ORAL JUDGMENT

1. In this appeal under Section 374 of the Code of Criminal Procedure, 1973 ['Code' for short], the appellant has assailed the judgment and order of sentence dated 23.08.2005 passed by the learned Special Judge, Kheda at Nadiad in Special (Atrocity)

Case No.05 of 2005, whereunder while acquitting co- accused persons, the appellant is convicted for offence punishable under Section 3(1)(X) of the Scheduled Caste and Schedule Tribes (Prevention of Atrocity) Act ['Atrocity Act' for short] and is sentenced to suffer simple imprisonment for six months.

2. The facts in brief giving rise to the present appeal as could be gathered from the impugned judgment and connected material are that :-

2.1 On 11.07.2001, Lalitaben Ramanbhai (PW-2)- original complainant at about 1.30 p.m. went to village panchayat Well to fetch water. At that time, Laxmiben Madhabhai (appellant herein) called PW-2 that she being rohit, could not have touched the Well and abused her.

3. PW-2 asked Laxmiben Madhabhai not to abuse her whereupon Laxmiben-appellant ran-away towards her house. In the meantime, Motibhai Somabhai Vaghari- acquitted accused No.2 and his brother-Mahendrabhai Somabhai-acquitted accused No.4 came their. They were armed with sticks, PW-2 therefore, raised alarm, she called her nephew-Jayantibhai Lallubhai (PW-3) and her brother-in-law (Jeth) Lallubhai Naranbhai (PW-5) to the scene. At the place of incident Motibhai Somabhai (acquitted accused No.2) had given blow by means of stick to PW-3. PW-5 intervened to save PW-2 whereupon Mahendrabhai (acquitted accused No.4) and Somabhai Mahijibhai (acquitted accused No.3) gave push to PW-5. As a result, he fell down and suffered abrasion on right hand elbow. On hearing the hue and cry of PW-2, other persons from the locality came and saved from further beating. While leaving acquitted accused persons Motibhai Somabhai, Mahendrabhai Somabhai and Somabhai Mahijibhai gave abuses about the caste of PW-2. A complaint in respect of this incident lodged with Chaklasi Police Station by PW-2 on basis of which FIR vide II-C.R.No.53 of 2001 for offence punishable under Section 323, 504, 114 of Indian Penal Code and under Section 3(1)(X) of the Atrocity Act was registered.

4. Investigation ensued pursuant to the FIR and on completion of investigation since prima-facie case was found against the appellant and acquitted accused person, charge sheet was led in the Court of learned Second Joint Civil Judge, Judicial Magistrate First Class, Nadiad. He committed the case to the Special Court under Section 209 as the offence was exclusively triable by the Court of Sessions. In the Sessions Court, the case was registered as Special (Atrocity) Case No.05 of 2005.

5. The prosecution, adduced documentary and ocular evidences to prove the guilt of the accused.

6. Thereafter, the statement under Section 313 of the Code of the accused-appellant came to be recorded. The trial Court, after considering the evidence on record and arguments of learned Additional Public Prosecutor and learned advocate for the accused, convicted the appellant accused of the charges by the impugned judgment and order.

7. I have heard Mr. Shailesh Sharma, learned advocate for the appellant and Mr. Hardik Soni, learned APP for the respondent-State. I have also perused the record and proceedings of Special Atrocity Case No.05 of 2005.

8. Mr. Shailesh Sharma, learned advocate for the appellant without arguing the matter on merits, submitted that as per Rule 7 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules, 1995, the investigation under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is required to be made by the police officer not below the rank of Dy.S.P. This provision is held to be mandatory. In the instant case, primary investigation was made by Raysingbhai Dhulsingbhai Rathwa (PW-13) who was at the relevant time Police Sub Inspector. He thereafter, handed over the investigation to Parixita Manekl