1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.258 OF 1997. Maroti Namdev Salunke, Age 32 years, Occ. R/o Belkund Tq.Ausa, Dist. Latur. ... Appellant. Versus The State of Maharashtra ... Respondent. ... Mr.U.R.Kulkarni, advocate for the appellant. Mr.K.S.Patil, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 17.08.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment rendered by learned Sessions Judge, Latur in Special Case No.17/1996, whereby the appellant has been convicted for offences punishable U/s 7(1)(d) of the Protection of Civil Rights Act and 2 U/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He has been sentenced to suffer rigorous imprisonment for one month and to pay fine of Rs. 100/- (Rupees hundred only), in default to suffer rigorous imprisonment for one week on the first count and to suffer rigorous imprisonment for six (6) months and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer rigorous imprisonment for one month on the second count. 2. Briefly stated, the prosecution case is that complainant P.W. Kondabai was the village Sarpanch of Belkund (Tq.Ausa), at the relevant time. On 26.12.1995, she was proceeding by road near house of Smt.Urmilabai Raghunath Madne. Said Urmilabai, had filed an application for construction at her open space. When she was proceeding from near the house of Urmilabai at about 10 a.m., she stopped for a while and told her not to carry out the construction in the public premises. The appellant reached the place while complainant P.W. Kondabai was asking said Urmilabai to refrain herself from making 3 construction within the limits of public place. The appellant was then Member of the Village Panchayat. He started abusing her. He uttered insulting and abusive words and asked her whether "Maharin" (woman from Mahar caste) can act as Sarpanch.? He further told that she was living on work of sweeping the village. He told her that she may go anywhere wherever she wanted and nobody can do anything adverse to him. On the basis of such complaint, investigation was carried out and the appellant was put on trial for the offences U/s 7(1)(d) of the PCR Act and U/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. A charge was framed against him vide Exh.6. He denied truth into the accusation. He asserted that due to political rivalry he has been falsely framed in the Criminal case. According to him, he had complained about misappropriation of certain amount by the complainant, to the BDO of the Panchayat Samiti. He also submitted that in Village Panchayat Meeting dt.22.9.1995, permission was granted to 4 Urmilabai to carry out the construction work. He suggested that complainant P.W. Kondabai had demanded Rs.3,000/- (Rupees three thousand) from said Urmilabai, to carry out the construction work. He advised said Urmilabai, on her approaching him lateron, that she shall carry out the construction work as per the sanctioned map and the permission granted in her favour and not to pay any amount to any one. He denied that he intentionally insulted complainant P.W. Kondabai on the ground of her being a member of the Scheduled Caste. 4. At the trial,the prosecution examined complainant P.W.Kondabai and three more witnesses. The appellant examined D.W.1 - Urmilabai in support of his defence. On the basis of the material placed on record, the learned Sessions Judge came to the conclusion that the appellant intentionally insulted complainant P.W.Kondabai on the ground of her caste and that the alleged offences have been proved against him. In keeping with such finding, the learned Sessions Judge, rendered the impugned judgment 5 and order. 5. Heard learned counsel for the appellant and learned A.P.P. for the State. 6. At the outset, let it be noted that the FIR (Exh.13) was lodged by P.W. Kondabai on 5.9.1996. The incident is said to have occurred in the morning of 26.12.1995. There is delay of about 10 (ten) days in filing of the FIR. The recitals of the FIR would show that P.W. Kondabai had approached various offices by filing applications and, therefore, there was delay in lodging of the report. It is explicit, therefore, that P.W. Kondabai is well aware about the procedure to be followed and had indulged in giving various applications to other offices in the context of the same incident. Still, however, not a single copy of any such application filed with any other office is placed on record in order to justify such explanation. 