Andhra Pradesh High Court - Amravati
Thota Lakshumaiah Another vs The State Rep. By The Sub D.P.O. on 16 February, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1454 OF 2009
Between:
1. Thota Lakshumaiah, S/o.Gangulaiah,
Aged about 53 years,
Ramanjaneyapuram,
Kadapa District.
2. Thota Subrahmanyam, S/o.Lakshumaiah,
Aged about 31 years, Balija,
Occupation: Business,
Ramanjaneyapuram,
Kadapa District. .... Appellants
Versus
The State,
Rep. By the Sub Divisional Police Officer,
Rajampet, Kadapa District,
Rep. by the Public Prosecutor, High Court of
A.P., Hyderabad. .... Respondent
DATE OF JUDGMENT PRONOUNCED : 16.02.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
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
2. Whether His Lordship wish to see
The fair copy of the judgment? Yes/No
______________________________
A.V.RAVINDRA BABU, J
2
AVRB,J
Crl.A. No.1454/2009
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1454 OF 2009
% 16.02.2023
# Between:
1. Thota Lakshumaiah, S/o.Gangulaiah,
Aged about 53 years,
Ramanjaneyapuram,
Kadapa District.
2. Thota Subrahmanyam, S/o.Lakshumaiah,
Aged about 31 years, Balija,
Occupation: Business,
Ramanjaneyapuram,
Kadapa District. .... Appellants
Versus
The State,
Rep. By the Sub Divisional Police Officer,
Rajampet, Kadapa District,
Rep. By the Public Prosecutor, High Court of
A.P., Hyderabad. .... Respondent
! Counsel for the Appellants : Sri Ch. Chaitanya Bhargava,
Learned counsel, representing
Learned counsel for the
Appellants.
^ Counsel for the Respondent : Sri Y. Jagadeeswara Rao,
Learned counsel, representing
Learned Public Prosecutor.
< Gist:
> Head Note:
? Cases referred:
(2008) 15 SCC 582
This Court made the following:
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Crl.A. No.1454/2009
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1454 OF 2009
JUDGMENT:
This Criminal Appeal, under Section 378(4) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed by the appellants, who are the accused Nos.1 and 2 in Special Sessions Case No.17 of 2008 on the file of the Court of Special Sessions Judge for trial of cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Kadapa (for short, 'the learned Special Judge'), questioning the judgment therein, dated 14.10.2009, where under the learned Special Judge found the appellants herein guilty of the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the SCs STs Act') and accordingly convicted them under Section 235(2) Cr.P.C and, further after questioning them about the quantum of sentence, sentenced them to undergo Rigorous Imprisonment for a period of six months each and to pay a fine of Rs.500/- each in default to suffer Simple Imprisonment for one month each. Further, the learned Special Judge found the appellants not guilty of the charges under Section 3(1)(v) of the SCs and STs Act and Section 427 of the Indian Penal 4 AVRB,J Crl.A. No.1454/2009 Code, 1860 (for short, 'the IPC'), and accordingly acquitted them of the said charges. Aggrieved by the said judgment in convicting and sentencing the appellants for the charge under Section 3(1)(x) of the SCs STs Act, the appellants preferred the present Appeal.
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 filed by the Sub-Divisional Police Officer, Rajampet pertaining to Crime No.54 of 2006 of Rajampet Police Station, Kadapa District for the offences under Section 3(1)(x) of the SCs STs Act and Section 427 IPC, is as follows:
A-1 and A-2 are originally natives of Sirivaram village of Penagalur Mandal and they are residing in Journalist Colony of Ramanjaneyapuram village of Kadapa Mandal. They belonged to Balija caste. The de-facto complainant M. Ramanaiah (LW.1) is a public servant working as Supervisor in Telecommunications Department. He used to reside at Balijapalli Harijanawada of Rajampet. LW.2 - Rampa Anjanna is also a public servant and he is working as Teacher and used to reside at Thummachetla palli 5 AVRB,J Crl.A. No.1454/2009 village, Chitvel Mandal. Both LW.1 and LW.2 belonged to Mala caste and as such they come under the scheduled caste. A-1 purchased Ac.0.09½ cents of land in Survey No.1021/1 of Rajampet village from one G. Ranganna on 18.06.1986 for a valid consideration of Rs.45,000/- and got registered it in his name. So, he has title and possession over the same. On 17.11.1989, A-1 sold Ac.0.06½ cents of land in the aforesaid survey number to LW.1 by executing a sale agreement in his favour with a condition that he received Rs.8,000/- at the rate of Rs.5,300/- per cent and that the balance sale consideration should be paid before 17.12.1990. Later, on 08.10.1990, LW.1 paid balance amount to A-1 and A-1 received it with a condition to register as and when required LW.1 and A-1 put LW.1 in possession of the land. On the same day, A-1 executed another sale agreement in favour of LW.2 for the remaining extent of Ac.0.03 cents in the aforesaid survey number at the rate of Rs.5,300/- per cent. He received advance amount of Rs.3,000/- with condition that LW.2 should pay balance sale consideration before 17.12.1990. Subsequently, on 08.10.1990, A-1 received the balance sale consideration of Rs.12,000/- from LW.2 and handed over possession of land to LW.2. He agreed to execute and register the land as and when demanded by LW.2. Thereafter, LW.1 and LW.2 were not able to 6 AVRB,J Crl.A. No.1454/2009 get the lands registered from A-1. However, LW.1 and LW.2 constructed a house in the above said land and they started to run a school in the name of Master Public School at Rajampet. They paid tax regularly to Rajampet Gram Panchayat from 1990 to 2006. Thereafter, A-1 intelligently filed a suit before the Junior Civil Judge Court at Rajampet for declaration of his right, title and possession over the land.
