Telangana High Court
A.Basweshwar, Mahabubnagar District ... vs The State Of A.P., Rep.Pp Through Sho ... on 9 July, 2024
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.1122 OF 2011
JUDGMENT :
This Criminal Appeal is preferred by the appellants/accused Nos.1 to 3 assailing the conviction and sentence of imprisonment awarded against them vide judgment dated 09.09.2011 in SC No.60 of 2008 on the file of the learned Special Sessions Judge-cum-VII Additional Sessions Judge, Mahabubnagar.
2. Heard Sri T.Surya Karan Reddy, learned counsel for the appellants and Sri Vizarath Ali, learned Assistant Public Prosecutor, representing learned Public Prosecutor for the State/respondent.
3. Basing on the complaint lodged by the de-facto complainant dated 03.09.2007 alleging that in pursuance of a plan hatched, on 03.09.2007, after completion of Brahmotsavam of Lord Sri Hanuman, the appellants/accused abused PW1 and others by uttering their caste name viz. Lambada and damaged the name plate of Hanuman temple, constructed by the forefathers of PW1 and threatened them with dire consequences not to enter into the temple, the police of Maddur, Mahabubnagar District registered a case in Crime No.51 of 2007 for the offences punishable under Sections 427 and 506 read with Section 34 of Indian Penal Code (for short 'IPC') and Section 3(1)(X) of SC/ST (POA) Act, 1989 and investigated into Page 2 of 11 the matter and upon completion of the investigation, laid charge- sheet.
4. After furnishing copies of documents, the Sessions Court framed charges against the accused and proceeded with trial. During trial, the prosecution examined PWs.1 to 6 and got marked Exs.P1 to P3. No documentary or oral evidence was adduced on behalf of the accused/defence.
5. The Sessions Court, upon considering the entire material available on record, including evidence of PWs.1 to 6 and Exs.P1 to P3 found the accused guilty for the offence punishable under Sections 427, 506 of IPC and under Section 3(1)(x) of SC/ST (POA) Act, 1989, convicted and sentenced them to pay a fine of Rs.500/- each in default to undergo simple imprisonment for one month for the offence under Section 427 IPC, and to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- each and in default of payment of fine amount to suffer simple imprisonment for one month for the offence under Section 506 IPC and to suffer rigorous imprisonment for six months and to pay a fine of Rs.1,000/- each and in default of payment of fine amount, to suffer simple imprisonment for one month for the offence under Section 3(1)(x) of SC/ST (POA) Act, 1989 directing the above sentences to run Page 3 of 11 concurrently and set aside the sentence already undergone by them during the course of trial under Section 428 Cr.P.C.
6. Aggrieved by the said findings, the petitioners/accused Nos.1 to 3 preferred the present criminal appeal mainly contending that as per Section 9 of SC & ST (POA) Act, 1989 only a designated officer is entitled to investigate the matter and file charge-sheet but in the case on hand the investigating officer was not examined when there are material contradictions in the evidence of the prosecution witnesses and that the learned Sessions Court failed to appreciate the evidence in a right perspective and came to wrong conclusion basing on the evidence of interested witnesses. Further, the Sessions Court failed to consider the fact of rivalry between the thanda people.
7. On the other hand, learned Assistant Public Prosecutor, representing learned Public Prosecutor for the State/respondent vehemently opposed the present criminal appeal predominantly contending that the findings of the Sessions Court are well considered findings and hence, there is no need to set aside the same. Further, there is no force in the grounds urged in this appeal and that the same deserves no consideration.
Page 4 of 11
8. Upon hearing both sides and perusing the material available on record, now the point for determination is :
Whether the judgment dated 09.09.2011 in SC No.60 of 2008 on the file of the learned Special Sessions Judge- cum-VII Additional Sessions Judge, Mahabubnagar is sustained or is liable to be set aside ? Point :
9. The main allegation levelled against the appellants/accused is that they insulted, humiliated and intimidated the de-facto complainant and others apart from committing mischief and causing loss or damage to the temple and its nameplate and also threatened them with dire consequences. To substantiate the above said allegations, the prosecution relied upon the evidence of PWs.1 to 6 and Exs.P1 to P3. This Court has carefully perused the above referred evidence.
