Garikapati Vinod Kumar Vinod A1 4 ... vs The State Of A.P.
2023 Latest Caselaw 629 Tel

          THE HONOURABLE DR.JUSTICE G. RADHA RANI

                    CRIMINAL APPEAL NO.533 of 2013



JUDGMENT:

This Criminal Appeal is filed by the appellants - A1 to A5 aggrieved by

the judgment of the Special Sessions Judge for Trial of Cases under SCs & STs

(POA) Act- cum - Additional Sessions Judge, Khammam in S.C.No.53 of 2012,

dated 17.06.2013.

2. The case of the prosecution in brief as per the charge-sheet filed by the

Additional Superintendent of Police, Bhadrachalam sub-division was that, the

de-facto complainant belonged to Koya (ST caste) and the accused A1 to A3

belonged to Kamma, which comes under non SC & ST caste. The complainant

and accused Nos.1 to 3 were residing in the same locality and their houses were

situated opposite to each other. There were previous grudges between the

complainant and the accused over the issue of dumping dung and waste material

in front of the house of the complainant. The accused Nos.1 to 3 intentionally

used to dump dung and waste material in the open place available in front of the

complainant's house and they also used to insult her by calling her with caste

name, when ever she questioned their acts.

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2.1. On 29.08.2011 at about 10:30 AM, the complainant and others picked up

a quarrel with Garikapati Vimala (Mother of A1 and A2 and wife of A3) over

the issue of dumping waste material and dung in front of their house. On the

same evening, again both the parties quarreled with each other and in that

quarrel Garikapati Vimala was beaten up by Suresh and Others, which was

subject matter in Crime No.185 of 2011 under Section 324 read with Section 34

of IPC. Keeping it in mind, A1 to A5 went to the house of the complainant and

in retaliation, they criminally trespassed into the house of the complainant and

broke the doors with sticks. They attacked and dragged the complainant and

LWs.2, 4, 6 and 9 out of the house by abusing the complainant in filthy

language referring to her caste name and beat them indiscriminately and caused

grievous and simple injuries. From there, they went to the houses of LW3 and

beat LWs.3, 5, 7 and 8 indiscriminately and caused simple injuries. The injured

took help from one Sathalu, belonging to CPI Party, went to hospital on the

same night and on the next day morning i.e., on 30.08.2011 at 8:00 AM, the

complainant lodged a report before Bhadrachalam Town Police.

2.2. Basing on the said report, the SI of Police, Bhadrachalam Town

registered a case in Crime No.186 of 2011 under Section 324 read with 34 of

IPC and Section 3(1)(x) of SC & ST (POA) Act, 1989. The Superintendent of

Police, Khammam appointed the Additional Superintendent of Police

(Operations), Kothagudem as the investigating officer on 31.08.2011. As per

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the said proceedings, the Additional Superintendent of Police took up the

investigation, visited the scene of offence, recorded the statements of LWs 1 to

10, drafted the crime detail form in the presence of mediators and issued a

requisition to the Tahsildar, Bhadrachalam to furnish the caste particulars of the

complainant and LWs. 2 to 9 and the accused.

2.3. Subsequently, as per the proceedings of the Superintendent of Police,

Khammam dated 12.12.2011, the Additional Superintendent of Police,

Bhadrachalam continued further investigation in the case. He recorded the

statements of LWs.11 to 13 and obtained the caste particulars of the witnesses

and the accused from the Tahsildar, Bhadrachalam, collected the wound

certificates of LWs.1to 9 from the medical officer. He affected the arrest of A1

and A2 on 19.01.2012 and produced them before the court. A4 and A5

surrendered before the Additional Superintendent of Police (for short "ASP"),

Bhadrachalam on 16.02.2012 on obtaining anticipatory bail from the High

Court of Andhra Pradesh. A3 was arrested on 13.03.2012 by the ASP. He

recorded the confession statement of A3 and in pursuance of his confession,

recovered five (05) sticks used in the commission of offence under the cover of

panchanama in the presence of mediators and produced him before the court.

2.4. It was mentioned in the charge-sheet that though the complainant in her

report stated that A1 to A3 and 15 others attacked on them, as there was no

substantial evidence brought on record to prove the offence against others

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except A1 to A5, the Police had not charge-sheeted others. The Police filed

charge-sheet against A1 to A3 for the offences under Section 143, 448, 324,

325, 506 read with Section 149 of IPC and Section 3(1)(ii)(x) of SC & ST

(POA) Act, 1989 and against A4 and A5 under Section 143, 448, 324, 325, 506

read with Section 149 of IPC and Section 3 (1)(x) of SC & ST (POA) Act,

1989.