4. While so, on 31.05.2006, A-1 and A-2 accompanied by 20 followers came in two Tata Sumos in the morning, dragged the inmates of houses to outside, thrown the household articles in pell-mell condition and demolished the houses of LW.1 and LW.2. On coming to know about the incident, LW.1 and LW.2 rushed to the spot and questioned A-1 and A-2 as to why they demolished their houses. A-1 and A-2 grew wild and scolded LW.1 and LW.2 in the name of their caste as 'Mala Madiga naa kodakallara, Memu kottedi kottede meeku dikkunnavaritho cheppukondi'. Due to demolition of their houses and due to the damage caused by the accused, LW.1 and LW.2 sustained a loss of Rs.1,20,000/-. Hence, LW.1 and LW.2 rushed to Rajampet Police Station and presented a joint report. LW.18 registered it and investigated into. The Superintendent of Police, Kadapa appointed LW.19 as 7 AVRB,J Crl.A. No.1454/2009 Investigating Officer in this case. MRO, Penagalur i.e., LW.15 issued caste certificates of A-1 and A-2 stating that they both belong to Balija caste. LW.16 - MRO, Rajampet issued caste certificates of LW.1 and LW.2 stating that they belongs to Mala caste, which comes within the scheduled caste. During investigation on 11.10.2007 at 07:00 a.m., A-1 and A-2 were apprehended and they were produced before the Sub-Divisional Police Officer. Then, he arrested and sent them for remand to judicial custody. A-1 and A-2 committed mischief by damaging the constructed houses and school building of LW.1 and LW.2 and caused loss of Rs.1,20,000/- and further they committed the offence under Section 3(1)(x) of the SCs STs Act. Hence, the charge sheet.
5. The learned Judicial First Class Magistrate, Rajampet took cognizance of the case and after completing the formalities under Section 207 Cr.P.C committed the case to the Special Court. On appearance of the accused before the learned Special Judge, charges under Sections 3(1)(x), 3(1)(v) of the SCs STs Act and Section 427 of IPC were framed and explained to the accused in Telugu for which they pleaded not guilty and claimed to be tried. 8
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6. To bring home the guilt of the accused, the prosecution, during the course of trial, examined PWs.1 to 16 and got marked Exs.P-1 to P-18.
7. After closure of the evidence of the prosecution, the accused were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution for which they denied the same and put forth a version during 313 Cr.P.C examination that they executed agreements of sale to an extent of Ac.0.06½ cents to PW.1 and Ac.0.03 cents to PW.2. They further stated that they did not receive the balance sale consideration. The signature of A-1 was forged as if A-1 made an endorsement of receiving full payment and delivered the property to PW.1 and PW.2. They further stated that they filed a Suit and also obtained interim injunction against PW.1 and PW.2. They further filed documents relating to the affidavit in I.A. No.159 of 2006 in O.S. No.52 of 2006 on the file of the Court of Junior Civil Judge, Rajampet and the docket order dated 24.04.2006 granting temporary injunction in their favour and against PW.1 and PW.2. They further filed a copy of the decree in O.S. No.52 of 2006, dated 27.03.2008, and their house cards showing that they are residing at Kadapa.
