7. Learned counsel for the appellant submits that in this case, first F.I.R. relating to same incident was also lodged by the family member of the appellant against PW-2 Naresh Kunwar and the case is pending in Criminal Court at Mahasamund and this fact is admitted by PW-2 in para-6 of his evidence. He further submits that thereafter the complainant (PW-2) lodged the F.I.R. (Ex.-P/1) against the appellant. He submits that as per evidence of PW-1 Nizaam, PW-4 Gajadhar, PW-5 Roshan and PW-6 Kunjlal Yadav, they have not stated that the appellant was abusing the complainant (PW-2) in the name of his caste, therefore, looking to the entire facts and circumstances, there was no dispute regarding caste of PW-2 that the appellant intentionally insulted or intimidated with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. He also submits that on the date of incident, the complainant had started using filthy language against the appellant, therefore, a free fight started between the parties and both the parties sustained injuries. He submits that prosecution has failed to prove the caste of the complainant that he belongs to scheduled caste or scheduled tribes community, nor any medical evidence adduced by the prosecution. He submits that any offence under the Special Act is to be investigated by an officer not below the rank of Deputy Superintendent of Police but in this case, it was not proved that the investigation has been conducted by an officer not below the rank of Deputy Superintendent of Police and only it has come in the evidence that the FIR (Ex.-P/1) was registered by Sub-Inspector who is prosecution witness namely S.R. Pathare (PW-3). Therefore, entire investigation stands vitiated as per Rule 7 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995 (hereinafter referred to as the 'Rules 1995). In these circumstances, conviction of the appellant under Section 323 of IPC and Section 3 (1) (x) of the Special Act is not sustainable and he deserves to be acquitted of the said charges.