10. Evidence of PW1 shows that he is a resident of Dhamula Naik Thanda and belongs to Lambada Caste and that after Jathara, on 03.09.2007 the accused/appellants came to the temple and damaged the foundation stone, containing the name of the donor with hammer and threatened them to kill and abused PW1 and others stating them as "Lambada Kodukullara" and hence, they lodged a complaint with the police. PWs.2 to 4 also deposed in the same lines. During cross-examination of PWs.1 to 4, learned counsel Page 5 of 11 for the appellants put suggestions stating that PW1 resided in Mumbai, the accused were residing in Hyderabad and that they were not in the scene of offence and that in the matter of distribution of hundi amount there occurred a quarrel and basing on such quarrel, a false case was registered against the accused and that they were deposing falsehood to support the case of the prosecution. However, they denied the said suggestions. PW5 acted as a witness for Ex.P2/panchanama and sketch. PW6 registered FIR.
11. From the inception, the defence of the appellants/ accused is that the prosecution witnesses are residents of Dorepally Village or Domla Naik Thanda and that the temple is located in a private land situated in the hillock and does not belong to PW1 or his relatives and that forefathers of PW1 are not the builders or donors of the temple. Accused are all residents of Hyderabad and their identification by the prosecution witnesses is not tenable. PW1 was migrated to Maharashtra and he was not in the scene of offence on that eventual day. No witness deposed that the accused abused them individually in the name of their caste. Though the evidence disclosed that the accused raised slogans that "Lambadi down- down", it cannot be said that the abusive words were directed at the witnesses individually. Non-examination of investigating officer is fatal to the prosecution case. Basing on the above contentions Page 6 of 11 learned counsel for the appellants/accused prayed to exonerate the accused from the case.
12. Basing on the evidence adduced on behalf of the prosecution, the prosecution stated that on 01.09.2007 brahmotsavam was performed and on the very next day tom-tom was made requesting all the public to come to the temple to witness handing over of the hundi amount and accordingly around 100 people including the village elders have gathered at the temple on 03.09.2007 and at about 10.00 A.M. the accused along with 19 others came to the temple and damaged the tile containing the name of the donor of the tiles of the temple and raised slogans against Lambadi Caste. The accused denied the prosecution evidence by putting suggestions and questioned their trustworthiness in deposing against them. However, no independent witness is examined by the prosecution to rebut the contention of the accused that the prosecution witnesses are interested witnesses and they rendered support to PW1 since they all belong to same village and disputes arose regarding distribution of hundi amount.
13. Evidence on record established that there was rivalry between the villages regarding distribution of hundi amount and that the scene of offence was a private place. Hence, in that view of the matter the allegation of the de-facto complainant that the accused Page 7 of 11 abused them in a public place in the name of their caste appears to be not a convincing and acceptable one.
14. Further, PWs.1 to 4 have categorically stated that the accused have damaged the foundation stone of the temple. PW5, panch witness also confirmed the damage caused to the temple. However, he did not depose that the said damage was caused due to the acts of the accused. However, in view of lack of independent witness to depose that the damage was caused due to the acts of the accused, the evidence of PWs.1 to 4, whose evidence is denied by the accused stating that they are the interested witnesses, cannot gain credence to believe wholly and to found the accused guilty.