7. Glaring defect noticed in the context of investigation is that the investigation has been carried out by P.W. 4 PSI Ayub Shaikh. His 6 version purports to show that he collected Caste Certificate of P.W. Kondabai vide Exh.21. He recorded statements of witnesses. He states that he drew spot panchanama (Exh.16) in presence of two panch witnesses. He charge-sheeted the appellant on the basis of statements of witnesses which were recorded during course of the investigation. So far as investigation in such cases is concerned, it is necessary to follow the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. These Rules have been published in the Govt. Gazette on 3l.3.1995. The incident in question occurred in the month of December 1995 and the FIR (Exh.13) was lodged in the first week of 1996. Rule 7 reads as follows : "7. Investigating Officer. - (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 7 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 8 investigations done by the Investigating Officer." On plain reading of Rule 7, it is amply clear that the investigation can not be carried out by any Officer below the rank of a Deputy Superintendent of Police. Therefore, the investigation carried out in the present case is bad in law. For, P.W. 4 PSI Ayub Shaikh was not Competent Authority to conduct such investigation within the meaning of the Rule. It is explicit that the Investigating Officer did not consider the import of the relevant rules. Under these circumstances, the investigation carried out by incompetent Officer is vitiated. The purpose of Rule 7 is not only to expedite the investigation but to have investigation in such sensitive matters at hands of higher Police Officer who would balance the allegations in the complaint and the probability of there being falsehood in the complaint. The purpose is also to ensure that the investigation is fair enough. In this context, it is worthy to be noted that though the construction work was going on and complainant 9 P.W. Kondabai had gone to the place with a view to advise D.W. Urmilabai to carry out such work only within limits of her property and not in the public premises, yet, the Investigating Officer did not record statements of Mason and the labours who could be present at the place nor it is the case of the prosecution that no such work was going on at the relevant time and, therefore, presence of Mason and the workers could not be expected at all. Apart from these deficiencies, there is absolutely no documentary evidence to show that the construction permission was being violated by D.W. Urmilabai. The map of the spot where the construction work was going on is also not placed on record. Needless to say, there is no material on record to infer that the construction work was going on within the limits of public place nor any written notice was served on D.W. Urmilabai to remove such construction because it was partly in the public premises. 8. In the above background, it is worthy to be noticed that complainant PW Kondabai is admittedly arch rival of the political faction of 10 which the appellant is a member. The learned Sessions Judge also noticed animosity between them. The learned Sessions Judge, however, did not accept the defence version that the appellant was framed on account of the political rivalry. Considering the recitals of the spot panchanama (Exh.16), it is difficult to locate whether the incident occurred in the private property of D.W. Urmilabai or it really occurred at a public place. It is stated in the spot panchanama that the spot is situated adjacent to the construction which was being newly carried out behind the wall of the house of D.W. Urmilabai. The version of P.W.3 Rasool, shows that the spot was pointed out by P.W. Kondabai. As stated earlier, there is no sketch map drawn during course of the investigation in order to locate the place of the incident. Whether the construction work was going on in the private property of Urmilabai or in the public premises is a controversial and disputed fact. The version of D.W. Urmilabai revealed that she was carrying out the construction as per the permission accorded to her. She states that complainant P.W. Kondabai 11 had demanded Rs.3,000/-(Rupees three thousand) from her but the appellant had advised her not to pay any money to anybody. She denied that the incident occurred in the manner stated by P.W. Kondabai. Her version purports to show that the Sarpanch - P.W. Kondabai had exchange of words with her and then the appellant had asked P.W. Kondabai not to trouble the poor woman. The case of the prosecution is corroborated by P.W. Sandipan. He states that the incident occurred as shown in the FIR. It is pertinent to note that the recitals of the FIR (Exh.13) do not show presence of P.W. Sandipan, at the place of the incident. The prosecution witnesses attempted to show that the appellant was already present at the spot whereas the recitals of the FIR purport to show that he had gone to the place at subsequent point of time when the conversation between P.W. Kondabai and D.W. Urmilabai was going on. Since name of P.W. Sandipan does not figure in the recitals of the FIR, it is difficult to attribute much importance to his version. 12 9. In view of the discrepancies mentioned above, it would not be safe to place implicit reliance on the testimony of P.W. Kondabai and particularly when there was inordinate delay in lodging of the FIR. Moreover, as stated before, the investigation itself is bad in law inasmuch as it has been carried out by the Officer below the rank of Dy.S.P. In this view of the matter, the impugned judgment and order is unsustainable. 10. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted for the offences for which he was charged. His bail bonds be deemed as cancelled. The fine amount be refunded to him. (V.R.KINGAONKAR,J.) asp/office/Crappeal25897