for appellant have also been heard and this court gave its anxious considerations to the same. The materials available on record were also perused.
10. The first accused in S.C.No.276/2001, who was convicted for the offences punishable under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 324 of IPC is the appellant herein. The appellant (A1) and one Subramaniam (A2) were jointly tried for offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 341 and 324 of I.P.C. The said Subramaniam (A2) was acquitted of all the offences. The appellant (A1) also was acquitted of the second charge, namely the charge for an offence punishable under Section 341 IPC. He was convicted for the other two offences. As against the conviction recorded and sentence imposed recording the charges 1 and 3 (for offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and 324 of IPC), the present appeal has been filed by the appellant/first accused.
11. According to the prosecution case, the first occurrence took place at 5.00 PM on 02.08.2000 near pattatharasiamman temple at Kanavukkarai within the jurisdiction of Annur Police Station and within a few minutes thereafter and in continuation of the said occurrence, the second occurrence took place near the house of P.W.1 at a distance of 30 feet. The prosecution case proceeds as if the accused 1 and 2 were found attacking P.W.2 Subramaniam near pattatharasiamman temple when he demanded payment of a sum of Rs.250/- due to him from the accused 1 and 2 and the accused persons started abusing P.W.1 mentioning the name of his caste and attacked him when he questioned the accused why they were beating P.W.2. The prosecution theory proceeds further that, immediately thereafter, P.W.1 ran towards his house to escape from the accused persons but was chased and intercepted by the accused at a distance of 30 feet from his house and that thereafter he was attacked by the appellant (A1) with MO.1 iron rod causing injury on the occipital region. It is the further case of the prosecution that A2 (Subramaniam) used a blade to cause injury on the face of P.W.1.
12. According to P.W.1, after the occurrence he went to the police station and lodged a complaint at 7.00 PM on 02.08.2000 itself. But as per the evidence of P.W.5, the complaint was received in the police station at 23.00 hours (11.00 PM) on 02.08.2000. In the endorsement found in Ex.P1, it has been stated that the complaint was received at 23.00 hours on 02.08.2000 and a case was registered in Crime No.268/2001 of Annur Police station. The very same particulars are found in Ex.P7 – First Information Report. In Ex.P7, it has been noted that P.W.1 was sent to the hospital for treatment along with a police memo for medical treatment bearing ROC No.30/MOC/Annur/2000. But it is curious to note that in Ex.P10 – Accident Register time has been altered and the same is visible to the naked eye itself. In the normal course, when a person is admitted in the hospital in a medico-lego case, the medical officer will simply record whether he was allegedly assaulted by known or unknown person/persons. But in Ex.P10, the names of the accused have been noted. The same coupled with the correction regarding time of admission will clearly show that some kind of concoction had been made. The said conclusion is supported by some of the admissions made by P.W.1 and P.W.2.
13. P.W.1 would say that he went to the hospital at 7.30 p.m. and it was the Sub-Inspector of Police who furnished information to the medical officer for making necessary entries in the Accident Register regarding the occurrence. A clear contradiction is found in the evidence of P.W.1. In chief examination, P.W.1 stated that he was admitted as an in-patient in the hospital and discharged only on 05.08.2000 where as during cross-examination he stated that the very next day after the occurrence he went to the police station in the morning and saw the accused persons who were present there and that his signature was obtained in the police station at that point of time. The same will falsify the evidence of P.W.1 in chief examination that he took treatment as an in-patient continuously for 3 days. Ex.P10 does not contain any statement to the effect that he was admitted and given treatment as an in-patient. On the other hand, all the injuries have been certified to be simple in nature.
