Md. Chand vs The State Of A.P.
2022 Latest Caselaw 5079 Tel

                   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.

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.

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

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

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.

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

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.

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

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

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,

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

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

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.

40. Interlocutory Applications pending, if any, shall stand closed.

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ M.G.PRIYADARSINI,J DATE:13 ‐‐ 10‐‐022 AVS