Mallappagari Sadasiva Reddy, vs State Of A.P., Rep By Pp., And ...
2021 Latest Caselaw 348 AP

    IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                                     ****
                  CRIMINAL APPEAL No.582 OF 2009

Between:

Mallappagari Sadasiva Reddy,
S/o.Mallappagari Subbireddy,
40 years, Agriculturist,
Sangeethamvaripalle,
Amadaguru Mandal.                           ---          Appellant.

                                            And
1. State of A.P.,
   Rep. by Public Prosecutor,
   High Court of A.P., Amaravathi.

2. Kuntlapalli Harijana Krishnamma,
   W/o.Kuntlapalli Narasimhulu,
   25 years, Coolie,
   Sangeethamvaripalle,
   Amadaguru Mandal.                        ---          Respondents.


DATE OF JUDGMENT PRONOUNCED :                       25.01.2021

SUBMITTED FOR APPROVAL:

             HON'BLE SRI JUSTICE JOYMALYA BAGCHI


1. Whether Reporters of Local Newspapers
   may be allowed to see the judgment?                           Yes/No


2. Whether the copy of judgment may be
   marked to Law Reporters/Journals?                             Yes/No


3. Whether His Lordship wish to
   see the fair copy of the judgment?                            Yes/No




                                                  ________________________
                                                    JOYMALYA BAGCHI, J
                                                                         JB,J
                                      2                 Crl.A.No.582 of 2009


               * HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                    + CRIMINAL APPEAL No.582 OF 2009


% 25.01.2021
# Between:
Mallappagari Sadasiva Reddy,
S/o.Mallappagari Subbireddy,
40 years, Agriculturist,
Sangeethamvaripalle,
Amadaguru Mandal.                         ---        Appellant.

                                      And
1. State of A.P.,
   Rep. by Public Prosecutor,
   High Court of A.P., Amaravathi.

2. Kuntlapalli Harijana Krishnamma,
   W/o.Kuntlapalli Narasimhulu,
   25 years, Coolie,
   Sangeethamvaripalle,
   Amadaguru Mandal.                      ---        Respondents.


! Counsel for the Appellant               : Sri C.Sharan Reddy

^ Counsel for Respondent No.1             : Additional Public Prosecutor

< Gist:


> Head Note:


? Cases referred:




This Court made the following :
                                                                            JB,J
                                        3                  Crl.A.No.582 of 2009


              HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                  CRIMINAL APPEAL No.582 OF 2009

JUDGMENT:

1. This Appeal is directed against the judgment and order, dated

13.05.2009, passed in Sessions Case No.775 of 2003 by the learned

Special Sessions Judge for trial of cases under Scheduled Castes and

Scheduled Tribes (POA) Cases, Anantapur (for short, 'the learned Special

Judge') convicting the appellant for commission of offences punishable

under Section 354 of Indian Penal Code, 1860 (for short, 'IPC') and under

Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act of

1989') and sentencing him to suffer Rigorous Imprisonment for five (5)

years and pay a fine of Rs.500/-, in default to suffer Simple Imprisonment

for six (6) months more on each account. Both the sentences were

directed to run concurrently. Out of the fine amount of Rs.1,000/-, Rs.500/-

was directed to paid as compensation to the Victim/PW.1.

2. Prosecution case, as alleged against the appellant, is to the effect

that the victim, who belongs to Madiga caste, is a resident of Madigapalle

in Sangeethampalle village in Amadaguru Mandal; her husband,

K. Narasimhulu (PW.4), had gone to Chkkaballapur, Karnataka for coolie

works; they used to earn their livelihood by rearing pigs. On the date of the

incident i.e., 15.10.2000 at 07:00 A.M. PW.1 and her daughter (PW.2)

took the pigs in the vanka, situated in the outskirts of the village, for

grazing. At that time, the appellant came to the spot and enquired from

PW.1 whether her husband was in the village; PW.1 replied that her

husband had gone to Karnataka for working as a coolie. Suddenly, the

appellant, with dishonest intention to molest her, held her by the tuft of her JB,J

hair and pushed her to the ground; she started weeping and raised hue

and cry; her daughter also raised hue and cry; she somehow escaped

from the clutches of the appellant and ran to the house; she informed the

incident to her mother-in-law (PW.3). Her mother-in-law advised to wait for

the arrival of her husband and thereafter report the incident. When PW.1

was proceeding to lodge complaint, the appellant had threatened and

abused her by taking her caste name. Subsequently, upon the arrival of

her husband, on 28.10.2000, Crime No.28 of 2000 under Section 354 of

IPC and under Section 3(1)(xi) of the Act of 1989 was registered by

Amadaguru Police Station for investigation. However, no effective

investigation was done in the matter and the Police finally submitted a

report as false.

3. Upon notice issued by the Court, PW.1 appeared in the Court and

filed private complaint. She and other witnesses were examined on oath

and process was issued against the appellant under Section 354 IPC and

under Section 3(1)(xi) of the Act of 1989. The case was committed to the

Special Court for trial. Special Court framed charges under Sections 376

R/w.511 and 354 of IPC and under Section 3(1)(xi) and 3(1)(x) of the Act

of 1989 against the appellant. Appellant pleaded not guilty and claimed to

be tried.

4. In the course of trial, prosecution examined four (4) witnesses

including the victim (PW.1). Defence of the appellant was one of

innocence and false implication due to prior enmity. Appellant exhibited

number of documents pertaining to the prior statements of the witnesses

in the course of investigation made by the Police namely Exs.D-1 to D-9 to

prove his defence.

JB,J

5. In conclusion of trial, the trial Judge, while acquitting the appellant

of the charges under Sections 376 R/w.511 of IPC and under Section

3(1)(x) of the Act of 1989, convicted and sentenced him for the offences

punishable under Section 354 of IPC and Section 3(1)(xi) of the Act of

1989, as stated hereinabove.