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8. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the accused guilty of the charge under Section 3(1)(x) of the SCs STs Act and accordingly convicted and sentenced them as above. At the same time, the learned Special Judge found the accused not guilty of the charges under Section 3(1)(v) of the SCs STs Act and Section 427 IPC and accordingly acquitted them of the charges.
9. Aggrieved by the conviction recorded against the accused for the offence under Section 3(1)(x) of the SCs STs Act, the unsuccessful accused in the aforesaid Sessions Case, filed the present Criminal Appeal.
10. Now, in deciding this Criminal Appeal, the points that arise for consideration are as follows:
1. Whether the prosecution before the Court below proved that A-1 and A-2 intentionally insulted or intimidated PW.1 and PW.2 so as to humiliate them in a place within the public view?
2. Whether the prosecution before the Court below proved the case against the accused beyond reasonable doubt?10
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11. POINT Nos.1 & 2: Sri Ch. Chaitanya Bhargava, learned counsel, representing learned counsel for the appellants, would contend that the Court below basing on the interested testimony of PW.1 and PW.2 and basing on the evidence of PW.4, who was close friend of PW.1, PW.6, PW.9 and other interested witnesses in the case of PW.1 and PW.2, erroneously convicted the accused. The defence of the accused before the Court below was that though A-1 admitted about execution of agreements of sale in favour of PW.1 and PW.2, the subsequent endorsements, regarding receipt of balance sale consideration and delivery of possession of the property to PW.1 and PW.2, were forged. As the appellants were in possession of the property, they approached the Junior Civil Judge Court, Rajampet and filed a suit in O.S. No.52 of 2006 and obtained an ex parte order of injunction on 24.04.2006. So, as they were in possession of the property, the learned Junior Civil Judge, Rajampet granted injunction in favour of A-1 and A-2 so as to restrain PW.1 and PW.2 from interfering with the property. The above was fabricated by PW.1 and PW.2 on 31.05.2006 was only to implicate the present appellants in a false case. When the alleged incident was occurred on 31.05.2006, FIR came to be lodged on 10.06.2006 i.e., after 10 days delay. Already PW.1 and PW.2 were facing civil litigation in the hands of the accused. In 11 AVRB,J Crl.A. No.1454/2009 view of the said reason, the delay was fatal to the case of the prosecution. The learned Special Judge erroneously held that the prosecution has explained the delay. The prosecution, in fact, miserably failed to explain the delay. He would further submit that the learned Special Judge found the appellants not guilty of the charges under Section 3(1)(v) of the SCs and STs Act and Section 427 of IPC rightly. When A-1 and A-2 were in possession of the property and when a civil Court recognizing their possession granted an injunction, the prosecution party had no right to enter into the property of A-1 and A-2. The place of incident was said to be in the property of A-1 and A-2. The learned Special Judge without looking into the facts and circumstances in proper perspective and without valid reasons to believe the evidence of PW.1, PW.2, PW.4, PW.6 and PW.9 went on to convict the accused and the evidence on record does not warrant the conviction of the accused as such he sought to set-aside the judgment of the trial Court.
12. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, appearing for the respondent-State, would submit that the prosecution has explained the delay before the Court below properly and the learned Special Judge rightly 12 AVRB,J Crl.A. No.1454/2009 convicted the accused and the evidence of PW.1 and PW.2 has support from other witnesses and the trial Court rightly analyzed the evidence on record with proper reasons and convicted the present appellants as such the Appeal is liable to be dismissed.
13. During the course of reply, Sri Ch. Chaitanya Bhargava, learned counsel, representing learned counsel for the appellants, would contend that the evidence of PW.1 that when he lodged report on 31.05.2006, ASI did not register the FIR would not stand to the test of scrutiny and the above said version was not suggested to ASI when he was examined before the Court below. So, the delay in lodging Ex.P-1 is fatal to the case of the prosecution.
