Balam Balaji vs The State Of A.P.
2023 Latest Caselaw 597 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

             CRIMINAL APPEAL No.594 OF 2009

JUDGMENT:

This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed by the

appellant, who was the accused in SCs & STs Sessions Case No.67

of 2006 on the file of the Court of Special Judge for trial of cases

under the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, West Godavari, Eluru (for short, 'the Special

Judge'), questioning the judgment therein, dated 08.04.2009,

where under the learned Special Judge found the appellant herein

guilty of the charges under Sections 3(1)(x) and 3(1)(xi) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (for short, 'the SCs STs Act') and accordingly convicted

him under Section 235(2) Cr.P.C and, further after questioning

him about the quantum of sentence, sentenced him to undergo

Rigorous Imprisonment for a period of six months and to pay a

fine of Rs.500/- in default to suffer Simple Imprisonment for one

month for the offence under Section 3(1)(x) of the SCs STs Act and

further sentenced him to suffer Rigorous Imprisonment for two

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

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Imprisonment for one month for the offence under Section 3(1)(xi)

of the SCs STs Act.

2. The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

3. The case of the prosecution, in brief, as stated in the charge

sheet pertaining to Crime No.16 of 2006 of Kovvur Rural Police

Station, is that the accused is resident of Kapavaram village,

Kovvur mandal, West Godavari district. He is Kapu by caste i.e., a

non scheduled caste. LW.2 - victim is aged 16 years and resident

of same village but belongs to Scheduled Caste (Mala). She studied

up to 7th class, discontinued her studies and started to go to coolie

works. LW.1 - Biyyampalli Lakshmi is her mother. LWs.3 and 4

Sirili Jayamma and Gollapalli Ramu are co-coolies. On 24.02.2006

morning, the victim went to coolie works along with LWs.3 and 4,

who also belong to scheduled caste. They attended the coolie

works in the lease fields of LW.7 - Duvvapu Muthayya. They had

their lunch and they were taking a nap (short sleep) in the shade

of a tamarind tree by the side of the fields of Muthayya. At about

02:00 p.m. the accused, Balam Balaji, went there, gagged the

mouth of the victim and while lifting her, the victim woke up and

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raised cries. On hearing the same, the co-coolies woke up and

witnessed the occurrence. Then, the accused left the victim,

abused them in a filthy language in the name of their caste and

went away. In the evening after completion of coolie works while

they were returning to their home, accused followed them with a

packet of chilli bajjies (food item) and offered to the victim. When

she refused, accused threatened her to seduce her at any time.

Then, she went and informed the occurrence to her mother. LWs.1

and 2 approached their caste elders and elders called the accused

but the accused did not turn up. However, on the advice of elders,

they approached the Police. On 25.02.2006 at 09:00 a.m. having

received the report from LW.1, LW.11 - B. Peddi Raju, Sub-

Inspector of Police, registered the same as a case in Crime No.16 of

2006 under Section 354 IPC and also under Sections 3(1)(x) and

3(1)(xi) of the SCs STs Act. LW.12 - N. Balaji Rao, the Sub-

Divisional Police Officer, on receipt of information took the FIR and

investigated into. LW.10 - Ch. Rangaiah, Mandal Revenue Officer,

issued caste certificate in respect of the victim stating that the

victim belongs to Scheduled Caste (Mala). During investigation,

the SDPO deleted Section 354 IPC since the ingredients under

Section 354 IPC includes Section 3(1)(x) and 3(1)(xi) of the SCs STs

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Act. On 28.02.2006, LW.12 arrested the accused and sent him for

remand. Hence, the charge sheet.

4. The II Additional Judicial Magistrate of First Class, Kovvur

took the case on file and after completing the formalities under

Section 207 Cr.P.C committed the PRC No.64 of 2006 to the

Special Court. On appearance of the accused before the learned

Special Judge, charges under Sections 3(1)(x) and 3(1)(xi) of the

SCs STs Act were framed and explained to the accused in Telugu

for which he pleaded not guilty and claimed to be tried.

5. To bring home the guilt of the accused, the prosecution,

during the course of trial, examined PWs.1 to 9 and got marked

Exs.P-1 to P-5.

6. After closure of the evidence of the prosecution, the accused

was examined under Section 313 Cr.P.C with reference to the

incriminating circumstances appearing in the evidence let in by

the prosecution for which he denied the same. He did not adduce

any defence evidence.

