THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.379 of 2008 15-07-2014 BETWEEN:
Joopally Mallesham …..Appellant/Accused AND The State of A.P., rep. by Public Prosecutor, High Court of Judicature at Hyderabad For the State of Telangana and the State of Andhra Pradesh.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.379 of 2008 JUDGMENT:
The Criminal Appeal is preferred by the appellant/Accused challenging the Judgment, dated 25.02.2008, in SC ST SC No.27 of 2007 passed by the Court of the Special Judge for Trial of Offences under Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional District and Sessions Judge, Medak at Sangareddy, whereby the learned Judge convicted the appellant/accused for the offence under Section 3(1)(x) of the SCs and STs (PoA) Act and accordingly sentenced to suffer simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default, to suffer simple imprisonment for a period of one month.
The case of the prosecution is as follows:-
That on 25-03-2007 at about 12.00 noon, the accused who was living on the back side of the house of the complainant’s (P.W.1) house, removed thorny branches planted around the house of P.W.1, that P.W.2, the husband of P.W.1 asked the accused as to why he removed thorny branches, on which the accused abused P.W.2 by touching upon his caste. The complainant P.W.1 asked her husband P.W.2 not to quarrel with the accused, then the accused abused her in filthy language by touching upon her caste. P.W.3, who is an eye witness, questioned the accused, for which the accused also abused him in filthy language by touching of his caste. Basing on the complaint lodged by P.W.1, police registered the case against the accused for the offence under Sections 354 IPC and Section 3(1)(x) of SCs and STs (PoA) Act. After completion of the investigation, police filed charge sheet.
To substantiate the case of the prosecution, P.Ws.1 to 14 were examined and Exs.P.1 to P.12 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused.
P.W.1, who is the victim, deposed that when the husband of P.W.1, i.e. P.W.2, questioned the accused with regard to removal of thorny fencing around her house, the accused abused her husband and herself in filthy language by touching upon their caste. P.W.2 also deposed on the same lines of P.W.1. P.W.3, deposed that when he was in Kirana Shop near the scene of offence, P.W.1 came to him and informed him regarding the abuse of accused towards P.W.1 and 2 and then P.W.3 immediately rushed to the scene of offence and questioned the accused, on that the accused abused him also in filthy language by touching upon his caste. P.W.4, who is the father of P.W.2, supported the case of prosecution. P.W.5, who is the toddy tapper, deposed that when he was tapping toddy tree, which is located in the house of P.W.2, the accused asked him if he had toddy the accused would consume for which he agreed and then the accused tried to remove thorny fence, on that P.Ws.1 and 2 asked the accused not to remove the fence. He further deposed that P.W.1 abused the accused by saying “Baddkhav” and stated that the accused appears to beat her. In reply to that the accused abused P.W.1 in filthy language. P.W.6, P.W.7, P.W.9 and P.W.11 turned hostile and have not supported the case of prosecution. P.W.8, who is the relative of P.Ws.1 to 3, deposed regarding the incident, and that he came to know the incident from P.Ws.1 to 4. P.W.10, who is a villager, deposed regarding the incident. P.W.12 is the then Mandal Revenue Officer, who issued caste certificates to P.Ws.1 to 3, which are marked as Ex.P.2 to P.4 respectively. P.W.13 is the then Sub-inspector of Police, who registered the case and issued FIR. P.W.14 is the Investigation Officer, who arrested the accused, produced them before the Court concerned, prepared the rough sketch of scene of offence and after completion of investigation, filed charge sheet. He has admitted in his cross examination that there was a civil dispute with regard to compound wall between P.W.1 and accused and further admitted that the complaint was lodged after three days of incident.
On appreciation of oral and documentary evidence, the trial Court found appellant/accused not guilty for the offence under Section 354 IPC and found guilty for the offence under Section 3(1)(x) of SCs and STs (PoA) Act and accordingly sentenced him as stated above. Aggrieved by the said Judgment, the present appeal is preferred by the appellant/accused.
Heard and perused the record.
Whether the prosecution has been able to prove the guilt of the accused for the offence under Section 3(1)(x) of the SCs and STs (PoA) Act?