14. PW.1, before the Court below, is the de-facto complainant. PW.2 was another witness who claimed to have purchased the property from A-1 and A-2 and he was sailing with the case of the prosecution. The substance of the evidence of PW.1 is that he purchased an extent of Ac.0.06½ cents from A-1 under agreement of sale and after that he paid total sale consideration and took delivery of the property. Similarly, LW.2 also purchased Ac.0.03 cents from A-1. PW.1 further testified that he constructed school namely Master Public School in the site purchased from A-1. A-1 13 AVRB,J Crl.A. No.1454/2009 refused to register the sale deed. On 31.05.2006 at 09:00 a.m., LW.3 - Govindu Naik, informed him that A-1 and A-2 along with their followers were demolishing the school of PW.1 and walls of PW.2. Then, he telephoned to LW.2 - Anjanna, LW.4 - Bhaskar, LW.7 - Prabhakar, LW.9 - Srinivasulu, LW.10 - Subbarayudu, LW.11 - Narasimhulu and LW.13 - Laxmaiah to come to the schedule property. Then, he rushed to the scene. So, by the time he reached, the accused and 20 others were lifting the bricks and other material demolished by them into tractors. He questioned the act of the accused. Then, A-1 and A-2 abused them touching their caste. He further spoken about the words alleged to be used by the accused as alleged in Ex.P-1 report. He sustained loss of Rs.1,20,000/- due to the act of the accused. Then, he gave report. Ex.P-1 is the report given by him and LW.2 - Anjanna.
15. The evidence of PW.2 is also that he purchased the property of Ac.0.03 cents from A-1 and PW.1 purchased Ac.0.06½ cents from A-1. A-1 refused to execute the sale deeds later. Further, the site came into their possession after payment of full consideration. PW.1 constructed a school in the name of Master Public School. He raised house walls on the foundation laid by him. On 31.05.2006, PW.1 informed him that accused along with 20 of 14 AVRB,J Crl.A. No.1454/2009 their followers others demolished the school and his house walls. Then, he proceeded to the scene of offence. He found A-1 and A-2 along with their men. PW.1 and he questioned the accused as to their act. Then A-1 and A-2 shouted to them in the name of their caste. He further spoken about the words alleged to be used by the accused as alleged in Ex.P-1 report.
16. PW.3 - G. Govindu Naik, the so called watchman, testified that he never worked as watchman at the school of PW.1 and he did not witness the accused demolishing the school. Prosecution got declared him as hostile and during the cross-examination he denied that he stated before Police as in 161 Cr.P.C. statement i.e., Ex.P-2.
17. The evidence of PW.4 is that as on the date of offence at about 09:00 a.m. PW.1 informed him by phone to come to the scene of offence as A-1 and A-2 were demolishing the school of PW.1. So, he rushed there. He found PW.1, PW.2 and PW.3 and the accused at the scene of offence. PW.1 and PW.2 asked the accused as to why they demolished the school and house walls of PW.1 and PW.2. Then, A-1 and A-2 shouted at PW.1 and PW.2. He further spoken about the words alleged to be used by the accused 15 AVRB,J Crl.A. No.1454/2009 as alleged in Ex.P-1 report. They further shouted at PW.1 and PW.2 that they could report to any one they like.
18. PW.5 testified that one day about two and half years to the date of his examination, there was gallata at the school and he found that the school and the house walls of PW.1 and PW.2 were demolished by some persons. He was examined by the Police.
19. PW.6 deposed that on the date of incident at 09:00 a.m., PW.1 made a phone call to him stating that his school was being demolished. Then, he went to the scene and found PWs.1 to 4 and LW.10, LW.11 and A-1 and A-2 were there. He witnessed PW.1 and PW.2 disputing with A-1 and A-2. Later, he did not hear anything. The prosecution got declared him as hostile and during cross-examination, he deposed that accused abused PW.1 and PW.2 in the name of their caste and he stated same to Police and due to lack of memory, he could not depose in his chief- examination.
20. PW.7 is a witness for Ex.P-3 mahazar for observation of the scene of offence by the SDPO and he testified the same. According to him, Ex.P-3 is the mahazar. During cross-examination by the defence counsel, he stated that he is an illiterate and Police 16 AVRB,J Crl.A. No.1454/2009 obtained his signature in the Police Station. Then, the learned Additional Public Prosecutor got declared him as hostile and cross-examined him and he denied in cross-examination by learned Additional Public Prosecutor that he put his signature at the scene of offence after Ex.P-3 was prepared at the scene.
21. PW.8 is another mahazar witness who supported the case of the prosecution as regards Ex.P-3 panchanama.
22. The evidence of PW.9 is that on 08.10.1990, PW.1 paid Rs.26,450/- and PW.2 paid Rs.12,900/- to A-1 towards balance sale consideration towards the site purchased by them from A-1. Accordingly, they put signatures on endorsements in the sale agreements. A-1 agreed to execute sale deeds in favour of PW.1 and PW.2. Later, about three years ago, PW.1 made a call to him stating that A-1 and A-2 were demolishing their school building and asked him to come there. Then, he went there and found PW.1, PW.2, PW.4, PW.6, A-1 and A-2 and some others at the scene. When PW.1 and PW.2 questioned A-1 as to why they demolished the school and house walls of PW.1 and PW.2, to which the accused shouted at PW.1 and PW.2 in the name of their caste. He further spoken about the words alleged to be used by the accused as alleged in Ex.P-1 report.