7. The learned Special Judge, on hearing both sides and after

considering the oral and documentary evidence on record, found

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the accused guilty of the charges and accordingly convicted and

sentenced him as above.

8. Aggrieved by the same, the unsuccessful accused in the

aforesaid Sessions Case, filed the present Criminal Appeal.

9. Now, in deciding this Criminal Appeal, the points that arise

for consideration are as follows:

1. Whether the prosecution has proved before the

learned Special Judge that the accused intentionally

insulted or intimidated the victim in the name of her

caste and further assaulted or used force on the victim

with intent to dishonor or outrage her modesty?

2. Whether the prosecution has proved the charges

against the accused beyond reasonable doubt?

10. Sri I.V.N. Raju, learned counsel for the appellant, would

contend that the evidence of PWs.1 and 2 is interested and PW.3 is

also a relative of PWs.1 and 2. The prosecution did not examine

LW.4 - Gollapalli Ramu. The evidence of PWs.1 and 2 is artificial

in nature. PW.1 is not a witness to the occurrence. She claimed

that she came to know about the occurrence through her

daughter. The victim did not immediately lodge the report with the

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Police. There was abnormal delay in lodging the report, which is

fatal to the case of the prosecution. There was no possibility for

PWs.2 and 3 to sleep having attended the coolie works as such

allegation on the part of the victim is highly artificial and

improbable. There are discrepancies in the testimony of PWs.2 and

3. The intention on the part of the accused to outrage the modesty

of the victim in the name of her caste is not proved by the

prosecution. The evidence on record did not prove the offence

alleged against the accused. He would further submit that the

sentence imposed against the accused is also excessive. With the

above submissions, he sought to set-aside the judgment of the

trial Court.

11. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, appearing for the respondent-State

would contend that the learned Special Judge recorded cogent

reasons in believing the evidence let in by the prosecution and the

prosecution witnesses supported the case fully and there is

nothing in their cross-examination to disbelieve the testimony as

such the Appeal is liable to be dismissed.

12. PW.1 - B. Lakshmi is the mother of the victim. PW.2 is the

victim. PW.3 - S. Jayamma is co-coolie who claimed to have

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witnessed the occurrence. PW.4 - Y. Baburao is a mediator. PW.5

- D. Muthayya is the landlord in whose lands PWs.2 and 3

attended the coolie works. PW.6 - K. Kameswari is the mediator

for the observation of the scene of offence. PW.7 - Ch. Rangaiah is

the concerned MRO, who intimated to Police that the victim

belonged to scheduled caste. PW.8 - B. Peddiraju is the person

who registered the FIR and PW.9 - N. Balaji Rao is the

Investigating Officer.

13. Coming to the evidence of PW.1, who is the mother of the

victim, her evidence in brief is that about two and half years ago

on one day, she went to the hospital as she felt not well and after

returning from hospital at 06:00 p.m. found her daughter weeping.

Her daughter told her that on that day Jayamma and Ramu went

for coolie works in the land of Muthayya. After having lunch, she

was laying under a tamarind tree for taking rest. The accused

gagged her mouth, caught hold of her hands and dragged her.

Then she raised cries. Ramu and Jayamma found fault with the

accused for catching hold of the hands of her daughter. Accused

threatened the victim with death if she did not come along with

her. Her daughter further told her that the accused abused all of

them as 'maala lanjallara mi anthu chusthanu' and she also told

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her that in the evening when they were returning after completion

of the works, accused offered mirchi bajji to the victim. She did not

take the same from the accused. Then, the accused abused her as

'maala lanja ninnu eppudaina anubhavistanu'. So, she informed

the incident to Baburao and others. They send for the accused but

he did not turn up. On the next day, they lodged report to the

Police, Ex.P-1.

14. Coming to the testimony of PW.2, who is the victim, she

supported the case of the prosecution. According to her, on

24.02.2006, she, Gollapalli Ramu and Siri Jayamma went for

coolie works in Tavaku Muthayya's land. After lunch, they slept

under a tamarind tree by the side of the road. Accused came there,

gagged her mouth, caught hold of her hand and dragged her aside.

She raised cries. The persons slept with her woke up and saw the

same. They found fault with the accused. Accused abused her as

'maala lanja aravamaku'. Accused further threatened to see her

end. After completing the coolie works, they were returning.

Accused brought mirchi bajji and asked her to take. She refused.

