THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.3 OF 2016
JUDGMENT:
This criminal appeal under Section 374(2) Cr.P.C., is directed against the judgment dated 21.12.2015 in S.C.No.55 of 2012, on the file of the Special Sessions Judge for trial of cases under SCs & STs (POA) Act, 1989-cum-VII Additional District and Sessions Judge, Ranga Reddy District, whereby the appellants- A-1 & A-2 were convicted for the offence under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo rigorous imprisonment for the period of three years each and to pay a fine of Rs.500/- each, in default to undergo suffer simple imprisonment for three months.
2. Heard the learned counsel for the petitioners-A-1 & A-2 and learned counsel for the respondent-State. Perused the material on record.
3. The prosecution case is that P.W.1 obtained loan of Rs.12 lakhs from A-1 and promised to repay the same as early 2 as possible and, accordingly, executed an agreement of sale-cum- GPA in favour of A-1 regarding his house property under a registered document dated 29.06.2011. P.W.1 also executed a note of undertaking on 30.03.2011 on non-judicial stamp paper stating that as of now he obtained Rs.31 lakhs (instead of Rs.12 lakhs) and would be repaid in 36 months and deposited title deeds of his house. A-1 used to regularly visit the house of P.W.1 and caused mental tension by abused them by taking their caste name as "Lanjamunda, Dhongamunda, Malamunda, Malamunda Kodullara, Meeru Maryadaga Maa Dabbulu Ivvandi, Lekapothe Champestha". Later, P.W.1 came to know that A-1 executed sale deed in favour of one Yerram Shankar vide registered document dated 08.09.2011 and transferred the house and suppressing the said fact, he was demanding payment of amounts and abused him on 30.12.2011 and 02.01.2012. A-1 and A-2 abused P.W.1 and 2 by taking their caste name. On the complaint of P.W.1, P.W.5, the then Inspector of Police, Jeedimetla registered a case in Cr.No.18 of 2012 against A-1, A-2 and another (A-3) for the offence under Section 3(v) (x) of the Act and took up investigation. During the 3 course of investigation, the investigating officer examined P.W.1 and recorded his statement and collected his caste certificate. He also examined P.Ws.2 to 6 and recorded their statements. After due investigation, police filed charge sheet for the offence under Section 3(v) (x) of the Act. The accused appeared before the trial Court and denied the offence and pleaded not guilty to the charge framed under Section 3(v) (x) of the Act.
4. In support of their case, the prosecution examined P.Ws.1 to 6 and marked Exs.P-1 to P-4. No oral evidence was adduced, but Exs.D-1 and D-2 were marked on behalf of the accused.
5. On a consideration of the material available on record, the court below found the appellants-A-1 & A-2 guilty for the offence punishable under Section 3(1) (x) of the Act and sentenced them to undergo rigorous imprisonment for the period of three years each and to pay a fine of Rs.500/- each, in default to undergo suffer simple imprisonment for three months. Challenging the same, the present appeal is preferred by appellants-A-1 & A-2. 4
6. Learned counsel for the appellants-A-1 & A-2 submits that there are contradictions in the evidence of prosecution witnesses and the alleged incident has not taken place within the public view and thereby the essential ingredient of the offence is not made out. Therefore, the conviction of A-1 and A-2 for the offence under Section 3(1) (x) of the Act is erroneous and liable to be set aside.
7. Per contra, learned Assistant Public Prosecutor appearing for the respondent-State submits that the prosecution has proved the alleged offence with cogent and convincing evidence and the court below has rightly convicted and sentenced the accused.
8. Thus, after hearing the submissions of both the learned counsel and after perusing the material on record, the point that arises for consideration is - whether the evidence available on record is sufficient to convict the appellants/A-1 & A-2 for the offence under Section 3(1) (x) of the Act?
9. Before proceeding to examine the evidence of prosecution witnesses, it would be useful to refer to Section 3(1) (x) of the Act, which says that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe intentionally insults or intimidates with intent 5 to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
10. The Tahsildar, Qutbullapur issued caste certificate Ex.P-4 stating that P.W.1 belongs to Scheduled Caste Mala community and he migrated to Hyderabad from Prakasam District. The said caste certificate is found to be genuine as per record. According to prosecution, the accused belongs to forward community. There is no denial on the part of the accused that P.Ws.1 and 2 does not belong to SC Mala community. As such, the prosecution has proved that the accused belong to forward caste and the victim belongs to SC community and the essential two ingredients of the offence stated above are proved by the prosecution. So far as the ingredients of the offences under Sections 3 and 4 of the Act are concerned, P.W.1 and 2 in their evidence stated that P.W.1 obtained a loan of Rs.1 lakh from A-1 on 04.01.2012 and he used to pay interest and he was member of a chit worth Rs.2 lakhs, being run by A-1. A-1 gave hand loans to labourers who are 6 working under him and he used to collect interest. Suddenly, the labourers left Hyderabad without making payments. A-1 demanded P.W.1 to make payment for the loans taken by the labourers and exerted pressure on P.W.1 for discharge of the loan and threatened to kill him and his family. P.W.1 further stated A-1 and A-2 came to their house and abused him as 'Mala lanjakodaka' and demanded him to pay back the loan borrowed by the labourers and forcibly took his house papers and they obtained GPA and demanded him to pay Rs.1 lakh and then only he will return his house papers. Similarly, P.W.2, who is wife of P.W.1, also stated in her evidence that P.W.1 borrowed Rs.1 lakh from the accused and he was also member of the chit for Rs.2 lakhs and paid 11 months of chit. She also stated in her evidence that the accused used to lend money to labourers who are working under him and when they left Hyderabad without repaying the amount, the accused demanded them to pay Rs.30 lakhs and abused them as 'Mala Lanja' and they took away their land papers and forcibly obtained their signatures on white papers.