3. The case was taken cognizance by the Judicial Magistrate of I Class,

Bhadrachalam, numbered it as PRC.No.88 of 2012 and committed to the

Special Sessions Judge for Trial of Cases under SC & ST (POA) Act, 1989, as

the charge under Section 3(1)(ii)(x) of SC & ST (POA) Act was exclusively

triable by the Special Court.

4. The same was numbered as SC.No.53 of 2012 by the Special Court and

on appearance of the accused, charges were framed under Section 147, 148,

294(b) read with Section 34, Section 324 read with Section 34 and Section 506

read with Section 34 of IPC. The accused A1 to A5 pleaded not guilty and

claimed to be tried.

5. During the course of trial, the prosecution examined PWs.1 to 22 and got

marked Exs.P.1 to P.18 and MOs.1 to 5.

6. No defence evidence was adduced by the accused.

7. A portion of the 161 Cr.P.C. statement of PW.2 was marked as Ex.D.1.

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8. On considering the oral and documentary evidence on record and the

material objects marked, the Special Court found A1 to A5 guilty for the

offences under Section 147, 148, 323, 425, 506 read with Section 34 of IPC and

Section 3(1)(x) of SC & ST (POA) Act and sentenced them to undergo rigorous

imprisonment for a period of one year and a fine of Rs.1000/- each in default, to

suffer simple imprisonment for three months for the offence under Section 323

read with Section 149 of IPC, rigorous imprisonment for a period of six months

for the offence under Section 506 read with Section 149 of IPC. Rigorous

imprisonment for a period of six months and a fine of Rs.1,000/- each, in

default to suffer simple imprisonment for three months for the offence under

Section 3(1)(x) of SC & ST (POA) Act and directed all the sentences to run

concurrently. The accused A1 to A5 were acquitted for the offences under

Section 427 and Section 294(b) of IPC.

9. Aggrieved by the said conviction and sentence recorded against them, the

accused persons preferred this appeal contending that the Special Court erred in

convicting the appellants for the offences under Sections 147, 149, 323, 425 and

506 read with Section 34 of IPC and Section 3(1)(x) of SC & ST (POA) Act, as

the ingredients to constitute the said offences were not made out by any legal or

reliable evidence. The provisions of SC & ST POA Act had no application to

the facts of the present case. The Special Court failed to see that the allegations

which would attract an offence under Section 3(1)(x) of SC & ST (POA) Act

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was leveled at a belated stage only with a view to harass and to implicate the

accused in a serious case. The learned Judge failed to see that the alleged abuse

of PW.1 in her caste name took place in her home and not in a public view.

Hence, the provisions of Section 3(1)(x) of SC & ST (POA) Act were not

attracted.

10. The learned judge ought to have seen that neither the names of the

accused were mentioned in the First Information Report (for short "FIR") nor

any specific overt acts were attributed to them in the FIR. The learned judge

erred in thinking that PW.1 was a member of the SC & ST (Koya), even though

she had married a member of the backward caste and hence she was no longer a

member of the ST caste. The learned judge ought to have seen that there were

several contradictions in the evidence of witnesses which would go to show that

the incident did not take place as deposed by the prosecution witnesses. The

learned Judge failed to see that the prosecution witnesses developed their

evidence from stage to stage and erred in not considering the discrepancies

between the statements of the witnesses. The learned Judge erred in not

attaching any significance to the delay in lodging the FIR and prayed to allow

the appeal.

11. Heard the learned counsel for the appellants and the learned Assistant

Public Prosecutor.

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12. The learned counsel for appellants pointed out several irregularities

committed by the trial court in framing the charges, convicting the accused and

sentencing them for various offences and pointed out the discrepancies in the

evidence of the witnesses and about the delay in lodging the FIR.

13. The learned Assistant Public Prosecutor supported the judgment of the

trial court and contended that the statements of the witnesses would prove the

guilt of the accused beyond reasonable doubt and prayed to confirm the

conviction and sentence recorded by the trial court against them.