Accused said that he will enjoy her at any time and threatened

her. He also abused Ramu and Jayamma saying as 'maala

lanjallara dhanini appacheppaka pothe mimmalni chusta'. She went

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to her house weeping. After her mother returning from the

hospital, she told her mother what was happened. They informed

the same to the elders. Elders sent a word for the accused but he

did not turn up. Elders asked her to do whatever they like. On the

next day, they reported the matter.

15. PW.3, a direct witness to the occurrence, supported the case

of the prosecution. She spoken to the fact that she, Gollapalli

Ramu and PW.2 went for coolie works in the lands of Muthayya.

They took meals at about 01:00 p.m. and after having lunch, they

slept under a tamarind tree by the side of Dharmavaram road near

the fields. After some time, she heard the cries of PW.2. They woke

up. They saw the accused catching hold of the hand of PW.2. They

told him that it is not proper to catch hold of the hand of PW.2.

Accused abused PW.2 saying 'maala lanjadana ni pani chebutha'.

So saying he left the place. After completing the works in the

evening when they were returning to their houses, accused came

on a cycle and offered mirchi bajji to PW.2. PW.2 did not receive.

The accused said 'maala lanjallara eppudukaina daani

abubhavistanu' and went away. In the evening PW.2 informed the

incident to her mother. On the next day at 03:00 or 04:00 p.m.

Sub-Divisional Police Officer examined her.

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16. During the course of cross-examination, PW.1 deposed that

her husband deserted her about 18 years back. She used to

attend the coolie works. She knows Akula Ramu. She used to

attend the coolie works in his land also. She denied that accused

did not commit any offence and a false case is foisted. The

suggestions put forth before PW.1 are all denied. She deposed that

Government gave compensation of Rs.6,250/- to her.

17. Turning to the cross-examination of PW.2, she deposed that

she along with others went for coolie works at 10:00 a.m. They

returned home at 05:30 or 06:00 pm. They went to take lunch at

01:00 p.m. They would take rest for one hour. She denied that

there would not be any rest period for the coolies working in the

fields. Except the three persons no others were taking rest at that

time. She denied that there is no possibility to take rest by the side

of road. She denied that Ramu used to assist their family in

difficulties. She denied that she is deposing false.

18. Coming to the evidence of PW.3 in cross-examination, she

deposed that Muthayya was not present in the land. Generally,

ryots will be present while coolies were attending. In the afternoon

they will be allowed to take meals with a break in the work. They

did not inform the incident to anybody till the evening. PW.2

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worked in the fields till evening. Accused has no lands nearby the

lands of Muthayya. She denied that she is deposing false.

19. As seen from the cross-examination part of PWs.1 to 3, they

withstood the cross-examination. PW.3 has no reason whatsoever

to depose false against the accused. PW.3 was a co-coolie, who

attended the coolie works in the lands of Muthayya along with

PW.2. In this regard prosecution examined PW.5 - Muthayya, who

deposed that he knows PWs.1 to 3. About two years eight months

back on one day, PWs.2, 3 and Gollapalli Ramu attended for coolie

works in his land. They attended the work till lunch time and they

went for lunch to the nearby tamarind tree, which was by the side

of the road. He told them that he would not be available to them

after lunch. He went home while PW.2 and others were taking

lunch. On the next day, PWs.1 and 2 informed him about the

incident. He deposed in cross-examination that coolies will attend

the work from 10:00 a.m to 05:00 p.m. with lunch break. After

taking meal, they will again attend the coolie works. He denied

that due to the disputes with the father of the accused he is

deposing false.

20. It is to be noticed that by virtue of the evidence of PW.5,

the prosecution is able to establish that there was a possibility

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and probability for coolies to take rest after having lunch. In fact,

it is the specific evidence of PW.5 that by the time he was leaving

the fields, PWs.2, 3 and others were taking lunch. So, by virtue of

the evidence of PW.5, the presence of PWs.2 and 3 in the fields

was quietly established by the prosecution. It is elicited by the

accused during the cross-examination of PW.3 that the accused

has no land near the lands of Muthayya. If that be his case, he

had no business to go there. It proves that the accused gone to the

place of incident with an intention to commit the offence against

the victim.

21. PW.4 is the mediator and he deposed that PWs.1 and 2

came to him on 21.02.2006 and informed him that PW.2, Ramu

and others went for coolie works and after having lunch they slept

and accused came there, gagged the mouth of PW.2, caught hold

of her hands and asked her to come. In the evening also accused

offered mirchi bajji to PW.2 for which she refused and accused

abused her in the name of her caste. He told PWs.1 and 2 that he

will send for the accused but the accused was not available. Then,

he advised PWs.1 and 2 to do whatsoever they like. So, the

evidence of PWs.1 and 2 has also support from the evidence of

PW.4, the mediator, with regard to the fact that the incident was

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informed to him and to resolve the issue he sent a word to the

accused but in vain.