It is the case of P.Ws.1 to 3 that there was a quarrel between the accused and the witnesses concerned, when the accused removed thorny fence on 25-03-2007. In that quarrel the accused abused P.Ws.1 to 3 in filthy language by touching upon their caste. The statement of P.W.1, Ex.P.1 reads as under:
I, belong to Dattarpally village, doing Anganwadi Teacher, on 25-3-07 at about 12.00 hrs, one Joopally Mallesham, S/o Bikshapathi, caste Chakali Datarpally villager, while he was shifting the Kampa from his surrounding house and same were keeping nearer Toddy Chettu Tree which is in our house, when my husband seen and asked him, at that time the said Joopally Mallesham used filthy language on the caste Lanja Koduka Madiga Koduka, Neevu Endi Cheppedi Nenu barabar Teestanu at that I, advise my husband, why you do galata with him, prior to this incident he was used Galata with me. The said Jupally Mallesham started abusing me in filthy language Eme Lanjedana Neevu Emi Matladunnuvu, Nenu Dengutane, padisarlu Denguta Okkasari Kadu I asked him why you abusing me, then he again abused me Ekkada bazzrlo Dengutanau, Madiga Munda baita Gudise vesuko, Neeko paisalu-Icchukunto Denguta, I go told him sare Neevu Ra, then he caught hold my hand, while seen this incident my husband’s brother Dobbala Ramesh came there, and asked him Emi Matladutunnavu behave your-self, then, he Neevu Enduku Vahinavura, Neevu Madiga pedda Manishivra, Nee pendlamnukuda Dengutanu, Nee pendlamnikuda Neevu Ekkadiki pothavu Emichesuvukuntavu, Nannu Avaru Emi Peekaleru, prior to this incident, he abused me in filthy language, the villagers given permission, therefore we kept the Kampa surrounding our plot, while this incident is going on seen by Dobbala Srinu, Nomula Andalu Dobbala Rajaiah, Nomula Mallaiah, Kanta Chandraiah, Dobbala Ravi Golla Rajaiah also absued them, the matter of Jupally Mallesham intending to settle before the village elders, but he not turned up. Therefore, take necessary action against the Jupalli Mallesham who abused us in filthy language, recording the statement.
In the present case the occurrence took place on 25.03.2007, whereas the complaint was lodged on 28.03.2007 i.e. after three days of incident. The prosecution has not explained the reason for such an inordinate delay. Even in the cross examination, P.W.1 has admitted that there was a delay of three days in lodging complaint. This Court is of the view that when the offence is so serious in nature and if at all the accused abused the witnesses concerned in the manner in which they have deposed before the Court or stated in the statement Ex.P1, they would have lodged complaint on the same day itself. But, the complaint was lodged after three days i.e. on 28.03.2007. Such an inordinate delay of three days is not properly explained by the prosecution. This Court is of the view P.W.1 made a complaint only after deliberations, with an intention to implicate the accused in the present case. Hence, the delay in lodging the complaint, that to with a delay of three days, is certainly fatal to the case of prosecution. Even though it is stated in the First Information Report that the reason for the delay is to settle the issue before the elders, but, the same cannot be believed as the prosecution has failed to examine any of the village elders to substantiate the fact that there was a Panchayat among the elders of the village in connection with the said occurrence. In the absence of the same the delay is certainly fatal to the case of prosecution and as such the prosecution has failed to prove the guilt of the accused beyond any reasonable doubt and as such the accused is entitled for acquittal of the charges framed against him. The conviction and sentence imposed by the Court below against the appellant/accused for the offence under Section 3(1)(x) of the SCs and STs (PoA) Act is liable to be set aside and is accordingly set aside.
In the result, the Judgment of the Court below in convicting and sentencing the appellant/accused for the offence under Section 3(1)(x) of the SCs and STs (PoA) Act is hereby set aside and the appellant/accused is acquitted of the said charge. The bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any, paid by the appellant/accused shall be refunded to him.
The criminal appeal is accordingly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 15.07.2014 pln