Usha Devi And Other vs State Of Jharkhand

In -compliance of the order dated 11.04.2018 passed by this Court, affidavit has been filed by the Officer-in-charge, Sidhgora Police Station with

respect to the present status of the appellants, the same is accepted and taken on records.

Heard learned counsel for the appellants and learned counsel for the State.

The instant Criminal appeal is directed against the judgment of conviction and order of sentence both dated 20th February, 2004, passed in

 Special Case No.03 of 2001 (arising out of Sidhgora P.S. Case No.137 of 2000 corresponding to G.R. No.1761 of 2000) passed by the learned 1st

Addl. Sessions Judge, Jamshedpur, whereby appellant, Guriya Kumari @ Parmila Kumari @ Souvinder Kumari has been held guilty for the charge

under Section 324 of the Indian Penal Code and awarded sentence to undergo simple imprisonment for six months and the appellants, Usha Devi and

Sangeeta Kumari are held guilty for the charge under Section 323 of the Indian Penal Code and awarded sentence to undergo simple imprisonment for

two months and all the three appellants are also held guilty for the charge committed under Section 3(xi) of the S.C./S.T. (Prevention of Atrocity) Act,

1989 and awarded sentence to undergo S.I. for six months. All the sentences are directed to run concurrently, but the learned trial court has acquitted

the appellants/accused for the charge under Sections 504/34 of the Indian Penal Code.

The prosecution case, as alleged, in the First Information Report submitted by the informant, Fulmani Guriya (P.W.4) on 30.10.2000 before the

Officer-in-Charge, Sidhgora Police Station, alleging inter-alia, that she is a resident of a flat in the building of 'Bihar Military Police, Jamshedpur ( now

Jharkhand Armed Police). On 30.10.2000 at around 10.00 a.m., while she was unfurling her clothes on the terrace of the building, in the meantime,

youngest daughter of Constable, Sunil Singh, namely, Guriya who is residing in one of the flats in same building came and she removed all the clothes

and abuse the informant by saying, that the informant belongs to a low caste woman and as such, she should unfurl her clothes on the ground. On

hearing brawl, the eldest sister of Guriya, namely, Sangita and her mother Usha Devi came there and caught-hold the hair of the informant and

assaulted by fist. In the meantime, Guriya has bitten over the finger of right hand causing injury by her teeth. On hulla, the neighbourers came there

and saved the informant. The informant has further stated that Sunil Singh is also residing in the same flat (Bihar Military Police and now Jharkhand

Armed Police) at the 3rd Floor and the informant is residing in the 2nd floor. Informant has stated that she belongs to a Munda caste and as such,

family members of the accused persons are always disturbing her. She has further stated, that all the three accused tried to threw her from the roof

and threw all her clothes in the drain. As such, she informed the Senior Police officers of the Department regarding the same.

On the basis of the written report of the informant, the Police instituted Sidhgora P.S. Case No.137 of 2000 (dated 30.10.2000) under Sections 341,

323, 324, 504/34 and Sections 3 /4 of the S.C./S.T. (Prevention of Atrocity) Act, 1989 and the investigation was handed over to Sub Inspector of

Police, S. N. Sahay as the Investigating officer. 5. After investigation, the Police submitted charge-sheet bearing Charge-sheet No.120 of 2000 dated

13.12.2000 under Sections 341, 323, 324, 504, 34 of the Indian Penal Code and Sections 3 /4 of the S.C./S.T. (Prevention of Atrocity) Act, 1989

against Guria @ Sourvind Kumari @ Permila Kumari, Sangeeta Kumari and Usha Devi.

Cognizance of the offence have been taken and thereafter the case was transferred to the Court of learned Special Judge-cum-1st Addl. Sessions

Judge, Jamshedpur, where charge have been framed under Sections 323 / 34, 324 / 34, 504 / 34 of the Indian Penal Code and Section 3(XI) S.C./S.T.

(Prevention of Atrocity) Act, 1989 on 07.01.2002.

The prosecution in order to prove its case has examined altogether six witnesses and also adduced exhibited documents i.e. copies of the Injury

report as Exhibit-1, Written report as Exhibit -2 and endorsement of Officer-in-charge on 'fardbeyan' as Exhibit-2/1. 8. Dr. Navin Kumar Sinha has

been examined as P.W.1. He is the Medical Officer, who has examined the informant, Fulmani Guriya on 30.10.2000 and found the following injuries

on her person.

(i) A lacerated wound on right forearm of size ½â€​x ¼â€​x¼â€​

(ii) One punctured wound ¼â€​x¼ â€​x¼ â€​ on right index finger on the tip. The nail of right index finger removed by teeth biting.

(iii) Teeth bite mark on left breast.

(iv) One bruise of size 2â€​x1â€​ on right side of back i.e. (under rightscapular region).

