THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CRL.A.NO.931 OF 2011
JUDGMENT
Assailing the judgment dated 29.07.2011 passed by the court of Special Sessions Judge for Trial of Cases under SCs. and STs. (POA) Act‐ cum ‐ Additional Sessions Judge at Khammam in S.C.No.4 of 2011 in finding the accused guilty for the offence under Sections 354 and 323 IPC., the present appeal is filed.
2. The case of the prosecution is that Smt. Thalluri Krishnaveni, w/o Ramakrishna, R/o Mallemadugu, gave a complaint on 10.11.2010 at 5.30 p.m. stating that accused was following her, expressing his sexual desire towards her whenever she was going to fetch water or purchase provisions while she was alone. Sometimes he also caught hold of her hands. She had reported the matter to village elders. They reprimanded him, but he did not change his behavior. While so, on 10.11.2010 at 9.00 a.m., when Smt. Thalluri Krishnaveni was going to fetch water and she was alone, accused caught hold of her hand, dragged her calling 'darling'. He also followed her to her house. Then, she narrated the incident to her husband. When her husband questioned the accused for his behavior, the accused pushed her husband aside and attempt to beat him with stick. She went to the rescue of her husband and received injury to her left hand. This incident was witnessed by Kamatam Satyam and G.Srinu.
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3. Earlier, a panchayat was held in the presence of Sarpanch Shanthamma, Kadari Nageswar Rao, Kadari Ramesh and Thupakula Venkanna. But accused did not change his attitude, and further aggravated his acts, and hence complaint was given.
4. The Sub Inspector of Police registered a case in Cr.No.74 of 2010 under Section 354 IPC and Section 3(1)(xi) of SCs and STs (POA) Act (for short 'the Act').
5. The victim was referred to hospital at Burgampahad. L.W.17 took up investigation. He obtained permission from Superintendent of Police, Khamma in C.No.76/SC‐ST/PRO/2010 dated 10.11.2010. He completed the investigation and filed charge sheet against the accused for offences under Sections 354, 324 IPC and Section 3(1)(xi) of the Act.
6. The case was taken on file for the offences under Sections 323, 354 IPC and Section 3(1)(xi) of the Act, and committed in PRC. No.39 of 2010, and later on, the case was taken on file in S.C.No.4 of 2011.
7. After appearance of accused before the court, he was heard on the point of charge. Accused was charged for offence under Sections 323, 354 IPC and Section 3(1)(xi) of the Act and explained in the vernacular language, and he pleaded not guilty and claimed to be tried.
8. To prove the case of the prosecution P.Ws.1 to 8 were examined, and Exs.P‐1 to P‐7 were marked.
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9. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and he denied the incriminating material appearing in the evidence of prosecution witnesses. However, he did not choose to lead any evidence.
10. Appreciating the entire evidence, both oral and documentary, the trial court found the accused guilty for the offence under Sections 354 and 323 IPC and accordingly convicted him. For the offence under Section 354 IPC, the accused was sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/‐ and in default to suffer simple imprisonment for six months. For the offence under Section 323 IPC, the accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/‐, and in default, to suffer simple imprisonment for a period of three months. The sentence under both the offences was made to run concurrently. The accused was given the benefit of set off under Section 428 IPC.
11. The trial court found the accused not guilty for the offence under Section 3(1)(xi) of the Act, and accordingly acquitted him of the charge.
12. Assailing the conviction and sentence, the accused filed the present appeal.
13. Learned counsel appearing for the appellant / accused submitted that the trial court has erred in placing reliance on the interested and 4 discrepant testimony of P.Ws.1 to 3. It is submitted that there are improvements in the evidence of prosecution witnesses, and further there is also abnormal delay in lodging the report, but the trial court has not taken the same into consideration. Learned counsel submits that the trial court having acquitted the accused for the offence under Section 3(1)(xi) of the Act, is not justified in convicting the accused under Sections 354 and 323 IPC. Learned counsel has taken this court through the entire evidence and sought to set aside the impugned conviction and sentence, and to acquit the appellant / accused of the charges.
14. On the other hand, the learned Public Prosecutor submits that the trial court, based on evidence, categorically found the accused guilty under Sections 354 and 323 IPC and the hence the impugned judgment may not be interfered with.