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23. The prosecution examined PW.10 to speak about the issuance of Exs.P-4 and Ex.P-5, caste certificates of A-1 and A-2.
24. The prosecution further examined PW.11, photographer, to speak about Exs.P-6 to P-9 photographs and Exs.P-10 to P-13, negatives taken at the scene of offence.
25. The prosecution examined PW.12 to the effect that he being partner of real estate run along with A-1 received balance sale consideration from PW.1 and PW.2 and he made endorsements over the agreements of sale executed in favour of PW.1 and PW.2 by A-1.
26. PW.13 is the Assistant Sub-Inspector of Police, who received Ex.P-1 from PW.1 and PW.2 on 10.06.2006 and registered it as a case in Crime No.54 of 2006 under Ex.P-14. He has spoken that SDPO took up further investigation in this case.
27. PW.14 is the Investigating Officer i.e., Sub-Divisional Police Officer.
28. The prosecution examined PW.15, Tahsildar, to prove that the caste of PW.1. PW.1 belongs to the scheduled caste. Ex.P-16 is the caste certificate of PW.1.
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29. Prosecution further examined PW.16, Tahsildar, to prove the caste of PW.2. PW.2 belongs to scheduled caste. Ex.P-17 is the caste certificate of PW.2.
30. The sum and substance of the evidence of PW.1, as pointed out above, is such that both of them purchased their respective extents of land i.e., Ac.0.06½ and Ac.0.03 cents in Survey No.1021/1 of Rajampet village from A-1 under two different agreements of sale and A-1 delivered possession thereof. Subsequently, when they paid the rest of the sale consideration but A-1 refused to execute the sale deeds. PW.1 claimed that he constructed a School in the property. PW.2 claimed that he constructed a house wall on the foundation laid. Their further evidence is that on 31.05.2006 both the accused demolished their respective buildings and when they questioned about the same, the accused abused them in the name of their caste in a filthy and vulgar language. The learned Special Judge, having acquitted the accused for the charges under Section 3(1)(v) of the SCs and STs Act and Section 427 of IPC, went on to convict them for another charge under Section 3(1)(x) of the SCs and STs Act. So, the simple question that falls for consideration is as to whether the evidence of PW.1, PW.2, PW.4, PW.6 and PW.9 is believable? 19
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31. Admittedly, PW.1 and PW.2 are interested witnesses. Admittedly, simply because their testimony is interested, their evidence cannot be rejected in toto. So, their evidence is to be scrutinized looking into other factual aspects. As admitted by PW.1 in cross-examination, there is no whisper that he came to know about the incident through LW.3 - M. Govindu Nayak. There is no dispute that PW.3 - M. Govindu Nayak did not support the case of the prosecution. PW.4 supported the case of the prosecution. In cross-examination, he deposed that scene of offence is at a distance of 5 K.Ms from Boyanapalli village and he is close friend of PW.1. He came to the scene of offence within ten minutes after receipt of PW.1's phone call. He denied that it takes at least half an hour time to reach the scene of offence and that he is deposing false as PW.1 happened to be his close relative. He went in the Auto to reach the scene of offence.
