Andhra Pradesh High Court - Amravati
Balam Balaji vs The State Of A.P. on 3 February, 2023
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 2 AVRB,J Crl.A. No.594/2009 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 3 AVRB,J Crl.A. No.594/2009 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 4 AVRB,J Crl.A. No.594/2009 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 5 AVRB,J Crl.A. No.594/2009 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 6 AVRB,J Crl.A. No.594/2009 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 7 AVRB,J Crl.A. No.594/2009 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 8 AVRB,J Crl.A. No.594/2009 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 9 AVRB,J Crl.A. No.594/2009 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. 10
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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 11 AVRB,J Crl.A. No.594/2009 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 12 AVRB,J Crl.A. No.594/2009 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 13 AVRB,J Crl.A. No.594/2009 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, 14 AVRB,J Crl.A. No.594/2009 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 15 AVRB,J Crl.A. No.594/2009 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 16 AVRB,J Crl.A. No.594/2009 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 17 AVRB,J Crl.A. No.594/2009 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