15. So far as the contention of learned counsel for the appellants regarding non-examination of investigating officer is concerned, no doubt it creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable suspicion in the prosecution case. It was held by the Hon'ble Apex Court in the case between Munna Lal Vs. The State of Uttar Pradesh (Crl.A.No.490 of 2017, dated 24.01.2023) that non- examination of the Investigating Officer is a serious lapse on the part of the prosecution and it may undermine the principle of fair trial and due process, as the defence is deprived of the opportunity to cross-examine the officer and challenge his findings, biases, or Page 8 of 11 omissions, if any. This could potentially lead to a lack of transparency and accountability within the criminal justice system. Additionally, non-examination may result in incomplete investigation, as crucial details or alternative explanations may remain undiscovered without the opportunity for direct examination. It can also impact the reliability of evidence presented, as the Court may not have the opportunity to assess the credibility of the investigating officer's actions and decisions. It is further held that although mere defects in the investigation process by itself cannot constitute a ground for acquittal, it is the legal obligation of the Court to examine carefully in each case that the prosecution evidence dehors the lapses committed by the Investigating Officer in finding out whether the evidence brought on record is reliable in-toto and whether such lapses affect the object of finding out the truth.
16. It is relevant to state herein that incomplete investigation by the investigating officer impacts the overall case of the prosecution. On the other hand, non-examination of the Investigating Officer would not be fatal to the prosecution if there were no material contradictions in the testimony of the witnesses. In a catena of decisions the Hon'ble Apex Court had categorically held that it is the duty of the prosecution to examine all material Page 9 of 11 witnesses who could give an account of the narrative of the events on which the prosecution's case is essentially based.
17. So far as the contention of learned counsel for the appellants that the accused are not the residents of Dorepally Village and they were unnecessarily implicated into this case is concerned, admittedly they were apprehended at the time of incident from the scene of offence and hence, their presence at the time of incident cannot be denied. The prosecution tried to establish the damage caused to the temple by examining PW5/panch witness and relying upon the recitals of Exs.P2 and P3. Evidence of PW5 shows that some damage to the foundation stone and tiles of the temple was occurred however, there is no whisper that the same was due to the acts of the accused.
18. PWs.2 to 4, during their cross-examination, have admitted that the accused did not abuse them individually in the name of their caste and stated that they abused their entire caste. Further, PWs.2 and 3 have categorically stated that they signed on the complaint/Ex.P1, brought by PW1, without knowing the contents therein. In view of the above evidence of PWs.2 to 4, the recitals of the charge-sheet, to the extent of stating that the accused abused PW1 and others individually in the name of their caste and caused damage to the property appears to be far from truth and omnibus. Page 10 of 11 The same requires confrontation from the investigating officer. But, in the case on hand, the prosecution did not examine the investigating officer, who is duty bound to clarify the contradictions and omissions, if any, to the Court in a convincing way. Further, when the accused/appellants are denying the prosecution evidence stating that they are the interested witnesses and rendered support to PW1 to falsely implicate them in the present case, it is the duty of the prosecution to examine the investigating officer to substantiate the averments of the charge-sheet but for the reasons best known, the prosecution failed to examine the investigating officer, which, in my considered view and the settled principles of law as laid down in a decision of Hon'ble Apex Court, i.e. Munna Lal Vs. The State of Uttar Pradesh (stated supra) regarding non-examination of investigating officer, as discussed supra, is fatal to the case of the prosecution. Further, the evidence of prosecution witnesses requires support from independent witness but in the case on hand, the prosecution did not examine any independent witness. Furthermore, the defence lost their opportunity of cross-examining the investigating officer with regard to the omissions and contradictions in the evidence of PWs.
19. In such factual scenario, this Court is of the considered view that the learned District Judge of the Sessions Court failed to Page 11 of 11 look into all these aspects and hence, the findings made therein deserve to be interfered with by setting aside the judgment impugned.
20. In the result this criminal appeal is allowed setting aside the judgment dated 09.09.2011 passed in SC No.60 of 2008 on the file of the learned Special Sessions Judge-cum-VII Additional Sessions Judge, Mahabubnagar. Miscellaneous applications, if any pending, shall stand closed.
____________________ E.V.VENUGOPAL, J Dated :09-07-2024 abb