22. PW.6 is the mediator for observation of scene of offence.

23. PW.7 has spoken to the fact that he addressed a letter to the

Police informing that the victim belongs to scheduled caste (Mala).

24. PWs.8 and 9 have spoken about the registration of the FIR

and the respective investigation.

25. There are no disputes elicited between the family of de-facto

complainant and the accused. The presence of PWs.2 and 3 was

categorically proved by the prosecution by examining PW.5. PW.2

is no other than the victim. It is not a case where she had

questionable antecedents.

26. Having regard to the above, this Court is of the considered

view that the evidence adduced by the prosecution is convincing.

By virtue of the evidence of PW.1 to 5 and Ex.P-3, letter issued by

PW.7 certifying the caste of PW.2 as Scheduled Caste (Mala), the

prosecution has proved that the accused belongs to non-scheduled

caste and PW.2 belongs to scheduled caste. The act of the accused

in gagging the mouth of PW.2, while she was taking a nap,

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dragging her and further act of the accused in abusing the victim

in the name of her caste and further, the act of the accused in

abusing the victim in the evening while she was returning to home

along with PW.3 and another would amount to insulting or

intimidating the victim and also amounts to assaulting or using

the force against the victim. The act of the accused is nothing but

deliberate. The evidence of PWs.2 and 3 clearly shows that the

accused committed the acts against the victim with an intention to

humiliate and intimidate her in the name of caste. A perusal of the

impugned judgment goes to reveal that the learned Special Judge

recorded cogent reasons.

27. Admittedly, it is a case when the incident was said to be

happened on 24.02.2006 but the report came to be lodged on the

next day. The prosecution has explained by virtue of the evidence

of PWs.1 and 2 that in the evening PW.1, the mother of the victim,

after coming to know about the incident, informed the incident to

the caste elders i.e., PW.4 and PW.4 send a word to the accused

but accused did not turn up. So, the delay was happened as the

issue was referred to the caste elders. Apart from this, in a case of

this nature, the delay is bound to be happened. When this type of

episode occurs against the downtrodden community or weaker

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sections of the society, there would be every hesitation on the part

of the victims to decide as to whether a report is to be lodged or

not and it would be common that soon after discussing with the

caste elders and village elders a report would be lodged if the issue

is not resolved. So, the prosecution has explained the delay

properly before the Court below.

28. Viewing from any angle, this Court is of the considered view

that the prosecution has cogently established that the accused

committed the offences against the victim beyond reasonable

doubt.

29. It is also the contention of the appellant that the sentence of

imprisonment imposed against him is harsh. The offence under

Section 3(1)(x) of the SCs STs Act is punishable with imprisonment

for a term which shall not be less than six months but which may

extend to five years with fine. Even the offence under Section

3(1)(xi) of the SC ST Act is also punishable with the same. The

learned Special Judge insofar as the offence under Section 3(1)(x)

of the SC ST Act is concerned, imposed minimum punishment.

Insofar as the offence under Section 3(1)(xi) of the SCs STs Act is

concerned, imposed Rigorous Imprisonments for two years with

fine. The appellant was aged about 25 years at the time of filing of

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the charge sheet. He filed this Appeal in the year 2009 and it is

pending till this date.

30. Having regard to the overall facts and circumstances, this

Court is of the considered view that the ends of justice will meet if

the sentence of two years Rigorous Imprisonment imposed against

the appellant under Section 3(1)(xi) of the SCs STs Act is modified

to that of one year.

31. In the result, the Criminal Appeal is allowed in part

modifying the sentence of Rigorous Imprisonment of two years

imposed against the appellant, for the offence under Section

3(1)(xi) of the SCs STs Act, to that of one year. In all other aspects,

the judgment of the Court below stands confirmed.

32. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the judgment of this Court to the

Court below and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

appellant in SCs STs Sessions Case No.67 of 2006, dated

08.04.2009, and to report compliance to this Court. Registry is

directed to dispatch a copy of this judgment along with the lower

Court record, if any, to the Court below on or before 08.02.2023. A

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copy of this judgment be placed before the Registrar (Judicial),

forthwith, for giving necessary instructions to the concerned

Officers in the Registry.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 03.02.2023 DSH