Shyam Kumar Pandey vs State of Madhya Pradesh (Now State of Chhattisgarh)

Inder Singh Uboweja, J.—This appeal is directed against the judgment of conviction & order of sentence dated 31.01.1998 passed by the Special Judge (Atrocities), Bilaspur in Sessions Trial No.16/96 convicting the appellant under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ''the Act'') and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs.500/-, in default of payment of fine, additional R.I. for one month.

Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality.

As per case of prosecution, on 15.03.1991 a written report (Ex.P-1) was presented by complainant Kalicharan Patle (PW-1) at police station, Harijan Kalyan, Bilaspur in which it was alleged that on 14.03.1991 at about 1.40 p.m. while he was going to school for conducting the exam, in the mid way accused/appellant Shyam Kumar called him "Sale Chamar" and abused him by using the name of his caste and after giving him threats, he went away. On the basis of said written report FIR (Ex.P-2) was registered and thereafter, Investigating Officer collected the evidence. After completion of investigation, charge sheet under Section 3(1)(x) of the Act and Section 294 & 506B of the IPC was filed.

In order to bring home the charges of accused, the prosecution examined five witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure (for short, ''the Code'') in which he denied the charge levelled against him, pleaded innocence and false implication in the case and examined Chunnuram (DW-1) and Mahendra Kumar Rajput (DW-2) as defence witnesses in support of his case.

After providing an opportunity of hearing to the parties, the trial Court convicted & sentenced the appellant as aforementioned.

I have heard learned counsel for the parties, perused the judgment impugned including the record of the trial Court.

Learned counsel for the appellant vehemently argued that the appellant has been falsely implicated in the case and he has not committed any offence. He further argued that conviction is based on the evidence of complainant Kalicharan (PW-1) and witnesses Jhummanlal (PW-2) and Jamuna Prasad (PW-3) and they are not reliable and trustworthy, there is no corroboration in their evidence, neither caste certificate has been produced nor it has been proved. Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short, ''the SC/ST Rule,1995'') is violated, therefore, the trial Court has erred in law in convicting the appellant which is not sustainable under the law. In support of his arguments he placed reliance in the matter of Bharatsingh and Ors. v. State of M.P. reported in 2006(2)ANJ (MP) 358 in which Indore Bench of High Court of Madhya Pradesh has held that conviction of the appellant is not sustainable because the prosecution has failed to establish by adducing cogent and reliable evidence that the complainant belonged to the Scheduled Caste or Scheduled Tribe Community and also proceeding of investigation does not follow the Rule 7 of the S.C. & S.T. (Prevention of Atrocities) Rules, 1995.

On the other hand, learned State counsel opposed the appeal and submitted that conviction of the appellant is substantially based on the evidence of complainant Kalicharan (PW-1) and other eyewitnesses, which is sufficient for conviction of the accused/appellant.

In order to appreciate the arguments advance on behalf of the parties, I have to examine the evidence adduced on behalf of the prosecution.

In the present case, it is not disputed by the prosecution that total investigation has been conducted by the Inspector rank officer, according to Rule 7 of the SC/ST Rule, 1995 � In SC/ST Act cases investigation shall be conducted by a police officer not below the rank of Deputy Superintendent of police, but in the present case DSP has not done the investigation, it was done by the Inspector rank of police, therefore, it is clear that total investigation is illegal and appellant cannot be convicted on the basis of this investigation. In the matter of Jwahir Sharma & Anr. v. State of U.P. & Anr. reported in 2010 CRI.L.J. 1528 Supreme Court has held that investigation for offences punishable under SC/ST Act can be made by police officer not below rank of Deputy Superintendent of Police, Sub-Inspector is not authorised to carry out investigation.

In the instant case, complainant Kalicharan (PW-1) has never stated that he is a person of Scheduled Caste and he is belonging to specific community, he has no where stated that his caste falls within the category of Scheduled Caste and prosecution has also not led any evidence, oral or documentary to this effect. In view of the definition of SC/ST as mentioned here-in-above the proper course for the prosecution for the purpose of this Act is to file certificate regarding SC/ST, as the case may be, duly issued by authorised authority and to this effect from the Office of Police Head Quarter, Madhya Pradesh, Bhopal from time to time certain circulars were issued and in Circular dated 01.02.2005 under the signature of Director General of Police in para nine directions were given to Superintendent of Police to evolve method by co-operation with District Magistrate for obtaining / issuing caste certificate under the provisions of the Act as early as possible without any delay. For convenience, the relevant para nine is reproduced as under :-

"izdj.k ds yafcr jgus dk dkj.k vf/kdka''kr% tkfr izek.k&i= dk le; ij u izkIr gksuk crk;k tk jgk gSA ;g Hkh ns[kk x;k gS fd v0tk0@v0t0tk0 vf/kfu;e ds rgr iathc) izdj.kksa esa tkfr izek.k&i= tkjh djus gsrq ogh izfdz;k viukbZ tk jgh gS tks fd ;g lkekU; :i tkfr izek.k&i= tkjh djus gsrq viukbZ tkrh gSA blls fuf''pr :i ls tkfr izek.k i= foyac ls izkIr gksrs gSa ftlds ,d vksj pkykuh dk;Zokgh vuko'';d :i ls yafcr gksrh gS ogha nwljh vksj ihfM+r dks le; ij jkgr jkf''k Hkh izkIr ugha gksrh gSA vr% iqfyl vf/k{kdx.k] ftyk eftLVs~V ls leUo; LFkkfir dj ftys esa ,slh izfdz;k izkjEHk djok;sa ftlls fd v0tk0@v0t0tk0 vf/kfu;e ds varxZr iathc) izdj.kksa esa lacaf/kr tkfr izek.k&i= cxSj foyac ds le; ij miyC/k gks tkosaA"

In view of the above legal position, it was necessary for prosecution in SC/ST cases victim person must be belonging to SC/ST caste and it be proved by reliable, oral and documentary evidence, prosecution is bound to adduce positive evidence in this regard, but the prosecution has failed to do so. It is also clear that in the present case there is violation of the provisions of law, Rule 7 of the SC/ST Rule, 1995 has not been followed and investigation has been done by the police who was an officer of Inspector rank, therefore, they violated the law. The mere ipse dixit of the complainant or the oral evidence of the witnesses would not be sufficient to discharge the burden.

In view of the aforesaid legal and factual aspects of the matter which is available on record, it is clear that prosecution has miserably failed to establish that complainant Kalicharan (PW-1) belongs to SC/ST community and appellant/accused does not belong to the SC/ST community. In the view of foregoing legal and factual position, this Court is of the opinion that prosecution has utterly failed to prove the guilt of the appellant beyond all reasonable doubt

Consequently, the appeal is allowed. Conviction and sentence of the appellant under Section 3(1)(x) of the Act is hereby set aside. He is acquitted of the charge framed against him.

It is stated that the appellant is on bail, his bail bond shall continue for a further period of 6 months in view of Section 437A of the Code.