6. Learned counsel appearing for the appellant argued delay of 13

days in lodging the first information report has not been adequately

explained. While PWs.1 and 2 claimed delay was due to absence of the

husband of the victim, PW.3 (mother-in-law) claimed delay was due to

threats hurled out by the appellant. It is further contended conduct of the

victim after the incident was un-natural. Neither the victim nor the family

members informed her husband/PW.4 about the incident. PW.4 is unable

to disclose the identity of the person who informed the incident to him.

There was dispute and enmity between the parties over grazing of pigs.

Seven (7) days prior to the incident, family members of the appellant have

lodged complaint against the victim and her family members on the score

their pigs had destroyed their crops. The victim and her family members

were summoned to the Police Station and the matter was finally

compromised. Hence, possibility of false implication cannot be ruled out.

7. In rebuttal, learned Additional Public Prosecutor submits the

evidence of PW.1, the victim, is corroborated by her daughter/PW.2. Delay

has been duly explained and the earlier dispute had been compromised

by and between the parties.

8. PW.1 is the victim and the most vital witness. She deposed on the

date of incident at 07:00 A.M. she and her daughter/PW.2 had gone to

vanka near the village to graze the pigs. Her husband PW.4 at that time

was at Chikkaballapur, Karnataka doing coolie works. Appellant arrived at JB,J

the spot and asked her about her husband; when she said her

husband/PW.4 was away, he with evil intention caught hold by the tuft of

her hair and pushed her down to the ground; she raised hue and cry and

asked her daughter to report the incident. Her daughter also raised hue

and cry. Thereafter, she escaped from the clutches of the appellant and

reported the incident to her mother-in-law.

9. PW.2, daughter of the victim, corroborated the aforesaid case. In

cross-examination it was suggested that she, in her statement to the

Police, admitted of tutory.

10. PW.3, mother-in-law, stated that the incident was reported to her by

the victim. They did not lodge complaint because the appellant had

threatened them. On the other hand, the victim/PW.1 and her

daughter/PW.2 claimed that mother-in-law Salemma (PW.3) had told them

not to lodge complaint till the arrival of her son/PW.4. There is clear

variance with regard to the reason for delay in lodging complaint. While

PWs.1 and 2 have claimed delay in lodging first information report was

due to the advice of Salemma (PW.3) that they should await the arrival of

the husband of victim, Salemma herself deposed that the appellant had

threatened them, hence, the delay. PWs.1 and 2 are completely silent

with regard to such alleged threats. Hence, the explanation of the delay in

lodging the first information case appears to be on shaky ground based on

inconsistent versions of the witnesses. Post occurrence conduct of PW.1

also gives rise to serious doubt with regard to the authenticity of her

version. PW.1 alleged she had been molested by the appellant and her

mother-in-law told her to await the arrival of her husband before lodging

complaint. Strangely, neither PW.1 nor PW.3 or any of her relations

informed the incident to her husband/PW.4, PW.4/husband of the victim, JB,J

claims that he was working at Chikkaballapur, Karnataka, at the time of

occurrence and some one informed him about the incident. He is unable

to disclose the identity of the said person. These circumstances throw

grave doubt with regard to the incident itself. If PW.1 had been molested

by the appellant and she was waiting for her husband to return home to

lodge complaint, it would be most natural on her part to immediately

intimate the incident to him. This aspect of the prosecution case was

glossed over by the trial Judge, who mechanically relied on the version of

PWs.1 and 2 to come to a finding of guilt against the appellant.

11. It is settled law that the version of a victim of sexual assault is to be

treated with due care and circumspection. Minor variations or

inconsistencies ought not to be a ground to discard her version. However,

it is also the duty of the Court, to examine the version of the victim against

the broad probabilities of the case before arriving at a conclusion that her

version is true. Un-natural conduct of the victim is important factor to be

considered by the Court while assessing the veracity of her version. The

present case portrays serious and grave doubts with regard to its genesis

as well as the conduct of the victim immediately after the incident. Firstly,

there is delay of 13 days in lodging first information report. Explanation of

such delay is inconsistent and unreliable. As discussed earlier, while

PWs.1 and 2 claimed they were waiting for the Husband/PW.4 to arrive

home, as per the advise of PW.3, mother-in-law, the said witness (PW.3)

gave a completely different picture. She claimed appellant had threatened

them, hence, the delay in lodging complaint. Inconsistency in the

explanation throws grave doubt with regard to the very genesis of the

case. Furthermore, there is no explanation why PW.1 did not promptly

contact her husband and inform him about the incident. Her husband, JB,J

PW.4, claimed that he had known the incident from someone (who is un-

named) and not from the victim or any of his family members.

12. These infirmities in the prosecution case become amplified when it

is tested from the admitted evidence of enmity between the parties.

Evidence has come on record 7 days prior to the incident, there was a

dispute between the two families over the pigs destroying the crop of the

appellant. Police had summoned the victim and her family members. It is

claimed that the matter was compromised. However, it cannot be ruled

out, lingering vengeance may have prompted the victim and her family

members to falsely implicate the appellant after the arrival of her husband,

PW.4. Judged from this angle, I am of the opinion that the appellant may

be extended the benefit of the doubt and acquitted of the charges levelled

against him. Conviction and sentence of the appellant is thus set-aside.

The Appeal is allowed. Appellant shall be discharged from his bail bond

after expiry of 30 days in terms of Section 437A of Cr.P.C.

13. As a sequel, miscellaneous applications pending, if any, in this

Appeal shall stand closed.

________________________ JOYMALYA BAGCHI, J Date: 25-01-2021.

Dsh