32. PW.6 initially did not support the case of the prosecution as regards the overt act against A-1 and A-2 abusing PW.1 and PW.2 in the name of their caste but after he was declared as hostile and during cross-examination by the learned Additional Public Prosecutor, he supported the case with explanation that as he forgot, he could not depose the above in his chief-examination. 20
AVRB,J Crl.A. No.1454/2009 However, he also deposed in cross-examination by defence counsel that scene of offence is 5 K.Ms away from his village and PW.1 made a call to him at 09:00 a.m. So by virtue of the above, PW.4 and PW.6 appears to be chance witnesses. In ordinary circumstances, their presence would not have been expected at the place of offence. They claimed that on receiving the phone call from PW.1, they reached there. Apart from that, PW.4 was a close friend of PW.1 and as such it appears that he was also interested in the case of the prosecution. So, PW.4 and PW.6 were the chance witnesses. Turning to the evidence of PW.9, he claimed that it is he and others who put their signatures on the endorsements in the sale agreements made in favour of PW.1 and PW.2. In this regard, the defence of the accused before the Court below was that A-1 executed two agreements of sale in favour of PW.1 and PW.2 but as PW.1 and PW.2 did not pay the rest of the sale consideration amount, possession was not delivered to them and the so called endorsements were fabricated and forged. So, accused before the Court below denied that A-1 delivered possession of the property in favour of PW.1 and PW.2. So, the prosecution examined PW.9, who claimed that he was a witness to the payment endorsements. He also claimed that he witnessed the occurrence. So, PW.9 was also interested in the case of PW.1 21 AVRB,J Crl.A. No.1454/2009 because he was examined to speak about the so called endorsements on the agreements of sale. Apart from that, there is no whisper in Ex.P-1 report that PW.1, on coming to know about the incident from PW.3, telephoned to PW.4, PW.6 and PW.9 requesting them to come to the scene of offence. When the residences of PW.4 and PW.6 were located at a distance of 5 K.Ms from the scene of offence, it is rather improbable that, with mathematical certainty, they could reach to the scene of offence, when A-1 and A-2 allegedly abused PW.1 and PW.2 in the name of their caste. Considering that the evidence of PW.1, PW.2 and PW.4 was interested in nature and that PW.4 and PW.6 were chance witnesses and further PW.9 was also interested to champion the cause of PW.1, the prudence requires that their evidence has to be scrutinized with care and caution. If the testimony of the above witnesses stands to the test of scrutiny, there is no bar to convict the accused.
33. It is well settled that in an Appeal from conviction, the appellate Court has to re-appreciate the evidence on record to come to an independent conclusion as to whether the evidence that was available before the Court below would warrant 22 AVRB,J Crl.A. No.1454/2009 conviction against the accused. Keeping in view, I would like to appreciate the evidence on record.
34. The defence of the accused before the Court below was denial simplicitor. Their claim is that A-1 filed a Suit against PW.1 and PW.2 and obtained an order of injunction to restrain the prosecution party from interfering with the possession. It is also their defence that there was abnormal delay in lodging the FIR and the delay was on account of deliberations and concoctions.
35. Firstly, I would like to deal with as to whether the prosecution before the Court below satisfactorily explained the delay in lodging Ex.P-1. The date of offence was on 31.05.2006. PW.1 deposed that he reported their grievance against the Police Station, Rajampet. Ex.P-1 is the report given by him and LW.2 - Anjanna. As seen from Ex.P-1, there was a caption as 31.05.2006/10.06.2006. The endorsement on Ex.P-1 by the Police reveals that it was presented on 10.06.2006. So, admittedly, there was delay of 11 days in lodging Ex.P-1. The defence counsel cross- examined PW.1 in this regard. PW.1 testified in cross-examination that within half an hour after the occurrence, they proceeded to the Police Station and gave report to the Police but Police did not register the case immediately after giving the report. He volunteers 23 AVRB,J Crl.A. No.1454/2009 that ASI of that Police Station did not register the report given by him as such on 10.06.2006 he approached the Deputy Superintendent of Police, Rajampet reporting against ASI for not registering the report given by them on 31.05.2006. On his oral complaint, Deputy Superintendent of Police enquired ASI of Rajampet Police Station as to why he failed to register the FIR immediately after the report and admonished him to register the same immediately. He further deposed in cross-examination that when he went to Police Station, ASI asked him to give fresh report, dated 10.06.2006. When he refused to give fresh report, at the instance of him (ASI), he (PW.1) put the date 10.06.2006 on the side of the date of the report i.e., 31.05.2006 on the top of Ex.P-1. Since he has not given any fresh report, there is no occasion to give explanation afresh because the FIR was registered on the previous report given on 31.05.2006. He admitted that Ex.P-1 endorsement runs that it was received by Police on 10.06.2006. He denied that he gave report on 10.06.2006 but not on 31.05.2006 and he gave the above explanation to cover the delay of 10 days. Since DSP was on leave, he could not complain his grievance to him immediately. He could not say as to how many days the DSP remained on leave. Since he came to know about the availability of DSP, he placed his grievance before him on 10.06.2006. 24
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36. It is to be noticed that when a serious offence was alleged to be committed by A-1 and A-2 and when the report lodged on 31.05.2006 was not registered, the natural reaction of PW.1 should have been to complain against the so called ASI before the Superior Officers who would have control over the ASI. Simply because the so called DSP was not available, PW.1 was not supposed to keep quiet. Leave apart all these issues, even the evidence of PW.2 did not disclose as to why report could not be lodged. He simply deposed that he subscribed his signature on Ex.P-1 given to Police. They gave report to the Police on the same day. The explanation put forth by PW.1 during the course of cross- examination was not adhered to by PW.2. Even assuming for a moment for reasoning sake that he was not supposed to put forth any version as to delay as spoken by PW.1 because he was not aware of the evidence of PW.1, even otherwise, the so called version of PW.1 explaining something in cross-examination has no support, whatsoever, from the evidence of PW.13, who was the then ASI.
