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Judgment
Law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment but by cross-checking the reasoning of the evidence on record. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place, when the appeal is posted for hearing. This is the requirement of the Code of Criminal Procedure on a plain reading of sections 385-386 of Cr.P.C.
The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. In the case of Bani Singh and Others Vs. State of U.P., AIR 1996 SC 2439, the Apex Court while dealing with Section 386 of Cr.P.C held that when appellant and his lawyer are absent on appointed for hearing, the Court is not bound to adjourn the case, but should dispose of appeal on merits. The dismissal of appeal simpliciter for non-prosecution is not contemplated.
In a similar case of K.S. Panduranga Vs. State of Karnataka, 2013 Cr.L.J 1665 the Apex Court has held that it cannot be said that the Court cannot decide a criminal appeal in the absence of the counsel for the accused, even if the counsel does not appear deliberately or shows negligence in appearing.
4 This criminal appeal is pending since 1997, but none appeared on behalf of the appellant. Therefore, in view of aforesaid enunciation of law, the appeal is being decided.
This criminal appeal is pending since 1997. This criminal appeal has been preferred under Section 374 (2) of Cr.P.C assailing the judgment dated 15.07.1997, passed by Special Judge, under SC/ST (Prevention of Atrocity) Act, 1989, (for brevity, ''Act, 1989),'' Balaghat, wherein the appellant has been convicted for offence under Sections 3 (i) (xi) of the Act, 1989 and sentenced to one year rigorous imprisonment with fine of Rs.1,000/- and in lieu of fine simple imprisonment for three months.
As per the prosecution story on 16.08.1995 at about 8 am, the complainant- Madhuri had gone to her field to attend the call of nature. The accused/appellant tried to outrage her modesty. The appellant knowing that the complainant belongs to ST category, committed the said crime. On her lodging report Ex. P/1, after half an hour, crime has been registered by Police Station Baihar. After investigation, charge sheet was filed for offence under under Sections 3 (i) (xi) of the Act, 1989 read with Section 354 of I.P.C. However, charges have been framed for offence under Section 3 (i) (xi) of ''the Act, 1989'' only. The appellant abjured guilt and claimed that he is innocent and falsely implicated.
Learned trial Court, after recording the evidence, convicted the appellant and sentenced as mentioned above. The appellant has assailed the judgment impugned on the ground that as there is no charge under Section 354 of I.P.C, therefore, the question of committing offence under Section 3 (i) (xi) of ''the Act, 1989,'' does not arise.
It is further contended that the Court has overlooked the omissions and contradictions in the evidence of the complainant and the complainant''s evidence is not corroborated by other witnesses specially by the Investigation Officer- Shri S.R. Marskole (PW 5). Therefore, the finding given by the learned trial Court is not sustainable.
Learned P.L for the respondent/State, at the other hand, refuted all the pleas advanced by the appellant and submits that the learned trial Court has considered the evidence available on record which calls for no interference.
Perused the record and the judgment in question. The prosecutrix (PW 1) alleges that the appellant came to her, when she was attending the call of nature. He caught her from behind and he molestated her. He tried to fell her on the ground. When she kicked him, he fell down at a distance. The prosecutrix gathering her clothes ran to her house. She narrated the incident to her sister-in-law-Anju (PW 2) and her mother. Her neighbour- Chandraprabha (PW 3) was also present when she narrated the incident to her mother and sister-in-law. According to her, after half an hour, she went to Police Station Baihar and lodged the report Ex. P/1.
Anju (PW 2) and Chandraprabha (PW 3) have corroborated the evidence of prosecutrix (PW 1). According to the complainant and Anju (PW 2) the clothes of complainant were stained with mud for she had fallen on the field.
This fact is not found supported from the statement of Shri S.R. Marskole (PW 5) who lodged the report Ex. P/1.
It would be appropriate to mention here that complainant informed her sister-in-law- Anju (PW 2) that she was going to attend the call of nature near the ''nalah.'' But according to the complainant, she was attending the call of nature at the field and not near the ''nalah.'' The complainant admits that Anju (PW 2) is her sister-in-law and Chandraprabha (PW 3) is her distant cousin and neighbour. Kuwar Lal (PW 4) is her own brother. Kuwar Lal (PW 4), Chandraprabha (PW 3) and Anju (PW 2) were the persons to whom the prosecutrix informed about the incident. Therefore, they were after incident witnesses. Report has been written by Shri S.R. Marskole (PW 5), T.I of Police Station Baihar. He has also recorded the police statement under Section 161 Cr.P.C of the prosecutrix (PW 1) , Chandraprabha (PW 3). He prepared the spot map Ex. P/2 and arrested the appellant preparing arrest memo Ex. P/3. There has been discrepancies in the statements of the prosecutrix and her report Ex. P/1.
The prosecution has not produced any caste certificate which would prove that the prosecutrix is a member of Scheduled Castes/ Scheduled Tribes. The investigation was conducted by Shri S.R. Marskole, T.I, Police Station Baihar. It seems that the mandatory provision of investigation by police officer not below the rank of Dy.S.P has not been followed in this case.
In this regard, it would be appropriate to refer to the decision in the case of Bharat Singh vs. State of M.P ., 2006 (4) MPLJ 171 wherein it has been held that ''the prosecution failed to establish by adducing cogent and reliable evidence that the complainant belonged to Scheduled Caste or Scheduled Tribe community, inasmuch as in court statement he deposed that he belonged to ''Balai'' caste but nowhere he has stated his caste falls within the category of Scheduled Castes or Scheduled Tribe. Mere admission by complainant that he belonged to ''Balai'' community is not sufficient to establish that he belonged to Scheduled Caste community. No caste certificate from the Competent Authority is filed. It has also been held that investigation was done by Station House Officer contrary to Rule 7 of SC & ST (Prevention of Atrocities) Rules, 1995 and, therefore, conviction and sentence are unsustainable. It has also been held that provision enshrined under Rule 7 is mandatory and, therefore, only those Deputy Superintendent of Police who are specifically appointed by the State Government or the Director General of Police or the Superintendent of Police or the Competent Authority for the purposes of investigating the case, under the 1989 Act can investigate the offence. Investigation done by inferior officer of the police other than the Superintendent of Police duly appointed, as per the provision of Rule 7 of 1995 Rules, would cause prejudice to the accused because the investigating officer had not obtained the certificate from the Competent Authority to establish that complainant belongs to Scheduled Caste or Scheduled Tribe community.''
In the light of the above, there are discrepancy in the statements of the prosecutrix, the mandatory provision of Rule 7 of 1995 Rules has not been followed and no caste certificate has been produced. Therefore, it would not be proper to sustain the impugned judgement. Hence, this appeal is allowed.
Conviction and sentence as aforesaid are hereby set aside. The appellant is on bail and he is acquitted of the charges. He is on bail. His bail bond are discharged.