15. To appreciate the above contentions, it is necessary to look into the evidence available on record.
16. P.W.1 is the prosecutrix. In her evidence she deposed that since about nine months back, whenever she goes to fetch water, or purchase grocery, the accused was waylaying and was catching hold of her hand with an intention to cohabit with him; that she informed the same to her husband; that her husband asked her to wait for sometime to think over; that again the accused repeated the same activities; then they informed the same to village 5 elders namely L.Ws.7 to 11 (viz., Kadari Nageswar Rao, Thupakula Venkanna, Godla Peddapakeer, Mangala Damodhar and Kadari Ramesh) ; that they raised panchayat in the village; that the accused admitted his guilt in the presence of elders, and promised not to repeat; that two months thereafter, the accused started to repeat the same; that on 10.11.2010 at about 9.00 a.m., while she went to fetch water at boring, then accused caught hold of her hand; that she got freed herself and went back to her house and the accused came after her, entered into the house, and pulled her hand; she freed herself and ran out of the house; that her husband came there when she raised cries; L.W.3 also came there, and when her husband asked the accused about his behavior, the accused beat him with stick, then she went to his rescue, and received injury to her left hand; thereafter her husband and accused pushed each other; when she went to the rescue of her husband, the accused pushed her, due to which she received scratch injuries to her hands; thereafter the accused ran away from the scene of offence; as she got giddiness, went to hospital, and in the evening went to police station and gave complaint; that police referred her to Government hospital, and Ex.P‐1 is the complaint and; that on 14th Dy.S.P., recorded her statement.
17. In the cross‐examination she deposed that she gained consciousness at 4.30 p.m., and after gaining consciousness, she got drafted a complaint through one Ramesh.
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18. P.W.2 is the husband of P.W.1. and he deposed in the same lines as that of P.W.1. In his chief examination he further deposed that on 10.11.2010 at about 8.00 a.m., he went to Kamatam Satyam, where he work as coolie, and that they were to go to paddy fields and came along with P.W.3 for tiffin box to his house; at that time he heard the cries of P.W.1, then he went inside the house and saw P.W.1 crying; he enquired P.W.1, and she informed him about the incident. That he saw the accused in his house; he enquired with accused, on that the accused challenged him stating that he can pull anybody in the colony, on that, there was scuffle between him and the accused, and the accused pulled one stick from fence and attempted to beat him, and his wife came to his rescue, and she received injury to her hand; in the meantime Satyam also came inside the house, and when Satyam also enquired, the accused pushed P.W.1 and went away; there were scratch marks on P.W.1, when accused pushed her; they went to Dr. Ravi Hospital; after treatment, they went to police station at 5.30 p.m., and that the complaint was drafted by a known person; police referred them to hospital and four days thereafter police recorded his statement.
20. P.W.3 is Kamatam Satyam. He deposed that he is the resident of Mallemadugu and do agriculture; he knew P.Ws.1 and 2 and the accused; P.W.2 works with him as agricultural labour, and that on 10.11.2009, P.W.2 came to his house at 8.00 am., for labour work; at about 9.00 a.m., they went to the house of P.W.2, since P.W.2 forgot to take lunch box, and that they had 7 to go to fields; they reached the house of P.W.1 at about 9.00 a.m.; himself and P.W.2 heard cries of P.W.1; P.W.2 rushed into his house after hearing cries; that he was standing in front of the house of P.W.1; P.W.2 asked accused as to why he visited his house; both were quarreling with each other; P.W.1 narrated the incident to P.W.2; then P.W.2 asked the accused about his behavior towards his wife; accused pulled one stick and attempted to beat P.W.2; when P.W.1 went to rescue P.W.2, she received injury to right hand; P.W.1 lost consciousness, then P.W.2 carried her to hospital of Dr. Ravi Kumar; P.W.1 was given I.V. fluid; and he went to his fields.
21. P.W.4 is the punch witness to the scene of offence and sketch map prepared by P.W.8.
22. P.W.5 is the Tahsildar who issued Ex.P‐3 caste certificate to P.W.1, and Ex.P‐4 caste certificate to the accused. He stated that P.W.1 belongs to Madiga caste (S.C.), and that the accused belongs to Muslim O.C.
