SUNDER LAL CHOURASIA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal is directed by the appellant under section 374(2) of the Cr.P.C being aggrieved by the judgment dated 7.4.1999 passed by the Special Judge, Chhindwara (constituted under the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act (in short 'the Act') in Special case No.52/95 whereby he has been convicted under section 3(1)(x) of the Act with a direction to undergo for RI six months with fine of Rs.1000/-. In default of depositing the fine, further RI 1 month has been awarded.

(2.) The facts giving rise to this appeal in short are that on dated 5.7.95 at about 21.35 in the night, the complainant Rajendra Kumar Chouria (Chamar) lodged the FIR as Crime No.303/95 at P.S. Junardeo contending that at about 8 O' Clock in the evening of 5.7.95, he accompanied with his friends, namely, Shyam, Ramesh and Badrudeen Quereshi was standing in front of Rampura Cycle Shop. At the same time, appellant, who was posted as Junior Engineer in the Madhya Pradesh Electricity Board, Suwai came there on his motorcycle and by abusing him with filthy language, also by taking name of his caste "Chamar Sale" asked him that he has set right so many persons like him at Ghansor and he will see him also. Such activity of the appellant had annoyed him as well as to his friends. As per further averments, the complainant was also asked by the appellant saying that if he will not follow his instructions then he will make arrangement for his suspension from the department. As per further averments of the FIR, the complainant was working in the same department as subordinate of the appellant. On such report, the offence of section 294,506 of the IPC and section 3(1)(x) of the Act was registered. The same was investigated. On completion of the same, the appellant was charge-sheeted for his prosecution under the aforesaid sections. On evaluation of the charge sheet, only charge of section 3(1)(x) of the Act was framed against the appellant. He abjured the guilt, on which, the trial was held in which as many as four witnesses were examined by the prosecution while two witnesses were examined in defence on behalf of the appellant. On appreciation of the evidence, after holding guilty to the appellant under the aforesaid offence, he was punished with the above-mentioned punishment.

(3.) Shri Y.P.Sharma, learned counsel for the appellant after taking me through the record of the trial court as well as the impugned judgment argued that the investigation was not carried-out by the competent investigating officer as provided under Rule 7 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules'), according to which the investigation of the impugned case for the aforesaid offence under the Act could be carried-out only by such Police Officer who is not below the rank of Deputy Superintendent of Police and such Investigating Officer should be appointed by the State Government/ Director General of Police or the Superintendent of Police, as per the scheme provided under such Rules. So, firstly, in such premises, the investigation was carried out by the incompetent person, the inspector or sub insptector of police, the impugned conviction under the Act, is not sustainable because the charge sheet itself was not entertainable in the lack of the investigation by the proper authority. In support of this contention, he placed his reliance on the decision of the Apex Court in the matter of State of Madhya Pradesh Vs. Chunnilal alias Chunni Singh,2010 2 MPJR 249. Besides this, on merits of the matter, he argued that on accepting the entire evidence as it is, even then, in the lack of any document or the certificate of caste showing caste of the complainant/victim covered under the Act, mere on the oral testimony of the complainant/victim or other witnesses, the trial court should not have held him to be the person of such community covered under the Act. He also said that it is apparent fact on record that neither such certificate was obtained in the investigation nor produced or proved by the prosecution in any manner. In such premises, he said that in the lack of such material evidence, the appellant deserves for acquittal in the matter. He further argued that looking to the nature of the case, in order to rebut the evidence regarding caste of the complainant, the appellant could not get the opportunity of cross-examination of the Investigating Officer namely, T.R.Hindolia the Sub Inspector of Police of the case because he was not examined by the prosecution on account of his death. It was also argued that on account of some departmental dispute there was earlier enmity between the appellant and the complainant who was working as subordinate clerk of the appellant but such aspect was also not taking into consideration. Even the evidence adduced by the appellant in his defence was not considered with proper approach. He further argued that after more than 15 years from the date of the incident, even after extending acquittal to the appellant from the aforesaid charge, on account of non-framing the charge of section 294,506 of the IPC, the case should not be remanded back to the trial court for holding the trial under such sections. In support of this contention he said that the appellant should not suffer because of non-framing the charge of above-mentioned section of the IPC and prayed for extending acquittal to the appellant by setting aside the impugned conviction by allowing this appeal.