14. On a perusal of the record, though the charge-sheet was filed against A1

to A3 for the offence under Section 3(1)(ii)(x) of SC & ST (POA) Act, 1989

and against A4 and A5 for the offence under Section 3(1)(x) of SC & ST (POA)

Act, 1989 and cognizance was taken by the Judicial Magistrate of I Class,

Bhadrachalam for the said offence under Section SC & ST (POA) Act, 1989

and committed it to the Special Court, as the said charges were exclusively

triable by the Special Court for trial of cases under SC & ST (POA) Act, 1989,

no charge was framed by the Special Court under Section 3(1)(ii)(x) against A1

to A3 or 3(1)(x) of SC & ST (POA) Act against A4 and A5. Though the

charge-sheet would not disclose the offences under Sections 147, 148, 294(b)

read with Section 34 of IPC or Section 324 read with Section 34 of IPC or

Section 506 read with Section 34 of IPC, the Special Court framed the charges

for these offences.

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15. In the third charge framed under Section 294(b) read with Section 34 of

IPC, it was added with pen as (or) 3(1)(x) of SC & ST (POA) Act. But the

ingredients of the said charge of abusing the complainant in the name of caste

within the public view by A1 to A5 were not put forth to the accused by the

Special Court. The substance of the said charge was not put to the accused and

the ingredients of the charge were not read over to the accused and the plea of

the accused on the said charge was not recorded by the Special Court. Though

the charge-sheet was filed for the offences under Sections 143, 448, 324, 325

and 506 read with Section 149 of IPC, the Special Court framed the charges for

the offences under Sections 294(b), 324 and 506 read with Section 34 of IPC

but not under Section 149 of IPC.

16. The Special Court specifically recorded in the 5th charge that A1 to A5 in

furtherance of their common intention criminally intimidated the witnesses with

dire consequences and not framed the charge under Section 149 of IPC that with

a common object, they committed the said offences. Though, there is no charge

for the offence under Section 425 of IPC, the Special Court found A1 to A5

guilty for the charge under Section 425 of IPC but not inflicted any sentence for

the said offence. Likewise, though the Special Court found A1 to A5 guilty for

the offences under Section 147 and 148 of IPC, had not inflicted any sentences

against A1 to A5 for the said offences.

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17. The learned counsel for the appellants contended that, the Special Court

convicted the accused persons A1 to A5 for the offence under Section 3(1)(x) of

SC & ST (POA) Act without framing the charge and the writing of Section

3(1)(x) in the third charge appears to be interpolated without putting the

substance of the said charge to the accused and the ingredients of the said

charge were not read over to the accused and not sought their plea, whether they

were guilty or not for the said charge, contended that it would go to the root of

the matter and a failure of justice had been occasioned thereby to the accused

persons. He further contended that the conviction of A1 to A5 for the said

charge and the sentences inflicted against them for it were liable to be set aside.

He further contended that, as there was no charge framed under Section 425 of

IPC and though the Special Court found A1 to A5 guilty for the said offence,

not inflicted any sentence for the said charge, the same was also liable to be set

aside. His further contention was that, though charges were framed under

Sections 147 and 148 of IPC and the trial court found A1 to A5 guilty for the

said charges, but failed to inflict any sentence for the said offences, the same

were also liable to be set aside. His further contention was that the Special

Court convicted the accused for the offences under Section 323 read with

Section 149 of IPC and Section 506 read with Section 149 of IPC, though they

were charged for the offences under Sections 324 read with Section 34, and 506

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read with Section 34 of IPC and the same were also irregular, hence they were

also liable to be set aside.

18. Chapter XXXV of Cr.P.C. deals with irregular proceedings. Section 464

of Cr.P.C provides for effect of omission to frame, or absence of or error in

charges. It reads as follows:

464. Effect of omission to frame, or absence of or error in, charge. -

"(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby."

"(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:"

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

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19. Thus the Cr.P.C. prescribes that no finding, sentence or order by a court

of competent jurisdiction can be held invalid on the ground of any error,

omission or irregularity in framing the charges and even if the court of appeal is

of opinion that a failure of justice had occasioned thereby, the matter shall be

remanded to the trial court to frame the charges and to direct a fresh trial to be

held upon the charges so framed.

20. Hence, it is considered fit to remand the matter to the trial court to frame

the charges properly and to conduct a fresh trial upon the charges so framed.

21. Hence, this Court does not intend to discuss the merits of the matter and

considers it fit to remand the matter to the trial court for framing the charges in

accordance with the facts of the case and to conduct a fresh trial upon the

charges framed.

22. In the result, the Criminal Appeal is allowed and remanded to the trial

court for framing of charges afresh and to conduct a fresh trial upon the charges

framed within a period of 6 months from the date of receipt of a copy of this

judgment.

Miscellaneous applications pending, if any, shall stand closed.

____________________ Dr. G.RADHA RANI, J

08th February, 2023 nsk.