37. According to PW.13, he received Ex.P-1 from PW.1 and PW.2 on 10.06.2006 and registered it as a case in Crime No.54 of 2006, which is Ex.P-14. After that, SDPO took up further investigation. 25
AVRB,J Crl.A. No.1454/2009 During cross-examination by the defence counsel, he admitted that column No.8 of the FIR as regards the delay is not filled up.
38. It is the bounden duty of the prosecution before the Court below to explain the delay. The prosecution did not put any questions to PW.13 during chief-examination as to whether he received the report of PW.1 i.e., Ex.P-1 on 31.05.2006, but when he testified that he received it on 10.06.2006, prosecution kept quiet. Prosecution did not elicit anything from PW.13 as to whether he insisted PW.1 to put another date as 10.06.2006 when he refused to give fresh report etc. So, it is clear that according to the evidence of PW.1, he could receive the report only on 10.06.2006. So, the self explanation tendered by PW.1 in cross- examination has no support from PW.13. It is not the case of the prosecution that PW.13, ASI, deposed false.
39. Coming to the evidence of PW.14, the Investigating Officer, he could commence the investigation on 15.06.2006, according to the proceedings issued by the Additional Superintendent of Police, Kadapa. So, the prosecution even did not elicit anything from PW.14 as to why PW.13 could register Ex.P-1 on 10.06.2006, though it was allegedly presented on 31.05.2006. So, in my 26 AVRB,J Crl.A. No.1454/2009 considered view, the prosecution miserably failed to explain the delay before the Court below.
40. It is well settled that merely because there is delay in lodging a report about the occurrence, the case of the prosecution cannot be thrown out. The defence should be able to probabilize a theory as to how the delay in lodging the report by the de-facto complainant would affect the case of the prosecution.
41. Now, coming to the case on hand, it is elicited from the mouth of PW.1 during cross-examination that he received Court notices in I.A. No.159 of 2006 in O.S. No.52 of 2006 on the file of the Court of Junior Civil Judge, Rajampet. He engaged a counsel to appear on his behalf on 05.05.2006. He admitted that an ex parte injunction was granted on 24.04.2006. He came to know about it after receipt of the notices. He admitted that the report was subsequent to filing of the suit. So, the facts are such that A-1 filed suit in O.S. No.52 of 2006 and obtained an order of interim injunction against PW.1 and PW.2 to restrain them from interfering with his possession. It is also the defence of the accused that the possession was not delivered in favour of PW.1 and PW.2 and the payment endorsements were forged and 27 AVRB,J Crl.A. No.1454/2009 fabricated. So, it goes to show that there were severe ill-feelings between the accused party and the de-facto complainant party.
42. The very object of prompt lodging of FIR in a criminal case is to ensure that there would not be any embellishments, fabrications and deliberations vide State of Andhra Pradesh v. M. Madhusudhan Rao1. So, here on account of bitter ill-feelings existed between the de-facto complainant party and the accused party, the un-explained delay in lodging Ex.P-1 report is fatal to the case of the prosecution.
43. As pointed out, PW.1 and PW.2 claimed that they purchased respective properties and they were delivered with the possession. But, accused denied regarding the delivery of possession to PW.1 and PW.2 and claimed that he filed a Suit against them and obtained an order of injunction. PW.1 and PW.2 were aware of this fact. So, when A-1 filed a Suit for injunction and obtained an injunction to protect the so called property, which was said to be in possession of A-1, PW.1 and PW.2 were not supposed to enter into the premises.