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11. P.Ws.1 and 2, who are victims, categorically stated that the incident of abuse took place at their house. P.W.2 has not given any specific time and date of the alleged incident and also not stated about the presence of P.Ws.3 and 4 at the time of occurrence. P.W.1 also has not stated about the presence of P.Ws.3 and 4 at the time when alleged incident of abuse took place.
12. The independent witnesses P.Ws.3 and 4 in their evidence stated that the accused abused P.Ws.1 and 2 and demanded them money. Interestingly, P.W.3 did not state the date but she gave the time that the accused went to the house of P.W.1 at about 06:00 am on first occasion and 10:00 pm on second occasion. In fact, the victims P.Ws.1 and 2 have not stated the time of the alleged incident of abuse which took place at their house. P.W.4 also stated that the accused abused P.W.1 on several occasions by taking their caste name and he made an omnibus allegation as to when, where and at what time the alleged incident of abuse by the accused took place. In cross-examination, P.Ws.3 and 4 stated that they do not know the transactions between the accused and P.W.1. 8
13. The evidence of material prosecution witnesses P.Ws.1 and 2 discloses that the alleged incident of abuse took place at the house of accused. The presence of P.Ws.3 and 4 at the time of alleged abuse is not stated even by P.Ws.1 and 2 and the evidence of P.Ws.3 and 4 also did not inspire any confidence to accept their evidence that in their presence, the accused abused P.Ws.1 and 2. The evidence of P.Ws.3 and 4 is lacking in material particulars and a bald allegation is made in their evidence about the general statement that A-1 and A-2 abused P.Ws.1 and 2. Therefore, when the evidence of P.Ws.1 and 2 is to the effect that the incident of abuse took place at their house and the entire prosecution evidence also categorically show that the alleged incident of abuse took place at the house of P.Ws.1 and 2, it cannot be said that the incident took place in any place within the public view, more so when the evidence of P.Ws.3 and 4 does not say that they were present at the house of P.Ws.1 and 2 at the time of alleged incident and their evidence is not at all convincing and not believable. Having regard to the above, I of the opinion that the prosecution failed to prove the essential ingredient of the offence that the 9 alleged incident of abuse should have taken place in any place within the public view and if at all the incident is accepted to have happened, it is not a place within the public view, to accept the evidence of prosecution.
14. The provision of law which is relevant for the purpose of adjudication of the issue in this criminal appeal is under Section 3(1)(x) of the Act which stipulates that "whoever, not being a member of a scheduled caste or a scheduled tribe intentionally insults or intimidates with intention to humiliate a member of scheduled caste or a scheduled tribe in any place within public view shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The above provision of law fell for consideration before the Hon'ble Apex Court in GORIGE PENTAIAH v. STATE OF ANDHRA PRADESH1 wherein it was held at para 6 of the judgment as under:
"In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic 1 (2008) 12 SCC 531 10 ingredients of Section 3(1) (x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No.3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law".
15. In the instant case also, from a perusal evidence of P.Ws.1 and 2, it is clear that their version with regard to the manner in which the incident happened and also the place where the incident took place are inconsistent. P.Ws.3 and 4, who are independent witnesses, also have also not specifically stated about the place of incident and the date and time of incident and their presence is also not supported by the evidence of P.Ws.1 and 2. The evidence of prosecution witnesses convincingly establishes that there are 11 disputes between accused and P.W.1 with regard to payment of money admittedly borrowed by P.W.1. Though the evidence of P.Ws.1 and 2 clearly speaks about the accused abusing them and demanding money, but the alleged incident of abuse took place at the house of P.Ws.1 and 2, which is not a place within the public view. It appears from the judgment of the court below that the learned Sessions Judge had failed to appreciate the evidence about the alleged incident of abuse taking place within the public view. In the entire evidence, the said basic ingredient of offence connecting the accused is missing and the same is very much essential even according to the settled law of the Hon'ble Apex Court stated above.
16. Hence, in the light of the above discussion, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial court without considering the material aspects and on improper appreciation of evidence, convicted the accused and same is liable to be set aside.
17. Accordingly, the criminal appeal is allowed. The conviction and sentence recorded by the court below against the appellants- 12 A-1 & A-2 for the offence under Section 3 (1) (x) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 vide judgment dated 21.12.2015 in S.C.No.55 of 2012, are hereby set aside. Consequently, the appellants-A-1 & A-2 are set at liberty forthwith if they are not required in any other case. The fine amount, if any, paid shall refunded to appellants-A-1 and A-2.
18. Miscellaneous petitions, if any, pending shall stand closed.
_______________________ A.SANTHOSH REDDY, J 14.09.2022 Lrkm