(v) Complaint of body ache.

Injury Nos.(i), (iv) and (v) are caused by hard and blunt substance and injury no.(ii) & (iii) are caused by dental bite.

All the above injuries are simple in nature. During cross-examination, Doctor has stated that except injury nos.(ii) & (iii), other injuries may be caused

by fall from height. Dental bite may be caused by animals like goat, cat and dog. It is not mentioned in the report of the Doctor that the injuries

referred above are caused by human dental bite but in my opinion they are human dental bite.

Dyamni Binjha, has been examined as P.W.2. This witness hasstated that she belongs to Munda (Scheduled Tribe) and on 30.10.2000 while she

was unfurling clothes on the roof of her building. Guriya came and said that since informant, Fulmani Guriya belongs to a low caste, she should not

unfurl her clothes on the roof and also abused her by taking name of her caste. Thereafter mother and sister of Guriya came and all the three

assaulted the informant, Fulmani Guriya and she was rescued by other persons. This witness has seen the injuries found on the informant- Fulmani

Guriya.

During cross-examination, this witness has admitted, that the conversation made in the house, cannot be heard by persons residing in other flats and

she was alone at the roof of the flat. The occurrence took place at the roof of different flat, which is situated at a distance of 20 feet from her flat.

She has further stated, that the people came themselves for rescue in which, she has seen Mukta Kandulna and Shakuntala Devi, but as she was

seeing the occurrence from different flats as such, could not reached for rescue.

Mukta Kandulna has been examined as P.W.3. She has stated, that while Fulmani was unfurling clothes on the roof of the house, the daughter of

Sunil Singh, namely, Guriya came there and removed the clothes and asked Fulmani to unfurl the clothes on the ground as she belongs to a low caste

subsequently assault took place in which Fulmani was dragged with her hair and also bitten on her finger, chest and back. In the meantime, mother

and sister of Guriya came and they also assaulted Fulmani. This witness was also residing in the 3rd Floor of the same flat and she has also come for

unfurling the clothes and tried to pacify the parties.

During cross-examination, this witness has stated, that the house of Sunil Singh is situated at 3rd Floor, in-front of the house of this witness, but the

occurrence took place on the roof of the flat. This witness has further stated that after rescuing Fulmani (informant), she was taken to her house and

another lady of different flats also witnesses the occurrence.

Phulmani Guriya, informant of the case, has been examined asP.W.4. This witness has stated, that she is Munda (Adivasi) and occurrence took

place on 30.10.2000 while she was unfurling her clothes on the roof of the flat at about 10.00 a.m. This witness has stated that youngest daughter of

Sunil Singh, namely, Guriya abused her by saying that she is Adivasi, a low caste and she will not unfurl the clothes on the roof of the building and

subsequently on hulla, her elder sister, Sangeeta and mother Usha, came and all caught-hold of the hair of the informant, assaulted her and Guriya has

bitten on the finger of right hand, back and left breast. On hulla, neighbourers came for rescue as all the three accused were trying to threw her from

the roof of the building and thereafter accused persons removed the clothes and also broken the wire. Husband of the informant was on duty at Patna.

She informed the senior Police officers. Informant has proved her written report as Exhibit-2. The medical examination of the informant was done at

M.G.M. Hospital.

During cross-examination, informant has stated that while she was assaulted, Shakuntala Devi and Mukta Kandulna came after 15 minutes of removal

of their clothes, but at that time assault was continuing. Mukta and Shakuntala were not able to rescue her. One Rajesh Singh came and he rescued.

Thereafter Mukta and Shakuntala took her to her house. This witness has stated that in her written report, she has stated about neighbourers, who

were 10-15 in numbers came there, but from perusal of F.I.R., the same was not found nor their names have not been mentioned in the F.I.R. Dyamni

Binjha has witnessed the occurrence from her roof, which is adjacent to the roof of this building. This informant has stated that after handing-over the

written complain to the superior officer but no one had enquired about the occurrence.

Anand Kumar Goswami has been examined as P.W.5. This witnesshas stated that on 30.10.2000 at around 10.00 a.m., occurrence took place on

the roof of the house, while the informant was unfurling her clothes. The initial quarrel was started between Guriya and Phulmani, but subsequently,

Sangeeta, elder sister and Usha, mother of Guriya came and assaulted the informant. Guriya has also bitten the informant. On hulla, the neighbourers

and female members of neighbour came and pacified. This witness has stated, that he witnessed the occurrence from his own balcony in the same

building in 2nd floor, which is three storied. This witness has claimed that after twisting his head from balcony, he saw the occurrence going on the

roof and also admitted that there is boundary (parapet) over the roof and stated that he has not seen Guriya biting Phulmani. This witness has stated,

that the dimension of the balcony is 6 feet in length and 4 feet in width. This witness has stated, that he did not go for rescue as the quarrel was

between the female members.