1 (2008) 15 SCC 582 28 AVRB,J Crl.A. No.1454/2009
44. Keeping the above in view, the Court below extended an order of acquittal in favour of the present appellants as regards the allegation that they dispossessed PW.1 and PW.2 and caused mischief to the property etc. But the Court below believed the evidence of the case of the prosecution that A-1 and A-2 abused PW.1 and PW.2 in the name of their caste. In my considered view, the so called act of PW.1 and PW.2 entering into the property of A-1 on 31.05.2006 when A-1 had an order of injunction in his favour is nothing but an act against the spirit of injunction order. It is to be noticed that the natural reaction of PW.1 when he allegedly received a message from PW.3 that accused are damaging the property was to rush to the place of offence, if really, it was in his possession. Something abnormal act could be seen on the part of PW.1 that he telephoned to PW.4, PW.6 and PW.9 asking them to come to the scene of offence in support of him. As this Court already pointed out, the evidence of PW.1, PW.2 and PW.9 is interested in nature. PW.4 was a chance witness apart from the fact that he was a close friend of PW.1. PW.6 was also a chance witness. The very act of PW.4, PW.6 and PW.9 claiming that they could reach to the scene of offence when A-1 and A-2 allegedly abused PW.1 and PW.2 is nothing but an improbable act, as pointed out. Having regard to the overall facts and 29 AVRB,J Crl.A. No.1454/2009 circumstances, absolutely, it is unsafe to believe the case of the prosecution.
45. Even according to the case of the prosecution, A-1 and A-2 were armed with an injunction order in I.A. No.159 of 2006 to protect their possession as on 31.05.2006. PW.1 and PW.2 had got knowledge of the same. In such circumstances, it is rather improbable to assume that A-1 and A-2 would abuse PW.1 and PW.2 in the name of their caste especially when they had the advantage to protect their possession by due process. Viewing from any angle, I am of the considered view that, it is un-safe to believe the evidence.
46. A perusal of the judgment of the trial Court shows that without analyzing the evidence, whatsoever, and simply looking into the explanation offered by PW.1 in cross-examination, the learned Special Judge observed that prosecution explained the delay. He did not look into the evidence of PW.13 in this regard. The observations made by the learned Special Judge that the prosecution explained the delay is not at all tenable.
47. A further perusal of the judgment goes to reveal that the learned Special Judge simply took into consideration the evidence 30 AVRB,J Crl.A. No.1454/2009 of PW.4, PW.6 and PW.9 and believed it. He referred the principle of falsus in uno falsus in omnibus.
48. It is no doubt true that the doctrine of 'falsus in uno falsus in omnibus' is not applicable in India. It means that when a particular witness deposed truth and falsehood, the duty of the Court is to disengage the truth from the falsehood. There is no dispute about the settled position of law in this regard. The observation of the learned Special Judge shows that simply because the case against the accused is being acquitted under Section 3(1)(v) of the SCs and STs Act and Section 427 of IPC, accused are not entitled for acquittal for the charge under Section 3(1)(x) of the SCs and STs Act. Though the learned Special Judge relied upon the above doctrine but the judgment does not reveal how he arrived at a conclusion that accused committed the aforesaid offence. There was no analyzation of the evidence, whatsoever, to believe the evidence of PW.1, PW.2, PW.4, PW.6 and PW.9. Just by relying upon the above doctrine, the learned Special Judge simply held that the prosecution proved the guilt against the accused under Section 3(1)(x) of the SCs and STs Act. As pointed out, there are serious infirmities in the case of the prosecution. PW.1, PW.2, PW.4, PW.6 and PW.9 were not 31 AVRB,J Crl.A. No.1454/2009 supposed to enter into the property claimed by A-1 and A-2 in view of the injunction order. Apart from this, the prosecution miserably failed to prove the delay in lodging Ex.P-1. On account of the delay in lodging the FIR, Ex.P-1, the improvements, embellishments and deliberations cannot be ruled out. PW.1 and PW.2 had knowledge that they cannot take any action against A-1 and A-2 for the alleged demolition of the property because they got an injunction to protect their property. In such circumstances, the possibilities and probabilities for due deliberations, embellishments and concoctions cannot be ruled out.
49. Having regard to the above, I am of the considered view that, absolutely, the judgment of the learned Special Judge in convicting the appellants for the charge under Section 3(1)(x) of the SCs and STs Act is not sustainable under law and facts. In my considered view, the evidence adduced by the prosecution is not at all believable. Hence, it is a fit case to extend benefit of doubt to the appellants. Therefore, the appellants are not found guilty of the charge under Section 3(1)(x) of the SCs and STs Act as such the Appeal is liable to be allowed.
50. In the result, the Criminal Appeal is allowed setting aside the judgment in Special Sessions Case No.17 of 2008, dated 32 AVRB,J Crl.A. No.1454/2009 14.10.2009, on the file of learned Special Sessions Judge for trial of cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Kadapa. The appellants (A-1 and A-2) shall stand acquitted under Section 235(1) Cr.P.C. They are entitled for refund of the fine amount.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 16.02.2023 DSH