14. When the evidence of P.W.2 is taken into consideration, the same will make it more clear that there had been concoction and that the case should have been foisted. According to the evidence of P.W.2, he along with P.W.1 and some other persons went to the police station and P.W.1 gave a complaint whereupon he was sent to the hospital. The same was the version of P.W.2 in the chief examination. But during cross-examination he stated that after 1 = hours (it will take as to 6.30 PM) police came to the place of occurrence, enquired the persons present therein, took all of them to the police station, enquired them and took their signatures. P.W.2 would further state that at about 8.30 PM they went to the hospital and it was the mother of P.W.1 and P.W.2 who gave the particulars of the occurrence to the medical officer. The same is quite contra to the evidence of P.W.1 who has stated as indicated supra that it was the Sub-Inspector of Police, who furnished the particulars to the medical officer. When the evidence of P.W.2 that they went to the hospital at 8.30 p.m. is compared with Ex.P10, it would make it clear that the time written there had been corrected from 8.30 p.m. to 11.00 / 11.30 p.m. From the said discrepancy found in the evidence adduced on the prosecution side regarding the time at which the complaint was lodged and the case was registered and regarding the time of examination of P.W.1 by the Medical Officer in the hospital, would clearly show that some real facts should have been suppressed and the case should have been registered after due deliberation.
15. According to the evidence of P.W.1 and P.W.2 complaint was lodged at about 7.OO PM on 02.08.2000. As pointed out supra, it has been manipulated to show as if the complaint was received at 11.00 p.m. The correction found in Ex.P10 Accident Register will show that the case should have been registered only after the preparation of Ex.P10 Accident Register and that is why time has been corrected subsequently as required by the police. In Ex.P10, there is nothing to indicate who accompanied P.W.1 to the hospital. If at all he was referred to the hospital by the police for treatment, it should have been noted in the Accident Register that the petitioner came to the hospital with a memo issued by the police for treatment. But the same has not been noted in Ex.P10. On the other hand in the column meant for noting whether the police were informed it has been simply written ‘yes’. Therefore this court finds force and substance in the contention of the learned counsel for the appellant that there should have been deliberation before the alleged complaint and that the complaint itself was the outcome of such a deliberation and that whether Ex.P1 could have been the first information received by the police is doubtful. The First Information Report is the foundation of the prosecution case. When the foundation itself is shaken, as rightly pointed out by the learned counsel for the appellant, the prosecution theory should be disbelieved.
16. A cursory glance at Ex.P1 complaint will show that there had been correction in material parts regarding the second occurrence also. As it was originally written immediately after being assaulted by the accused in the place of first occurrence, P.W.1 ran from the said place and entered his house and only thereafter both the accused entered his house and attacked him with iron rod. But it has been subsequently corrected as if he was intercepted before he could enter his house and he raised alarm when the accused attempted to attack him and only thereafter he was attacked by the appellant (A1) with iron rod and by the other accused (A2) Subramaniam with blade. By the said correction, the place of occurrence itself has been changed. All these discrepancies pointed about will strengthen the contention of the learned counsel for the appellant that the prosecution has not come forward with true version and that some kind of concoction has been made.
17. This court accepts the contention of the learned counsel for the appellant that there is an unexplained delay in lodging the complaint. There is also an inordinate delay in despatching the complaint to the court. According to the prosecution version, the occurrence took place at 5.00 p.m. on 02.08.2000. But Ex.P1 was said to be received in the police station and Ex.P7 – FIR was prepared for registering the case at 11.00 p.m. on 02.08.2000. What was the reason for such a delay has not been explained in Ex.P7 – First Information Report. It has been simply stated that the delay was caused by the informant. In addition to the said delay of 6 hours in lodging the complaint, there is an inordinate delay in sending the complaint and FIR to the court. They had reached the court only at 6.05 PM on 03.08.2000. No reason has been assigned for such a delay. When there is such an unexplained delay in lodging complaint as well as despatching the FIR to the court, the same shall be fatal to the prosecution case, more specifically in cases where there are circumstances giving room for an inference that the said time should have been utilised for some kind of concoction. In this case we have already pointed out several alterations and discrepancies which will definitely lend support to the conclusion that the police have taken time to shape the case against the accused before despatching the complaint and FIR to the court. This aspect was not properly dealt with by the court below. Had it been taken into consideration, the court should have come to the conclusion that the unexplained delay coupled with the contradictions and discrepancies would lead to an inevitable conclusion that the prosecution case had not been proved beyond reasonable doubt and that the case of the prosecution against the appellant (A1) also should be disbelieved.