Sri Nagendra Chowdhari, Sub Divisional Police Officer has been examined as P.W.6. He has stated, that he submitted the charge-sheet on the

basis of the investigation conducted by Sub Inspector of Police, S.N. Sahay. This witness has further stated that he has not recorded the statement of

any of the witnesses as the statements of the witnesses were already recorded by the previous Investigating officer and same statements were given

by the witnesses before him and as such, he has not recorded the same.

After closure of the prosecution evidence, the statements of the appellants was recorded under Section 313 Cr.P.C., on 28.01.2004 and after

hearing the parties and on perusal of the records, the learned trial court has convicted the appellants, Usha Devi and Sangeeta under Section 323 of

the Indian Penal Code and awarded imprisonment for 2 months and Guriya has been found guilty under Section 324 of the Indian Penal Code and has

been awarded sentence to undergo S.I. for six months. The three appellants have also been convicted under Section 3(XI) of the S.C./S.T.

(Prevention of Atrocity) Act, and awarded sentence to undergo simple imprisonment for six months.

Heard learned counsel for the appellants, Mr. Jitendra Nath Upadhyay and learned Additional Public Prosecutor, Mr. Ashok Kumar for the State

and also perused the records.

Learned counsel for the appellants has submitted, that conviction of the appellants under Section 3(XI) of the S.C./S.T. (Prevention of Atrocity)

Act is not sustainable in the eyes of law as the entire investigation has been completed in violation of Rule 7 of the S.C./S.T. (Prevention of Atrocity)

Rule and the investigation has been done by Sub Inspector of police, S. N. Sahay as admitted by P.W.6, Nagendra Chowdhari, Sub Divisional Police

Officer during his cross-examination.

Learned counsel for the appellants has further submitted, that from perusal of the case diary, it would be apparent that Dy.S.P./S.D.P.O.,

Nagendra Chowdhari has taken over the investigation on 17.11.2000 as it appears from perusal of Paragraph 71 of the case diary and subsequently on

13.12.2000 in Paragraph No.72 of the case diary, P.W.6 Nagendra Choudhary has submitted that case diary up-to diary No.9 dated 17.11.2000 has

already been sent and in Paragraph No.73 of the case diary on the same day i.e. 13.12.2000, Dy.S.P., Nagendra Chowdhari has mentioned that in

view of the direction of the Superintendent of Police, charge-sheet has been submitted under Sections 341, 323, 324, 504/34 and 3/4 of the S.C./S.T.

(Prevention of Atrocity) Act vide charge-sheet no.120 of 2000 dated 13.12.2000. It is wrongly submitted by P.W.6, Nagendra Chowdhari, in his

deposition at Paragraph no.6 of cross-examination, that he has examined the witnesses whose statements have already been recorded by S.I., S.N.

Sahay and they have stated the same fact before him also, as no such entry was found in the case diary and as such, the entire trial is vitiated due to

non-compliance of Rule 7 of the S.C./S.T. (Prevention of Atrocity) Rule.

 18. Learned counsel for the appellants has further submitted that inthe instant case, public view is completely lacking as P.W.2-Dyamni Binjha is a

resident of different flat situated at a distance of 20 feet and has admitted, that if the persons are residing in a different flat, they cannot heard their

talk/ conversation. Furthermore, she claimed herself to be an eye-witness to the occurrence, but she has never stated this fact that the victim was

bitten by teeth by one of the accused persons, although as per the other witnesses and the victim, at least at 4 or 5 places were bitten by the accused.

If such vital things are not visible then only by saying that I witnessed the occurrence, will not generate confidence in accepting this witness as an eye-

witness to the occurrence and as such, her statement cannot be accepted rather, she seems to be an interested witness for falsely implicating the

appellants.

Learned counsel for the appellants has further submitted, that thiswitness has reached the place of occurrence, after the allegation of abuse or use

of caste was over because assault took place after those events have lapsed and as such, this witness cannot give any strength or light to the

prosecution case so far offence under the Special Act i.e. S.C./S.T. (Prevention of Atrocity) Act is committed. Moreover, the building had total 14

flats, mixed of all castes, but only interested persons have been examined as witnesses in the present case and as such, putting reliance for convicting

the lady members on such flimsy evidence cannot be accepted and as such, is fit to be set aside by this Hon’ble Court.

Learned counsel for the appellants has further submitted, thatAnand Kumar Goswami, who has been examined as P.W.5, is not an eye-witness to

the occurrence, as a person residing in the same building at 2nd floor having three floors building cannot witness an occurrence, which is being

committed at the roof of the building which is above the 3rd floor having boundary (Parapet). Moreover during crossexamination, this witness has

stated, that he has not seen the accused, Guriya biting the victim. This simply suggests, that this witness is not an eye-witness to the occurrence.