23. P.W.6 is the doctor who issued wound certificate Ex.P‐5. As per Ex.P‐5, P.W.1 received following injuries:
1. An abrasion 3.5 x 2 cms., over the left fore arm;
2. A contusion 4 x 3 cm over left arm He deposed that the above injuries are caused by blunt object, and they are simple in nature and the age of the injury is 12 to 24 hours prior to his examination.
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24. P.W.7 is the Sub‐Inspector of Police, who registered a case in Cr.No.74 of 2010 and issued Ex.P‐6 FIR and referred P.W.1 to the hospital.
25. P.W.8 is the Sub Divisional Police Officer, Manuguru, who took up investigation from P.W.7. He deposed that he referred the victim to hospital and visited the scene of offence on the same day and conducted CDF in the presence of P.W.4 and L.W.13; that he recorded the statements of P.Ws.1,2 and 3, and L.Ws.4 to 11; he sent a requisition to M.R.O. Aswapuram, to issue caste certificate of P.W.1 and the accused; on 27.11.2010, P.W.7 along with his staff apprehended the accused and produced before him at his office at Manuguru; on interrogation, the accused confessed about the offence; he arrested the accused by issuing arrest memo and sent him to court for judicial custody; he collected caste certificate of P.W.1 and the accused and medical certificate from doctor and after completion of investigation, he filed charge sheet against the accused for the offence under Sections 354, 324 IPC and Section 3(1)(xi) of the Act on 20.11.2010.
26. In his cross‐examination he deposed that P.W.1 did not state before him that the accused admitted his guilt and promised not to repeat the same in the presence of elders, in her 161 Cr.P.C. statement; that P.W.1 did not state that the accused was nagging her for the last nine months prior to incident; P.W.1 did not state before him that she was unconscious; he did not 9 examine Dr. Ravi and that P.Ws.2 and 3 did not state before him in their 161 Cr.P.C. statements, that they came back to home to collect tiffin box.
27. In his further chief examination he deposed that Mallelamadugu is a politically disturbed village and that there is political rivalry between TDP and congress. He also stated that he did not seize any material objects from scene of offence. That P.Ws.2 and 3 did not state before him that the accused admitted his guilt and promised not to repeat the same in panchayat raised before elders.
28. Now from the above evidence, it has to be examined whether the impugned judgment of the trial court finding the accused guilty for the offence under Sections 353 and 323 IPC, warrants any interference?
29. As noted above, the case of P.W.1 is that earlier to the alleged incident in question, while P.W.1 was alone, the accused, who is the resident of their colony, was calling her and he also forcibly caught hold of her hand and on revealing the same to the villagers, they reprimanded him, but the accused did not change his behavior. To prove this allegation, no village elder was examined. P.W.8 is the Investigating Officer. In his cross‐examination, which is already noted above, he deposed that P.W.1 in her statement made under Section 161 Cr.P.C. did not state before him that the accused admitted his guilt and promised not to repeat the same in the presence of elders and that the accused was nagging her for the last nine months prior to the 10 incident. P.W.8 also stated that P.Ws.2 and 3 did not state before him that the accused admitted his gult and promised not to repeat the same in panchayat raised before elders. Thus the allegation against the accused, which regard to his alleged behavior with P.W.1 prior to the incident, is not corroborated by any independent evidence, and P.Ws.1 to 3 also omitted to state these averments in their statement made before the police under Section 161 Cr.P.C. Hence, these averments cannot be taken into consideration.
30. It is alleged that on 10.11.2010 morning at about 9.00 a.m., while she was going to fetch water with a pot, and that when she was alone, accused caught hold of her hand, dragged her calling 'darling' and he followed her to her house. This happened near boring, i.e., a public hand pump, where where there will be many people. But the prosecution did not choose to examine any independent witness.
31. P.W.1 in her evidence deposed that on 10.11.2010 at about 9.00 a.m., while she went to fetch water at boring, then accused caught hold of her hand and she got freed herself and went back to her house, that the accused came after her, entered into the house, and pulled her hand and she freed herself and ran out of the house and that her husband came there, when she raised cries, and that when he questioned the accused about his behavior, the accused beat him with stick, and when she went his rescue, 11 received injury to his left hand and that thereafter her husband and the accused pushed each other and that she went to the rescue of her husband, the accused pushed her and she received scratch injuries to her hands and thereafter the accused ran away from the scene of offence.