18. Yet another aspect, an important one, regarding the competency of the Investigating Officer to investigate the case has been pointed by the learned counsel for appellant. The case was registered for an offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 along with two other offences punishable under Indian Penal Code. When an offence punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is alleged, the rules framed thereunder prescribe the procedure as to how the same should be investigated. Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 deals with the appointment of investigating officers. For the sake of convenience it is reproduced here under:-
“(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 reprot to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police to 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.”
19. As per the above said provision, an offence committed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 shall be investigated by a police officer not below the rank of Deputy Superintendent of Police. Whether all the Deputy Superintendents of Police and the officers above such rank are empowered to investigate the offence? The answer is an emphatic “No”. The rule says that the investigating officer shall appointed by the State Government/ Director General of Police / Superintendent of Police and that the appointment shall be made after taking into account the officer’s past experience, sense of ability and justice to perceive the implications of the case and investigate it along with the right lines within the shortest possible time. No special or general order appointing P.W.6 as the investigating officer to investigate the Scheduled Castes and Scheduled Tribes cases arising within his jurisdiction has been either produced along with or cited in the charge-sheet. No special order appointing him as an investigating officer in the case on hand has been either cited in the charge-sheet or produced along with the charge-sheet. It will take us to the necessary inference that the officer was not appointed as an investigating officer to investigate the case on hand.
20. The learned Government Advocate (Crl.Side) seems to have relied on a general circular issued by D.G.P. in ROC 116040/Cr.3(1)/98 Dt.27.07.1998 directing all the jurisdictional sub-divisional police officers to take up the investigation of the cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 arising within their respective jurisdictions. But the said circular will have no consequence. The rule says either a State Government or the Director General of Police or the Superintendent of Police concerned shall make the appointment. Such appointments may be made generally or in specific cases. But before making such appointments, the concerned officer’s experience, sense of ability and justice to perceive the correct implications of the case and investigate the case along with right lines within the shortest possible time should be considered. The said quality should be taken into consideration before making such an appointment. The said circular relied on by the learned Government Advocate does not satisfy the above said requirement of consideration of the qualities of the officers to be appointed as Investigation Officers to investigate the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
21. For all the reasons stated above this court holds that there is force and substance in the contention raised by the learned counsel for the appellant that the trial is vitiated because the Investigation Officer was not appointed in accordance with the Rule 7 of the the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
22. Of-course when the investigating officer was not appointed in accordance with the procedure prescribed in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for investigation of an offence under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, then the trial for such offence can be held vitiated. But such an officer is not incompetent to investigate the other offences. In this case, the very foundation on which the prosecution case has been built up has been demolished. It has been pointed out supra that there was an unexplained delay not only in lodging the complaint but also in despatching First Information Report to the court and the same shall be fatal to the prosecution case, especially in the light of the discrepancies giving room for a reasonable suspicion that there had been some kind of concoction and that the prosecution has not come forward with true facts. If all these aspects are taken into consideration, the only conclusion that is possible is that the prosecution has not proved any one of the charges against the appellant (A1) beyond reasonable doubt; that there is a reasonable doubt regarding the genesis of the occurrence and that hence the appellant (A1) should have been given benefit of doubt and acquitted in respect of all the charges.
23. For all the reasons stated, this court holds that the conviction of the appellant (A1) in respect of first and third charges for the offences under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act and Section 324 of IPC respectively cannot be sustained; that the judgment of the trial court in this regard is discrepant and that this court is definitely justified in interfering with the same and setting aside the conviction and sentence and acquitting the appellant (A1) of all the offences with which he stood charged.
24. Accordingly, this appeal succeeds and the judgment of the trial court convicting the appellant (A1) for offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 324 of IPC and the sentence passed thereon are hereby set aside. The appellant (A1) is acquitted of all the three offences with which he stood charged.
To
1) The Principal District Sessions Judge-cum-
Special Judge Coimbatore
2) The Inspector of Police,
Annur Police Station