Learned counsel for the appellants has submitted that in view of the judgment reported in (2008) Supreme Court Cases 531, in the case of Gorige

Pentaiah Vs. State of Andhra Pradesh and Ors., the instant case will not come under the ambit of Special Act as the Hon’ble Apex Court has

held that the complainant ought to have alleged that appellant/accused was not a member of Scheduled Caste or Scheduled Tribe for invoking the

provision of S.C./S.T. (Prevention of Atrocity) Act, 1989.

Mr. Ashok Kumar, learned Additional Public Prosecutor appearing for the State has submitted that from perusal of record, it appears that, the

Deputy Superintendent of Police has taken over the investigation on 17.11.2000 as it would be apparent from Para-71 of the case diary and in Para-72

of the case diary, the Deputy Superintendent of Police has also submitted the case diary up-to para No.9 dated 17.11.2000 and in Para-73 of the case

diary, he has stated about submission of the charge-sheet as per the direction of the Senior Police officer. Learned counsel for the State has fairly

submitted that from perusal of the case diary, it would be apparent that the Deputy Superintendent of Police has not investigated the matter nor has

mentioned in the case diary that the statement of the witnesses recorded by Sub Inspector, S. N. Sahay under Section 161 of the Criminal Procedure

Code, is the same as the witnesses have stated before him, but from perusal of the case diary under Section 172(2) of the Criminal procedure Code,

the same is found to be incorrect. Learned counsel for the State has further submitted that the conviction of the appellant, Guriya Kumari @ Parmila

Kumari @ Souvinder Kumari under Section 324 of the Indian Penal Code and conviction of the appellants, Usha Devi and Sangita Kumari under

Section 324 of the Indian Penal Code warrants no interference by this Hon'ble Court.

Heard learned counsel for the appellant, Mr. J. N. Upadhyay and learned Additional Public Prosecutor, Mr. Ashok Kumar appearing for the State

and from re-examination of the evidence, the conviction of the appellants under Section 3(xi) of the S.C./S.T. (Prevention of Atrocity) Act, 1989 is

bad in law as the provisions enshrined in Rule 7 of the S.C./S.T. (Prevention of Atrocity) Rule have been violated as the investigation was never done

as contemplated under Rule 7 of the S.C./S.T. (Prevention of Atrocity) Rule rather, from materials available on record, the entire investigation was

done by the Sub-Inspector of Police, S. N. Sahay, who was not competent under the Rule. The police officer not below the rank of Dy.S.P. is

authorize to investigate the case as contemplated under Rule -7 of S.C./S.T. (Prevention of Atrocity) Rule. Here in this case, the entire investigation

has been done by the Sub Inspector and only the charge-sheet has been submitted by the Dy.S.P. Without any investigation conducted by him. Thus,

this Court is of the opinion that submission of the chargesheet is not the investigation. Investigation means collection of material during investigation

which has not been done by the Dy.S.P. and as such, the entire trial vitiates because of non-compliance of Rule 7 of the S.C./S.T. (Prevention of

Atrocity) Rule.

Since in the Special act, stringent provisions are there, as such the Court must have taken care and caution, while scrutinizing the evidence, so as to

prove the case strictly. Since the investigation was done in violation of Rule 7 of the S.C./S.T. (Prevention of Atrocity) Rule, as such, the appellants,

Usha Devi, Guriya Kumari and Sangeeta Kumari are acquitted of the charge under Section 3(xi) of the S.C./S.T. (Prevention of Atrocity) Act

So far as conviction against the appellant, Guriya Kumari @ Permila Kumari @ Sourvinder Kumari under Section 324 of the Indian Penal Code is

concerned, the same is found to be justified as this appellant caused injury on several parts of the body of the informant, as such, the same is upheld by

this Court. So far as sentence under Section 324 I.P.C. is concerned, since the parties are female members of Police constable, residing in a building,

in different flats and the occurrence is of the year, 2000, this Court modified the simple imprisonment of six months awarded under Section 324 of the

Indian penal Code by imposing fine of Rs.10,000/- upon Guriya Kumari @ Permila Kumari @ Sourvinder Kumari to be paid to the informant of this

case.

So far as conviction under Section 323 of the Indian Penal Code of the appellants, Usha Devi and Sangeeta Kumari are concerned, the same is

also upheld by affirming the judgment passed by the learned trial court, but the punishment awarded to undergo simple imprisonment for 2 months is

modified by imposing fine of Rs.5,000/each upon Usha Devi and Sangeeta Kumari payable to the informant. This Court has taken such views as the

parties are female and the occurrence took place about 18 years ago.

With the aforesaid observation, the instant appeal is partly allowed with modification in the sentence, as aforesaid.

Let the L.C.R. be sent to the Court concerned along with a copy of this judgment.