32. Thus from the above evidence it is clear that the husband of the accused is not an eyewitness to the alleged incident, and only when P.W.1 ran out of the house, her husband has come, and thereafter the alleged scuffle has taken place.
33. The husband of P.W.1 was examined as P.W.2. In his evidence he deposed in the same line as that of P.W.1, and his evidence is already extracted above. He stated that on 10.11.2010 at about 8.00 a.m., he went to Kamatam Satyam (P.W.3), where he work as coolie and he came to his house along with P.W.3 for tiffin (lunch) box, and at that time, he saw P.W.1 crying and when enquired, she informed him about the incident, and that he saw the accused in his house and thereafter the scuffle is alleged to have taken place between them.
34. P.W.3 is Kamatam Satyam, with whom P.W.2 is stated to have come back to his house for tiffin(lunch) box. As per the case of prosecution, P.W.3 also witnessed the incident. In his evidence, P.W.3 deposed that on 10.11.2009, P.W.2 came to his house at 8.00 a.m., for labour work and at about 9.00 a.m., they went to the house of P.W.2, since P.W.2 forgot to take 12 lunch box. He deposed that when they reached the house of P.W.1 at about 9.00 a.m., that himself and P.W.2 heard cries of P.W.1, then P.W.2 rushed into his house after hearing the cries, and that he was standing in front of the house of P.W.1. From this statement of P.W.3, it is clear that he cannot be treated as eye witness to the incident, as he was standing outside the house.
35. Thus, except the evidence of P.Ws.1 and 2, there is no independent eye witness to the incident. It is to be further seen that as per the evidence of P.Ws.2 and 3, on 10.11.2010 when they were to go to fields for work at about 8.00 a.m., as P.W.2 forget the tiffin (lunch) box, they went to the house of P.W.1 and at that time, the alleged incident is stated to have taken place. P.W.8 is the Investigating Officer, who recorded the statements of P.Ws.2 and 3 under Section 161 Cr.P.C. In his evidence P.W.8 deposed that P.Ws.2 and 3 did not state before him in their Section 161 Cr.P.C. statements that they came back to home to collect tiffin box. In view of this omission, and in the absence of any independent evidence, the possibility of P.Ws.2 and 3 going to the house of P.W.1 to collect tiffin (lunch) box, becomes doubtful.
36. As per the evidence of P.W.1, the alleged incident happened on 10.11.2010 at about 9.00 a.m. and the case of the P.W.1 is that in the incident she has received injury on her hand and also scratch injuries and she got giddiness and went to hospital and in the evening went to police station and gave complaint, Ex.P‐1. P.W.2 deposed that after the incident, they went to 13 Dr. Ravi Hospital and after treatment, they field complaint at 5.30 p.m. Thus, the reason for filing the complaint after about eight hours, as per the case of P.Ws.1 and 2 is that as P.W.1 was under giddiness, they took treatment and filed complaint in the evening. P.W.8 is the Investigating Officer, who recorded their Section 161 Cr.P.C. statements. In his cross‐examination, P.W.8 deposed that P.W.1 did not state before him that she was unconscious. Further P.W.8 did not examine the doctor, who is stated to have treated P.W.1 after the alleged incident. Thus, the prosecution has failed to explain the delay of about eight hours in lodging the complaint.
37. Thus from the above it could be seen that, though there is medical evidence to show that P.W.1 received simple injuries as per Ex.P‐5 medical certificate, the prosecution could not connect the accused with the crime and hence, the accused is entitled for benefit of doubt.
38. For the foregoing reasons, as the prosecution failed to prove the guilt of the accused for the offence punishable under Section 354 and 323 IPC., beyond all reasonable doubt, he is entitled for acquittal.
39. In the result, the conviction and sentence imposed by the trial court against the accused for the offence under Sections 354 and 323 IPC, is set aside, and he is acquitted of the said charges, and the appeal is accordingly allowed.
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40. Interlocutory Applications pending, if any, shall stand closed.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ M.G.PRIYADARSINI,J DATE:13 ‐‐ 10‐‐022 AVS